On the DoJ's Defense of Yoo

[berni_mccoy]

First off, Yoo should be tried for War Crimes. That much is clear.

However, all the hyperbole of late about Obama defending Yoo, is well, just hype.

As has been discussed here before, the recent "Defense" of Yoo by the DoJ is against a Civil case. And just as the law says that every defendant can have a lawyer, even if they cannot afford one, the law also says that the DoJ is bound to defend Yoo, as he is being sued for acts he committed on behalf of the government.

A couple of facts that must be considered here:

1. This case was filed in 2008, *before* Obama became President. The defense by the DoJ is a continuation of their defense that began before the Obama Administration.

2. This latest filing by the DoJ was regards to an Appeal filed by the Plaintiff who lost their case. Again, the DoJ is, by law, bound to support their case and defendant as it is appealed.

3. Yoo is under investigation by the DoJ for criminal acts (again, separate this Civil case from a Criminal one). The case isn't closed. The DoJ should have released their Torture Report at the end of November, but has failed to do so. It is fair to criticize them on this. However, according to TPM, a leak indicates it will be critical and judgmental of Yoo's conduct and will likely include some form of discipline. If this is anything less than a trial for war crimes, again, I would say criticism is fair, but not to the extent of saying that Obama is defending Yoo.

[asjr]

1. Well said. Clears up some things for me.

[Phoebe Loosinhouse]

2. I think your entire OP is based on a false premise

I say that based on the article below.

http://www.huffingtonpost.com/nan-aron/the-torture-memos-and-the_b_382708.html?view=print

Posted: December 7, 2009 12:27 PM
Nan Aron
The "Torture Memos" and the Increasingly Indefensible DOJ

skip
The DOJ's position in Padilla v. Yoo was compromised from the start. For a while, DOJ attorneys served as Yoo's counsel in the case, defending his actions as a member of the department at the same time that another branch of DOJ was conducting an ethics investigation into his conduct. At some point the Department realized this presented an insurmountable conflict, and Yoo retained Miguel Estrada as private counsel.

After turning Yoo's defense over to Estrada, the Justice Department could have stayed out of the suit, which might have been the prudent move. If DOJ recognized that it was a conflict to support Yoo's position through direct representation, it should not try to do an end run by getting its views before the court by filing an amicus brief.

The Department's amicus brief is, as a substantive matter, disingenuous at best. As Scott Horton notes, federal law has long held that government officials who are responsible for torturing individuals may be held accountable in court for their conduct - a principle enshrined in decisions from the Nuremberg and Tokyo tribunals which DOJ failed to cite in its brief. DOJ now argues that the only way a government lawyer can be held accountable for unethical and/or illegal conduct that in some way involves matters of national security is through internal review by the Department's OPR and Office of Inspector General, bar disciplinary action, and criminal prosecution. As Horton, writes, "It effectively boils down to the Justice Department saying that it alone will decide about the accountability of its staffers for wrongful conduct that damages others."

More links to substantiate the article above:


http://blogs.wsj.com/law/2009/07/17/john-yoo-hires-miguel-estrada-doj-foots-the-bill/

http://jonathanturley.org/2009/12/09/obama-administration-files-to-dismiss-case-against-john-yoo/

[berni_mccoy]

3. The DoJ cannot back away from an appeal on a case they defended.

The brief that was filed is a defense of the DoJ's case as it was decided in a lower court. And it wasn't the DoJ that hired Estrada. It was Yoo. Yoo was concerned that the DoJ wasn't doing it's job, so he hired an private attorney. That does not preclude the DoJ from its legal obligation. The DoJ cannot just step aside at this point and allow a private attorney to take over.

[Phoebe Loosinhouse]

4. Then why do they appear in the case as a "non-party amicus" ?

"They are effectively doubling down by withdrawing as counsel and then reappearing as a non-party amicus." That quote is from the Turley blog posted above.

It seems that the Justice Department themselves disagrees with you.

Did you read any of the three articles I posted? The DOJ is paying Estrada's fees on behalf of Yoo when they realized that they had an irreconcilable conflict of interest in representing Yoo.

