Spat Over Who's Waging Lawfare in Padilla 4th Circuit Briefing

Back in June, I posted the appeal of Jose Padilla and his mother in a civil case against a group of current and former Defense Department officials. The case, which made a variety of constitutional claims in connection with Padilla’s detention and interrogation as a enemy combatant, was dismissed three days after oral argument in federal district court in South Carolina in February. The briefing in the appeal to the Fourth Circuit Court of Appeals is now complete. Here is the brief of various Individual Appellees, including former Pentagon General Counsel William J. Haynes and Deputy Defense Secretary Paul Wolfowitz. Here is the brief of appellee former Defense Secretary Donald Rumsfeld, Here is the brief of appellee current Defense Secretary Leon Panetta. And here is Padilla's and his mother's Reply Brief. One amusing aspect of the briefing is a minor footnote fight over the meaning of "lawfare." In footnote 1 of the individual appellees' brief, counsel writes,

Courts have since 9/11 struggled with legal issues arising in this novel context of enemy combatant detention, and Bivens damages have never been awarded against military officials for counter-terrorism measures, much less policy-making addressing enemy combatants. Whether judges should add a damages remedies to the “lawfare” arsenal of those who sue to change U.S. military policy is a significant--and entirely novel--issue.

In footnote 4 of their reply brief, Padilla's ACLU counsel shoot back,

Defendants disparage as “lawfare” a United States citizen’s attempt to enforce constitutional prohibitions against arbitrary detention and torture. See Defs.’ Br. 15 n.1. But there is a pot and kettle problem here: as the complaint alleges, it was Defendants who enlisted unscrupulous lawyers to manipulate the law by crafting legal memoranda that would immunize them for conduct that had long been deemed criminal by the United States. JA-78–83 (3AC ¶¶ 46–54). Unlike Defendants’ unwarranted smearing of Plaintiffs’ counsel, Plaintiffs’ allegations must be accepted as true for purposes of this appeal.