John Yoo is being defended in court this month by the Administration. Not the Bush Administration. The Obama Administration. As with the lawsuits over electronic surveillance and torture, the Obama administration wants the lawsuit against Yoo dismissed and is defending the right of Justice Department officials to help establish a torture program — an established war crime. I will be discussing the issue on this segment of MSNBC Countdown.
The Obama Administration has filed a brief that brushes over the war crimes aspects of Yoo’s work at the Justice Department. Instead, it insists that attorneys must be free to give advice — even if it is to establish a torture program.
In its filing before the Ninth Circuit Court of Appeals, the Justice Department insists that there is “the risk of deterring full and frank advice regarding the military’s detention and treatment of those determined to be enemies during an armed conflict.” Instead it argues that the Justice Department has other means to punish lawyers like the Office of Professional Responsibility. Of course, the Bush Administration effectively blocked such investigations and Yoo is no longer with the Justice Department. The OPR has been dismissed as ineffectual, including in an ABA Journal, as the Justice Department’s “roach motel”—“the cases go in, but nothing ever comes out.”
The Justice Department first defended Yoo as counsel and then paid for private counsel to represent him (here). His public-funded private counsel is Miguel Estrada, who was forced to withdraw his nomination by George Bush for the Court of Appeals after strong opposition from the Democrats.
Yoo is being sued by Jose Padilla, who was effectively blocked in contesting his abusive confinement and mistreatment as part of this criminal case and in a habeas action. The Bush Administration brought new charges to moot a case before the Supreme Court could rule. The Court previously sent his case back on a technicality.
It is important to note that the Administration did not have to file this brief since it had withdrawn as counsel and paid for Yoo’s private counsel. It has decided that it wants to establish the law claimed by the Bush Administration protecting Justice officials who support alleged war crimes. They are effectively doubling down by withdrawing as counsel and then reappearing as a non-party amicus.
The Obama Administration has gutted the hard-fought victories in Nuremberg where lawyers and judges were often guilty of war crimes in their legal advice and opinions. The third of the twelve trials for war crimes involved 16 German jurists and lawyers. Nine had been officials of the Reich Ministry of Justice, the others were prosecutors and judges of the Special Courts and People’s Courts of Nazi Germany. It would have been a larger group but two lawyers committed suicide before trial: Adolf Georg Thierack, former minister of justice, and Carl Westphal, a ministerial counsellor.
They included Herbert Klemm, who was sentenced to life imprisonment and served as minister of justice, director of the Ministry’s Legal Education and Training Division, and deputy director of the National Socialist Lawyer’s League.
Oswald Rothaug received life imprisonment for his role as a prosecutor and later a judge.
Wilhelm von Ammon received ten years for his work as a justice official in occupied areas.
Guenther Joel received ten years for being an adviser (like Yoo) to the Ministry of Justice and later a judge.
Curt Rothenberger was also a legal adviser and was given seven years for his writings at the Ministry of Justice and as the deputy president of the Academy of German Law
Wolfgang Mettgenberg received ten years as representative of the Criminal Legislation Administration Division of the Ministry of Justice,
Ernst Lautz (10 years) had been chief public prosecutor of the People’s Court.
Franz Schlegelberger, a former Ministry of Justice official, was convicted and sentenced to life for conspiracy and other war crimes. The court found:
‘…that Schlegelberger supported the pretension of Hitler in his assumption of power to deal with life and death in disregard of even the pretense of judicial process. By his exhortations and directives, Schlegelberger contributed to the destruction of judicial independence. It was his signature on the decree of 7 February 1942 which imposed upon the Ministry of Justice and the courts the burden of the prosecution, trial, and disposal of the victims of Hitler’s Night and Fog. For this he must be charged with primary responsibility.
‘He was guilty of instituting and supporting procedures for the wholesale persecution of Jews and Poles. Concerning Jews, his ideas were less brutal than those of his associates, but they can scarcely be called humane. When the “final solution of the Jewish question” was under discussion, the question arose as to the disposition of half-Jews. The deportation of full Jews to the East was then in full swing throughout Germany. Schlegelberger was unwilling to extend the system to half-Jews.’
