Why Is the Obama Administration Defending John Yoo?

By
Tuesday, March 10, 2009 at 11:05 am

The question has come up a lot lately, particularly since oral arguments last week in Jose Padilla’s lawsuit against John Yoo made clear that the federal judge was taking the case very seriously. After all, it was a bit odd to see Barack Obama’s Justice Department defending Yoo — who Padilla’s lawyers claim is responsible for their client being tortured in U.S. custody — and urging the court to dismiss the case.

When the Center for Independent Media’s own Ed Brayton put the question to me on his radio show last week, I had to admit I wasn’t really sure of the answer. Like many people, I assumed that the government was required to defend a former employee being called to account for something he did while in government office. But does the DOJ always have to defend government employees, or are there limits? If that former employee has broken — or at the very least twisted — the law, can the Justice Department refuse?

I asked Justice Department spokesman Charles Miller yesterday, who responded by sending me a lengthy excerpt from the relevant section of the Code of Federal Regulations. (I’ll spare you the seven pages of fine print.) The quick answer is, according to 28 C.F.R. § 50.15, a former federal employee “may be provided representation in civil, criminal and Congressional proceedings in which he is sued, subpoenaed, or charged in his individual capacity . . . when the actions for which representation is requested reasonably appear to have been performed within the scope of the employee’s employment and the Attorney General or his designee determines that providing representation would otherwise be in the interest of the United States.”

That of course begs the question: when is providing such representation “in the interest of the United States”?

The Justice Department wouldn’t comment on that one, which should come as no surprise: chances are it’s a matter of heated internal debate right now. I’m just speculating here, but given the recent reports that the Justice Department’s Office of Professional Responsibility is sitting on a classified report that analyzes John Yoo’s opinions and, according to Justice Department officials that have been leaking all over the media, the report will slam Yoo’s legal research and reasoning, and how he arrived at his conclusions. If it does, it wouldn’t be the first such criticism: former Bush Justice Department official Jack Goldsmith, now a Harvard Law professor, withdrew Yoo’s memos when he took over OLC in 2003, and later wrote in his book that he was “astonished” by their “deeply flawed” and “sloppily reasoned” legal analysis. Since then, many more legal scholars have agreed.

According to lawyer and writer Scott Horton in The Daily Beast yesterday, the OPR report will also include “detailed disclosure of Yoo’s dealings with the White House in connection with the preparation of the memos,” which are widely suspected to have been requested as “as after-the-fact legal cover for draconian policies that were already in place (“CYA memos”).”

A source in the Justice Department wouldn’t give me any more details about the forthcoming report, but confirmed that what’s been reported about it in the media so far is accurate.

So it sounds like the report is going to conclude that Yoo crafted the memos using shoddy legal research and reasoning to justify policies that were, objectively, legally indefensible. That would seem to constitute, at the very least, an ethical violation, if not worse. (In addition to being sued in the lawsuit by Padilla, Yoo is one of the Bush officials most often discussed as a target of a possible U.S. prosecution — even, by implication, Senator Arlen Specter (R-Penn.), who recently expressed outrage at some of the more extreme Office of Legal Counsel memos produced earlier this month.)

All of which calls into doubt how much longer Attorney General Eric Holder will be able to continue to say that defending former OLC lawyer John Yoo from claims that he’s responsible for torture is “in the interest of the United States.”

Comments

25 Comments

Hawaiian style
Comment posted March 10, 2009 @ 11:23 am

How many times do we humans have to go through the torture is necessary; torture is banned exercise?

Only those that participated and those that authorized torture claim that reliable information comes from torture.

Torture is a crime! It has been a crime for many years. One twisted lawyer and one stupid over zealous man that wanted to be a “war president” cannot change that. Mr. Yoo is a tool, and a blunt one at that. He is a fig leaf with worm holes. Not only should he be investigated by the Bar Assn. his bosses that approved torture, the President, Vice President, Sec. Defense (War), Sec. State and all the others should be held accountable for what history will write, if it is written objectively, as one of the worst periods in the US.


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Pingback posted March 11, 2009 @ 1:21 pm

[...] by LeisureGuy I guess Obama has bought in to the Bush view of the Presidency and secrecy. Bad news. Daphne Eviatar reports in the Washington Independent: The question has come up a lot lately, particularly since oral arguments last week in Jose [...]


Jan Flohr
Comment posted March 12, 2009 @ 3:22 am

Any society that use torture to defend it's freedom does not have and does not deserve any freedom.
Any society that breaks basic laws to fight terrorists or other criminals has already lost the fight.


george
Comment posted March 12, 2009 @ 4:40 am

Cival Employees when charged with a crime are always refused legal help.Their legal costs will only be paid if they are found not guilty.In Ontario,bad cops run the court clock and charges are suspended. No cival unions help in any member's criminal charges.
If the case is not heard in a reasonable time–court dismissed :^(


george
Comment posted March 12, 2009 @ 4:43 am

Yesterday's news on WRH–Dick Cheney organized a death squad that reported to him directly.Why pick on Yoo-Yoo?


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Pertti Lindroos
Comment posted March 12, 2009 @ 1:08 pm

If the US does not press these charges, the rest of the world will. Put Yoo on trial and under oath to force truth of the Bushco administration to become public. Jail time must be served or the US will be seen as evil by the rest of the world.


