Shame on Yoo

Respectfully submitted by Lawrence Rafferty (rafflaw)-Guest Blogger

We haven’t heard his name for quite some time now, but former Bush-era Office of Legal Counsel attorney, John Yoo is in the news again.  The United States 9th Circuit Court of Appeals threw out an appeal by convicted terrorist, Jose Padilla attempting to hold Yoo liable for the torture used on Padilla while in U.S. detention centers.

Believe it or not, the Justices stated that the law on what constituted torture was not clear when Padilla endured the Bush Enhanced Interrogation methods. “A three-judge panel of the court said laws governing combatants and the definition of torture were unclear during the years policies were crafted.  Padilla alleged he was subjected to death threats, given psychotropic drugs, shackled and manacled for hours at a time, denied contact with family or a lawyer for 21 months and refused medical care for potentially life-threatening conditions. “That such treatment was torture was not clearly established in 2001-03,” Judge Raymond C. Fisher, a Clinton appointee, wrote for the court.” LA Times

Is it just me or does it confuse and upset anyone else that Prof. Yoo, as an OLC attorney can decide for the country what actions constitute torture and when sued for those torture techniques, the Court claims that because of those very same rules declared by Emperor Yoo, the methods employed against Padilla were not established as torture?  It sounds like Prof. Yoo made up the rules of the game and is now hiding behind those very same rules.

“The 9th Circuit’s ruling said the U.S. Supreme Court did not declare until 2004 that citizens held as enemy combatants have constitutional rights.  Even now, the 9th Circuit said, “it remains murky whether an enemy combatant detainee may be subjected to conditions of confinement and methods of interrogation that would be unconstitutional if applied in the ordinary prison and criminal settings.”  LA Times

Did the Court forget that Mr. Padilla was a United States citizen when he was detained and tortured by government officials?  Wasn’t it patently unconstitutional to hold a citizen for 21 months without contact with an attorney or family members or a charge?   Here is how the court answered that question.

“The court said that someone designated as an enemy combatant by the president – regardless of whether he is a US citizen or not – is not automatically entitled to full constitutional protections.  “Padilla was not a convicted prisoner or criminal defendant; he was a suspected terrorist designated an enemy combatant and confined to military detention by order of the president,” the court said. “He was detained as such because, in the opinion of the president … Padilla presented a grave danger to national security and possessed valuable intelligence information.”   “We express no opinion as to whether those allegations were true, or whether, even if true, they justified the extreme conditions of confinement to which Padilla says he was subjected,” Fisher wrote. “In light of Padilla’s status as a designated enemy combatant, however, we cannot agree with the plaintiffs that he was just another detainee” entitled to full constitutional protection.”  Christian Science Monitor

I realize that these issues are not new.  Allowing for one person, even any President, the ability to rescind normal constitutional guarantees for United States citizens seems not only dangerous, but unconstitutional.  How can I, as a citizen, lose my constitutional protections just when I need them the most?  I contend that the 9th Circuit Court of Appeals missed an opportunity to right a wrong that could impact every citizen.  Prof. Yoo created the rules that these justices used to exempt Yoo from liability for his scurrilous definitions of torture.

Shouldn’t that have rang a warning bell in the minds of these justices?  What do you think?  Did the 9th Circuit Court of Appeals make an error?  Let us know what you think!

The full 9th Circuit Court of Appeals decision can be found here.

118 thoughts on “Shame on Yoo”

  1. Yes, Rafflaw, that’s probably right. In fact, right now I bet there are lots of government people silently working out ways to minimize the effect of what was essentially a massive citizen uprising against corruption in the criminal justice system.

  2. Malisha,
    I doubt that the Trayvon Martin case will change anything substantive. I hope I am wrong, but I think it will be misused to sell more guns. You are right that torture and killing are the ultimate power trips for the individuals who practice it.

  3. Next day thought which gives some reason why any lawyer would do a deal behind the client’s back.
    Since the law firm is part of the system, it is dependent on the system for quite a few things which you know about but I can only guess about. Would the law firm like the
    media companies do a deal to help the agencies just as the media does in not attacking the Prez. (Exceptions perhitted in both directions of course.)
    Catering to those with power and pull is not new, especially when it is your life (or the firm’s).

  4. So sad it is. There is but revolution left. Where is the Mad comics book guy on a poster pointing at me, saying: “A la Bastille, what me worry. That must be the recruiting office in this Mad world. If we could enlist the help of whales……….?

