Opinion Editorials, July 2009

Padilla vs. Yoo:

An Update

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 of law."

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 from it.

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.

Why? 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 prosecutions.

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 measures.

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.

The 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.

Given the 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.

http://freedetainees.org/6218


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John Yoo's Defense of Himself Is as Persuasive as Most of His Legal Opinions

By Spencer Ackerman

http://freedetainees.org/6212

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 attackers?

Evidently, none of the inspectors general of the five leading national security agencies would approve.

Those inspectors 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.