Mission & Name
US Foreign Policy (Dr. El-Najjar's Articles)
John Yoo's Defense of Himself Is as Persuasive as Most
of His Legal Opinions
By Spencer Ackerman
Free Detainees, July 18, 2009
This is your horrible, dystopian future:
John Yoo, the former Office of Legal Counsel official who had a hand in
crafting the Bush administration's detentions, interrogations and
warrantless surveillance abuses, writes endless and endlessly misleading
defenses of himself. Some people die because of Yoo's cavalier relationship
with the law — about 100, actually — and others get law school sinecures and
limitless op-ed real estate to explain away what they did. Few people write
so much for so long with so little self-reflection. You'll be reading these
op-eds in the nursing home. Yoo's latest comes in response to Friday's
report from five inspectors general about the warrantless surveillance and
data-mining escapades of the Bush administration. Welcome to your future.
Yoo starts things off with his typical flourish of disingenuousness:
Suppose an al Qaeda cell in New York, Chicago or Los Angeles was
planning a second attack using small arms, conventional explosives or even
biological, chemical or nuclear weapons. Our intelligence and law
enforcement agencies faced a near impossible task locating them. Now suppose
the National Security Agency (NSA), which collects signals intelligence,
threw up a virtual net to intercept all electronic communications leaving
and entering Osama bin Laden's Afghanistan headquarters. What better way of
detecting follow-up attacks? And what president — of either political party
— wouldn't immediately order the NSA to start, so as to find and stop the
Evidently, none of the inspectors general of the five
leading national security agencies would approve.
general, in Yoo's imagination, aren't overworked bureaucrats in wrinkle-free
shirts, cotton Dockers and overgrown haircuts, buried under endless reams of
paper. They're useful idiots for Osama bin Laden. In truth, the reason why
the inspectors general don't entertain that scenario is because it's absurd.
If the intelligence community knew what the "electronic communications"
signatures heading into and out of Osama bin Laden's Afghanistan
headquarters were, they could very easily obtain warrants under the Foreign
Intelligence Surveillance Act of 1978, because they'd possess individualized
suspicion. This is an unproblematic case, fitting easily under the aegis of
the law on Sept. 12, 2001. It has absolutely nothing to do with what the
inspectors general call the "President's Surveillance Program." That's also
why the battery of Justice Department leaders like Acting Attorney General
Jim Comey, Associate Attorney General Jack Goldsmith, FBI Director Robert
Mueller and Associate Deputy Attorney General Patrick Philbin fought to rein
in the surveillance activities — because they were overbroad and outside of
FISA, which Congress explicitly made the "exclusive means" for conducting
legal foreign surveillance. Yoo continues:
It is absurd to think that
a law like FISA should restrict live military operations against potential
attacks on the United States.
Actually, it's absurd to think that a law like FISA does. Yoo cites the
9/11 Commission, saying it found that "FISA's wall between domestic law
enforcement and foreign intelligence" proved to be such a hindrance, but
that's a misrepresentation. FISA has no such wall. The "wall" was an
invention of the Justice Department under Janet Reno to separate
foreign-collected surveillance from criminal investigations, nothing even
close to "live military operations," and in practice that bureaucratic
restriction went too far and inhibited necessary FBI-CIA collaboration. The
Bush administration's response wasn't to get Congress to change FISA; it was
to entirely circumvent it.
Clearly, the five inspectors general were
responding to the media-stoked politics of recrimination, not consulting the
long history of American presidents who have lived up to their duty in times
of crisis. More than a year before the attack on Pearl Harbor, President
Franklin Delano Roosevelt authorized the FBI to intercept any
communications, domestic or international, of persons "suspected of
subversive activities . . . including suspected spies."
You know what
law, passed in 1978, didn't exist when FDR was president? Yoo goes even
further, and takes selective quotations from Jefferson and Hamilton to
suggest that his long-discredited theory that presidents have king-like
powers during times of war, and yet he never comes out and says it, because
even in The Wall Street Journal people can recognize absurdity.