    Ahhh! A new thought. The fall of USSR, now is a drunkardh had not seized power. I guess today’s situation
    kills that idea.

  5. It’s just that a really big big big ship cannot be turned around by folks swimming near it, even if a bunch of them gang up and all push together. I have actually had government people (one, actually a New York Governor!) tell me they did not have the power to do a small, easy, clearly necessary thing (such as appointing a commission or a special prosecutor) because they did not have the power. They did not mean, of course, that they did not have the power, they HAD the power. They meant they were not giving UP any power for that inconsiderable person or on behalf of that powerless group. It’s about power. It’s also about momentum. We’re headed in the wrong direction and have been so for so long, and gathered up so much speed and mass by now, that “reform” is just a word used often for the wrong purpose.

    Sorry. I call it as I seezit.

    So in my book, all we can do is whatever we can do for individuals. In the Zimmerman case, thanks to the enormous public reaction, we have been able to accomplish something but will it change the whole direction or even the Alexander case? I genuinely doubt it.

    Perhaps the feds will come through and surprise me, though. I hope they do.

  6. Malisha,
    The nomination was with thought to reform, not as a figurhead to hide the evil. But understand the reticence to be even for reform purposes.
    OT Would we get a good Prez in Warren or can all good things be spoiled? Evne good intentiioned Prezs?

  7. @ Idealist: As for my being a cabinet member in the Justice Department, sorry, can’t serve. (Someone else once nominated me as Minister of Poetry and I would have accepted!) But I could never serve as a member of DOJ because it’s a department of a chimera, and I am (as Edward Lear described himself) “concrete and fastidious.”


    Many ideas and responses (since my name was mentioned).

    Obvious ones: How many predicted 9/11?, How many predicted the finance fiasco? How many predicted Obama via Holder proclaining his execution capabilities of American citizens?

    Now, who really believe, be honest, that that which we see happening in government tells us anything of what they are planning for tomorrow. How many excerpts from Orwell, how many hints of dire futures—not only from nut blogs and doom,doom prophets—do we need to either get hysterical and run around crying the sky is going to fall—-OR open our minds to the various fact articles and prime newspaper speculatins, and start thinking.

    I do not put myself up as a prophet or great collector of data or analyzer. I’m like most, but suspicious since the days of McCarthy.

    So when Malisha casts a shadow of suspicion of turpitude over the legal and official branches of our society, then I feel shocked. Here I have learned to never talk to cops. Now if we believe her, I have learned not to trust getting simple justice, ie by the books; unless possibly if I have lawyers watching my lawyers, and lawyers watching the agencies, and lawyers watching the courts.

    And I can’t afford them. Can you?

    And since I’ve nominated Warren for President, I’d like to ask her to nominate Malisha as our first non-lawyer(?) as cabinet member for the Justice Department.

    All those who agree say Aye!

  9. Hey Shano, that Zimmerman comment was brilliant!

    Idealist707, I just read this thread now (had been out of town and generally only follow the Zimmerman/Martin case threads so as to keep my obsessions pure) but let me put in one comment on these ideas. (Beware: it’ll need “set up” for me to make this comment.)

    When I was litigating with my ex-husband in the 1980s, I didn’t even imagine that judges would talk to each other or to the lawyers in private without there being paperwork that showed what had happened, and so lots of things that I discovered years LATER simply seemed to NOT be on the landscape at all. Then when I finally got the idea that I would go to the courthouses, pull files myself, and read them from the first page right through to the last page, and read the docket sheets, and investigate things on the plaintiff/defendant computers, and create spread-sheets, I discovered a whole world that I never knew existed.

    Fast-forward to 2008. I did not imagine that lawyers who had taken MY case would be carrying on secret correspondences with the adversaries to manipulate me into a settlement for the very reason that state agencies had personnel who were going to end up in trouble if the entire case was exposed, something that would have occurred if my own lawyers represented me within the requirements of the Canon of Ethics. I would never have imagined these things (AND I had no evidence of them — then) so I did not see them, I did not imagine them, and I did not, boo hoo, prevent them.

    All of this unstudied ignorance on my part was due to two characteristics of sane people, and I am and WAS a sane person: We are not paranoid and we do not presume that things are happening that we consider, under the circumstances, highly HIGHLY unlikely.

    So I have come to believe that sometimes, things happen that we consider, under the circumstances, highly unlikely, and that sometimes, people whose sanity can be called into question (especially if they are without evidence of some of their worries or speculations or premonitions) happen upon things that are actually true.

