Today on Uncommon Knowledge, John Yoo, author of Crisis and Command and former official in the Bush Justice Department.

In January of 2008, convicted terrorist Jose Padilla filed a suit claiming that he had been tortured in custody. The suit named John Yoo personally. Since Yoo had written the 2002 opinion on the basis of which the Bush administration subjected certain enemy combatants to “enhanced interrogation,” Padilla insisted that Yoo had violated his constitutional rights. The lawsuit is presently within the jurisdiction of the Ninth U.S. Circuit Court of Appeals in San Francisco, though the Obama administration has asked that the suit be dismissed.

Part of what concerns me about these kinds of cases against former officials in the Bush administration is that the courts, if they allow these suits to go forward, will get into the business of trying to second guess or review wartime decisions that people are making while the conflict is still going on — and in the course of doing so the courts will force officials to produce information in public that could still be harmful to our security. And there’s a second problem. If judges are going to reveal your decisions and impose liability on you, then people are not going to engage in the full and vigorous debate that you want to have happen inside the government. We’ll end up with a risk-averse government. We’ll go back to the kind of mindset we had about terrorism before 9/11.

Click here.