What's amazing about Yoo's caustic attack on the inspectors general report
is that the report itself embarrasses Yoo but does little else. There's no
suggestion of prosecution, no recommendation of additional investigation, no
harsh language. It says simply that Yoo says what he says in this op-ed and
that his superiors at OLC were cut out of that loop. That's all. Yoo's not
even in danger, if reports about Attorney General Eric Holder's potential
new investigation are to be believed, of moving into the crosshairs of the
Justice Department. Today's attack on the inspectors general is Yoo's
response to having his own words quoted back at him. Which, perhaps, is
insult enough. It's like seeing the next 30 years of your life unfold before
your horrified eyes.
Padilla vs. Yoo:
By Jacob G. Hornberger
Free Detainees, July 18, 2009
There are two interesting developments in Jose Padilla's lawsuit
against former Justice Department lawyer John Yoo, who was one of the
authors of the infamous torture memos.
First, the Justice Department
is no longer defending Yoo in the case. He will now be represented by a
private attorney, paid for by the Justice Department.
Second, Yoo is
appealing the ruling of the federal district court denying his motion to
dismiss Padilla's case.
A motion to dismiss requests the court to
summarily dismiss the plaintiff's case without hearing any evidence. The
motion essentially says: "Even if you accept as true everything the
plaintiff is saying in his petition, he is not entitled to win as a matter
Generally, courts are loath to summarily dismiss cases
brought by litigants. The general rule is that everyone is entitled to the
opportunity to prove his case.
Thus, in ruling on a motion to
dismiss, the court will accept as true
everything that is stated in the
plaintiff's petition. If such facts, if later proved, can support a legal
case against the defendant, the court will deny the motion to dismiss.
Can a defendant appeal a motion to dismiss? The general rule is no
because the courts frown on interlocutory appeals, that is, appeals that are
taken before a case has been finally resolved. Since a denial of a motion to
dismiss is not a final resolution of the case (because the case is allowed
to continue forward), the general rule is that an appeal cannot be taken
So, why would Yoo be taking an appeal at this stage? My
hunch is that he, along with a lot of other people in the Bush
administration, are panicked over the judge's ruling and are now looking for
every way possible to delay the continuation of the suit.
Because Padilla's lawsuit provides the means by which Yoo and other Bush
administration people can be forced to testify under oath in a federal court
proceeding as to exactly what went on in the so-called war on terror.
Except for Padilla's case, giving sworn testimony is something the Bush
people could easily succeed in avoiding, given congressional apathy toward
an official investigation and executive branch opposition to criminal
Why is Padilla's lawsuit important? Because the
ultimate ruling in the case will apply not just to him but also to all
Americans. The suit alleges that the U.S. government took Padilla into
custody and held him for several years without charge, until finally
indicting him and convicting him in federal district court of the federal
crime of terrorism. For years prior to the indictment, Padilla was held in
the custody of the U.S. military, where he was denied right to counsel, the
right to due process of law, the right to bail, the right to a speedy trial,
the right to a jury trial, and other procedural protections guaranteed by
the Bill of Rights. He was also subjected to torture, sensory deprivation,
isolation, sleep deprivation, and many other cruel and unusual pre-trial
The government takes the position that it had the
legitimate authority to do these things to Padilla and that it, in fact, has
the legitimate authority to do them to every other American, as part of its
"war on terrorism." Yoo is saying that as a government lawyer who was just
delivering legal opinions, he is immune
from Padilla's suit.
district judge disagreed. He held that the U.S. government lacks
constitutional authority to subject the American people to such treatment
and that any lawyer who knowingly participates in a scheme to subject
Americans to such mistreatment is not immune from suit.
predilection of the courts against interlocutory appeals, in my opinion the
Court of Appeals will quickly rule against Yoo's appeal, enabling Padilla to
continue with his case and begin taking sworn depositions. That will be when
things start to get interesting.