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It is important to note that the Administration did not have to file this brief since it had withdrawn as counsel and paid for Yoo’s private counsel.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.
Can we prosecute attorneys for giving bad advice? Isn’t that the door we’re looking to open?
What crime did Yoo commit by giving his opinion? Was it a criminal act for him to give his opinion? If we can’t point to the law that subjects him to prosecution for giving a wrong opinion, how can we apply due process?
Good point Joe, but people want Obama to go for the kill on this and because he’s not, regardless of your and Michelle’s explanation it just doesn’t cut the mustard.
Say it aint so, Joe
Correction
Furthermore, America in fact no nation can insist that others follow the rules of the road if we refuse to follow them ourselves. For when we dont, our actions appear arbitrary, and undercut the legitimacy of future intervention — no matter how justified.”
This part edited by Muaww
and this becomes particularly important for the purpose of military torture beyond self defense or defense of one nation against another.
I happen to think that John Yoo’s torture memos are legally indefensible. But there is still a problem that people seem to be glossing over. In order to prosecute John Yoo successfully, or even to find him liable civilly, you would have to prove that John Yoo did not believe the advice he gave in his memos. And the problem is that he seems sincerely to believe that his cracked interpretation of the law is correct. And there is another principle at stake here, which is that lawyers must be free to give advice that they believe is correct. If they are acting beyond the bounds of professional standards, they might be liable for malpractice (but that is not the claim in this case, I don’t believe). If they are giving advice that they know is wrong, and they are doing it to promote torture, then they might be liable for war crimes. But if they are giving advice that they believe is correct, then the theory of the case in question seems doubtful, and the Obama administration is probably on solid ground in submitting a brief that defends the principle that lawyers should not be liable for advice they give in good faith.
Obama’s acceptance speech for the Nobel
Furthermore, America cannot insist that others follow the rules of the road if we refuse to follow them ourselves. For when we dont, our action can appear arbitrary, and undercut the legitimacy of future intervention — no matter how justified.”
Robert,
Not to speak for Elaine, but sometimes the word bigot is perfectly acceptable. For example, when someone has acted like a bigot. If – or forbid, when – you call someone a Christ Killer, I’ll be glad to describe you as a bigot every chance I get too.
There is a difference between an attack and an accurate description which goes to credibility and veracity of a declarant.
If you find that distracting, use some of that free will to move right on to the next post. The corollary of free speech is the freedom to ignore – a right exercised by many Americans with an unhealthy gusto. Go ahead. Exercise it if you like. No one will stop you. No one will ever know but you and like most vices harmless in moderation.
Enjoy your Constitutional Rights while you still have the few left untouched by the bad guys. I have been and will continue to do so. I certainly hope both you and Elaine continue to enjoy the remnants of liberty. Especially Elaine. She’s a hoot and has a wonderful way with words.
Your rights are a wonderful thing. Constitutional Rights like the right to be free from cruel and unusual punishments. Like torture. Which is what this thread is about.
And no one with a shred of decency should ignore, condone, pardon, excuse, apologize for or defend those who torture prisoners under ANY circumstance yet alone based on a tissue paper thin bullshit rationale like Yoo provided to give torture “sanction” under the color of authority. The Constitution is clear. So is Federal law. Police officers in this country have been tried, convicted and sentenced to prison for waterboarding.
Yoo is a torturer and there is blood on his hands just as sure as if he was doing the abuses himself. And Obama is defending him just like Bush did.
No one is above the law. Not Bush. Not Cheney. Not Yoo. Not Obama. Violating the Constitution is simply unacceptable and the very worst kind of treason.
On this blog in particular, the terms racist and bigot are thrown about like Mardi Gras beads. As reader/commenter Jill pointer out the ad himonem attacks are distracting and rude.
and if the Professor doesn’t win the ABA Award you have to wonder if it had any effect on the outcome.
Just Sayin
Here is what is reprehensible: that Jonathan Turley – who unquestionably knows better – has wholly misrepresented the contents of the DOJ brief. Here is a link to the brief, for anyone who is interested in actually knowing any actual facts about the administration’s position: http://harpers.org/media/image/blogs/misc/doj_amicus.pdf
The brief is limited to one narrow Bivens argument. It says nothing like what Turley claims it says and in no way, shape or form does it implicate the Nuremberg convictions or the principles that guide them.
This post is so irresponsible and dishonest that I am simply flabbergasted. Shame on you, Professor Turley. Has your need to be on television gotten so out of control that you will seize on any opportunity to distort the significance of legal issues just to get onto Countdown.
