Debra J. Saunders

Padilla also is suing former Justice Department official John Yoo for writing memos that authorized the use of harsh interrogation techniques. In 2009, U.S. District Judge Jeffrey White of San Francisco ruled that the case against Yoo, who was told to hire a private attorney, can go forward. Please note: The courts haven't looked at whether Padilla's charges are factual.

Jameson recently co-founded the nonprofit Council on Intelligence Issues to provide legal assistance and other services to current and former intelligence officers. The Politico story, he told me, made the intelligence community somewhat nervous, although "it's hard to tell how nervous to be." It depends on why the DOJ did what it did.

Alas, the Justice Department won't say why it won't represent Rumsfeld and crew. Spokeswoman Tracy Schmaler explained that such "matters are confidential and covered by the attorney-client privilege." Personal counsel ensures that employees "receive full, complete and independent legal advice." An unnamed private attorney source involved in the case told Politico that the DOJ can't fulfill its duty to represent clients "zealously" for policy reasons.

Jameson tells me it is not uncommon for the feds to drop representation when there is disagreement on a case. It can be advantageous for a defendant to have a private attorney if the feds are lukewarm. One reason he is not as troubled as you might expect: "I think the president understands the importance of continuity."

Fair enough, but in dropping the Padilla defendants, Justice changed course in what seems to be a partisan move.

I fear for the next set of John Does. They're not going to be able to afford $1,000-per-hour attorneys who specialize in this area of litigation.

In August 2001, FBI supervisors impeded agents' efforts to get a search warrant for Zacarias Moussaoui's laptop. He later pleaded guilty to helping plan 9/11. Want more?

I feel for the muckety-mucks, too. They must go to sleep painfully aware that their public service now can mean endless litigation tomorrow. If they anger the other political spectrum's lawyers, the reward will be depositions, attorney consultations -- and now more likely, the lion's share of the legal tab.


Debra J. Saunders


 
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