John Yoo had an op-ed piece published in the Philadelphia Inquirer this week. It’s unbelievable.

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.

Can’t have rule of law now, can we?

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.

The conviction “did not even address” Padilla’s dirty bomb arrest because the government did not have the evidence necessary to successfully indict, much less convict him. Padilla, while not a nice guy, has not been convicted (aka “proven guilty”) of conspiring to set off a dirty bomb in the States, yet Yoo seems to think he that charge should be considered in his punishment.


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.

You see, Mr. Yoo, there’s this pesky little document called the U.S. Constitution. I’d like to refer you to the part called “The Fifth Amendment”: No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


Think about what it would mean if Padilla were to win. Government officials and military personnel have to devise better ways to protect the country from more deadly surprise attacks.

What a terrible thing, devising better ways to protect our country.

Would we have wanted President Abraham Lincoln to worry about his personal liability for issuing the Emancipation Proclamation freeing the slaves (done on his sole authority as commander-in-chief)?

As Andrew Sullivan put it, this is attempting to draw moral equivalence between freeing the slaves and authorizing torture of American citizens.

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