[berni_mccoy]

5. Again, they are doing this because, by law, they must.

They are no longer his council, but they must defend their case. They must also state, on the filing, that they no longer represent the defendant.

[Bluenorthwest]

12. But why the amicus brief? And why avoid responding to that

element as if it were not there? They had no requirement to file that brief, and yet they did so. What have you to say about the voluntary filing of that brief?

[berni_mccoy]

16. Probably because the court ordered it.

They are not party to the case anymore. Yoo's lawyer took over. But the Judge can order it, since they were the original representation for Yoo.

Furthermore, Padilla's lawyer would have to agree to an Amicus from a 3rd party unless the Judge ordered it. If you were Padilla's lawyer, would you agree to it? Not likely. So the most likely outcome was that it was ordered by the court.

[jgraz]

23. Did the court order them to overturn the Nuremburg Protocols?

You still haven't answered how you would feel if the Nazis had used Obama's arguments...

Oh wait.. they DID.

[Phoebe Loosinhouse]

29. I have read many articles about the DOJ and Yoo. YOU are the only

person I have read anywhere saying that the Obama Justice Department HAD to file an amicus and now you are saying "probably because the court ordered it."

And, once again, I think you are wrong on a point of fact. You say

"Furthermore, Padilla's lawyer would have to agree to an Amicus from a 3rd party unless the Judge ordered it. If you were Padilla's lawyer, would you agree to it? Not likely. So the most likely outcome was that it was ordered by the court."

But a little bit of research turns up this:
http://legal-dictionary.thefreedictionary.com/Amicus+brief

In appeals to the U.S. courts of appeals, an amicus brief may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court, except that consent or leave shall not be required when the brief is presented by the United States or an officer or agency thereof.

So again,( as you're fond of saying when you just repeat a previous assertion) could you cite one credible source that says the Justice Department HAD to file an amicus when everyone else says it was optional OR prove that the Judge Ordered them to provide an amicus?

[berni_mccoy]

44. The fact is, no one knows if they were or were not ordered to submit it.

But, they are certainly allowed to defend a case they won against appeal. And the fact remains, they were required to defend Yoo and won their case. Now it's being appealed. Who is best equipped to defend their case against appeal?

[Phoebe Loosinhouse]

46. Now they're "alllowed " to defend a case they won against appeal?

What are you talking about? I could be wrong, but my understanding is this is a civil case, Padilla vs Yoo where the government and Yoo first asserted that he was immune from prosecution which they LOST. That is what is being appealed. I'm starting to think that you really have no idea what you are posting about.

This is a great summary of what is being appealed from July

http://www.fff.org/blog/jghblog2009-07-14.asp
Padilla vs. Yoo: An Update
by Jacob G. Hornberger

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.

***** an "interlocutory" appeal is explained extremely well in the post I excerpted and is well worth reading.

[jgraz]

47. Excellent article. Totally exposes the *real* motive for defending Yoo

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.

The best question to ask is not why is Obama defending Yoo, but why are they helping Yoo suppress sworn testimony in open court by Bush Regime officials?

[berni_mccoy]

51. Sorry, poor choice of wording

The gov't won it's criminal case against Padilla.

The gov't has an obligation to defend one of its agents against a Civil suit initiated from someone who was convicted by the gov't, especially when one of those agents was instrumental in Padilla's case.

Can you imagine if every criminal decided to file a civil suit against the state or federal lawyers involved in the case? That's part of the reason the gov't is involved on this appeal.

But more general, even though they are not on the case now, the DoJ was on the case when it was first filed. They have a legal obligation to provide their position on appeal.

I should have been more clear with my response. Too many here are being insulting and not rational.

[Snazzy]

60. "They have a legal obligation to provide their position on appeal."

How's that? Got link?

[Snazzy]

59. that's right

the appeal is about the judge's ruling on a motion to summarily dismiss (the case is far from resolved). The judge denied that motion by Yoo which will allow the case to go forward. In other words, soon we would be hearing evidence about the torture.

It's an amicus brief. There is no obligation for the government to file one. It's civil because that's the only avenue Padilla really has (see http://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Agents)

[WilliamPitt]

6. Thanks

K&R

[spanone]

7. when you wipe away the bullshit, the hangover from the bu$h* years goes everywhere

[berni_mccoy]

9. That describes this case to a "T".

[Name removed]

8. Deleted message

Message removed by moderator. Click here to review the message board rules.

