[CitizensTruth] OBAMA's Lawyers set to defend Yoo against Jose Padilla

[andrew ritter]

	  Obama Lawyers Set to Defend Yoo
	  Wednesday 28 January 2009
http://www.truthout.org/012809S

      by: Josh Gerstein, The Politico
      	  
	  

		  John
Yoo, credited with writing what are known as the torture memos, is
being sued by Jose Padilla over aggressive interrogation techniques
Padilla endured at a South Carolina Navy brig. (Photo: (Karen Ballard /
The Los Angeles Times)	  
	  	  

		    In
Democratic legal circles, no attorney has been more pilloried than
former Bush Justice Department official John Yoo, chief author of the
so-called torture memos that Barack Obama last week sought to nullify.
    But now President Obama's incoming crew of lawyers has a new and somewhat awkward job: defending Yoo in federal court.

    Next week, Justice Department lawyers are set to ask a San
Francisco federal judge to throw out a lawsuit brought against Yoo by
Jose Padilla, a New York man held without charges on suspicion of being
an Al Qaeda operative plotting to set off a "dirty bomb."
    The suit contends that Yoo's legal opinions authorized Bush
to order Padilla's detention in a Navy brig in South Carolina and
encouraged military officials to subject Padilla to aggressive
interrogation techniques, including death threats and long-term sensory
deprivation.
    That's not all. On Thursday, Justice Department lawyers are
slated to be in Charleston, S.C., to ask a federal magistrate there to
dismiss another lawsuit charging about a dozen current and former
government officials with violating Padilla's rights in connection with
his unusual detention on U.S. soil, without charges or a trial.
    The defendants in that case are like a who's who of Bush
administration boogeymen to Obama's liberal followers - former Defense
Secretary Donald Rumsfeld, his deputy Paul Wolfowitz and former
Attorney General John Ashcroft.
    The two cases raise the question of how aggressively the
Obama administration intends to defend alleged legal excesses of the
Bush administration in the war on terror. The Supreme Court recently
gave the new president until March to decide whether to defend the
detention without trial of another man held as an enemy combatant, Ali
Saleh Al-Marri.
    And with more than a hundred court cases pending relating
to Guantanamo, the Obama team faces a fast and furious series of
deadlines to adopt or reject the Bush administration's stance regarding
specific detainees.
    "This is going to happen again and again across the
government," said Karen Greenberg, the executive director of the Center
on Law and Security at New York University. "They're between a rock and
a hard place."
    Obama's lawyers aren't the first at Justice to have to
stand by a prior administration's legal work - whether they agree with
it or not - merely in the interest of protecting U.S. government
prerogatives.
    But the Bush war-on-terror team inspires particular
antipathy in the liberal legal set - and none more than Yoo, who became
a sort of symbol of the Bush administration's efforts to construct a
carefully crafted legal framework to justify practices that critics say
are torture.
    "When they go back to the privacy of their offices, they
may wish that someone would draw and quarter John Yoo, but they have to
wave the flag," said a former federal terrorism prosecutor, Andrew
McCarthy. "What they have to do is appear as if they are defending all
the prerogatives of government that people want them to defend. ...
That's the job of the Justice Department."
    Padilla's lawyers, who are affiliated with a human rights
clinic at Yale Law School, declined to comment for this article. Yoo
also declined to be interviewed, though in an op-ed piece for The Wall
Street Journal last year he described himself as the victim of an
attempt to use "the tort system to harass those who served in
government in wartime."
    Obama's appointee for attorney general, Eric Holder, has
taken issue with some of Yoo's conclusions but does not appear to have
singled him out by name. "I never thought I would see the day when a
Justice Department would claim that only the most extreme infliction of
pain and physical abuse constitutes torture," Holder said in a speech
last year, alluding to a 2002 memo Yoo wrote.
    Holder said the Bush administration was "wrong" when it
"authorized the use of torture," when it "secretly detained Americans
without due process" and for violating the Constitution, though he said
he did not take issue with the "motives" of those who helped set the
policies.
    Other Obama Justice Department appointees have been far
more strident in their criticism of Yoo. In an article in Slate just
last year, Obama's pick to head the Office of Legal Counsel, Dawn
Johnsen of Indiana University, called one of Yoo's memos "plainly
flawed" and his defense of it "irresponsibly and dangerously false."
    Johnsen was so vocal in her criticism of Yoo that a liberal magazine, Mother Jones, branded her the "anti-Yoo."

    A leading authority on legal ethics, Stephen Gillers, said
the incoming officials' criticism of the former Bush officials has been
so withering that they should press to be defended by their own lawyers
- at government expense.
    "If I were counseling Yoo or Rumsfeld, I would certainly
advise them to have private counsel or shadow counsel," Gillers said.
"The defense has to be put in the hands of people who have not been
vocal in condemning Rumsfeld and Yoo and who have not taken a public
position on the legality of their conduct."
    Obama also seems to be no fan of Yoo's work. One of the new
president's first acts upon taking office last week was to nullify
every detainee-related legal opinion issued during the Bush
administration by the unit Yoo worked in, the Office of Legal Counsel.
    Some liberal lawyers have suggested Yoo or other officials
should face not just civil suits but a full-scale investigation into
possible war crimes. "People really haven't been talking about civil
exposure. People have been talking more about potential criminal
exposure," said Eugene Fidell, an attorney specializing in military
law.
    While such questions swirled during Holder's confirmation
hearings, Gillers said he thinks the chances of such a prosecution
against Yoo remain slim. "I think he still has no worry about that,"
Gillers said.
    To an extent, the lawsuits against Yoo and Rumsfeld are
symbolic. Padilla was transferred from military to civilian custody in
2006. A jury later convicted him on conspiracy charges unrelated to the
alleged "dirty bomb" plot. A judge sentenced him to 17 years in prison,
though an appeal is pending. While Padilla does want an order barring
another involuntary trip to the brig, each suit seeks only $1 in
damages, plus legal fees.
    At present, it doesn't look like Yoo's sharpest critics
will end up directly in the chain of command responding to the civil
lawsuits. Obama has tapped an Oakland, Calif., lawyer, Tony West, to
head up DOJ's civil division, which has primary responsibility for such
cases. West hasn't played a vocal role in the debate over detainee
policy, but he was one of the lawyers for John Walker Lindh, the
so-called American Taliban caught in Afghanistan.
    A former lawyer in Bush's White House, Brad Berenson, said
he expects the new Obama officials not only to defend against the suits
but to win them. "There are just all kinds of doctrines that protect
government officials, even when they're wrong," he said. "The dirty
little secret here is that the United States government has enduring
institutional interests that carry over from administration to
administration and almost always dictate the position the government
takes." 
  
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