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It is important to note that the Administration did not have to file this brief since it had withdrawn as counsel and paid for Yoo’s private counsel.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.
The use of “enhanced interrogation” by the United States is not new, it was used by US Army prosecutors and approved by the Military Tribunal sitting in judgement at the Malmedy Massacre trail held at Dachau in 1946.
Although the Military Tribunal allowed testimony obtained through torture and convicted the defendants, many to death, the subsequent uproar (and Cold War politics) caused those sentences to be commuted to Life and even then the longest serving defendant (Colonel Joachim Pieper) was freed in 1956.
See: A Peculiar Crusade – Willis M Everett and the Malmedy Massacre by James J Weingartner c2000 ISBN: 0-8147-9366-5
Also:
http://www.scrapbookpages.com/DachauScrapbook/DachauTrials/MalmedyMassacre01.html
Jill I don’t think there will be a movement to impeach Obama except maybe by the birthers and tea party folks. They certainly won’t be trying to impeach because of the torture issue. Not to remain silent is a good thing but to talk of impeachment of democratic president by a democratic congress is not realistic. I guess you could hope for right wing republicans to take over at the midterm elections.
Elaine:
Please, don’t be afraid. And never let anyone accuse you of racism for your frank and open discussion of race or racial issues.
You do realize it is more likely to be a racist viewpoint to assume multiculturalism refers to race? When did I ever use the term “multiracial” or “multiracialism” to describe anything anywhere on this blog?
And, I trust, you must aware that the word bigot doesn’t refer to people who have controversial opinions you do not like, but that it refers to those who won’t tolerate others with controversial opinions you do not like?
I learned long ago, from Thomas Sowell, that multiculturalism is a bad thing–a very bad thing. It leads to violence and conflict.
Sowell writes in an article called “Journalists Exalt Ideology of Multiculturalism”(1994.Oh my, has it been that long!):
“There is not a speck of evidence that the multicultural agenda promotes harmony. In fact, there are growing indication that it foments mutual hostility.”
“Whatever the theory of multiculturalism, if you want to see multiculturalism in action, you need only look at the Balkans, Northern Ireland[whites], Lebanon[semites], Burundi[blacks] and wherever else identity has been hyped, at the cost of blood and lives.”
Oh, if you didn’t know (and it seems highly possible) Sowell is black.
Is he a racist too? In your opinion?
I think that Mr. Obama is hypocritically insane with his comment regarding “reject torture”
_____________________________________
“But he also stressed the need to fight war according to “rules of conduct” that reject torture and other methods.”
http://news.yahoo.com/s/ap/20091210/ap_on_re_eu/eu_obama_nobel
_______________________________________
Bittersweet,
We use facts to keep those in power in check. Shutting up and trusting them to do the right thing is not the way of a free, strong people. That is for people who want a father figure to take care of everything for them.
The president took an oath to faithfully execute the laws of the United States. In this and many other instances, he has failed utterly to abide by his oath. I will not remain silent as the president breaks the law and neither will many others. For breaking the law he should be impeached.
There is method to my madness even though sometimes my methods may seem madness.
Sorry for misspelling your name, Jill!
Jill,
Your input is appreciated, but wrangle your way, I’ll wrangle mine. See the above post. There is no need to give rope in this instance.
I agree with Jill.
This thread is my best source of info and explanation,with regards to the Yoo case. One-on-one battles will surely drive people that are trying to learn the facts and potential consequences away.
That being said, I always appreciate BIL’s opinion and insight.
Jiil–
I agree. I said something of the same kind yesterday on another thread.
Here’s an excerpt of something Tootie addressed to me yesterday at another post:
“Multiculturalism is very bad. That is the whole point for why Christians resisted it.
“We are a civilization in decline. That is why conservatism is a superior political philosophy for us in America, it preserves and conserves.”
http://jonathanturley.org/2009/12/08/the-naughty-list-christians-organize-blacklist-of-businesses-failing-to-wish-customers-merry-christmas/
I’ve decided not to respond to people when they write racist, bigoted comments such as that–or to respond when people leave crass, vulgar comments.
Freedom of Speech is an incredible gift. With it comes power. I’m afraid it is the power to shoot ourselves (as a country) in the foot at times. Life is full of complicated emotional issues. We don’t really have to be qualified to make judgements on those complicated issues, do we? I like when facts are reported. Keep those in power in check, but let them do there jobs. How easily we turn on our leaders. Self-fullfilling prophecy is part of this country’s problem. If we don’t like ourselves, who will?
Jill,
Thank you.
Torture is against the law.
Treason is against the law.
They are both war crimes. One by chance of timing and terms of treaties as well as Federal law, the other by definition as found in the Constitution. If something is unconstitutional, it’s illegal.
Violation of the Separation of Powers Doctrine is unconstitutional. Every time a signing statement is used to generate law, that law is illegal and should not be obey no matter which President signed off on the illegal practice. Signing statements are for dicta – expressing an opinion. Any other use is illegal and any “authority” derived from them is illegal and invalid.