It was the “ideas” that these lawyers advanced that made the war crimes possible. Other officials were tried but acquitted. All of these officials used arguments similar to those in the Obama Administration’s brief of why lawyers are not responsible for war crimes that they defend and justify. Bush selected people like Yoo to justify the war crime of torture. If they had written against it, the Administration might have abandoned the effort. The CIA director and others were already concerned about the prospect of prosecution. The Obama Administration’s brief revisits Nuremberg and sweeps away such quaint notions. Indeed, the brief for Yoo could have been used directly to support legal advisers Wolfgang Mettgenberg, Guenther Joel, and Wilhelm von Ammon.
If successful in this case, the Obama Administration will succeed in returning the world to the rules leading to the war crimes at Nuremberg. Quite a legacy for the world’s newest Nobel Peace Prize winner.
Defenders of the Administration insist that the brief does not expressly gut Nuremberg or reference war crimes. Of course, that is the point. The brief does not make any exception for liability for legal advice when it is part of a torture program or war crime. When combined with the Administration’s refusal to appoint a special prosecutor for the torture program (and the President’s promise that no CIA employees would be prosecuted), the brief closes the circle: there will be no criminal or civil liability for the war crimes committed by the Bush Administration.
The only reference to substantive criminal prosecution is in the following abstract statement:
That is not to say that the actions of a Department of Justice attorney providing advice should go unchecked. Department of Justice attorneys, if they abuse their authority, are subject to possible state and federal bar sanctions, see 28 U.S.C. § 530B, investigation by both the Office of Professional Responsibility and the Office of the Inspector General, as well as criminal investigation and prosecution, where appropriate. If Congress believes that additional avenues of recourse are necessary in cases where Department of Justice attorneys provide legal advice regarding matters relating to war powers and national security, it could enact appropriate legislation. Given the sensitivities of such claims, and the risk of deterring full and frank advice regarding matters of national security, however, this is a clear case where “special factors” strongly counsel against the recognition of a Bivens action.
“[W]here appropriate” are the key words. The Administration has already blocked criminal prosecution for torture. More importantly, this case is about Yoo’s involvement in creating that program. However, even in assisting in the establishment of a torture program, the Administration insists that there can not be civil liability (let alone criminal liability). If the Administration wanted to maintain the rule created at Nuremberg, it would have stated clearly that no privilege or law protects a lawyer who is assisting in the establishment of a war crime or torture program. Of course, the Administration has already said the opposite. Obama and Holder have stated that “just following orders” is a complete defense for CIA employees (here).
The effort to ignore the clear position of this Administration shows the dangers of a cult of personality. Just as conservatives ignored Bush’s violation of core conservative values on the budget and big government, some liberals are ignoring Obama’s violation of core liberal values on civil liberties and privacy.
For the DOJ brief, click here.
Elaine,
I heard selected sickening clips. They were appalling. The prize could have and should have been withdrawn. There was a petition to rescind the prize and this is what I wrote on mine:
“You will make a mockery of the Peace Prize by awarding it to President Obama. I understand that you based this on your hope for him, but now reality must be the deciding factor. The reality is Obama secretly has our military killing civilians in Pakistan. The reality is he has escalated our troops and contractors in Afghanistan. The reality is we are setting up more military bases around the world than ever before. The reality is Obama wants weapons dominance in space and cyberspace for the US.
It is time to recognize these actions will be rewarded by giving him a peace prize. The prize will be a mantle of lies, covering death and destruction throughout the world. Do not weave this mantle and present it as a gift, for it will be used to terrible purposes.”
I fear Obama will make Bush’s illegal actions “legal” by getting Congress to approve them. Should he successfully remove the Judiciary from any oversight of his actions, our nation is sunk.
Buddha is Laughing:
You are obviously quite clever (though not so brave since you addressed me several paragraphs down in your last post, after all, my name IS Tootie–it’s not so scary is it?) please tell us all what partisanship I represent.
The Professor did spot on good on Olbermann.
The Department of Just Us is reaching for new lows never before seen in the American experience.
Seems like Holder has a heart right out of the right wing despot ideology, or else he is allowing others to do that.
http://blogdredd.blogspot.com/2009/04/everybodys-got-holder-heart.html
The Neocons are the enemy and they are in both parties and both houses.
