Yale Law School, the terrorist and the Constitution

Last week, a Yale Law School lecturer sued a Yale Law School alumnus in federal court. He should be lauded — and not condemned — for doing so.

Minutes after 10 a.m. on June 30, 2006, Associate Supreme Court Justice John Paul Stevens began reading his decision in Hamdan v. Rumsfeld. Soon enough, it was official: Osama Bin Laden’s former driver sued the President of the United States and, in an American court, had — wait for it — won.

That moment, a turning of the tide against George W. Bush’s ’68 rash approach to constitutional law, was a proud one for Yale. Neal Katyal LAW ’95 argued the case, and several law students were behind the drafting of hundreds of pages of briefs and many clever arguments that nudged Justice Anthony Kennedy just enough to join the majority and strike down Bush’s military tribunals.

Two years later, the same spirit is at play in Jose Padilla’s suit against the chief architect of Bush’s legal philosophy, in which he argues that his Fifth Amendment rights were violated. In a move that has provoked critics across the political spectrum, he is being represented by Jonathan Freiman LAW ’98, a visiting lecturer here who co-founded the National Litigation Project with Yale Law School Dean Harold Hongju Koh in 2002.

But this time, the case comes with a twist: the architect in question — and the target of the suit — is John Yoo LAW ’92, not only a graduate of Yale Law School but also a well-respected, if controversial, legal mind who has stretched the bounds of constitutional interpretation with his provocative unitary executive theories.

Truth be told, the situation — terrorist versus distinguished alumnus, with the alma mater’s de facto endorsement — feels unsettling at first. And the merits of the suit itself are quite dubious to boot. Pinning the policy of the President on one Executive Branch voice, however influential, could undermine national security and set a legal precedent that stymies creativity in a bureaucracy already suffering from a bad case of red tape.

The outcome of the lawsuit, however, is not of major importance; many left-leaning and centrist lawyers will continue to criticize Yoo regardless, and the complaint will likely be dismissed and later turned down for appeal.

Still, there is merit to this case.

The suit is an example of Yale affiliates standing up for human rights over nominal institutional alliances. And as a purely legal matter, it is a creative, albeit far-fetched, avenue to take advantage of the First Amendment right to “redress grievances.”

But most importantly, the suit reminds us that in America, no citizen — even one educated at the nation’s top-ranked law school — is above the Constitution. That alone is reason to celebrate Padilla v. Yoo.

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