Real world vs. ivory tower

The Padilla decision offers rebuke to law school ideologues

By Ed Hassell

That old line from author George Bernard Shaw, “those who can do, those who can’t teach” has become a familiar idiom because there is a kernel of truth in it. One doesn’t need to look far, especially in the elite law schools of America, to see examples of professors fixated on academic theory that doesn’t always translate well to the real world. Especially where terrorism is concerned.

Case in point: The decision on Feb. 17 by U.S. District Judge Richard Gergel to throw out the lawsuit filed by convicted “enemy combatant” terrorist Jose Padilla against Defense Secretary Robert Gates, former Defense Secretary Donald Rumsfeld, and other Bush administration officials for allegedly violating his constitutional rights.

For those who need a refresher: U.S. citizen Padilla was picked up in 2002 and charged with planning to build a “dirty bomb,” he was held for four years during which time he alleges he was tortured, then found guilty in civilian court of the lesser charge of conspiracy to support terrorists overseas and sentenced to 17 years.

Lawyers from the American Civil Liberties Union and the Allard K. Lowenstein International Human Rights Clinic at Yale Law School have been representing Padilla and trying for years to prosecute Bush and other senior administration officials for torture and various war crimes.

Judge Gergel, an Obama appointee in South Carolina, would have none of it.

“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 accurate,” he said, adding that to do so “entangles the Court in issues reserved for the Executive Branch.” Well said.

As a Wall Street Journal editorial noted in the wake of the ruling: “That is precisely the goal of the legal anti-antiterror left . . . using sham tort claims to intimidate anyone who believes terrorists should be treated differently than common criminals.”

Perhaps these professors from elite universities have watched too many Oliver Stone movies, or fixated on Nixon for too long, but they clearly do not trust the founding fathers who decided to place national security primarily in the hands of the executive and Congress. These professors are making an ideological argument, not a legal one, and they should know better.

Lawyer David Rivkin, a tireless defender of the Constitution who represented Secretary Rumsfeld in the case, was right all along—there was no binding case law at the Supreme Court level and the judge was not about to let a convicted terrorist hamstring future efforts to protect the country from terrorism. This judge made a non-partisan decision to allow our leaders to be able to make real-time, real world decisions—while the law professors continue to fight for terrorist rights which they argue are synonymous with those of everyday American citizens.

There is a reason, probably many, that we have not had a major terrorist attack on American soil since Sept. 11—and it’s not for lack of trying by international terrorists. It is due to the constant vigilance of our elected leaders and intelligence operations and their ability to gather information and take action when needed without fear of later reprisal in the courts based on some technicality.

Padilla is not completely done yet, however. The convicted terrorist still has a case on appeal against former government attorney John Yoo for legal advice he gave the president and other officials; sort of like another class exercise from law professors who would encourage students to hold a mock hanging of former President Bush.

In this case, the academics would like to punish Yoo with financial ruin, making sure he does not profit from providing the best legal advice he knew of to prevent future terrorist attacks. Padilla’s case against Yoo is on appeal in the 9th District of San Francisco, one of the most liberal in the country—so who knows what could happen.

(One should note: these liberal law professors and newspaper pundits are the same ones who have been wrong since the beginning on the ObamaCare lawsuits … and who are continuing to suffer humiliating defeats with the rulings of federal court judges).

But the left-leaning Gergel set an important precedent with his decision. He is taking the high road and following the design of the Constitution. He is not advocating torture or wrongful detainment without representation, as these law professors would have you believe is an everyday occurrence, but instead dealing with the reality and adapting to the ever-changing demands that terrorism places on our country.

We can do all that and still maintain a lawful and just legal system when it comes to terrorist suspects. We just have to live in the real world rather than an ivory tower


One thought on “Real world vs. ivory tower

  1. Howard Gilbert

    When he was captured, Padilla spent thousands of hours telling first the FBI and then the military about his mission to blow up apartment buildings killing thousands of Americans, his training for the mission, his commanding officers, other members of his unit, and every other detail he could remember. His un-Mirandized statement made without a lawyer could not be used against him in a criminal case, but because he was a soldier in an enemy army it it probable that the only crime he committed was Treason. Under the Constitution, a confession to Treason has to be made in open court (a lot more restricted than Miranda).

    This case asserts that Padilla was mistreated in order to get him to talk. In reality, he started talking immediately and never stopped, so there was no need to mistreat him. By making the claim, however, his lawyers make his interrogation and the statements he made an essential question of fact. There is no way he can avoid taking the stand. If he refuses to say anything because of his Fifth Amendment rights, he cannot win his case against private defendants. If he testifies, however, it seems impossible (given that he is not very smart) that he will not repeat something about his story of agreeing to attack the US, which will then be a confession to Treason in open court.

    So in exchange for a token $1, his lawyers could succeed in getting their client convicted of the one crime on which it is almost impossible to convict anyone. Well, the good news is that if they succeed, they will get their legal fees paid by the government while Padilla gets $1 and then goes away for life.


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