Ex-senior attorney in the Justice Department John Yoo and his new team of lawyers have filed papers with the Ninth U.S. Circuit Court of Appeals in San Francisco in response to a failure by a judge to dismiss a civil suit against Yoo. The attorneys for Yoo argued that the courts are injecting themselves into the political arena. The appeals court has not yet set a hearing date for the case.

Yoo, also a UC Berkeley law professor, helped author the famous Bybee torture memo for the Justice Department that gave legal advice to the White House in favor of strong physical interrogation methods — waterboarding for one — and detention (indefinite in many cases) along with the expansion of presidential powers. Yoo is basically seeking liability protection from the courts for his actions that could have affected how Jose Padilla, labeled an enemy combatant and held for three years, eight months, was treated by the U.S. government

Padilla, an American citizen, was arrested in 2002 at Chicago’s O’Hare National Airport, held captive in a Navy brig without being charged, and was subjected to excessive physical and psychological torture, according to Padilla. He was denied his right to a speedy trial and now is suing Yoo for $1 plus legal fees.

The definition of torture, advised Yoo in the memo, is when “organ failure, impairment of bodily function or even death,” takes place. He added that the executive branch, meaning the president, may have the power to authorize torture of those who have been labeled (again by the executive branch) as enemy combatants, holding them without due process. His legal advice seemed to contradict the Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A.

Having been abandoned by Justice Department lawyers, Yoo has had to hire private attorneys. This new team of lawyers is arguing that Padilla’s lawsuit will “open the floodgates to politically motivated lawsuits” against government officials — hardly a serious legal stand.

One of Yoo’s attorneys, Miquel Estrada, did expand on what will probably be the crux of the defense:

Threatening executive branch lawyers with personal liability for reaching allegedly incorrect legal conclusions regarding the constitutionality of a president’s wartime actions would infringe on the core war-making authority that the Constitution reserves to the political branches.

This is eerily similar to what was contained in the original Yoo memo (Bybee memo) under Chapter V, The President’s Commander-in-Chief Power:

The demands of the Commander-in-Chief powers are especially pronounced in the middle of a war in which the nation has already suffered a direct attack. In such a case, the information gained from interrogations may prevent future attacks by foreign enemies. Any effort to apply Section 2340A in a manner that interferes with the President’s direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional.

Of course there’s absolutely no evidence per what is known about the original intent of the Founding Fathers, or throughout the course of U.S. history, to even suggest that interfering with the President’s “direction” of “core war matters” is unconstitutional, even when overlooking the fact that war had not been declared by Congress. In the Federalist Papers No. 29, Alexander Hamilton makes the case for just the opposite, in fact — even the President is to be held accountable and liable for “high crimes and misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.”

Yoo’s new attorneys are just laying the groundwork, in the same vein that the Justice Department lawyers did, for the defense that he is not personally responsible for the decision to detain Padilla or for the conditions of Padilla’s confinement, and therefore not responsible for “any alleged violation of Padilla’s rights.”  But it was on Yoo’s advice that policies were established that could have contributed to the confinement conditions and torture techniques that lead to Padilla’s physical and emotional suffering.

In a June 12 ruling, San Francisco District Judge Jeffrey White stated that government lawyers are, “responsible for the foreseeable consequences of their conduct. Judge White, therefore believes Padilla well within his rights to sue the “alleged architect of the government policy.”

Padilla’s lawyers obviously concurred saying, “Lawyers can’t aid and abet their clients’ crimes. And they can’t aid and abet their clients’ involvement in torture.”

There seems to be a pretty good attempt by Yoo and the Justice Department to shield themselves from any scrutiny, accountability, or even questioning, and certainly to protect themselves from any criminal prosecution. Their actions show they believe themselves to be above the law and worthy of all immunity as justification for the torture they have authorized.

As Thomas Eddlem noted in an August 25 New American online article highlighting U.S. Attorney General Eric Holder’s new prosecutor John Durham entitled, “Holder Appoints Torture Prosecutor, Rejects Nuremberg Principle,” low-level CIA interrogators would be trotting out the Yoo-Bybee memo as part of their defense just in case there is an investigation into authorized torture. With great insight he continues:

Holder says he remains wedded to Obama's idea that past crimes are not particularly important to prosecute. As he appointed Durham, Holder stated that “I share the President’s conviction that as a nation, we must, to the extent possible, look forward and not backward when it comes to issues such as these.”



Of course, if we do “look forward” to a time where torturers — along with those who ordered the torture — are not punished for their crimes, then we'll eventually have a lot more government torture. There will simply be no disincentive for government to torture. And history records that most governments often engage in torture even when strong disincentives are in place....

...Unless you take out the top criminals, the criminal syndicate continues on with little interruption. A torture investigation with meaning has to begin at the top, directly examining the criminal role of top officials in orchestrating the torture of detainees. Otherwise, the criminal enterprise of torture will continue on with little interruption.

It is of some interest that the Nazi regime, well-documented for its inhumane treatment of its own citizens, did the same thing. They wrote paper upon paper on various topics, trying to convince themselves and the people that whatever they prescribed was legal. Much of what was written was eventually used at the Nuremberg trials.

The German government passed a law in 1936 that removed the Gestapo from any judicial oversight. Wikipedia tells us:

The Gestapo was specifically exempted from responsibility to administrative courts, where citizens normally could sue the state to conform to laws. As early as 1935, however, a Prussian administrative court had ruled that the Gestapo's actions were not subject to judicial review. Werner Best, [Heinrich] Himmler's right-hand man with the Gestapo, summed up this policy by saying, "As long as the police carries out the will of the leadership, it is acting legally.”

There was also a comparison to our government’s enemy combatant label in Nazi Germany:

The power of the Gestapo most open to misuse was called Schutzhaft — "protective custody", a euphemism for the power to imprison people without judicial proceedings.

Even if Yoo is successfully sued in a civil court, it doesn’t necessarily mean that more investigations, at a higher level, or lower levels would be forthcoming, or that there would be more lawsuits filed by citizens against government officials. This is one area the government would never want further exposed.
 

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DDW said:

	I am sooo sick and tired Of this ignorant idea that the office of the President is an imperial position. The President is one-third of a three part government. Let's remember: There are NO kings in these United States (a thing which MANY of our elected officials, and ALL bureaucrats, need to be reminded of; by brute force if necessary).
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November 19, 2009
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