March 12, 2009 « Quis Custodiet Ipsos Custodes?
Pingback posted March 12, 2009 @ 6:41 pm

[...] 5.  “Why Is the Obama Administration Defending John Yoo? [...]


richAard young
Comment posted March 12, 2009 @ 6:54 pm

Your analysis is too kind to the Justice Department. Before you get to the “in the public interest” question, you have already passed the permissive term “may”. This permissive term specifically preserves the prosecutorial discretion that the Attorney General generally has to decline to prosecute cases which are meritorious but less important than other cases. A federal statute saying that federal attorneys “shall” prosecute or defend civil actions on behalf of Indians has been interpreted as “may” by the Attorney General and federal courts, so obviously this regulatory “may” leaves the AG with total prosecutorial discretion to do what he pleases.


Gary Alderette
Comment posted March 12, 2009 @ 10:46 pm

Amen,Hawaiian Style!After WW II the U.S. actually executed Japanese for water boarding American soldiers.Why is it any less of a crime when committed by members of our own government?The Bush administration engaged in much worse torture than simple water boarding.
Investigate,prosecute,and imprison those guilty of these crimes.It's called JUSTICE.


Attack the System » Blog Archive » Updated News Digest March 15, 2009
Pingback posted March 14, 2009 @ 4:19 pm

[...] Why Is Obama Defending John Yoo? by Daphne Eviatar [...]


Hawaiianstyle
Comment posted March 21, 2009 @ 11:52 pm

I think the defense of Mr. Yoo esq. has nothing to do with him or his opinions. I repeat his opinions.

It is simply that the Obama administration does not want to open this can of worms. They have not tried to stop domestic spying, rejected FISA, stopped rendition or left to the courts the question of indefinite detention.

My most generous opinion is that Obama wants to be able to use these things if He feels the security of the Country are at stake. My least generous opinion is that having joined the most exclusive club in the world he does not want to anger the other members.

Bush even knows this latter game, as shown by his comment the other day when he said he thought Obama deserved his silence, which I interpret to mean I won't criticize you if you don't criticize me.

This is a shameful performance for President Obama, the CHANGE, New day in Washington, no man is above the law, all men are equal in the eyes of the law, President.


Hawaiianstyle
Comment posted March 22, 2009 @ 12:12 am

I'm with you Gary. How have we arrived at a state in this country where if you are a little guy you get prosecuted and if found guilty, hammered and go to jail, and if you are an important government official you get to stonewall Congressional subpoenas?

How if you are campaigning for President, you say equal justice under the law, and no man is above the law, and then when you are elected you get to put your Presidential Thumb on the scales of justice.

What do you say to your wife, America's First Lady, when she says, “…but you said no man was above the law???” What do you reply to your kids when in 10 years as adults they say, “Dad why didn't you follow the law???” “Why did you ignore all the compelling evidence that proved we tortured people; that we held innocent people; that we rendered people to others that tortured people???”

How will you Mr. President feel if after four years of ignoring all this the world starts to say you are complicit in these horrible offenses? How will you explain it to your family and the American Public who like me support you and look to you as the last best hope for turning our Country around.

Gary, I like you, I am sure, want to be proud of America.

Only the President can restore America's honor in the eyes of the World. And, he can only do it by being a “law President”, and not a “war President”, or a “political President”.

Please Brah can???.


Hawaiianstyle
Comment posted March 22, 2009 @ 6:52 am

I think the defense of Mr. Yoo esq. has nothing to do with him or his opinions. I repeat his opinions.

It is simply that the Obama administration does not want to open this can of worms. They have not tried to stop domestic spying, rejected FISA, stopped rendition or left to the courts the question of indefinite detention.

My most generous opinion is that Obama wants to be able to use these things if He feels the security of the Country are at stake. My least generous opinion is that having joined the most exclusive club in the world he does not want to anger the other members.

Baby Bush even knows this latter game, as shown by his comment the other day when he said he thought Obama deserved his silence, which I interpret to mean I won't criticize you if you don't criticize me.

This is a shameful performance for President Obama, the CHANGE, the New day in Washington, the no man is above the law, and all men are equal in the eyes of the law, President.


Hawaiianstyle
Comment posted March 22, 2009 @ 7:12 am

I'm with you Gary. How have we arrived at a state in this country where if you are a little guy you get prosecuted and if found guilty, hammered and go to jail, and if you are an important government official you get to stonewall Congressional subpoenas?

How if you are campaigning for President, you say equal justice under the law, and no man is above the law, and then when you are elected you get to put your Presidential Thumb on the scales of justice.

What do you say to your wife, America's First Lady, when she says, “…but you said no man was above the law???” What do you reply to your kids when in 10 years as adults they say, “Dad why didn't you follow the law???” “Why did you ignore all the compelling evidence that proved we tortured people; that we held innocent people; that we rendered people to others that tortured people???”

How will you Mr. President feel if after four years of ignoring all this the world starts to say you are complicit in these horrible offenses? How will you explain it to your family and the American Public who like me support you and look to you as the last best hope for turning our Country around.

Gary, I like you, I am sure, want to be proud of America.

Only the President can restore America's honor in the eyes of the World. And, he can only do it by being a “law President”, and not a “war President”, or a “political President”.

Please Brah if can can; if no can…well do it anyway!!!


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Pingback posted May 11, 2009 @ 2:03 pm

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