[gateley]

10. Thanks -- to us (me, anyway) we rush to judgment without understanding all

the intricacies. I'll stop lobbing disparaging remarks around about Obama and Holder. I stand corrected and enlightened. :hi:

[jgraz]

11. Obama did not need to make sweeping new arguments to defend Yoo

and to protect executive power to break the law. They are not *continuing* the Bush defense of this criminal, they are putting forward new arguments that further extend criminal immunity for executive branch advisors -- with the obvious intent of cutting off new prosecutions of the Bush criminals.

The OPR misconduct (NOT criminal) investigation has been going on for 5 years. Let's not pretend that this is any initiative called for by the Obama DOJ. And, as Obama and Holder's arguments clearly demonstrate, this weak, stalled investigation is being used to inoculate Yoo from ANY legal action and deny his victims their day in court.


Here's a good post on the subject with lots of helpful links: http://emptywheel.firedoglake.com/2009/12/04/yoo-opr-and-the-ninth-circuit/

And another on how Obama's new arguments are effectively nullifying the Nuremburg protocols. http://www.dailykos.com/storyonly/2009/12/10/812675/-On-eve-of-receiving-Nobel,-Obamas-DOJ-files-amicus-brief-upending-Nuremberg-Protocols

Money quote:

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.

[berni_mccoy]

13. Thanks but FDL is up there with RawStory when it comes to hyping up controversy.

The filing is indeed a defense of a case won by the DoJ against Padilla. They are legally bound to follow-up on the appeal.

And an OPR investigation can certainly result in criminal charges.

[jgraz]

14. So you attack the source instead of offering any substantive criticism.

Obama apologist technique #142. Nicely deployed.

Anything to say on the fact that Obama's arguments would have kept Nazi jurists out of prison?? :shrug:

[berni_mccoy]

17. Since when is challenging the validity of a source not allowed? And I did both, thanks.

[jgraz]

19. OK, well you're a well-known Obama apologist.

There! I totally destroyed your points. Feel better?

[berni_mccoy]

21. Lol. Nice try. With a personal attack too. You're so good at it.

[jgraz]

22. How is your attack on FDL *not* a personal attack?

And a pretty disingenuous one at that, since the only reason I linked to it is that they provide a nice summary of Scott Horton's article in Harper's.

http://harpers.org/archive/2009/12/hbc-90006184

Care to go after the credibility of Horton or Harper's? This should be fun to watch.

[berni_mccoy]

31. FDL is a person?!? I didn't know that. You must agree with Repubs that Corps are People too?

[jgraz]

32. Nice dodge.

Actually, a pretty transparent a pathetic dodge. You're using an argument at the same level of an ad hominem attack. You can't refute the truth of what's said, so you blindly lash out at the person who's telling you the truth.

Now answer the question: do you also view Scott Horton and Harper's as illegitimate sources?

[jgraz]

49. * cricket noise * cricket noise * cricket noise * cricket noise * cricket noise *

Not surprising... :eyes:

[chill_wind]

27. dupe-delete

[chill_wind]

28. The are quite a few bloggers with legal backgrounds at Emptywheel's site.

Including some high profile ones that drop in from time to time. I think your effort to try to discredit them is a bit of a stretch.

[jgraz]

30. When you can't refute the substance, attack the messenger.

[berni_mccoy]

33. Like you do?

[jgraz]

36. Nice deployment of the Rubber/Glue technique.

I supposed now we'll be moving on to the "Neener-neener" defense. :eyes:

[Phoebe Loosinhouse]

37. Could I pop in here and ask you to respond to my question in post 29? nt

[jgraz]

40. Hah. Good luck with that.

Plus, I'm pretty sure Bernie considers your calm presentation of actual facts to be a personal attack.

[asdjrocky]

15. Oh! Then all of that makes it okay to torture people.

Thank you so much for clearing up why no one other than a few grunts will ever be held accountable. See, before I read you enlightening piece, I was really upset, and now I get it.

