First the Public Service, Then Endless Litigation

Debra J. Saunders

3/6/2011 12:01:00 AM - 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."

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.