It is easy to forget that the war on terror poses a direct challenge to the very ideals that animate and enliven our democracy. America is predicated on the idea that fairness and justice should reach the farthest bounds of the republic, providing identical protections to the good and wicked alike. This, of course, requires extreme caution when depriving the liberty of even those criminals that are clearly guilty of the most heinous crimes.

Many thoughtful, intelligent people believe that this premise, this central ideal of American democracy, seems to make little sense when applied to suspected terrorists. After all, the foes we face are un-uniformed and do not announce themselves to us. They attack our economic, political and social infrastructure with frightening skill and ingenuity. Al Qaeda, in particular, has proven itself to be an adversary never to be underestimated, a foe that successfully attacked the world’s preeminent military power with very modest resources. Since we are facing such a vicious, lawless opponent, can it really be rational to extend the same protection to (suspected) terrorists that we would to ordinary criminals?

Jose Padilla believes that the answer is yes. Mr. Padilla has filed a lawsuit contending that John Yoo, co-author of the torture memos, abused his charge as a government lawyer by helping to create policies that encouraged harsh interrogation tactics and torture. The idea here is simple: Yoo should be held liable for the foreseeable results of the interrogation policies for which he provided legal justifications. This sort of theory has a long and storied pedigree, making its initial appearance in a case called Bivens, where the Supreme Court granted damages to an individual citizen who had his constitutional rights violated by federal agents acting on behalf of the U.S. government.

Predictably, Yoo’s lawyers asked the judge to dismiss Padilla’s lawsuit on the grounds that (1) an alternative remedy (a habeas writ before the Supreme Court) was available, (2) the lawsuit would chafe against the discretion allocated to the different branches of government during wartime, (3) any suit against an official in Yoo’s role would set a precedent which would negatively impact national security, and (4) allowing Padilla’s lawsuit to move forward would interfere with foreign relations. Judge Jeffrey White rejected each of these theories, ruling that the case against Yoo should not be dismissed.

The blogosphere has already exploded with commentary on whether Judge White handled these four issues properly. But the more interesting issue is Judge White’s treatment of Yoo’s argument that he is entitled to qualified immunity for the legal advice he provided while at the Office of Legal Counsel.

What is qualified immunity anyway? According to the Supreme Court in Harlow v. Fitzgerald (1982), it’s essentially the idea that government officials should be shielded “from liability for civil damages insofar as their conduct does not violate any clearly established statutory or constitutional rights of which a reasonable person would have known.” Qualified immunity, then, provides government officials with two basic principles of conduct. First, they must not trample upon recognized constitutional rights in carrying out their duties. And second, they may unintentionally infringe constitutional rights in the course of doing their jobs if a “reasonable person” would not have known of the existence of those rights.

So, should John Yoo get the benefit of qualified immunity? Padilla’s allegations are serious. He alleges that Yoo gave advice endorsing unlawfully harsh interrogation tactics that led to a host of inhumane practices, including interrogations conducted under threat of torture and death. It is a simple fact that Yoo co-wrote the torture memos, so the only real question is whether a reasonable person would know that the policies endorsed in those memos violated recognized constitutional or statutory rights.

It is difficult to see why qualified immunity should apply to protect Yoo. There are, of course, residual questions concerning whether a reasonable person would have understood the positions taken in the torture memos to be clearly at variance with existing statutory and constitutional law. One might think that the torture memos outline a very bad interpretation of the law, but not a position so beyond the pale that no reasonable individual could present it as a defensible legal position. Given existing domestic law and the Geneva Conventions, this view seems rather implausible to me. But lawyers are advocates, and as advocates they sometimes are called by their clients to provide advice that is not the “better” or “best” view, but merely the view that gives the client maximum freedom to operate without committing an obvious breach of the law.

It is possible that Yoo was not fully aware that the advice in the torture memos offended clearly established law. After all, no court or tribunal in the United States had ever recognized rights for enemy combatants (such as Padilla) at the time the torture memos were written. Thus, Yoo could not have known that the torture memos authorized unlawful conduct. The problem with this sanguine riposte is that Yoo, a trained lawyer, is being cast as a bumbling idiot incapable of applying existing law to new facts. But that, dear friends, is precisely what lawyers do all the time. Only a true fool would fail to see the argument for applying the Geneva Conventions to enemy combatants. Yet Yoo is no fool, and as the Supreme Court reminds us in Hope v. Pelzer (2002), “officials can be on notice that their conduct violates established law even in novel factual circumstances.”

Given all this, why not simply conclude that Yoo is not entitled to qualified immunity? Yoo’s legal judgment was abysmal, that’s beyond debate. But it bothers me a bit — and it should irritate you too — that Judge White seems so eager to narrow the scope of the qualified immunity defense. The model government lawyer that Judge White has in mind is extremely careful, perhaps too careful to be an effective advocate in a time where national security hangs in the balance. At one point, Judge White refers to a Ninth Circuit case to illustrate that lawyers sometimes have a responsibility to impute rights to one class of prisoners to which a different class of prisoners was already entitled. Really? If this is meant as a general principle — i.e., the decisions of government lawyers will always be subject to review after the fact by a judge (1) who has the full benefit of hindsight and (2) the pressure of public opinion lingering in the background — the doctrine of qualified immunity will wither. How much it will wither is certainly an open question. But one thing is certain. If this principle is applied to the charges against John Yoo as Padilla’s case moves forward, it is going to be harder, not easier, to see whether it was reasonable for Yoo to think that enemy combatants comprise a new, different category of prisoners when he co-wrote the infamous memoranda.

At the end of the day, it is undeniably immoral and unwise to concoct legal justifications for torture that chafe against U.S. domestic law and the Geneva Conventions. Nevertheless, courts called to deal with cases against government lawyers like John Yoo should be careful not to eviscerate the doctrine of qualified immunity for one simple reason: Government lawyers need a reasonable shield against liability — especially money damages — to provide helpful, useful legal advice to the U.S. government.

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