The Obama administration [2] asked the US Court of Appeals for the Ninth Circuit in San Francisco to dismiss a lawsuit accusing former Bush administration attorney John Yoo [3] of authorizing the torture of a terrorism suspect, saying federal law does not allow damage claims against lawyers who advise the president on national security issues. Such lawsuits ask courts to second-guess presidential decisions and pose "the risk of deterring full and frank advice regarding the military's detention and treatment of those determined to be enemies during an armed conflict," Justice Department lawyers said in arguments last week.
Other sanctions are available for government lawyers who commit misconduct, the DoJ said. It noted that its Office of Professional Responsibility has been investigating Yoo's advice to President George Bush since 2004 and has the power to recommend professional discipline or criminal prosecution.
The Office of Professional Responsibility has not made its conclusions public. However, media reported in May that the office will recommend that Yoo be referred to the bar association for possible discipline, but that he not be prosecuted.
Yoo, a UC Berkeley law professor, worked for the Justice Department from 2001 to 2003. He was the author of a 2002 memo that said harsh treatment of detainees amounts to torture only if it causes the same level of pain as "organ failure, impairment of bodily function or even death." The memo also said the president may have the power to authorize torture of enemy combatants.
In the current lawsuit, Jose Padilla [4], now serving a 17-year term for conspiring to aid terrorist groups, accuses Yoo of devising legal theories that justified what he asserts were his illegal detention and abusive interrogation.
The Justice Department represented Yoo until June, when a federal judge in San Francisco ruled that the suit could proceed. The DoJ then declined to continue his representation, citing unspecified conflicts, and was replaced by a government-paid private lawyer.
Yoo's new attorney, Miguel Estrada, argued for dismissal last month, saying the case interfered with presidential war-making authority and threatened to "open the floodgates to politically motivated lawsuits" against government officials. The Justice Department's new filing endorsed the request for dismissal but offered narrower arguments, noting its continuing investigation of Yoo. The Department's filing said Padilla is asking the courts to determine the legality of Yoo's advice, Bush's decision to detain Padilla, the conditions of his confinement and the methods of his interrogation—all "matters of war and national security" that are beyond judicial authority. (San Francisco Chronicle [5], Dec. 7)
Note that Yoo is associated with two Bush administration "torture memos [6]." The first, cited above (with the notorious "organ failure" reference), was co-authored by Yoo in 2002 and better known as the "Bybee Memo"—for White House counsel Jay Bybee [3], now ostensibly under investigation by the Justice Department despite being a sitting judge on the Ninth Circuit. The following year, a second memo, sent directly to the Pentagon's legal counsel by Yoo, argued that interrogators who harmed a prisoner also would be protected by a "national and international version of the right to self-defense."
See our last post on the torture scandal [7].
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