The issue is a violation of the Constitution pushed by fascists. I don’t give a damn what their name is or what letter they put behind it. Partisanship is a distraction tactic used by both sides to draw attention from the fact both parties have members who need to be in prison if not shot for treason. Put Cheney on trial. Since Obama wants to continue Bush’s violation of the Separations of Powers Doctrine with his signing statements and is now actively protecting a treasonous traitor, you can put him on the stand for treason too. You can stand Lieberman up there right next to him since he’s obviously in the bag for AIPAC – an organization caught hiding spies used against the US on multiple occasions. Put them ALL on trial.
As long as you put EVERY g-damned signatory to PNAC and every corporation participant in Cheney’s Secret Energy Task Force up there with them.
The issue is fascists are dictating law to Congress and using it to cover their crimes. Crimes as serious as treason. The issue is the people corporatist trolls and apologists like you work for.
ENOUGH OF THE CRIMINALS IN GOVERNMENT – NO MATTER THE SOURCE.
Screw your partisan distraction, Tootie. Partisanship is the biggest lie in the system. There is no difference between either graft riddled, corrupt and incompetent party except who signs the checks: one works for big oil, the other for the insurance/health care/Pharma lobby. Both are criminals destroying the system more effectively than ANY terrorist ever could. Simply because they are narcissistic, myopic, amoral, venal scumbags WHO ARE VIOLATING THEIR SWORN DUTY TO PROTECT AND UPHOLD THE CONSTITUTION. Don’t be too happy the guy on “the other side” is a traitor too. It’s like saying “that guy is a murderer just like my guy is!” If you’re focused on party affiliation, you are simply distracting from the FACT that it’s a two-headed coin being flipped. The problem is companies like Exxon and the pols they purchase outright from K. St.
Not everyone is as easily distracted as the half-fact vested-interest in fascism crowd.
No man is my king. They act as such at their own risk. I don’t give a damn if they are “from the Government” or not. I’m a free man with loyalty to the Constitution – not the rest of their nonsense ego-worship and greed. Since the Constitution is manifestly out the window with trying to protect Yoo, so is any obligation I feel to show restraint if screwed with. They are the ones who broke the social compact. They will be the ones to pay the ultimate price. I have no compunction about destroying those who would try to make me their slave. I don’t give a shit WHO they are or who they work for.
That goes for Cheney.
That goes for Obama.
But party has nothing to do with it.
“If successful in this case, the Obama Administration will succeed in returning the world to the rules leading to the war crimes at Nuremberg. Quite a legacy for the world’s newest Nobel Peace Prize winner.”
I couldn’t bring myself to listen to Obama’s Nobel Prize acceptance speech this morning.
Obama and his administration are proof that there is little difference between the two major political parties.
Yes, well, it is difficult to prosecute Bush/Cheney if said prosecution will then extend to Clinton/Albright. Yes, I know Gore was prez.
Going after Yoo puts a democrat president in moral and legal jeopardy, in my opinion because is appears that Clinton is a war criminal in Serbia.
Both he and Albright also stand guilty (whether or not in a court of law, I don’t know) of having continued to support sanctions against Iraq and Saddam when even the UN (partners in this crime) began to back off of the sanction after it became obvious that children were dying in DROVES.
And if we are going to hold presidents and their agents responsible for war crimes, I’d like to see Clinton and crew added to that list and the whole matter brought out in a court of law.
The least estimates of this slaughter in Iraq is about 300,000 children, the most 500,000.
Democrat politicians never do things because they are just or virtuous, they do things only to secure power and protect their evil doings.
All I can say is its sad…and it gives one the feeling of hopelessness….It never dawned on me that Obama was going to be such a lightweight…I had such high hopes and now more than ever they have been dashed..since Jan it becomes more and more apparent that Obama wasnt/isnt ready to be president…On another blog there was a article about the presidnent calling up congressman John Conyers up just recently to complain that Conyers was demeaning him the congressman is one upstanding fellow and a very early supporter of Obama…but he doesnt understand what happened to the promises made but not delv., and he said so publicly..so O got his feelings hurt….so sad, so sad
Did I say SLUT? Ok, good.
Alls I can offer and it is not much. Sluts come in many ways. So Obama how big of a slut are you. There I have said something nasty about Obama. Still don’t trust him. I trust Biden more so or give me a Willie.
