As to Yoo, it is obvious you are viewing matters as a constitutional law prof, not as a civil rights lawyer. The cases firmly establish that government actors may (many technicalities, but generally) be held to personally answer for their acts that violate federal law and injure another.

It is further apparent that you are not actually a lawyer who must provide legal advice, and have not thought carefully about the limits of that privilege, and do not realize that a lawyer can cross the line into becoming a criminal (aiding and conspiracy) if they do not understand and take great care.

Here Yoo crossed the line. Wayyyyy over the line. If it was deliberate or in callous disregard he is a malicious criminal and should go to prison, and if it was just ignorant stupidity and overzealous advocacy he is an overzealous ignorant and dangerous whackjob who should not be teaching law or practicing law anywhere, and probably should be in prison not just facing civil liability.

This case has nothing to do with the core or even branch responsibility of providing a client with legal advice. It has nothing to do with that and does not imperil that important job in the slightest. What we had here was an overzealous ideaolog with delusions of competence who did not remotely comprehend the limits of his ability or of basic law, either the law of torture or the law of giving legal advice without becoming a criminal.

The case is clearly about Yoo’s conduct that exceeded the mere giving of legal advice. It only takes a few extra facts, which appear present frankly and unfortately for him, to take him from “lawyer” to “criminal”. I personally favor his prosecution for war crimes based on what he did. The Nuremberg trials of judges are a solid precedent for prosecuting Yoo.

You should have known all this, John. I’m with you on the torture issue but clue up on Yoo, my friend. And stop undermining your credibility with strawman arguments, Yoo wasn’t acting as a lawyer he was acting as a criminal.

Cheers.

Throwing personal opinions aside, does this Bivens action have a chance of surviving a motion to dismiss (12b(6)) under the due process clause of the 5th Amendment, since he was a pre-trial detainee when the alleged unconstitutional acts occurred (and thus punished without having been convicted under Graham v. Conner)? I know that most successful Bivens actions so far have been under the 4th and 8th Amendments

“…As Federal civil servants, we take an oath of office by which we swear to support and defend the Constitution of the United States of America. The Constitution not only establishes our system of government, it actually defines the work role for Federal employees – “to establish Justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty.”…

I don’t know about anybody else, but I don’t feel tranquil, my general welfare, under this administration, has been questionable, to me, for a while now, and as to liberty, “blessed” is not the descriptive most people are using these days.

The rest of the categories are just good wise-crackin’ material.

The Oath of Office and the Constitution
Oath

I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

5 U.S.C. §3331

As Federal civil servants, we take an oath of office by which we swear to support and defend the Constitution of the United States of America. The Constitution not only establishes our system of government, it actually defines the work role for Federal employees – “to establish Justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty.”

The history of the Oath for Federal employees can be traced to the Constitution, where Article II includes the specific oath the President takes – to “preserve, protect, and defend the Constitution of the United States.” Article VI requires an oath by all other government officials from all three branches, the military, and the States. It simply states that they “shall be bound by oath of affirmation to support the Constitution.” The very first law passed by the very first Congress implemented Article VI by setting out this simple oath in law: “I do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States.”

The wording we use today as Executive Branch employees is now set out in chapter 33 of title 5, United States Code. The wording dates to the Civil War and what was called the Ironclad Test Oath. Starting in 1862, Congress required a two-part oath. The first part, referred to as a “background check,” affirmed that you were not supporting and had not supported the Confederacy. The second part addressed future performance, that is, what you would swear to do in the future. It established a clear, publicly sworn accountability. In 1873, Congress dropped the first part of the Ironclad Test Oath, and in 1884 adopted the wording we use today.

*Deaf and hard of hearing users should contact us using the the Federal Relay Service.

Yoo: No treaty.

Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.

Yoo: I think it depends on why the President thinks he needs to do that.]

Yoo did not play a sympathetic role in those years and the memos he wrote while at the OLC were examples of giving the patina of legality to horrific practices.

That said, this suit by the NLP folks will not likely succeed on several counts (in my completely untutored opinion) and Professor Turley is right.

It could be, however; it could be that this is an opening gun in an involved legal strategy designed to get Executive officials to the witness chair in some other forum.

Someone who knows the relevant law, please advice me: if the OVP instructed Yoo (whilst the latter was the DAAG at OLC) to write a memorandum reaching a determined result which result was to counsel criminal actions, then Yoo dutifully produced such a memorandum with such a result and transmitted it to POTUS and POTUS then acted on the memorandum….would Yoo then still enjoy immunity, qualified or otherwise?

Pardon my vitriol, but these are men using position, as it were, and willingly and knowlingly compromise truth for promise of higher position or membership. If ever our First Amendment rights are restored and true investigative journalists can practice their craft without fear of being snatched via the Congressionally induced persistent vegetative state of habeas corpus, we’re certain to learn a great deal about the motives of these and similar jurists. Book deals alone of become the common and modern version of ‘payola’. It’s in plain sight, its done everyday and many roads point to the same two neoconservative turbines – Heritage – Enterprise.

Yoo and Dinh represent the same kind of scheme as the privately funded counter-logic scientists that produced incredibly weak, but voluminous reports aimed creating a controversy about global warming. In this particular case, it is my opinion, the jurists are shilling for the same demolition team that won’t be pleased until our Constitution is the equivalent of the Dead Sea Scrolls. In this way we can refer to a grand time and actually have proof that it existed, although the details of the diversity and free society must be viewed in a glass case like a nice old pretty rock.