SCOTUS appointing a President based on political grounds in contravention of the popular vote instead of ordering another election is unconstitutional.
Letting corporations dictate law, a legislative duty held in sworn trust by our representatives that they are to draft and promote laws based on the common good of their constituents, not which corporate donor gave the most last graft cycle is unconstitutional.
Holding people indefinitely and without charge is unconstitutional.
Searching people’s records, businesses and homes without judicial review and approval is unconstitutional. So is listening to their phone calls, reading their mail (both kinds) and monitoring their internet and library usage.
DISCLAIMER: This list is not comprehensive, but the point should be self-evident.
Buddha,
Is it possible not to get involved further with Tootie on issues that don’t relate to the topic at hand? I believe these types of back and forth really distract from the thread and sometimes they get quite ugly. There’s going to be a lot of bait and switch attempts on this topic and I’m hoping to avoid letting that happen. Thanks for considering this request.
Buddha Is Laughing:
Top billing? Which other poster was mentioned by name outside of me?
Oh, I’m quite aware that violent people and stalkers posting online, so forgive me if I don’t meet you anywhere.
On earth.
How will you prove I’m a republican?
In the same fashion as I will prove you are a member of the Nation of Islam?
From the ACLU:
“ACLU Teleconference TODAY at 10:30 AM: The Obama Administration and Impunity for Torture
Experts Will Discuss Major Civil Lawsuits, the Forthcoming OPR Report and the Obama Administration’s Efforts to Shield Bush Administration Officials From Accountability for Torture
NEW YORK – December 10 – Despite substantial evidence already in the public domain that senior members of the Bush administration were directly involved in the illegal torture program, efforts to achieve accountability have been repeatedly stymied by the Obama administration. The American Civil Liberties Union will host a teleconference today, Thursday, December 10 at 10:30 a.m. EST to “connect the dots” on the following issues:
Criminal Investigation: Since the beginning of his administration, President Obama has discouraged a full-blown criminal investigation of the torture program, arguing that the country should look forward, not backward. While Attorney General Eric Holder launched a “preliminary review” on August 24, 2009 into “whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations,” that investigation is narrowly circumscribed and does not encompass senior officials who authorized torture or senior government attorneys who facilitated it. The investigation is exceedingly limited in scope even though a report of the Justice Department’s Office of Professional Responsibility (OPR), which is expected to be released imminently, reportedly underscores the central role that government lawyers played in justifying the Bush administration’s torture policies.
Civil lawsuits on behalf of torture victims: In case after case, including the ACLU’s case against Boeing subsidiary Jeppesen DataPlan for its role in the CIA extraordinary rendition flights, the administration has tried to block accountability and redress for torture victims by improperly asserting the “state secrets” privilege. The ACLU will be arguing the Jeppesen case before an en banc panel of the U.S. Court of Appeals for the Ninth Circuit on December 15. The Obama administration also filed a friend-of-the-court brief December 3 in a case brought by Jose Padilla against torture-memo author John Yoo, arguing that the Constitution does not provide a civil remedy to prisoners who were deemed to be “enemy combatants” and then tortured in U.S. custody.
Civil lawsuits for disclosure of torture files: Notwithstanding its stated commitment to transparency, the Obama administration continues to withhold crucial documents relating to the Bush administration’s torture program, including documents relating to the CIA’s black sites, transcripts in which CIA prisoners discuss their torture in those black sites and photographs showing the abuse of prisoners in Defense Department custody. The ACLU continues to fight for comprehensive disclosure of the Bush administration’s torture files and has moved to hold the CIA in contempt for its destruction of videotapes showing prisoners being waterboarded. The CIA is scheduled to process for potential release by December 23 a batch of documents describing the reasons and people behind the CIA’s destruction of the videotapes.
WHAT:
Teleconference featuring ACLU experts discussing major civil lawsuits, the forthcoming OPR report, lack of transparency and the Obama administration’s efforts to shield Bush administration officials from accountability for torture, followed by a question and answer period for members of the media
WHO:
Jameel Jaffer, Director, ACLU National Security Project Ben Wizner, attorney in the ACLU’s rendition lawsuit against Boeing subsidiary Jeppesen DataPlan Alex Abdo, attorney in the ACLU’s torture FOIA lawsuits Christopher Anders, ACLU Senior Legislative Counsel
WHEN:
TODAY, Thursday, December 10, 2009 10:30 a.m. EST
CALL-IN INFO:
United States: (800) 288-9626
International: (612) 332-0335
Anyone:
Is a war crime suit against any American a violation of US law or only international law?
Tootie,
Awww, upset because you didn’t get top billing? If you think I’m not brave, come to KC, stop at any Kinko’s and tell me where you are at online. I’ll be glad to meet you. I tell you everything I say here right to your face. Unless you have a gun, I’m not really worried and even then you better be further away than where I can touch you. I’ve been shot at. Have you? Quite frankly I think an assessment of bravery from the Cheney-Chickenhawk crowd is pretty funny.
You RNC – Corporatist schill.
Dredd:
Do you folks talk about the Council on Foreign relations around here? The CFR explains why both parties are partners in crime.