When Philip Zelikow appeared before the Administrative Oversight and the Courts Subcommittee earlier this year, he criticized the purported legal basis for many of the Bush administration’s actions as he responded to questions from committee members. One point he made wasn’t in direct answer to a question, but a point he wanted to make anyway: that within the dubious legal framework that the previous Justice Department had devised, torture against a US citizen in this country, not just against foreigners held in CIA custody, could be deemed proper too. It seemed obvious that Mr. Zelikow specifically wanted to insert that legal opinion. Why, since he didn’t tend to ramble in his answers? I believe he had reason to suspect that the torture of a US citizen had actually taken place and wanted the committee to look for it. (And if you are reading this, Mr. Zelikow, thank you very much for your comments then. I am the person, or one of the persons, that Ms. Rice was no doubt having qualms about in her increasing upset about the process of domestic torture going on during the Bush administration.)
You have wondered why the Obama administration was busy spending its own (the public’s) money and its influence to defend John Yoo, the attorney working for the Bush administration’s Justice Department, the one whose “legal” work set up the Bush administration’s torture policies. The reason they decided to defend John Yoo is clear to me. It isn’t that they care so much about Mr. Yoo; it’s that they care about themselves, including President Obama. He’s responsible for the continuing torture taking place here after he took office, and continuing with his knowledge and consent. The precedent they hope to establish with the aid of the court on that earlier case is that the President and the Justice Department’s FBI can torture and not be held legally accountable for atrocities they participate in or are responsible for okaying. They are reversing Nuremburg because they know I don’t intend to stay quite about the domestic torture going on here with the knowledge and approval of the President. I am in the process of writing to members of Congress now.
(Note: I am not an Obama hater, and do not disapprove of most of his administration’s policies. I was ecstatic when he was elected. I was _certain_ he’d end the horrors here, and return our country to the rule of law. But making the FBI community and its director happy are apparently more important than returning our country to the rule of law. No doubt there’s political safety in ignoring very serious bodily harm intentionally applied by persons who behave like thugs, but it’s not the right thing to do for the country, to say nothing of what it does for current and future innocent persons subjected to the New FBI and their New Way of doing things.)
The Office of Technology Assessment hasn’t been around for a long while now to give a fair assessment, a label, for the effects of the illegal technology now being used in the “interrogations” program the FBI is conducting. This treatment is not likely labeled torture, as those who want to use it have no incentive to ask that it be so labeled. But some of these “treatments” are similar to the “no-torture” waterboarding, in that any normal person who is honest would define many of its current activities just that way. It’s a condition for carrying out those immoral aims that the torture they want to conduct under some other name is also super secret to almost everyone except for the direct targets of the harm. The change in the Freedom Of Information Act and the secrecy invoked during the Bush administration (and continuing now) means that a target can’t show a verifiable reason for needing legal help to end what is happening to them under an FBI false patina of legality.
In fact the process was initiated by intentionally letting me know of their interest in the most shockingly open way possible. The FBI knows my status. I know my status. But no one else knows, and I have no way whatsoever of proving it in order to get legal help. The FOIA legal lie succeeded in allowing the FBI to maintain its illegal terrorizing operations. What could be more Unamerican than that?
I wrote Attorney General Eric Holder a very long letter in late January 2009, shortly after he took office, and sent a carbon copy to President Obama. I arranged to have a Post Office delivery receipt only for the letter addressed to Mr. Holder, but apparently at least that letter did get delivered; someone stamped the receipt with Mr. Holder’s signature. If the copy for the President arrived as well, then I’d suppose that Greg Craig saw it. In fact, I’d guess that Mr. Craig’s departure is at least partly related to a serious disagreement with an executive decision in the handling of my case.
In the most wishful sort of thinking, to resend my letter might have been helpful, but it would have to be pure fantasy now to believe that the President was unaware of the content of what Mr. Panetta had said to the Congress, and pure fantasy to believe that the President is unaware of what is happening to me now. No one has done anything to stop harming me, while at the same time the administration has made a string of decisions walking away from the rule of law and invoking secrecy where it might concern torture and secret harm. In my letter to Mr. Holder, I offered to answer any questions and to do so under oath. But no one has ever contacted me. They just kept up their program of intentional harm.
