The enemy lawfare strategy

John Yoo:

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After being sued by convicted terrorist Jose Padilla, I wonder whether our nation today has the same unity and tenacity to defeat the great security challenge of our day, the rise of fundamentalist Islamic terrorism. Even as our brave young soldiers fight in Afghanistan and Iraq, and our intelligence agents succeed in disrupting follow-ups to the 9/11 attacks, terrorists are using our own legal system as a weapon against us.

They use cases such as Padilla's to harass the men and women in our government, force the revelation of valuable intelligence and press novel theories that have failed at the ballot box and before the president and Congress.

"Lawfare" has become another dimension of warfare.

Padilla is no innocent. Last summer a Miami jury convicted him of participating in an al-Qaeda support cell in the United States. Prosecutors now are asking the court to sentence Padilla to life in prison. The conviction did not even address his detention in 2002 at Chicago's O'Hare Airport on allegations that he had returned from Afghanistan to carry out a "dirty" bomb attack on a major U.S. city. According to the Bush administration at the time, Padilla had received the green light from Khalid Shaikh Mohammed, the planner of the 9/11 attacks.

At the time, I was an official in the Bush administration Justice Department working on the response to the 9/11 attacks. Our lives had taken very different paths. Padilla had turned to drugs and crime in Chicago and was convicted of murder as a juvenile. He became a radical follower of fundamentalist Islam, left for Egypt in 1998 and journeyed in 2000 to Afghanistan, where he trained to become a terrorist at al-Qaeda and Taliban camps.

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I worked on the legality of the decision to place Padilla in the hands of military authorities in June 2002. The 9/11 attacks on our nation's capital and financial center, and the loss of 3,000 American lives, placed the United States at war with al-Qaeda, a fact that Padilla's lawyers do not accept. They have always asserted that Padilla could be considered only a criminal defendant and must enjoy the benefits of the civilian criminal-justice system.

They are wrong. Both the president and Congress have agreed that the United States is at war, and Congress passed an authorization for using force against any groups, nations or people responsible for the 9/11 attacks. Capturing prisoners has been a permanent feature of war throughout human history; hundreds of thousands were detained during World War II alone. Sometimes, unfortunately, the enemy has included U.S. citizens - in the Civil War, every Confederate soldier was a citizen, and in World War II some Americans fought in the Axis armed forces. They never had a right to sue the soldiers who caught them.

We are in a difficult war against an unprecedented enemy. Its members deliberately disguise themselves as civilians and carry out surprise attacks on innocent civilian targets. They do not have a territory, city or population. They are trained to claim abuse when captured and to appeal to the legal system to tie up democracies in knots.

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But Padilla and his Yale Law School attorneys think that these decisions are better second-guessed by plaintiffs' lawyers and judges rather than our elected leaders. They challenged Padilla's detention and lost in the federal Court of Appeals in South Carolina, before the government sent him to Miami for prosecution.

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The lawyers representing the enemy unlawful combatants want unelected judges to overturn policy judgments they disagree with. They are the epitome of everything that is wrong with the left's approach to the legal system and to warfare. They would make it impossible to fight this war, and they would hand over to the enemy access to our intelligence capability in resisting them. Unlawful combatants should have no access to the courts. Once their status has been determined they should be subject to confinement at Gitmo or other facilities for the duration of the conflict. Cases against those who make war policy should be dismissed with prejudice.