    This is not to say that I think we are carrying microchips or that we soon will be. In fact, I have no opinion at all about that I had been hearing it from people (mothers who had been victimized by the court system, generally, especially those mothers who were very religious) since the early 90s. I never worried about it and I never thought much about it. I always figured that if I became really threatening to anybody who had any real power they’d do away with me so fast nobody would have time to determine the coordinates of my chip. One time a friend of mine asked me if I was scared because my ex-husband had the FBI make a visit to my landlord. I said, “why should I be scared? If they want to be rid of me they won’t visit my landlord at all.”

  10. Thanks Mike A. It is amazing that this story did not get bigger play on the national scene. The power of the OLC is so strong it is now evident why the Senate Republicans have filibustered against Obama’s choice for head of OLC.

  11. id707,

    “You might as well be claiming Big Foot is following people around with Elvis in a UFO. At best it is rank conspiratorial speculation and at worst it is some kind of (likely baseless) fear mongering.”

    And this is insulting to you how exactly? It attacks your idea. It doesn’t attack you no matter how you want to distort it. You aren’t a victim except to your own now manifest and apparently incorrigible defects.

    Let’s look at your words, shall we?

    “Playing catchup, may I point to a post where I claimed that soon that newborns in addition to footprints will as part of the routine “shots” will be “chipped” and RFID’d with nano particles. Wherever you are the “network” will know where you are, who you are, and likely who passed the “reading device” together with you.”

    “However that may be, there is alraady ample proof in countless journals and articles and are to some degree already imtegrated into the existng infrastructure. Follow the tech section of any reputable newspaper, NYTimes for ex.”

    You offered weak, non-specific proof yourself for what you state is a claim. That means you were making an assertion, a declaration, an affirmation.

    You were not speculating until better proof was asked for.

    That’s what is known as backpedaling.

    You’ve mistaken yourself for having any credibility with me at this point.

    As to your problem with raff? Take it up with him.

  12. GeneH,
    Here’s a quote. Your words. Are they insulting to me?

    “You might as well be claiming Big Foot is following people around with Elvis in a UFO. At best it is rank conspiratorial speculation and at worst it is some kind of (likely baseless) fear mongering.” GeneH

    I felt so. But I still say you don’t get it. You latest called what I said for a theory. Come on, Gene, you who can split a hair with your very glance, let alone with your mind—how can you call my speculation a THEORY?

    It’s not even structured and never was intended to be. It is a bunch of loose assertions, and you call it a theory. Yeah, theories do require some backing, but speculations. Thank goodness they don’t require proof.

    Why did he come looking for something to call me down on. He found one and called me a nut with a tinhat. How’s that for the first I hear from him? Is that not aggressive. Is it friendly?

  13. Can you point to any insults in my initial comments to you before you went on the attack, id707?


    So my point about your behavior is again proven by your response.

    Thanks for playing.

  14. Insult, insults, insults. Same ol’ GeneH.
    You can have the last word. You couldn’t live without it.
    As usual, you avoid the issue; speculations can’t have proofs. But you’re welcome to ask for them.
    Useless is as useless does.

  15. id707,

    And you apparently don’t comprehend English.

    I pointed to inherent problems with your theory.

    I asked for proof.

    You don’t have any proof.

    End of story.

    As to insults? You’re the one who started it again, you passive-aggressive shit, so if you want to play victim again, be my guest. But if you want proof of this claim?

    My first post:

    “Extraordinary claims require extraordinary proof. Without some proof of your chipping/nano-particle assertion? You might as well be claiming Big Foot is following people around with Elvis in a UFO. At best it is rank conspiratorial speculation and at worst it is some kind of (likely baseless) fear mongering. Raff asked for proof. So am I. Why? Because it’s a crazy idea. Consider how many people it would take to implement a conspiracy on that level let alone attempt to cover it up and then reconsider the likelihood of your statement being even remotely true. Throw in the fact that a certain percentage of the populace will get X-Rays or CT scans or MRI’s that would show chips and a certain percentage of the population are prone to have an adverse reaction of some sort (hystemic reaction or otherwise) from nanite exposure and the discovery certain of such a plot tends toward 100%.”

    Not one word of insult directed at you. Simply criticism of your idea.

    My second post:

    “I suggest you put your polemic back and not get your panties twisted when someone questions a crazy assed theory for being a crazy assed theory, id707.

