No Comment — June 15, 2009, 2:37 pm

John Yoo’s Reckoning With Justice Draws Closer

On Friday, a federal judge in California handed down an important decision in a suit brought by law students at John Yoo’s alma mater, Yale University, against their most controversial alumnus. Sweeping aside Yoo’s objections, the court decided that the matter could proceed to trial. Read the court’s decision here.

Representing Jose Padilla and his mother, the Yale students brought a civil action for damages that Padilla suffered. Padilla was, they argued, tortured and mistreated as a result of legal memoranda that John Yoo wrote when he served as an official in the Bush Justice Department. Arguing for Yoo, the Obama Justice Department sought dismissal of the lawsuit, arguing the same legal propositions advanced by the Bush Administration. Their view is that officials of the Justice Department have immunity for official acts. That notion is widely accepted, but the issue here is whether the same notion of immunity applies when a government official engages in lawless and indeed criminal conduct of a particularly outrageous form that violates the rights of a citizen. Since the early days of the Republic, it was recognized that immunity did not go that far. In the view of the Bush team, however, now embraced by their successors, Justice Department officials have immunity that shields them against civil claims that arise from their criminal conduct, such as torture, kidnapping, renditions to torture, and warrantless surveillance. This might better be called the doctrine of official irresponsibility: it argues that government officials are entitled to disobey their oath to uphold the laws and Constitution, and in fact are entitled to break the criminal law with total impunity. The doctrine of official irresponsibility is not law, but rather just the opposite: it is an attempt to place personal prerogative above the law.

In seeking dismissal, Yoo argued that the case asked the courts to look at the president’s exercise of his war-making powers, and that the courts should butt out. But his principal argument was utterly predictable: state secrets. “Yoo contends that the Court should abstain from reviewing the alleged constitutional violations presented in this matter because the claims necessarily would uncover government secrets, thereby threatening national security.” The “secrets” here, of course, are of two sorts: first, the torture techniques used to turn Padilla into the human equivalent of an eggplant and second, the legal voodoo employed by Yoo in his efforts to justify Padilla’s torture and thus promise the torturers legal protection from criminal prosecution. But neither of these “secrets” are actually secret. Padilla was subjected to 21 months of solitary confinement and sensory deprivation that left him in a state of “post-traumatic stress disorder, complicated by the neuropsychiatric effects of prolonged isolation.” Detailed descriptions of the regime applied are actually in the public record. Similarly, over Yoo’s vehement objections, his memoranda were already released—and indeed, we learn they had even been repudiated by Yoo’s Bush Administration colleagues, in further secret memoranda filed just as they were packing to leave.

So just what sort of “government secrets threatening to national security” are implicated in the Yoo suit? Why, that would be the sort of “secrets” that reflect criminal conduct on the part of those involved in them and which would prove embarrassing and damaging to the reputation of their authors. In other words, they are not “secrets” at all, and the government’s claim has certainly been put forward–as usual–in bad faith.

The court properly saw through this fog bank. It also drew the correct initial assessment of Yoo’s attempted invocation of the doctrine of official irresponsibility.

Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct…. Here, Padilla alleges that in Yoo’s highly-influential position, he participated directly in developing policy on the war on terror. The complaint specifies that in Yoo’s role as an advisor in the President’s War Council, he drafted legal opinions which lay out the legal groundwork for assessing the designation of individual enemy combatants and
legitimized the unconstitutional treatment of those individuals once detained… Yoo also advised executive officials that military detention of an American citizen seized on American soil was lawful because, he claimed, the Fourth Amendment had no application to domestic military operations in this context.

The court relied on a number of precedents in which government lawyers were held accountable for rendering bad legal advice. However, it misses the substantial precedent relating specifically to the potential criminal liability of government attorneys for misstating the law relating to armed conflict, which was confirmed in United States v. Altstoetter. Still, the key principle is the one the judge flagged: “government lawyers are responsible for the foreseeable consequences of their conduct.” It was a clearly foreseeable consequence of John Yoo’s malicious memo writing that individuals in government custody would be tortured, subjected to cruel, inhuman, and degrading conduct, and that some of them would die or suffer lifelong impairment as a result. If John Yoo suffers no more than a civil suit as a result, he’s gotten off very lightly indeed. Lawyers in the same position before him were sent to prison for doing just what he did.

Single Page

More from Scott Horton:

No Comment, Six Questions June 4, 2014, 8:00 am

Uncovering the Cover Ups: Death Camp in Delta

Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp

From the June 2014 issue

The Guantánamo “Suicides,” Revisited

A missing document suggests a possible CIA cover-up

No Comment March 28, 2014, 12:32 pm

Scott Horton Debates John Rizzo on Democracy Now!

On CIA secrecy, torture, and war-making powers

Get access to 164 years of
Harper’s for only $39.99

United States Canada



September 2014

Israel and Palestine

= Subscribers only.
Sign in here.
Subscribe here.

Washington Is Burning

= Subscribers only.
Sign in here.
Subscribe here.

On Free Will

= Subscribers only.
Sign in here.
Subscribe here.

They Were Awake

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content


Arab artists take up — and look past — regional politics
“When everyday life regularly throws up images of terror and drama and the technological sublime, how can a photographer compete?”
“Qalandia 2087, 2009,” by Wafa Hourani
“There was torture by the previous regime and by the current Iraqi regime,” Dr. Amin said. “Torture by our Kurdish government, torture by Syrians, torture by the U.S.”
Visiting His Own Grave © Anadolu Agency/Getty Images
The Tale of the Tape·

= Subscribers only.
Sign in here.
Subscribe here.

“Heroin isn’t the weakness Art Pepper submits to; it’s the passion he revels in.”
Photograph (detail) © Laurie Pepper
The Soft-Kill Solution·

= Subscribers only.
Sign in here.
Subscribe here.

"Policymakers, recognizing the growing influence of civil disobedience and riots on the direction of the nation, had already begun turning to science for a response."
Illustration by Richard Mia
New Books
New Books·

= Subscribers only.
Sign in here.
Subscribe here.

“Almond insists that watching football does more than feed an appetite for violence. It’s a kind of modern-day human sacrifice, and it makes us more likely to go to war.”
Photograph by Harold Edgerton

Chance that a movie script copyrighted in the U.S. before 1925 was written by a woman:

1 in 2

Engineers funded by the United States military were working on electrical brain implants that will enable the creation of remote-controlled sharks.

Malaysian police were seeking fifteen people who appeared in an online video of the Malaysia-International Nude Sports Games 2014 Extravaganza, and Spanish police fined six Swiss tourists conducting an orgy in the back of a moving van for not wearing their seatbelts.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!


In Praise of Idleness


I hope that after reading the following pages the leaders of the Y. M. C. A. will start a campaign to induce good young men to do nothing. If so, I shall not have lived in vain.

Subscribe Today