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
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](Sources at the department who have examined this report state that it echoes some of the harshest criticisms that have appeared in the academic literature, but the report’s real bombshell, they say, will be its detailed disclosure of Yoo’s dealings with the White House in connection with the preparation of the memos. It is widely suspected that the Yoo memos were requested as after-the-fact legal cover for draconian policies that were already in place (“CYA memos”). If the Justice Department internal probe concludes this is the case, that could have clear consequences for the current debate surrounding the Bush administration’s accountability for torture.) 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.”
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