One of the greatest attempts to wage “lawfare” against U.S. officials may now be at an end.
Lawfare occurs when enemies of the United States attempt to use U.S. courts and legal protections to take action against those entrusted with defending the United States from national-security threats. Even if the litigants ultimately lose, they have won by tying up senior officials in court for years and, in some cases, raising the risk that officials will face personal liability for carrying out their duty to defend the nation.
But the courts are getting wise. A federal-court decision today may mark the death knell for the convicted terrorist Jose Padilla’s years-long campaign to hold high-ranking U.S. officials liable for his detention as an enemy combatant during the early years of the War on Terror. He claimed that advice and actions by the defendants, including former secretary of defense Donald Rumsfeld, violated his constitutional rights and entitled him to compensation. This even though the courts have traditionally been wary of extending government officials’ personal liability to novel circumstances because of the risk that it would impede them from performing their duties.
In this case, that risk was particularly acute. Padilla blamed Rumsfeld for, among many other things, the designation of Padilla as an enemy combatant, a determination made by the president. Rumsfeld had merely provided the president intelligence information and a recommendation, on which the president acted. No doubt, had Rumsfeld been held personally liable, future national-security officials would have to think twice before recommending that the president detain a terrorist hell-bent on killing thousands of Americans. The threat of liability would weigh on nearly every important decision in the War on Terror, and that would leave our nation unable to defend itself from serious threats.
Judge Richard Gergel, an Obama appointee, rejected Padilla’s invitation to place national-security officials in legal peril whenever they act against individuals who are threatening Americans. The decision to designate Padilla as an enemy combatant, the judge explained, “was made in light of the most profound and sensitive issues of national security, foreign affairs and military affairs.” Therefore, “it is not for this Court, sitting comfortably in a federal courthouse nearly nine years after these events, to assess whether the policy was wise or the intelligence was accurate.” To do so “by necessity entangles the Court in issues reserved for the Executive Branch.”
The Court then considered the practical effects of Padilla’s case. Allowed to proceed, it would lead to “a massive discovery assault on the intelligence agencies of the United States Government, to include dozens of subpoenas, numerous requests to produce, 30(b)(6) depositions of document custodians at various intelligence and defense agencies, and lengthy and probing depositions of high ranking government officials with national security clearances and personal knowledge of some of the Nation’s most sensitive information.” Then there would be the “spectacle of high ranking officials being summoned to court to answer the claims of our enemies.”
In light of these considerations, the Court declined to intrude on the prerogatives of Congress and the executive branch in prosecuting the War on Terror. Padilla, it held, had simply failed to state a claim that could be recognized under law.
Other courts should learn from this act of judicial modesty. In a 2009 decision, a federal court in San Francisco allowed Padilla to bring a claim against former government attorney John Yoo for legal advice that he gave to the president and other officials. That case is now on appeal before the Ninth Circuit, widely considered the most liberal in the nation. And in Vance v. Rumsfeld, a district court allowed to proceed a claim against Donald Rumsfeld for sanctioning policies that allowed the detention of two contractors in Iraq. That’s now on appeal to the Seventh Circuit and went to oral argument last week before a left-leaning panel of judges.
But Judge Gergel’s decision shows that even left-leaning judges can and should put politics aside in dealing with matters of national security, and instead act with the modesty envisioned by the Constitution, which placed national security primarily in the hands of the executive and the Congress.
So chalk this up as a win for the United States and a win for constitutional values. And it is a distinct loss for those who would wage lawfare against us.
— Charles “Cully” Stimson is a senior legal fellow at the Heritage Foundation and a former deputy assistant secretary of defense for detainee affairs (2006–07).