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Ex-Bush officials face lawsuits over their actions

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MARK SHERMAN
September 29, 2009
— High-ranking government officials are usually protected from claims that they violated a person's civil rights. In lawsuits stemming from law enforcement and intelligence efforts after the Sept. 11 attacks, three federal courts have left open the possibility that former Attorney General John Ashcroft and a lieutenant may be held personally liable.

In two cases, judges appointed by Republican presidents have refused at an early stage to dismiss lawsuits that were filed against Ashcroft and former Justice Department official John Yoo. One complaint challenges Ashcroft's strategy of preventive detention. The other seeks to hold Yoo accountable for legal memos he wrote supporting detention, interrogation and presidential power.


In a third case, the full federal appeals court in New York is reconsidering an earlier decision by three of its members to toss out a lawsuit by a man who was changing planes in the United States when he was mistaken for a terrorist and sent to Syria, where he claims he was tortured.


Senior officials are accustomed to having their actions in office judged by history, not the courts. Exposing them to legal risk might complicate recruitment as top prospects shun positions that could land them in personal trouble. It also could make officials think twice about aggressive use of executive authority.


The cases have been uncomfortable for the Obama administration, which inherited the task of representing Ashcroft and Yoo from the Bush administration, even though President Barack Obama opposed some of the homeland-security practices under his predecessor. As well, both the Obama and Bush administrations renounced some of Yoo's legal positions.


Among the Yoo memos retracted was his Oct. 23, 2001, opinion that the Fourth Amendment's protections against unreasonable searches did not apply to domestic military operations aimed at terror suspects so soldiers could enter and search homes without warrants in pursuit of terrorists.


The Obama administration has yet to spell out its views on when people may be detained because of suspected terrorism links but without evidence of criminal activity.


No attorney general has ever been held personally liable for official actions, said Yeshiva University law professor Alexander Reinert, who represents another post-9/11 detainee who is suing Ashcroft. Other federal officials, particularly at a lower level, have been held personally liable for their actions. It's just very rare.


Supreme Court rulings allow high-ranking officials to be held liable but set a high bar: An official must be tied directly to a violation of constitutional rights and must have clearly understood the action crossed that line.


Even when officials are held personally liable, their agencies still may agree to pay damages assessed against them unless there is blatant wrongdoing, like clear racial prejudice. And for many plaintiffs, the chance to saddle a top official with the shame of a court's condemnation is more important than collecting cash from the officeholder.


Critics of George W. Bush's administration see the recent actions of the courts as a chance to wring a measure of accountability from the Bush White House at a time when Obama expresses reluctance to look backward and Congress has shown little appetite for investigating the past.


"It shows a willingness on the part of the courts to hold those who authorized illegal action responsible, not only those who carry it out," said David Cole, a constitutional law professor at Georgetown University.


But Ashcroft's former chief spokesman, Mark Corallo, said there is good reason to protect officials from damages for actions they take in the course of their duties.


"People are not going to want to serve in government if they have to hire a battery of lawyers the minute they take their oath of office," Corallo said.


Most lawsuits seeking personal liability of officials are dismissed early. Either a plaintiff hasn't made a strong enough case or a judge finds the officeholder can't be held liable for those official actions.


In these three cases, however, judges have considered arguments from both sides and still allowed the lawsuits to proceed or, in the case of the man sent to Syria, are weighing the arguments now.


"This is frustrating for judges," said Orin Kerr, a constitutional law professor at George Washington University. "The law is not that clear and it's hard to get rulings that clarify it."


But Kerr said the Ashcroft case has enough important elements that it could be reviewed by the Supreme Court, where a ruling might clarify the law.


First, though, the Justice Department has to decide whether to appeal an early September ruling by a panel of the San Francisco-based 9th U.S. Circuit Court of Appeals.


The appeals court said a Muslim U.S. citizen could pursue his lawsuit to hold Ashcroft personally liable for his arrest in 2003.


Less than two months after the Sept. 11 attacks, Ashcroft said the government would preventively detain people suspected of terrorist ties, even if it had no evidence they committed a crime.


To hold such people, Justice used material witness warrants, which until then had detained people to ensure they would appear in court and testify at a trial.


Abdullah al-Kidd was one of at least 70 people detained under the warrants, according to a study by civil liberties groups. Like many others, al-Kidd was never called to testify before a grand jury or in open court and was not charged with a crime.


Rejecting Ashcroft's bid for immunity, Judge Milan D. Smith Jr. strongly criticized the use of material witness warrants for national security. "We find this to be repugnant to the Constitution," Smith said in a 2-1 decision. Smith, appointed by Bush, was joined in the majority by a Ronald Reagan appointee.


Cole called the ruling an important challenge to the "core strategy of preventive detention." He said the issue remains relevant because Obama has kept open the possibility of holding terrorist suspects without charge.


The Justice Department is appealing the ruling against Yoo, a lawyer in the department's Office of Legal Counsel from 2001 to 2003.


U.S. District Judge Jeffrey White of San Francisco, also named by Bush, seemed to question whether the Bush administration overstepped the bounds set by the Constitution.


In allowing the case to go forward, he wrote, "This lawsuit poses the question addressed by our Founding Fathers about how to strike the proper balance of fighting a war against terror, at home and abroad, and fighting a war using tactics of terror."


The full 2nd U.S. Circuit Court of Appeals has yet to issue its opinion in the case of Maher Arar, who claims he was tortured after being sent to Syria. Arar is suing Ashcroft, FBI Director Robert Mueller and others in their official and personal capacities.


When the New York-based court heard the argument in December, one judge voiced skepticism that the government and individual officials always could avoid liability in such cases.


"So the minute the executive raises the specter of foreign policy, national security, it is the government's position that that is a license to torture anyone, a U.S. citizen or foreign citizen license meaning that you can do so without any financial consequence?" the judge asked.


The judge was Sonia Sotomayor, now Supreme Court justice. She withdrew from the case after Obama nominated her to the high court earlier this year.



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