History does not judge the purveyors of self-interested propaganda highly. You have lost any and all credibility you ever held with me after this one, Professor. You know better, but you do it anyway.
pointer SB pointed
hinomen SB hominem
Tootie 1, December 10, 2009 at 10:42 am
Dredd:
Do you folks talk about the Council on Foreign relations around here? The CFR explains why both parties are partners in crime.
==============================================================
Tootie,
We talk about most anything around here. The good Professor has an astute eye for things we should consider.
His eloquent post together with his appearance on Keith Olbermann last evening are classics.
May I ask you to a dance:
http://blogdredd.blogspot.com/2009/12/political-limbo-how-low-can-you-go.html
On this blog in particular, the terms racist and bigot are thrown about like Mardi Gras beads. As reader/commenter Jill pointer out the ad himonem attacks are distracting and rude.
Tootie–
Definition of bigot taken from The American Heritage Dictionary of the English Language:
“One who is strongly partial to one’s own group, religion, race, or politics and is intolerant of those who differ.”
I will admit that I may be intolerant of intolerant people.
I was raised a Catholic and attended a parochial school. I still remember being told by one nun that we should never enter a Protestant church. That didn’t make much sense to me—even when I was a kid. After all, I was also being told to treat my brother as myself and to love all God’s people.
************
Regarding the following:
“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.”
I think what happened in the Balkans, Lebanon, etc., has much more to do with people being intolerant of one another than it has to do with multiculturalism. Some people seem to love to hate others who come from different cultures, different ethnic backgrounds, different races—or who belong to different religions or political parties. Such people use their differences as an excuse to do terrible things to one another. Unfortunately, some of these hateful people become powerful and convince/compel others to follow them and do their bidding–just as Hitler did.
I did not attribute the above source. Sorry, here is where the information was taken:
http://ampedstatus.com/af-pak-war-racket-the-obama-illusion-comes-crashing-down
That goes for Cheney.
That goes for Obama.
But party has nothing to do with it.
Yes it does cause they are partying like it’s 1999
I don’t think the parties are identical although more so than I care for. I just don’t get how the Palin folks or teabaggers are going to unite with the far left to overthrow the status quo.
“Barack Obama, the anti-war candidate, has proven to be a perfect decoy for the military industrial complex. Consider all the opposition and bad press Bush received when he announced the surge in Iraq. Then consider this:
I: TROOP DEPLOYMENTS
The Bush surge in Iraq deployed an extra 28,000 US troops. Under Obama, back in March, a surge in Afghanistan, that also further escalated operations inside Pakistan, deployed an extra 21,000 troops. However, in an unannounced and underreported move, Obama added 13,000 more troops to that surge to bring the total to 34,000 troops. Obama actually outdid Bush’s surge by 6000 troops and brought the overall number of US troops in Afghanistan to 68,000, double the number there when Bush left office.
Where opposition was fierce to Bush’s surge, barely any opposition was expressed during Obama’s surge. Part of the reason for so little political and public backlash was the cleverly orchestrated psychological operation to announce the beginning of US troop withdrawal from Iraq. While the drawdown in Iraq has been greatly exaggerated in the US mainstream media, as of October, Obama still had 124,000 troops deployed in Iraq (not counting private military contractors).
When Obama casts the illusion of a 2011 withdrawal from Afghanistan, one just needs look at the reality of the situation with the over-hyped withdrawal in Iraq.
Now, with Obama’s latest surge announcement he will again be adding a minimum of another 30,000 US soldiers. This means that Obama has now led a bigger surge than Bush… on two separate occasions within the past nine months of his new administration.
Obama has now escalated deployments in the Af-Pak region to 98,000 US troops. So in Af-Pak and Iraq, he will now have a total of 222,000 US troops deployed, 36,000 more than Bush ever had – 186,000 was Bush’s highest total.
PRIVATE MILITARY AND NATO DEPLOYMENTS
The amount of private military contractors deployed in Iraq and Afghanistan is rarely reported on in the US mainstream press, but a Congressional Research Service investigation into this revealed that a record high 69% active duty soldiers are in fact private mercenaries.
Although the administration is yet to disclose how many private mercenaries will be deployed in the latest surge, it is believed that the 69% ratio will remain in tact.
The Pentagon released a report showing that Obama already had a total of 242,657 private contractors in action, as of June 30th. 119,706 of them in Iraq, 73,968 in Afghanistan, with 50,061 active in “other US CENTCOM locations.”
Back in June, Jeremy Scahill reported on these findings: “According to new statistics released by the Pentagon, with Barack Obama as commander in chief, there has been a 23% increase in the number of ‘Private Security Contractors’ working for the Department of Defense in Iraq in the second quarter of 2009 and a 29% increase in Afghanistan….”
Plus, we must mention, the immense dangers of having private military contractors as 69% of our fighting force. For those of you unaware, private military contractors are hired from all over the world. Any former soldier, from any country, is welcome to come and fight for a salary – a salary that is often significantly more than what we pay our own US soldiers.
