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It is important to note that the Administration did not have to file this brief since it had withdrawn as counsel and paid for Yoo’s private counsel.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.
I had previously read the complaint filed by Mr. Padilla and the order of the trial court denying (in most respects) the motion to dismiss. I have now read the government’s amicus brief in support of dismissal and write to voice my complete disagreement with the comments of Shannon (identity unknown) and Michelle (identity likewise unknown). I find that their views are not only overwrought, but miss the point of the litigation entirely.
Mr. Padilla’s claims are common law tort claims arising out of the alleged violations of various provisions of the constitution and of the federal statutes. In asserting his right to proceed with these claims, he relies on the Bivens holding that with certain exceptions damages are recoverable for the violation of constitutional rights by a federal agent. The exceptions relate to situations in which Congress has enacted an alternative remedy for the alleged wrongs or where “special factors” make it advisable that the courts refrain from adjudicating the case in the absence of some affirmative action on the part of Congress.
Mr. Yoo urged that a Bivens remedy was not available to Mr. Padilla due to a number of “special factors,” including the discretionary authority of the executive in time of war, the risk of disclosing national security secrets, the inappropriateness of judicial involvement in foreign policy matters and the fact that Mr. Padilla had been designated an “enemy combatant” by the president under authority specifically granted by Congress. Mr. Yoo’s arguments are completely consistent with the discredited Bush/Cheney doctrine which holds that when the president is conducting a war, whether declared or undeclared, he is free to do whatever he wishes unless and until Congress stops him.
Mr. Yoo has a privilege defense and a qualified immunity defense. However, every lawyer knows (as Buddha has stated correctly and in his usual forceful manner) that an attorney is not free to assist a client in the commission of a crime, either through the pretense of providing legal advice or actual participation in the crime itself. The claims against Mr. Yoo are predicated on allegations that his opinions did not constitute good faith efforts to provide legal counsel, but were intended to be, and were utilized for the purpose of, providing legal cover for actions which both he and his clients knew were violative of statutory and treaty law. Since the opinions were drafted with the knowledge that they would be relied upon by the administration in its treatment of detainees, Mr. Yoo is charged with knowledge that persons taken into custody and subjected to the treatment which he approved were likely to suffer injury. The issues of Mr. Yoo’s good faith and causality are classic jury questions. It is not an easy case for the plaintiff.
The administration is concerned not with Mr. Yoo’s personal welfare, but with the implications of the suit. We already know that the Obama administration has declined to investigate or prosecute war crimes, despite substantial competent and frequently unassailable evidence that they were committed, apparently having bought in to Alan Dershowitz’ contention that any prosecutions by a sitting administration of a previous administration’s actions are inherently political and, therefore, bad for the country. I confess that this logic escapes me, since it literally means that immunity from prosecution for war crimes attaches to members of an administration as soon as the succeeding president takes the oath of office. But that is a topic for a different thread.
Since the administration is concerned, it wishes to stop the Yoo case from going forward and creating pressure to do all of the things that Pres. Obama and Mr. Holder do not wish to do, like upholding the rule of law by enforcing the laws prohibiting torture. Hence the amicus brief.
The first clue that the administration is up to no good with its argument is the highminded and lofty language employed by the lawyers. It touches upon all of the usual bases for judicial restraint: national security, state secrets, etc. But at bottom the brief is a plea for absolute immunity for lawyers advising the president. There is a great deal of earnest hand-wringing over the awful harm to thoughtful decision-making should legal advisors refrain from providing candid and honest opinions out of fear of possible prosecution should their judgments prove wrong. There is the argument that a remedy already exists for a lawyer’s abuses through bar imposed sanctions, though the authors do not explain how this benefits Mr. Padilla or a similarly situated plaintiff. There is the argument that Congress has provided Mr. Padilla an alternative remedy by means of review under the Administrative Procedures Act. Wonderful.
