Buried in a profile of the controversial former Justice Department lawyer John Yoo in today’s Washington Post is the casual mention that the Justice Department
Buried in a profile of the controversial former Justice Department lawyer John Yoo in today’s Washington Post is the casual mention that the Justice Department is no longer representing Yoo to fight a lawsuit filed against him by Jose Padilla. Instead, GOP-connected lawyer and former Bush appellate court nominee Miguel Estrada has stepped into the DOJ’s shoes.
As I’ve explained before, the government’s decision to defend Yoo against charges he violated Padilla’s civil rights by authorizing abusive interrogation and detention policies was highly controversial, given that the government itself is no longer defending those tactics, and Yoo’s best defense may be that he was just following orders — from other DOJ or White House officials.
So earlier this month, Justice Department lawyers, who were representing Yoo in the pending case despite the serious potential conflicts of interest, told a federal judge in a court filing in San Francisco that “private counsel will be assuming representation of Mr. Yoo” in his appeal. Yoo and his government lawyers in June lost their attempt to have the case dismissed by a district court judge.
The case, brought by Padilla and his mother, claims Yoo violated Padilla’s civil rights by authorizing the government’s terrorist-detention policies and treating Padilla, an American citizen, as an “enemy combatant.”
By pulling out of Yoo’s defense, the Justice Department has now spared itself from having to defend Yoo’s expansive and much-criticized views of executive power, which would have been an embarrassment to the Obama administration. And as Carrie Johnson of The Washington Post notes, it also frees Yoo to point the finger at other former government officials he might say were giving him orders — notably Vice President Dick Cheney, President George W. Bush, adviser David Addington and then-White House counsel Alberto R. Gonzales. That would be a sticky, if not impossible, argument for government lawyers to have made.
Yoo hasn’t completely lost his government support, though. His choice of private counsel, who’s defended Yoo in such sticky controversies before, is Miguel Estrada, a former Bush nominee for the U.S. Court of Appeals for the D.C. Circuit whose appointment was quashed in 2003 by Senate Democrats — a point harped on by Republicans during the recent confirmation hearing of Supreme Court nominee Sonia Sotomayor. Estrada’s fees will be paid by U.S. taxpayers.
Justice Department spokesperson Tracy Schmaler explained to The Recorder that this “is normal practice when the potential exists for disagreement between the government and the defendant over complex legal questions.”
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