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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.<br><br>
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.<br><br>
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<a href="http://harpers.org/archive/2009/12/hbc-90006184">
http://harpers.org/archive/2009/12/hbc-90006184</a><br>
DOJ to the Rescue… of John Yoo<br>
By Scott Horton
<<a href="http://harpers.org/subjects/ScottHorton">
http://harpers.org/subjects/ScottHorton</a>> <br><br>
The Holder Justice Department has filed a sweeping amicus brief
<<a href="http://harpers.org/media/image/blogs/misc/doj_amicus.pdf">
http://harpers.org/media/image/blogs/misc/doj_amicus.pdf</a>> 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
<<a href="http://www.harpers.org/archive/2009/06/hbc-90005198">
http://www.harpers.org/archive/2009/06/hbc-90005198</a>>
authored by a lifelong Republican, Bush-appointed judge that the Justice
Department found so objectionable:
<dl>
<dd>Like any other government official, government lawyers are
responsible for the foreseeable consequences of their conduct….
</dl>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.<br><br>
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.
<<a href="http://www.harpers.org/archive/2009/11/hbc-90006024">
http://www.harpers.org/archive/2009/11/hbc-90006024</a>>
Now they’re peddling the same pap to the Ninth Circuit.<br><br>
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.<br><br>
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
<<a href="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</a>
> —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
<<a href="http://www.harpers.org/archive/2009/07/hbc-90005320">
http://www.harpers.org/archive/2009/07/hbc-90005320</a>> has correctly
summarized the situation by calling OPR the Justice Department’s “roach
motel”—“the cases go in, but nothing ever comes out.”<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
<br><br>
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