The amicus brief spends thirty some pages to say very little. And anyone who believes that granting absolute immunity to the president’s legal advisors does not offend the legal principles underlying the Nuremberg verdicts is either ignorant, disingenuous or both. Given the Supreme Court’s preference for deferring to the executive branch whenever the government uses the magic phrase “national security,” however, I do not feel confident about Mr. Padilla’s appellate prospects.
Do *you sleep with a night light as well; to keep the boogie men at bay?
So Tootie,
Do sleep with a night light as well; to keep the boogie men at bay?
Tootie–
“I’m interested in immigrants who accept our culture and traditions and even become a part of them.”
What you mean by OUR culture and traditions? Can you clarify that for me?
Dredd: December 10, 2009 at 2:11 pm
Tootie,
We talk about most anything around here. The good Professor has an astute eye for things we should consider….
Dredd, Agreed, an astute eye. Thanks for responding and thanks for the link to your blog, looks interesting.
Elaine:
You wrote:
“You can choose to live in a closed society with a belief that multiculturalism is not a good thing. ”
I choose nothing as my government has foisted genocide on me through immigration without my permission. It has done so after promising (in 1965) that immigration would not disrupt our ethnic makeup. They lied and continue to do so.
That said, the only immigrant I’m interested in having come here to this country is the kind (or group) that is most apt to fit in and not be a burden to the native born Americans who invite them in. I’m interested in immigrants who accept our culture and traditions and even become a part of them. To expect otherwise is to invite conflict, not because you and I disagree with them, but because THEY disagree with us.
I notice that the people you specified are oriental Asian in background (which is also a part of our immigrant heritage). They are the best immigrant group outside of westerners of European descent.
They work hard, do well in school, avoid crime, get married, are good citizens, and become good parents. This is unlike the majority of immigrants the government is currently flooding the country with who have higher crime rates, higher dropout rates, higher abortion rates, higher out of wed lock rates, higher drug rate, higher rate of accepting handouts, and often refuse to mix in or often even learn our language.
Some cultural groups are better than others and certain groups have already proven that the door should be shut to them because of the overall negative characteristics of that group. This is based on their actual conduct that they were responsible for and not based on any ethnocentrism on my part. It is silly not to refer to the evidence because we are afraid of being labeled racist.
Unlike you, I’m not ashamed of having grown up with my own ethnic group or race. This is a form of self-hatred and it causes a lot of trouble. Most people in nonwhite nations, likewise, do not have a shred of embarrassment about being monocultures and are happy to be who they are. It seems white people have some sort of hang-up about being white.
You may think multiculturalism is fine and dandy but it seems that you are not living where the rubber meets the road at the lower end of the socio-economic scale where the impact of careless immigration policy and its damaging effects are a disgrace.
And for the future of the nation, a threat.
SD,
Yoo attacked the constitution for political purposes. Article VI puts Yoo in an incredibly precarious position.
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.
Did Yoo levy war against the United States? He must have! If he didn’t, what enemy did he adhere to? Or is waterboarding considered aid and comfort?
Nothing to see here. Move along. Pay no attention to the man behind the curtain selling out America’s interests to the fascists.
http://www.rollingstone.com/politics/story/31234647/obamas_big_sellout/print
Ooo. Comparing me to Orly. What’s next? Going to question my patriotism?
Much like a troll, you ignore the fact you’re defending a prime facie criminal, Shannon. The wishful thinking here is yours.
Any old crime will do as long as it’s in furtherance of another crime. He’s a conspirator to commit treason. And torture is a felony committed in furtherance of that other more damning felony. What Bush did was provide material aid and comfort to the enemy in a time of war (treason) by letting them use torture (a crime proper on it’s own by Federal law and case law – that you don’t like it is tough shit) as a recruiting tool despite the fact that experts agree that torture is shit for an intelligence gathering technique. Despite the fact that torture is illegal in it’s own right. Despite that it’s inhuman.
