Debra J. Saunders

Last month, the website Politico reported that the Department of Justice dropped its representation of former Defense Secretary Donald Rumsfeld, his former deputy, Paul Wolfowitz, and other defendants in a lawsuit filed by convicted al-Qaida operative Jose Padilla and his mother. The Department of Justice continues to represent Defense Secretary Robert Gates, but no longer the Bushies.

Padilla, you may recall, is an American citizen who was arrested at Chicago's O'Hare International Airport in 2002; authorities claimed that he was plotting to set off a radioactive "dirty bomb." After the Bush administration designated Padilla as an "enemy combatant," he was held in a South Carolina Navy brig for 44 months.

Padilla was not convicted for plotting a U.S. terrorist attack -- largely because the case against him was built on information gleaned during harsh interrogations. But in 2007, Padilla was convicted for "conspiracy to murder, kidnap and maim persons in a foreign country" and "material support for terrorism." A judge sentenced him to 17 years in prison.

From his cell, Padilla now is suing Rumsfeld, Wolfowitz and others on the grounds that his "enemy combatant" status, military detention and the harsh interrogations -- the use of stress positions, sleep deprivation and threats -- were unconstitutional. The suit originally named former Attorney General John Ashcroft, a number of lower-level officials from the brig and 48 unnamed John Does -- including guards and orderlies whose name tags were covered -- against whom Padilla later dropped his complaint.

Last month, U.S. District Judge Richard Gergel of South Carolina threw out Padilla's suit.

In a way, it doesn't matter. Padilla can't lose. He's in prison already. It won't hurt him to appeal Gergel. In 2005, the Fourth Circuit Court of Appeals upheld Padilla's military detention -- and still he can sue. The ACLU is involved. Padilla is only seeking $1 in damages -- but the big money, as far as taxpayers are concerned, is in the legal fees his attorneys seek.

In the meantime, defendants have had to live with a nightmare hovering over their heads. Now they face the added expense of legal bills to defend themselves for defending this country. The DOJ only pays legal fees of up to $200 per hour. Former CIA attorney W. George Jameson observed, "$200 an hour, that's kind of a junior attorney in a big law firm. That doesn't get you very far."

Debra J. Saunders

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