Talk about getting a second bite of the apple. I’ve written before about the problem with the Department of Justice jumping in to defend a lawsuit charging that John Yoo was responsible for torture and abuse of “enemy combatant” Jose Padilla. Given that Yoo is the subject of an ethics investigation by DOJ — the results of which have still not been released despite repeated promises to do so by Attorney General Eric Holder — many legal experts thought it was odd that the Justice Department would continue to defend Yoo in the pending lawsuit.
Eventually, the Justice Department did step away from Yoo’s defense — although Yoo’s personal lawyer, former GOP judicial nominee Miguel Estrada, is still being paid by U.S. taxpayers.
Now, despite having already filed briefs on Yoo’s behalf in the district court arguing that as a former DOJ lawyer he should not be held liable for the consequences of his legal advice sanctioning torture, the Justice Department has filed yet another brief in the case, making essentially the same argument, this time on the government’s own behalf.
In an amicus (friend-of-the-court) brief filed to the appeals court yesterday (the lower court had refused to dismiss the case), the Justice Department argues that the court should not allow a lawsuit against a government lawyer providing advice to the executive branch where the case implicates national security and war powers. Such liability “could deter frank and full discussions within the Executive Branch regarding such matters.”
Of course, if the executive branch had actually had a “frank and full discussion” about the legality of torture with more than just a couple of hand-picked lawyers who believed in absolute executive power in the first place, John Yoo and the rest of the country wouldn’t be in the mess we’re in now. But set that aside for a moment.
Footnote 1 of the brief implicitly acknowledges the weird conflict involved in the DOJ’s even filing this brief, though without explicitly noting that the DOJ already made these same arguments on Yoo’s behalf earlier.
The first footnote essentially says that the Justice Department is going to repeat only some of its earlier arguments this time but not others. Specifically, it’s not going to make the argument now that Yoo didn’t do anything wrong because the right not to be tortured wasn’t clear at the time he approved it. That’s because since filing that first brief making just that argument, the department realized that, whoops, Yoo is under an internal ethics investigation, so maybe we should just stay out of this.
Dave Hoffman at Concurring Opinions interprets the footnote this way: “We’d like to join and expand on Yoo’s arguments about his good faith behavior. But other parts of us are still holding onto a report which may call into question the accuracy of that claim. Coincidentally and luckily, that report continues to be delayed, making it unnecessary for us to commit to a position that would be internally incoherent. Do us a favor and resolve this on constitutional grounds, would ya?”
To be sure, that hasn’t stopped the Justice Department from making the argument elsewhere that torture wasn’t clearly illegal when Yoo sanctioned it. In the case of Rasul v. Rumsfeld, for example, that’s precisely the argument the Obama administration is still making. In fact, as I noted recently, the administration is going even further than that. In a brief recently filed to the U.S. Supreme Court, the Obama Justice Department argued that under its own interpretation of the law, there is no constitutional right not to be tortured by U.S. authorities in U.S.-run prisons abroad.
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