This is in addition to the fact that he took our military from a legitimate military goal of capturing those responsible for 9/11 (all but one a Saudi national) in Afghanistan and Saudi Arabia and sent them to invade a country that had NOT attacked us – despite being unfriendly to us. To this day, Saudi Arabia has not only not paid a price for what they did, they’ve been given special treatment by the Bush White House. Special treatment Obama is continuing by protecting people like Yoo. Why was this? Bush’s business partners – the Saudis. He is in bed with the people who attacked us as much as bin Laden is. And he couldn’t send Daddy’s golf buddies to prison, could he? Bush and Cheney’s treasons committed by traitors standing on the shoulders of people like Yoo. Treason done to make personal profit. Like thieves.
Torture is a crime and saying it’s legal AS LEGAL ADVISE is also a crime if it’s used in the furtherance of another crime as well as being a crime proper (criminal negligence at a bare minimum but I say outright violation of Federal law and the Constitution).
And since we disagree, let’s have a trial. Trials are for when people have differences. Trials are supposed to be triers of fact. If you’re not afraid of the facts, then get the Hell out of the way of prosecuting Yoo. He’ll be exonerated if you’re right. If not? He and Cheney can share a cell.
You keep on trying to justify torture though. It’s funny. Almost as funny as you trying to equate me with an loon like Taitz. Any regular reader here is just laughing their ass of at that.
I have bits of troll tougher than you stuck in my teeth.
Well, Buddha, then you should file your own suit — because Padilla’s isn’t structured to do what you want it to do… any more than the amicus is structured to ‘support’ what you or Turley want it to.
I used to think this playing fast and loose with the facts and at hand and rampant use of semantic substitution was limited to the wingers…
Much like Turley, you dodge the facts of the case at hand because you’ve got a point you want to make (one that I happen to agree with, by and large).
The idea of wanting to prove a point and thinking ‘any old case will do’ isn’t a system I want any part of…. It’s Orly Taitzian nonsense – and when it comes to the law, it really doesn’t matter that, in a vacuum, one is a legitimate issue and the other is nonsense.
To Michelle and Shannon,
1) Torture is a crime.
2) Waterboarding is torture.
3) U.S. v. Parker, et al. Ask Sheriff Parker if waterboarding is a crime or a civil matter. He and his deputies were all convicted and sentenced to four years in prison for waterboarding prisoners into confessing to drug crimes they didn’t commit. But this doesn’t matter! It happened in the 80’s. In addition, there is the fact that civil and criminal liability are not mutually exclusive. Sorry, but you won’t be going on to the Showcase Showdown.
4) The C effort is from the “torture is fine” crowd and the “Yoo should be free to advise criminal action as an attorney” crowd. Get a clue. The advice he rendered was illegal. What was done based on that advice was illegal. Rationale and reason are not the same damn thing. He is a co-conspirator, not a protected attorney representing a valid Constitutional interest regardless of client. Being a member of the bar is not shield for criminal activity any more than being President is a shield for illegal activity. Criminals are where you find them, be they at your house or the White House. And since the White IS my house, I want all the criminals thrown out and punished – including their fascist lackeys. It’s my right as a citizen.
Prof. Turley,
Is this action not making Obama and his administration culpable for the war crimes committed under the pretense of legal authority during the Bush years? Doesn’t this amount to either obstruction or becoming an accessory after the fact in all the torture and other war crimes that occured during the Bush reign of terror?
Is it not the obligation of the other signatories of the convention on torture to pursue the investigations and prosecutions of substantial allegations of the commission of such crimes? I understand well the destruction this does to the integrity of the US legal system, but if our international partners value the rule of law will they not be obligated to pursue investigations into such crimes and to prosecute if investigation warrants it?
I would be very interested in your response to these questions.
Thanks!
BIL–
“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.”
I’m planning to hang on to every remnant of liberty that I possibly can.
It warms the cockles of me heart to know that you think I’m a hoot and have a way with words. I do my best to express my opinions coherently. I also try to keep certain personal proclivities in check when speaking my mind at the Turley blog. That is sometimes difficult for an individual who is an inveterate w*se*ss.