It's like if no one sees it, it didn't happen, right?

This is total BS and there is no way for a thinking person to defend it.

[jgraz]

18. I disagree. There IS a way for a "thinking person to defend it"

You just have to rank defense of Obama higher than telling the truth.

[asdjrocky]

24. There it is. THE TRUTH.

Damn thing fucks us every time, don't it?

[berni_mccoy]

20. More hype from the uninformed and illiterate

If you bothered to read my post, you'd realize I fully support bringing charges of War Crimes against Yoo and that the DoJ should do this. And if they don't they deserve to be criticized on that basis.

But let's just make up false statements to label people with instead. That's just stupid fun.

[jgraz]

25. But you apparently don't support allowing Yoo's victims to sue in civil court...

Correct?

[asdjrocky]

26. I read your op berni.

It's a political piece. It's an excuse piece. It's a list of reasons why we shouldn't expect our President or our Justice Dept. to do anything in a hurry. If anyone from the Bush Admin tried to use this logic we would be all over them.

Funny, see I just made my point without personally insulting you. It's not that hard. Clearly I'm not illiterate because I'm typing this now, clearly I'm not stupid because I've proven I can at least read and put a proper post together, and clearly I can make my own decisions.

I disagreed with what you wrote. I didn't attack YOU for writing it. Don't you see the difference? I'm really asking.

[berni_mccoy]

34. If that was not an attack, then you must speak a different language.

You referred to me directly many times in your response.

The fact that you ignored my disclaimer, that I believe Yoo should be tried for War Crimes and that the Administration *should* be criticized if they don't, shows that you just read words, but didn't comprehend.

[jgraz]

35. Yes, he replied directly to what you said. And he disagreed.

Welcome to Teh Internets. Now put on your big-boy pants and stop whining.

[berni_mccoy]

39. And implied I agreed Torture was OK. Total b.s. attack.

[jgraz]

41. Someday, you should familiarize yourself with the concept of sarcasm.

We use it pretty often here on DU. You'd probably have a much better time here if you actually understood the basic principles a little.

[berni_mccoy]

45. Sounds like you should. Sarcasm is often used to insult those you don't agree with

in a passive-aggressive way. But you know that already.

[jgraz]

48. Maybe you should focus on the facts instead of your faux-outrage.

As Phoebe has so skillfully demonstrated, your command of the facts could use a bit of shoring up.

[asdjrocky]

38. So it's just my comprehension that's a problem here?

Funny, when I write something and someone doesn't understand it, then I usually figure I just didn't make it clear enough. I don't automatically assume that my readers lack basic reading comprehension, perhaps I should begin looking at it differently.

Sorry if you feel insulted but I'm insulted when my country tortures in my name. I'm insulted when no one seems to be in a hurry to do anything about it. The crimes happened years ago, it's upside down that nothing has happened sooner.

By the way, I think they are still investigating Tom Delay.

[Taverner]

42. Wow - some serious acrobatics there...

[jgraz]

43. Too bad he blew the dismount.

:rofl:

[niyad]

50. so the DoJ has been investigating this since 2004--and is just NOW going to issue a report?

what in the hell has taken them so long?

[Hekate]

57. They started under Bush and are wrapping up under Obama. Bush can't pardon Yoo now, can he?

No harm in being thorough.

Hekate

[Rosa Luxemburg]

52. What is the delay in the report?

[ellie]

53. kicking this

[Cha]

54. Thanks bernie,

I knew there must be more to this.

[annm4peace]

55. See what they have to say in Minneapolis

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x7200731

[harkadog]

56. Your "facts" are not facts

1. Just because the case started before the Obama administration does not mean the Obama DOJ is compelled to defend it. The DOJ can change their position at any time.

2. The DOJ is not compelled by any law to support their case. They could drop it at any time. Happens every day at the DOJ.

I love how people on the internet assert things and get people to believe this shit.

[Hekate]

58. KnR Bernie. As to point #1, Bush is no longer able to pardon Yoo, is he? ...

I don't mind if the DOJ takes a bit of extra time if it results in appropriate charges and a conviction and disbarment of Yoo. All the better since Bush has left office and is in no position to help his old vassal.

Hekate