The Wall Street Journal-20080115-Where-s the Terror- Different Takes on Yoo
Return to: The_Wall_Street_Journal-20080115
Where's the Terror? Different Takes on Yoo
The editorial "Yale and the Terrorist" (Jan. 10) treats a valid lawsuit against a government official who authorized torture against an American citizen in an American prison as if it were a political act by a university against the war on terror. It's not. There is a long line of cases holding government officials personally accountable for violating clearly established constitutional rights.
Though the editorial would have it otherwise, our courts have repeatedly held that "where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate." When former Attorney General John Mitchell asked for absolute immunity, citing national security grounds, to protect him against allegations that he had improperly authorized warrantless wiretaps against suspected terrorists, the Supreme Court rejected that argument, stating: "The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity."
I'm the lawyer who filed the lawsuit for Padilla and his mother against those who authorized or implemented his torture. I'm affiliated with Yale, but this is my case, brought on behalf of clients who have suffered grave harm. As others with clinical faculty appointments do, I made the choice to file suit -- it was not made by Yale Law School or its dean. Work on the case is supported by foundation funding, not by university funds donated by alumni.
People can disagree on the merits of the lawsuit. Some may think the facts alleged couldn't have happened. Others may think our Constitution allows government agents to torture. But those merits should be decided in court, on the law and the facts, not as a political issue in the papers.
Jonathan M. Freiman
New Haven, Conn.
---
If the Journal's analysis of the lawsuit filed against John Yoo by lawyers of the National Litigation Project at Yale Law School is correct, it would appear that a review of the lawsuit should be undertaken to determine whether the tenets of Rule 11 of the Federal Rules of Civil Procedure have been followed. This rule, applicable in all federal courts, or something like it, has been adopted by most states.
In summary, the rule states that by submitting a pleading to the court, an attorney certifies that to the best of the attorney's knowledge, information and belief, formed after reasonable inquiry, the pleading is not presented for improper purpose; that the claims and other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or establishment of new law and that the allegations of the pleading have evidentiary support or will have evidentiary support after reasonable opportunity for further investigation.
If a court determines that the rule has been violated, the court may impose appropriate sanctions, including monetary sanctions sufficient to deter repetition of such conduct and including payment of the other party's attorneys' fees and expenses. Violation of the rule has also provided the basis for disciplinary action against attorneys submitting the pleading.
Brent F. Moody
Phoenix
---
Regarding your editorial "Yale and the Terrorist," you indicate that Yale Law School alumni should "know how their donations are being used."
As a 1959 graduate of Yale Law School and a lifetime contributor, I am happy that you made me aware of the law suit by an affiliate of the Yale Law School against John Yoo for writing memos endorsing interrogation techniques against enemy combatants.
I am delighted that Yale Law School had the temerity to pry into the solipsism of this administration and to mount one more attack against torture.
I will therefore continue and increase my contributions to the Yale Law School as well as consider additional contributions to the "leftwing bucket shop," the National Litigation Project at the Lowenstein International Human Rights Clinic at the Yale Law School.
Ronald E. Creamer
Hunt Valley, Md.
