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It is important to note that the Administration did not have to file this brief since it had withdrawn as counsel and paid for Yoo’s private counsel.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.
Pretty! This has been an incredibly wonderful post.
Thank you for supplying this information.
A very sad day for justice…
Quote:
Posted Friday, January 29, 2010 8:07 PM
Justice Official Clears Bush Lawyers in Torture Memo Probe
Newsweek
By Michael Isikoff and Daniel Klaidman
For weeks, the right has heckled Attorney General Eric Holder Jr. for his plans to try the alleged 9/11 conspirators in New York City and his handling of the Christmas bombing plot suspect. Now the left is going to be upset: an upcoming Justice Department report from its ethics-watchdog unit, the Office of Professional Responsibility (OPR), clears the Bush administration lawyers who authored the “torture” memos of professional-misconduct allegations.
http://blog.newsweek.com/blogs/declassified/archive/2010/01/29/holder-under-fire.aspx
From afterdowningstreet.org:
“Perhaps a Grand Jury in Washington Will Answer the Question of the Nobel Peace Prize Laureate Regarding Who Is Accountable for a War Started on the False Claims that Iraq Had Weapons of Mass Destruction
By Francis T. Mandanici
In an interview this month in The Washington Post, the former UN chief nuclear weapons inspector and Nobel Peace Prize Laureate (2005), Mohamed ElBaradei, was asked why the United States got it so wrong on Iraq’s weapons of mass destruction. ElBaradei responded that he has discovered that the United States decision to go to war was based on regime change and not based on whether Iraq had WMDs. He asked: “How do you justify that almost a million innocent civilians have died as the price of getting rid of a dictator? Who is accountable for this at the end of the day, after it was found that there were no weapons of mass destruction?”
Perhaps a grand jury will answer his question on accountability. Pending in Washington at the United States District Court for the District of Columbia is a report and request to the grand jury that it conduct an investigation of the Bush Administration’s false and fraudulent statements that Iraq had sought uranium for a nuclear weapon.”
Narukami wrote: “Ever since Nuremburg….., we have been at pains to prove that these were not simply Victor’s Justice, but in fact were the enforcement of the common standards of human decency. That even the conduct of a war has limits.
This too, bears repeating. Decency abounds, but without accountability, it will not prevail, I fear.
Jill
1, December 16, 2009 at 5:37 pm
I thought this was worth posting:
“In his opening Nuremberg address, Justice Robert Jackson said:
“The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberative and concerted use of it to set in motion evils which leave no home in the world untouched.”
Absolutely right Jill.
Jill wrote: “… I never believed I would witness all three branches of govt. folding into a dictatorship of systemic, lawless, cruelty. I am so sad, because I love the US and we have so many good people here. I am watching those people and this nation go down at the hands of despots.”
Heartbreakingly eloquent.
I thought this was worth posting:
“In his opening Nuremberg address, Justice Robert Jackson said:
“The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberative and concerted use of it to set in motion evils which leave no home in the world untouched.”
He called Nuremberg defendants “men of a station and rank which does not soil its own hands with blood. These were men who knew how to use lesser folk as tools. We want to reach the planners and designers, the inciters and leaders….” The same standard applies to America under binding US and international laws.” (from afterdowningstreet.org)
Jill–
And where’s the fourth estate? Too many members of it have been missing in inaction for too many years. They’d prefer to cover Palin’s book signings and stories about the many mistresses of Tiger Woods. Real investigative journalism is work. There are no immediate rewards for in-depth stories that take time to research.
“Ever since Nuremberg, and the subsequent trials of Doctors, Lawyers, Concentration Camp Guards and Waffen-SS Soldiers, we have been at pains to prove that these were not simply Victor’s Justice, but in fact were the enforcement of the common standards of human decency. That even the conduct of a war has limits.
However, if John Yoo is not held to account for his actions then we confirm what the doubters claimed some 60 years ago, that despite our noble talk, Nuremberg was nothing but Victor’s Justice.” (from Narukami posted above)
This response fits as well into the supreme courts rejection of rights in FFLEO’s post above. I know this country has done many, many horrific things during its brief existence, but I never believed I would witness all three branches of govt. folding into a dictatorship of systemic, lawless, cruelty. I am so sad, because I love the US and we have so many good people here. I am watching those people and this nation go down at the hands of despots.
From Headzup:
[youtube=http://www.youtube.com/watch?v=0yn6QAvEnhI&hl=en_US&fs=1&]
Quote:
Supreme Court Rejects Guantanamo Detainees’ Torture Case
The justices rejected the appeal without comment Monday. Four British men say they were beaten, shackled in painful stress positions and threatened by dogs during their time at the U.S. naval base in Cuba from 2002 to 2004.
The Obama administration opposed high court review of the case, adhering to its practice of defending Bush administration officials against allegations from one-time suspected terrorists or Taliban allies.
http://www.huffingtonpost.com/2009/12/14/supreme-court-rejects-gua_n_391176.html
Narukami,
Very good comments.
Victor’s Justice
John Yoo is lucky he is on the winner side in this current war. If this were Germany in 1946 he would probably have a rope around his neck.
And therein lies the problem.
In 1946 many Germans looked upon the Nuremberg Tribunal as nothing more than Victor’s Justice. Indeed, in the case of Admiral Doenitz several US Naval officers voiced dismay at his conviction for “crimes” they too had committed in the course of the Pacific War. (see The Anatomy of the Nuremberg Trials by Telford Taylor p567) Likewise, as Robert McNamara recalls, in the film Fog Of War, General Curtis Lemay commented to him in reference to the fire bombing of Tokyo, “He had better win the war.”
Ever since Nuremberg, and the subsequent trials of Doctors, Lawyers, Concentration Camp Guards and Waffen-SS Soldiers, we have been at pains to prove that these were not simply Victor’s Justice, but in fact were the enforcement of the common standards of human decency. That even the conduct of a war has limits.
However, if John Yoo is not held to account for his actions then we confirm what the doubters claimed some 60 years ago, that despite our noble talk, Nuremberg was nothing but Victor’s Justice.