After reading this disturbing news and later hearing Professor Turley on “Countdown” last evening, I recall what that little demagogue George Wallace once said about both political parties, “there’s not a dimes worth of difference between the two parties.”
How true! Obama is tunring out to be a major disappointment who has little or no principles or convictions. I’m seriously considering changing my party registration to “Independent” in early 2010 and leaving the Democratic Party.
Let me echo Michelle @2:20…
Gimme a break.
The underlying issue in the Padilla matter is Quirin and the underlying issue in the amicus is Bivens.
Nuremberg? That’s not even a C minus effort by a hack blogger, but as Michelle so aptly put it, I guess discussing the realities of the amicus doesn’t get you on TV.
Robert–
“On this blog in particular, the terms racist and bigot are thrown about like Mardi Gras beads.”
I may have erred in using the word racist in a previous comment. I may have inferred more from the quote of Tootie’s that I posted along with my own comment—and from other comments Tootie has made at other posts on the Turley blog. But I doubt that I erred in using the word bigoted in describing what s/he said.
His opinion was plain language unconstitutional and ergo prime facie illegal advice. The sole purpose of the memo was cover for a crime and don’t give me that “his opinion” horseshit either. If an attorney advises an illegality? He’s culpable too. If he’d advised robbing a bank, he’d be a co-conspirator. If someone dies, he’d be a felony murderer. Just because Yoo “thinks” torture is fine is right wouldn’t make it justifiable or legal either. He could opine the moon is Gorgonzola. Doesn’t make him right or sane. Ignorance is no excuse for breaking the law on either side of the bar. Torture is not negotiable. 1L’s know this. Or they are supposed to. If his “opinion” is the problem, he’s free to have it, but when crimes are committed based on his opinion, he should pay that price.
It’s called Professional Responsibility.
It’s called Equity.
It’s called Justice.
If he really thinks torture is such a grand ideal, he should carry his worthless ass to Saudi Arabia and live under Sharia. Because according to the Constitution, multiple treaties and Federal law, waterboarding is torture and illegal. His “opinion” to the contrary not withstanding. Criminally negligent advice at best.
And torture? His fitness to practice law isn’t just questionable. So is his humanity.
So yeah. Open that door. The courts are supposed to be triers of fact. The facts are John Yoo is provided inadequate cover to crimes committed by Cheney and Bush so they wouldn’t be drug from the WH and hung on the lawn when people found out the scope of their crimes and now Obama is covering for him too.
Open the damned door already.
Well screw that and screw them. If America endorses and protects torturers, it deserves to fail. Because at that point, we are the enemy.
Tootie—
I was raised in a “monoculture.” All my family and all my friends were Roman Catholic. I didn’t have any Protestant friends, any Black friends, any Asian friends, etc. Then I went to college and later began working. I also taught at a large university with a diverse student population for several years. Over time, I began to include among my acquaintances and good friends people from many different cultures. Once I got to know these individuals, I learned that we had much more in common than we had differences.
In the past several years, in fact, I have become close friends with two women who come from backgrounds very different from mine. One of the women is a Chinese-Korean American; the other is a Taiwanese American. They are both successful children’s authors. They don’t look much like me—but we have much in common. We three share a passion for books and children’s literature, the same sense of humor, a love of children, a belief in close family ties—as well as a belief that it is best to be open-minded. I think my life has been enriched because I have come to know these women so well–and because I have been willing to open up my circle to include people who may appear—on the surface—to be so different from me.
You can choose to live in a closed society with a belief that multiculturalism is not a good thing. That’s your prerogative.
Mr Turley,
Nuremberg was a criminal matter. Yoo is a civil matter. Is it possible (not being snarky, just wondering) that the administration is exonerating lawyers from being PERSONALLY LIABLE civilly. That is, Padilla could sue the United States as a whole, but not John Yoo individually?
Sriam:
I updated the blog to address that point.