A recently announced Justice Department policy on secrecy sounds as if this administration is making great improvements for future suspects. In my opinion, this policy is in line with all the ‘trust me’ kinds of good intention policies of the Bush administration, and it won’t do anything for someone being tortured. If my status weren’t still being kept secret, I’d have long ago received an answer to my letter to the Attorney General. I frankly doubt that this “new” policy is anything new at all, and I hope it doesn’t derail strong legislative attempts to return our country to the rule of law.
The new “interrogation” structure within the FBI, headed by a man who’ll need no heads-up on the use of the new technology to achieve torture, should be no comfort at all to anyone wishing for the United States to quit torturing people. To the contrary, it’s a huge red flag; the FBI itself is largely responsible for my torture. They still do have the equipment they got from the CIA, they have been trained to use it, and they are still using it without mercy and apparently without fear of legal repercussions. Proclamations notwithstanding, much of what they are doing is plainly torture, and all of it is harmful. It’s being used on an American citizen and in a framework designed to deny me due process.
The experience gained by the FBI-CIA using me in their pilot program demonstrated that it’s possible to achieve the same degree of harm, the same degree of terror, and much more permanent damage through the use of the newer equipment on suspects or whomever they choose to use it on. It’s no longer necessary to use primitive implements like waterboards for torture; the newer technology equipment leaves no records of what it does, and leaves no evidence of the bodily damage taking place for the tortured person that can’t presumably be explained some other way. I am expecting that if nothing is changed, this equipment will sooner or later cause a heart attack or stroke for me. Probably sooner. If asked, the simple explanation from the FBI will likely be that I was an old overweight diabetic, and well, heart attacks and strokes are not uncommon in that group of people.
I enjoy reading your articles and am sad to see the administration of change, not make any ; (
As outrageous as it is disappointing for those of us who actually believed that this Administration stood for something besides its own preservation. Here’s an excerpt from “Judgment at Nuremberg” that Obama should have watched and vowed never to forget:
http://www.youtube.com/watch?v=N3BwK51YFgQ
“… under a national crisis ordinary -even able or extraordinary — men can delude themselves into the commission of crimes so vast and heinous that they beggar the imagination …”
Obama is wrong to do this … Not why I worked to get him elected. He is losing his main base of support with these types of Republican -like policies.
Jill
1, December 9, 2009 at 9:59 pm
O.K.,
I wrote this comment about 4-5 mins. ago. I appears and disappears from the screen. This has been happening to my posts a lot. Has it happened to anyone else?
__________
It was happening to me yesterday- some of my postings never showed up.
You’re right, I should have hit on him for some money to pay my new improved health insurance costs. The good thing about getting an email from a politician is it’s easy to just hit ‘reply’ and tell them what you really think.
———-
I’ll third what Thomas Barton,JD also, it was a good interview.
I am so trying to find a silver lining in all of this. I can not believe the Obama DOJ wastes one moment defending Yoo. But hell, if I were in an office and had the chance to argue for some form of immunity, anticipating that one day I might be sued for advice I had given, I would be tempted to do what Holder’s office did in filing their amicus brief. Maybe the brief was submitted for purposes of morale at Justice. Even if that is the case, that doesn’t say much about Obama, Holder, et al. I hope Obama’s DOJ’ position is given short shrift by the Ninth Circuit.
My feelings have shifted to PISSED. I spent a lot of time working on the Obama campaign (and claim the credit for McCain-Palin’s early exit from Michigan.) This is not change.
Amicus brief, the link: http://www.harpers.org/media/image/blogs/misc/doj_amicus.pdf
Professor Turley, glad to see you on Keith’s show.
I have just one word to describe this action taken by the Obama Administration: UNCONSCIONABLE!!!
I second what Thomas Barton said.
Yoo should be disbarred and removed from the Cal faculty.
O.K.,
I wrote this comment about 4-5 mins. ago. I appears and disappears from the screen. This has been happening to my posts a lot. Has it happened to anyone else?
I wrote to lottakatz,
You should take Obama’s letter and send it back to him asking for his support, $5.00 or whatever for universal single payer healthcare. Then you could give him your website where he could send his contribution. I think everyone who got that stupid e-mail should do the same thing. It would make an impression!
(So let’s see if this shows up.)