Obama DOJ Doubles Down in Its Defense of John Yoo

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from Daphne Eviatar at The Washington Independent: http://washingtonindependent.com/69695/doj-doubles-down-in-its-defense-of-john-yoo


12/4/09 11:13 AM

Talk about getting a second bite of the apple. I’ve written before about the problem with the Department of Justice jumping in to defend a lawsuit charging that John Yoo was responsible for torture and abuse of “enemy combatant” Jose Padilla. Given that Yoo is the subject of an ethics investigation by DOJ — the results of which have still not been released despite repeated promises to do so by Attorney General Eric Holder — many legal experts thought it was odd that the Justice Department would continue to defend Yoo in the pending lawsuit.

Eventually, the Justice Department did step away from Yoo’s defense — although Yoo’s personal lawyer, former GOP judicial nominee Miguel Estrada, is still being paid by U.S. taxpayers.

Now, despite having already filed briefs on Yoo’s behalf in the district court arguing that as a former DOJ lawyer he should not be held liable for the consequences of his legal advice sanctioning torture, the Justice Department has filed yet another brief in the case, making essentially the same argument, this time on the government’s own behalf.

In an amicus (friend-of-the-court) brief filed to the appeals court yesterday (the lower court had refused to dismiss the case), the Justice Department argues that the court should not allow a lawsuit against a government lawyer providing advice to the executive branch where the case implicates national security and war powers. Such liability “could deter frank and full discussions within the Executive Branch regarding such matters.”

Footnote 1 of the brief implicitly acknowledges the weird conflict involved in the DOJ’s even filing this brief, though without explicitly noting that the DOJ already made these same arguments on Yoo’s behalf earlier.

The first footnote essentially says that the Justice Department is going to repeat only some of its earlier arguments this time but not others. Specifically, it’s not going to make the argument now that Yoo didn’t do anything wrong because the right not to be tortured wasn’t clear at the time he approved it. That’s because since filing that first brief making just that argument, the department realized that, whoops, Yoo is under an internal ethics investigation, so maybe we should just stay out of this.


read more: http://washingtonindependent.com/69695/doj-doubles-down-in-its-defense-of-john-yoo

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1. More of the SHAME. nt

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2. power

corrupts

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4. absolutely. nt

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3. Scott Horton.

DOJ to the Rescue… of John Yoo
Harper's Magazine
December 4, 12:11 PM, 2009 ·

By Scott Horton

The Holder Justice Department has filed a sweeping amicus brief in the Padilla v. Yoo case before the Ninth Circuit, seeking to make absolute the immunity granted Justice Department lawyers who counsel torture, disappearings, and other crimes against humanity. The case was brought by Jose Padilla, who claims that he was tortured as the direct result of memoranda written by Yoo, now a law professor at Berkeley. At this stage, the case does not address the factual basis of Padilla’s claims, but documents that have been declassified by the Department of Justice make it clear that the charges have a firm basis in fact. Here’s the portion of the opinion authored by a lifelong Republican, Bush-appointed judge that the Justice Department found so objectionable:

Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct….

The Holder Justice Department insists that they are absolutely not responsible, and that they are free to act according to a far lower standard of conduct than that which governs Americans generally. Indeed, this has emerged as a sort of ignoble mantra for the Justice Department, uniting both the Bush and Obama administrations.

According to the allegations in the suit, Padilla’s extraordinary regimen of abuse was imposed only after John Yoo personally gave it a green light, knowing that the torture prescription awaited his say-so. The result was long-term physical and psychological damage. Yoo’s outlandish opinions have been rescinded, but the question remains: can a Justice Department lawyer be held to account for grossly incompetent and unethical work that results in severe physical harm? It’s long been a tenet of federal law that agents of the government who are responsible for torturing individuals may be held to account for their conduct. The Holder Justice Department has been working feverishly to overturn this law, at least as it applies to employees of the Justice Department. With the solid backing of Republican-appointed judges on the Second Circuit, they achieved a major breakthrough on the Second Circuit in the Maher Arar case. Now they’re peddling the same pap to the Ninth Circuit.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x7155338

Now, there will no doubt emerge a great cry and objection that Bush and Obama have been used in the same sentence. "Obama = Bush". Horton is a hater.

And somebody (or some few) will no doubt oblige them by saying just that, and offer only that: Obama = Bush. For the last love of god, let's get this out of the way: I can only speak for me-- I don't believe the character of those two men in an overall corrupt system are even vaguely comparable. But these kinds of decisions and directions sure as hell continue to require some explaining.

Anybody who wants to try to tell me these decisions are being made at this point one year in, in a WH OLC/DOJ leadership "transition" vacuum is full of it. Enough!

And I'll just add that I think there has to be quite a bit more to the ouster of Greg Craig than we've gotten around to learning or talking about.


The Fall of Greg Craig

http://www.time.com/time/politics/article/0,8599,1940537,00.html

And I am STILL wondering what happened to Phil Carter.