Obama lawyers set to defend John Yoo, the Bush
chief author of the so-called torture memos
By Josh Gerstein
Politico, January 31, 2009
|Former Bush Justice official John Yoo was
author of the so-called torture memos. Photo: AP
In Democratic legal circles, no attorney has been more pilloried than
former Bush Justice Department official John Yoo, chief author of the
so-called torture memos that Barack Obama last week sought to nullify.
But now President Obama’s incoming crew of lawyers has a new and
somewhat awkward job: defending Yoo in federal court.
Justice Department lawyers are set to ask a San Francisco federal judge
to throw out a lawsuit brought against Yoo by Jose Padilla, a New York
man held without charges on suspicion of being an Al Qaeda operative
plotting to set off a “dirty bomb.”
The suit contends that Yoo’s
legal opinions authorized Bush to order Padilla’s detention in a Navy
brig in South Carolina and encouraged military officials to subject
Padilla to aggressive interrogation techniques, including death threats
and long-term sensory deprivation.
That’s not all. On Thursday,
Justice Department lawyers are slated to be in Charleston, S.C., to ask
a federal magistrate there to dismiss another lawsuit charging about a
dozen current and former government officials with violating Padilla’s
rights in connection with his unusual detention on U.S. soil, without
charges or a trial.
The defendants in that case are like a who’s
who of Bush administration boogeymen to Obama’s liberal followers —
former Defense Secretary Donald Rumsfeld, his deputy Paul Wolfowitz and
former Attorney General John Ashcroft.
The two cases raise the
question of how aggressively the Obama administration intends to defend
alleged legal excesses of the Bush administration in the war on terror.
The Supreme Court recently gave the new president until March to decide
whether to defend the detention without trial of another man held as an
enemy combatant, Ali Saleh Al-Marri.
And with more than a hundred court cases pending relating to
Guantanamo, the Obama team faces a fast and furious series of deadlines
to adopt or reject the Bush administration’s stance regarding specific
“This is going to happen again and again across the
government,” said Karen Greenberg, the executive director of the Center
on Law and Security at New York University. “They’re between a rock and
a hard place.”
Obama’s lawyers aren’t the first at Justice to
have to stand by a prior administration’s legal work — whether they
agree with it or not — merely in the interest of protecting U.S.
But the Bush war-on-terror team
inspires particular antipathy in the liberal legal set — and none more
than Yoo, who became a sort of symbol of the Bush administration’s
efforts to construct a carefully crafted legal framework to justify
practices that critics say are torture.
“When they go back to
the privacy of their offices, they may wish that someone would draw and
quarter John Yoo, but they have to wave the flag,” said a former federal
terrorism prosecutor, Andrew McCarthy. “What they have to do is appear
as if they are defending all the prerogatives of government that people
want them to defend. ... That’s the job of the Justice Department.”
Padilla’s lawyers, who are affiliated with a human rights clinic at
Yale Law School, declined to comment for this article. Yoo also declined
to be interviewed, though in an op-ed piece for The Wall Street Journal
last year he described himself as the victim of an attempt to use “the
tort system to harass those who served in government in wartime.”
Obama’s appointee for attorney general, Eric Holder, has taken issue
with some of Yoo’s conclusions but does not appear to have singled him
out by name. “I never thought I would see the day when a Justice
Department would claim that only the most extreme infliction of pain and
physical abuse constitutes torture,” Holder said in a speech last year,
alluding to a 2002 memo Yoo wrote.
Holder said the Bush
administration was “wrong” when it “authorized the use of torture,” when
it “secretly detained Americans without due process” and for violating
the Constitution, though he said he did not take issue with the
“motives” of those who helped set the policies.
Justice Department appointees have been far more strident in their
criticism of Yoo. In an
article in Slate just last year, Obama’s pick to head the Office of
Legal Counsel, Dawn Johnsen of Indiana University, called one of Yoo’s
memos “plainly flawed” and his defense of it “irresponsibly and
Johnsen was so vocal in her criticism of Yoo
that a liberal magazine, Mother Jones, branded her the “anti-Yoo.”
A leading authority on legal ethics, Stephen Gillers, said the
incoming officials’ criticism of the former Bush officials has been so
withering that they should press to be defended by their own lawyers —
at government expense.
“If I were counseling Yoo or Rumsfeld, I
would certainly advise them to have private counsel or shadow counsel,”
Gillers said. “The defense has to be put in the hands of people who have
not been vocal in condemning Rumsfeld and Yoo and who have not taken a
public position on the legality of their conduct.”
seems to be no fan of Yoo’s work. One of the new president’s first acts
upon taking office last week was to nullify every detainee-related legal
opinion issued during the Bush administration by the unit Yoo worked in,
the Office of Legal Counsel.
Some liberal lawyers have suggested
Yoo or other officials should face not just civil suits but a full-scale
investigation into possible war crimes. “People really haven’t been
talking about civil exposure. People have been talking more about
potential criminal exposure,” said Eugene Fidell, an attorney
specializing in military law.
While such questions swirled
during Holder’s confirmation hearings, Gillers said he thinks the
chances of such a prosecution against Yoo remain slim. “I think he still
has no worry about that,” Gillers said.
To an extent, the
lawsuits against Yoo and Rumsfeld are symbolic. Padilla was transferred
from military to civilian custody in 2006. A jury later convicted him on
conspiracy charges unrelated to the alleged “dirty bomb” plot. A judge
sentenced him to 17 years in prison, though an appeal is pending. While
Padilla does want an order barring another involuntary trip to the brig,
each suit seeks only $1 in damages, plus legal fees.
it doesn’t look like Yoo’s sharpest critics will end up directly in the
chain of command responding to the civil lawsuits. Obama has tapped an
Oakland, Calif., lawyer, Tony West, to head up DOJ’s civil division,
which has primary responsibility for such cases. West hasn’t played a
vocal role in the debate over detainee policy, but he was one of the
lawyers for John Walker Lindh, the so-called American Taliban caught in
A former lawyer in Bush’s White House, Brad
Berenson, said he expects the new Obama officials not only to defend
against the suits but to win them. “There are just all kinds of
doctrines that protect government officials, even when they’re wrong,”
he said. “The dirty little secret here is that the United States
government has enduring institutional interests that carry over from
administration to administration and almost always dictate the position
the government takes.”
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