The suit brought by the  Yale Law Clinic on behalf of convicted terrorist, Jose Padilla, who received a 17 year sentence for conspiring to detonate a “dirty bomb,” against John Yoo, a lawyer for the Department of Justice whose memo approved of torture, presents a fascinating opportunity to look behind the DOJ’s skirt and see just how our government justifies its actions.

John Yoo has now stepped up to the plate with an interview in the Philly Inquirer. via Volokh, with his own heart-pounding vision of himself as torch-bearer of the American Way.

Walk down Broad Street and you pass by a brown mansion, squeezed in between a music store and a Banana Republic. With its statues of proud soldiers in front, the Union League stands as a symbol of the sacrifices necessary to win the Civil War.

After being sued by convicted terrorist Jose Padilla, I wonder whether our nation today has the same unity and tenacity to defeat the great security challenge of our day, the rise of fundamentalist Islamic terrorism. Even as our brave young soldiers fight in Afghanistan and Iraq, and our intelligence agents succeed in disrupting follow-ups to the 9/11 attacks, terrorists are using our own legal system as a weapon against us.

They use cases such as Padilla’s to harass the men and women in our government, force the revelation of valuable intelligence and press novel theories that have failed at the ballot box and before the president and Congress.

“Lawfare” has become another dimension of warfare. . . .

Think about what it would mean if Padilla were to win. Government officials and military personnel have to devise better ways to protect the country from more deadly surprise attacks. Padilla and his lawyers want them, from the president down to lowest private, to worry about being sued when they make their decisions. Officials will worry about all of the attorneys’ fees they will rack up to defend themselves from groundless lawsuits.

My situation is better than most, since I am a lawyer with many lawyer friends (that is not the oxymoron it seems). I can fend for myself; fine attorneys have volunteered to represent me, and the government may defend me. But what about the soldiers, agents and officers who have to respond to the next 9/11 or foreign threat? They will have to worry about personal liability, hiring lawyers.

Would we have wanted President Abraham Lincoln to worry about his personal liability for issuing the Emancipation Proclamation freeing the slaves (done on his sole authority as commander-in-chief)?

If so, then we will have a government that will avoid any and all risks, shun making any move that is not an exact repetition of locked-in procedure of 20th-century vintage, and keep plodding along the same path regardless of contemporary circumstances. These are exactly the conditions that make a nation susceptible to a surprise attack, whether a Pearl Harbor or a 9/11.

This polemic, wrapped in the American flag with a nice bow, shows clearly how the mindset of self-proclaimed patriots allows them to divorce themselves from the obligation imposed on the rest of us to limit our conduct to the law and Constitution of the United States.  Aside from his bizarre comparison of his torture memo to the Emancipation Proclamation, he shows absolutely no recognition that government officials need only do one thing to avoid finding themselves before a federal court being held accountable:  Follow the law.  It’s not that complicated.

Whether the Padilla suit states a viable cause of action, a dubious proposition at best, it has already served a function that makes the effort worthwhile.  John Yoo’s arrogance, a reflection of an administration that believes itself wholly unconstrained in its own holy war against someone else’s holy war, is now revealed for all to see. 

The gravamen of his argument, that government will “shun” performing its legitimate and lawful function if there is any chance that it could be held accountable for illegal acts, exposes what its critics have been saying all along.  Note the coinage “lawfare”, yet another pithy effort to turn a word expressing a basic component of America into an epithet.  Yes, it is “lawfare”, the use of the law as a weapon to stop wrongdoing, whether by our government or anyone else.  We are at war with governmental lawlessness, as well we should be.

For those who feared that decisions were made, and actions were taken, without regard to law and propriety, John Yoo has now confirmed those fears.  And shown us why he thinks it was right and proper to break the law, ignore the law, avoid the law and circumvent the law.  In this administration’s view, it has a higher mission, and it is above the law.  Without the Padilla suit, we would have never known what John Yoo really thinks.