I think Padilla has a legitimate argument, although it’s less clear to me that Yoo should be the proper target of a lawsuit. If we are going to hold foreign enemy combatants indefinitely and without trial during a war, there needs to be a legal bright line between such foreign enemies and U.S. citizens (such as Padilla).
If you are a U.S. citizen, then you must be entitled to all of the Constitutional protections that accompany that status. The government can’t just grab you and incarcerate you without charging you with a crime and allowing you a speedy trial. If you committed terrorist acts, then it’s up to the government to prove your guilt beyond a reasonable doubt.
This is vital to a free society and our political system. Otherwise the government can potentially seize any critic and make him “disappear” just by labeling him an “enemy combatant”. At least doing that to non-citizens doesn’t directly threaten our political freedom.
For the same reason, it’s much more important to have 4th Amendment protections against warrantless wiretapping of two parties within the United States than against warrantless wiretapping where one of the parties is outside the country. It’s vital that the government be prevented from bypassing Constitutional protections and spying on internal political opponents under the guise of fighting terrorism.
For those of you who didn’t fear the government having extra-Constitutional powers when Bush was President, just remember that administrations change. Do you feel equally safe under President Obama?
The Padilla case was always sketchy because of his US citizenship and in retrospect the Bush administration erred in handling him as an enemy combatant. By doing so they’ve probably caused a lot of long-term damage than had they simply treated it as a straightforward law enforcement issue.