    As for your criticism of my argumentation? If I’m comparing your theory to something ridiculous it is because I think what you are saying is ridiculous and worthy of ridicule.

    Again, either you have proof or you don’t.”

    Again, not one word of insult directed at you. Criticism of your idea. However, that lack of insult directed at you that didn’t stop you from then going on the attack and wrongly claiming you were being attacked when it was your idea being attacked.

    So at this point I’ll point out again your repeated pattern of behavior as it regards interacting with men.

    You attack others and then play victim when they fight back.

    This is called “passive-aggressive behavior”. You primarily exhibit it when dealing with males. With women, you seem to spend a lot of time sucking up and playing the needy card.

    Once again, you’ve mistaken me for someone who is going to that kind of behavior from you without addressing it.

    If you don’t like that?

    Too bad.

    Quit acting like a dick. I don’t care what your excuse might be. As long as you act like one, I’ll treat you like you’re acting like one. I would think you’d have learned this simple lesson by now, but apparently learning isn’t your strong suit.

    Was that clear enough for you to understand, id707?

    I certainly hope so.

  16. GeneH

    You don’t seem to grasp simple facts.
    I will repeat: Speculations do not, by their very nature, have proof. There may be evidence but no proof.

    Now if you go around here demanding proof of everyone who speculates, then you will have lots to do.
    Good luck with that, if you do.

    And that was that, to use words heard before.

    And again, let me thank you for your attentions. They are always instructive, but not always in ways you may have anticipated, but welcome all the same.

    And again you distinguish yourself by holding the low ground using insults. When will you abandon that distinguishing tactic?

  17. Mike A.,

    “What the Ninth Circuit has done is permit the architect of a legal misinformation campaign to define the legal context in which his own actions are to be judged. It has adopted the notion that an unconstitutional usurpation of power, it if succeeds in creating sufficient legal confusion, can be rewarded with immunity.”


  18. id707,

    Listen up. My comment to you was civil. If you have a problem with raff? That’s between you two. I wasn’t defending anyone, but I was asking for proof. However, if you simply want to escalate when you don’t have proof and act like a dick when called on it? That’s not only your prerogative, but your problem as well.

    I pointed to inherent problems with your theory.

    I asked for proof.

    You don’t have any proof.

    End of story.

    As for your attitude over the whole matter? You need to up your meds. Because clearly it is not just your ideas that are crazy.

  19. Great post, rafflaw.

    It is an historical fact that the law of torture was not a subject of serious dispute in this country until the Bush administration determined to employ torture in response to the attacks of 9/11. Mr. Yoo’s job was to legitimize torture, and he was ably assisted in that effort by Mr. Jay Bybee, whose reward was an appointment to the, you guessed it, Ninth Circuit Court of Appeals.

    Mr. Bybee’s memorandum to Alberto Gonzales of August 1, 2002, contained the following legal gems:

    1. “Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”

    2. “Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.”

    In an earlier memorandum to William Haynes on March 13, 2002, Mr. Bybee had declared presidential authority in the treatment of captured combatants to be “plenary” and “exclusive.”

    The absurdity of these assertions has been the subject of lengthy threads on this site in the past. And the memoranda themselves were subsequently withdrawn. But they accomplished what they intended-a blurring of the lines.

    What the Ninth Circuit has done is permit the architect of a legal misinformation campaign to define the legal context in which his own actions are to be judged. It has adopted the notion that an unconstitutional usurpation of power, it if succeeds in creating sufficient legal confusion, can be rewarded with immunity. And, in the process, Judge Bybee, whose memoranda were not disclosed to the Senate during the confirmation proceedings, has been granted a defense against any impeachment efforts.

  20. Shame of “Yoo”, shame on all of those who were (and are) complicit…

    “National Security Agency whistleblowers William Binney, former technical director; Kirk Wiebe, former senior analyst; and Thomas Drake, former senior official, sit down with “Viewpoint” host Eliot Spitzer for an extended interview. The men describe Trailblazer and Stellar Wind, NSA programs designed to intercept Americans’ phone calls, emails and other communications, without the need for warrants or oversight — which they say breaks the law. Thomas Drake describes his decision to reveal the secret surveillance to authorities and the public: “Not only did I discover the wheels had come off the existing vehicle, we were in an entirely new vehicle — in absolute violation of the Constitution. I knew if I remained silent that I would be complicit to the subversion of our own Constitution.””

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