[Ppnews] DOJ to the Rescue of John Yoo

[Political Prisoner News]

This is a link (and the article) to a piece by 
Scott Horton, who writes for Harper's on issues 
of international law and human rights.

The US DOJ has filed an amicus brief in the case 
of Padilla v. Yoo arguing that Justice Department 
lawyers should have absolute immunity from civil 
suits.  The DOJ does not address the overwhelming 
evidence which supports Padilla's claim that he 
was tortured.  (Padilla is the US Citizen who was 
arrested at the Chicago airport, held in solitary 
confinement - and tortured - for several years 
until he had a complete mental breakdown, and 
then tried in civilian courts.)  The DOJ's 
position was that regardless of whether or not 
Yoo participated in a conspiracy to commit crimes 
such as torture, he should receive immunity by virtue of his position.

<http://harpers.org/archive/2009/12/hbc-90006184>http://harpers.org/archive/2009/12/hbc-90006184
DOJ to the Rescue
 of John Yoo
By  Scott Horton 
<<http://harpers.org/subjects/ScottHorton>http://harpers.org/subjects/ScottHorton> 


The Holder Justice Department has filed a 
sweeping amicus brief 
<<http://harpers.org/media/image/blogs/misc/doj_amicus.pdf>http://harpers.org/media/image/blogs/misc/doj_amicus.pdf> 
in the Padilla v. Yoo case before the Ninth 
Circuit, seeking to make absolute the immunity 
granted Justice Department lawyers who counsel 
torture, disappearings, and other crimes against 
humanity. The case was brought by Jose Padilla, 
who claims that he was tortured as the direct 
result of memoranda written by Yoo, now a law 
professor at Berkeley. At this stage, the case 
does not address the factual basis of Padilla’s 
claims, but documents that have been declassified 
by the Department of Justice make it clear that 
the charges have a firm basis in fact. Here’s the 
portion of the opinion 
<<http://www.harpers.org/archive/2009/06/hbc-90005198>http://www.harpers.org/archive/2009/06/hbc-90005198> 
authored by a lifelong Republican, Bush-appointed 
judge that the Justice Department found so objectionable:
Like any other government official, government 
lawyers are responsible for the foreseeable consequences of their conduct
.
The Holder Justice Department insists that they 
are absolutely not responsible, and that they are 
free to act according to a far lower standard of 
conduct than that which governs Americans 
generally. Indeed, this has emerged as a sort of 
ignoble mantra for the Justice Department, 
uniting both the Bush and Obama administrations.

According to the allegations in the suit, 
Padilla’s extraordinary regimen of abuse was 
imposed only after John Yoo personally gave it a 
green light, knowing that the torture 
prescription awaited his say-so. The result was 
long-term physical and psychological damage. 
Yoo’s outlandish opinions have been rescinded, 
but the question remains: can a Justice 
Department lawyer be held to account for grossly 
incompetent and unethical work that results in 
severe physical harm? It’s long been a tenet of 
federal law that agents of the government who are 
responsible for torturing individuals may be held 
to account for their conduct. The Holder Justice 
Department has been working feverishly to 
overturn this law, at least as it applies to 
employees of the Justice Department. With the 
solid backing of Republican-appointed judges on 
the Second Circuit, they achieved a major 
breakthrough on the Second Circuit in the Maher 
Arar case. 
<<http://www.harpers.org/archive/2009/11/hbc-90006024>http://www.harpers.org/archive/2009/11/hbc-90006024> 
Now they’re peddling the same pap to the Ninth Circuit.

The Justice Department once argued that no 
doctrine of immunity could be invoked to protect 
a person who, under cover of law and the 
authority of office, engages in torture, 
conspiracy to torture, or the holding of 
individuals outside of access to justice for 
prolonged periods (“disappearings”). These 
arguments were made in cases brought before the 
Nuremberg and Tokyo tribunals, including United 
States v. Altstoetter and the Ministries 
cases—authorities which the brief filed by the 
Justice Department fails to note. Now the Justice 
Department argues that there are only three 
possible avenues for accountability of a Justice 
Department lawyer: internal review by the 
Department’s Office of Professional 
Responsibility and Office of Inspector General, 
bar disciplinary action, and criminal 
prosecution. 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.

Moreover, the courses that the brief describes 
are a chimera. The Office of Professional 
Responsibility has investigated John Yoo’s 
abusive and unprofessional memo writing for five 
years. As of this morning, its findings still 
have not been released 
<<http://www.talkingpointsmemo.com/archives/2009/12/doj_we_mean_it_this_time.php>http://www.talkingpointsmemo.com/archives/2009/12/doj_we_mean_it_this_time.php> 
—notwithstanding a representation by the attorney 
general to the Senate Judiciary Committee that 
they would be made public before November was 
out. More generally, OPR rarely actually 
investigates even the most serious allegations of 
misconduct, and almost never actually recommends 
any form of discipline. The only exceptions occur 
when a federal judge becomes involved, insisting 
on action (and often not even then), or when the 
misconduct becomes a matter of public outrage 
sustained in major newspapers and broadcast media 
for years. The ABA Journal 
<<http://www.harpers.org/archive/2009/07/hbc-90005320>http://www.harpers.org/archive/2009/07/hbc-90005320> 
has correctly summarized the situation by calling 
OPR the Justice Department’s “roach motel”—“the 
cases go in, but nothing ever comes out.”

The brief’s reference to the Inspector General’s 
office is also absurd. As OIG notes, it does not 
even have jurisdiction to deal with legal 
professional staff at the Justice Department—that rests with OPR.

Next, the Department suggests that state bar 
associations can address these questions. As a 
matter of established practice, however, state 
bar associations do not take up cases involving 
Justice Department employees. They defer instead 
to the Justice Department to deal with them, 
choosing only to look at cases involving Justice 
Department lawyers when the DOJ asks them to do 
so. Bars also apply guild rules, and like the 
ancient guilds, don’t much like punishing their own.

Finally, there is the question of criminal 
accountability. In the face of actual criminal 
investigations, the DOJ has behaved usually like 
a criminal accused, and intent on obstruction, 
not like a law enforcement agency. Criminal 
investigations involving the conduct of Yoo and 
his fellow torture-memo writers are underway at 
this moment in a number of foreign jurisdictions, 
most notably including the two pending criminal 
cases in Spain. It’s noteworthy that the U.S. 
Justice Department, presented with letters 
rogatory from the Spanish court probing into the 
torture of Spanish citizens at Guantánamo and the 
role played by DOJ lawyers in this process, 
elected not to respond. Attorney General Holder 
traveled to Europe at the outset of his term, 
promising European justice officials a new era of 
cooperation. But in the first significant test 
case, he has continued the Bush-era cover-up of 
potentially criminal misconduct deep inside the Justice Department.

The Holder Justice Department’s brief can only be 
squared with prior DOJ arguments this way: 
foreign lawyers in foreign Justice Departments 
have no immunity and can be held accountable, but 
lawyers who work for us have absolute immunity 
from any meaningful form of accountability. The 
path to a renewal of the criminal misconduct of 
the Bush years is being prepared right now. And 
Obama Justice Department lawyers are doing the work.






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