These mercenaries have a vested interest in prolonging the war, for as long as there is a war, they have a well paying job. So it is easy to infer that a significant percentage of these contractors will not have the US soldiers, or US taxpayers, best interests at heart.
Obama continues to feed this out of control private army by pouring billions of taxpayer dollars into shady and scandalous companies like Blackwater, who recently changed their name to Xe Services, because they destroyed their reputation by committing numerous war crimes in Iraq. A recent investigation by Jeremy Scahill revealed the extent to which Blackwater is involved in covert operations inside Afghanistan and Pakistan. In some cases, Blackwater is not working for the US, but were hired by covert elements inside Pakistan. When it comes to private contractors, the fog of war grows ominous, exactly who is fighting for whom is unclear. The crucial factor is who paid them the most that particular day.
The US military can give them $1000 today, and an enemy can give them $1000 tomorrow, when you have people who fight for a payday and not for a country, you get chaos. This leads to a breakdown in the chain of command, effectively turning a military operation into a covert intelligence operation, where you’re never really sure if the person you are fighting with is on your side or not.
A federal investigation by the Commission on Wartime Contracting in Iraq and Afghanistan, revealed in June: “More than 240,000 contractor employees, about 80 percent of them foreign nationals, are working in Iraq and Afghanistan to support operations and projects of the U.S. military, the Department of State, and the U.S. Agency for International Development. Contractor employees outnumber U.S. troops in the region. While contractors provide vital services, the Commission believes their use has also entailed billions of dollars lost to waste, fraud, and abuse due to inadequate planning, poor contract drafting, limited competition, understaffed oversight functions, and other problems.”
Before this latest surge, there were over 123,000 US and NATO troops in the Af-Pak region, and 200,000 Afghan security forces, supporting the US effort. According to US intelligence sources the total number of Taliban and al-Qaida fighters in the region was estimated to only be about 25,000, giving the US led forces a minimum of a 12 to 1 troop advantage.
When you add in estimated private soldiers, you get an approximate minimum of a 17 to 1 advantage.
Although Obama opened his war speech by mentioning al-Qaida as the main justification for this war, consider this AP report: “national security adviser James Jones said last weekend that the al-Qaida presence has diminished, and he does not ‘foresee the return of the Taliban’ to power. He said that according to the maximum estimate, al-Qaida has fewer than 100 fighters operating in Afghanistan without any bases or ability to launch attacks on the West.”
Does it seriously take a surge of hundreds of thousands of troops to contain what amounts to “less than 100″ al-Qaida members?
Any serious war strategist will tell you that the most effective way to combat the remains of the al-Qaida network, is through an intelligence operation, and statistics prove that escalating more troops into the region will only fuel further acts of terrorism.
DRONE DEPLOYMENTS
Speaking of fueling hatred toward the US, other than a huge troop increase, there has also been a sharp increase in the use of unmanned drones. The New Yorker reports: “According to a just completed study by the New America Foundation, the number of drone strikes has risen dramatically since Obama became President. During his first nine and a half months in office, he has authorized as many C.I.A. aerial attacks in Pakistan as George W. Bush did in his final three years in office.”
The unmanned drones have caused major controversy due to the high number of civilian causalities they cause. However, as the study stated, the Obama Administration continues to increasingly rely upon them.
So summing up these statistics, we have the most fierce and technologically advanced military force in history, vastly outnumbering what amounts to be a ragtag army of peasant farmers with guns, and our best option is supposed to be an increase in troop levels?”
Swarthmore Mom,
I said earlier I didn’t think impeachment was going to happen. It never happened to Bush and it most certainly should have. There is nothing undemocratic about impeachment. The president has committed offenses that are impeachable. If Republicans take over in the midterms there will be absolutely no difference in policies between the supposed “opposing” parties. Obama has adopted or magnified all of Bush’s policies in every regard. What would be different is this: more of the population would be up in arms about the policies. For whatever reason too many Democrats have allowed the president and the congress they now control to act as if they were the Republican party. I am hoping that is starting to change as people wake up to this fact. If John McCain had done 1/3 of what Obama has done, people would have been screaming months ago. It’s well past time to push back as citizens. Parties don’t matter, only actions. The actions of the two parties have been identical. Time to rise up and fight back against anyone of any party who would destroy our Constitution and screw over the people of this nation. Let me give but one example on the matter of war since this is peace prize day: (I will post it in the next box)
“
A person who shamelessly accepts and wears a false medallion under false pretenses is as contemptible a person as humanly possible. What a disgrace Mr. Obama is becoming after we thought the past 8 years of a pitifully loathsome fool and his administration were squarely behind US.