By Jason Leopold
Daphne Eviatar, the legal affairs reporter at the Washington Independent, has published an important story suggesting the Justice Department has an ethical problem in defending John Yoo against a civil lawsuit filed against the author of the “torture memo” by Jose Padilla, the alleged enemy combatant who has been detained in a military brig for years without a hearing.
Padilla and his mother have sued Yoo claiming Padilla’s constitutional rights were violated and that he was tortured and abused while in U.S. custody as a direct result of the highly controversial legal opinions the former deputy assistant attorney general at the Justice Department’s Office of Legal Counsel (OLC) wrote for the Bush administration after 9/11.
Last week, a Justice Department attorney appeared in a federal courtroom in San Francisco on behalf of Yoo and argued that Padilla’s lawsuit should be thrown out on grounds that Yoo, as Eviatar reported, is essentially “immune if it wasn’t clear at the time that what he was doing violated established rights.”
As Eviatar reported:
In its brief moving to dismiss the case that Padilla and his mother filed against Yoo, the government argues that “Defendant Yoo is entitled to qualified immunity as a matter of law.” Not only was he not personally responsible for what happened to Padilla, they claim (although Padilla’s lawyers claim Yoo participated personally in formulating the plan for Padilla’s detention and treatment), but the government claims that the claims all fail because “Plaintiffs have not alleged a violation of any constitutional rights.”
Eviatar spoke to Michael Ratner, the executive director of the Center for Constitutional Rights, who told her the Justice Department’s defense of Yoo “puts the [Obama] administration in a potential contradiction.”
“They should not be arguing that there was not a clearly established right to be free from detention without trial, court access or abuse under the Fifth and Eighth amendments. If they do, or have, it would be a grave disappointment and justify many of the nasty Bush administration practices,” Ratner told Eviatar in an e-mail.
Ratner has aggressively argued for the appointment of a special prosecutor to launch a criminal investigation into the Bush administration’s interrogation policies. He said anything less, such as a substitute like a Truth Commission assigned simply to ascertain the facts, would be unacceptable.
In his exchange with Eviatar, Ratner said the Justice Department needs “to get Yoo another lawyer, or better, cut him loose, as continued representation is contrary to government interests,” Ratner added in his exchange with Eviatar. “A lawyer should represent Yoo who can take positions that they [the Obama administration] should not.”
Ironically, the public has Padilla-and Yoo-to thank for the release on March 2 of the nine previously secret legal opinions that asserted George W. Bush had unlimited powers to prosecute the “war on terror” on American soil and could ignore constitutional rights, including First Amendment freedoms of speech and the press and Fourth Amendment requirements for search warrants.
As Dan Levine reported in the San Francisco Recorder March 3:
In a bid to toss the [Padilla] case, the Justice Department sought to introduce three of the OLC terror memos to show that Yoo’s advice really wasn’t very substantive. But when it asked that those memos be available only to the lawyers in the case, not to the public, Padilla’s attorneys balked.
After President Obama’s inauguration, though, the government asked for more time to consider its position. Weeks passed, and nothing was filed. Finally, White issued an order on Thursday [Feb. 26] directing the government to state its position on the protective order.
By Monday [March 2], the Justice Department gave its answer by posting the three memos — plus six more — on its Web site. In withdrawing the motion for a protective order as moot, the government said that it was Yoo himself who asked that the memos be filed in the first place.
“Yoo received permission to submit the documents, but only under seal and pursuant to the safeguards of a protective order,” DOJ senior trial counsel Mary Mason wrote.
Interestingly, Yoo failed to mention this back-story when he opined in an oped he wrote for the Wall Street Journal last weekend that the opinions he drafted during his tenure at OLC were released by the Justice Department simply to “appease” President Barack Obama’s “antiwar base.”
Obviously, Yoo seems to have purposely omitted the facts from his column because it would have interfered with and destroyed his partisan argument. That would appear to be consistent with the legal opinions Yoo drafted. He seems to have purposely ignored long-standing legal precedent and case law because to cite it would have undercut his goal of granting “plenary” or unfettered power to the President of the United States.
