SIGN IN to access Harper’s Magazine
Need to create a login? Want to change your email address or password? Forgot your password?
1. Sign in to Customer Care using your account number or postal address.
2. Select Email/Password Information.
3. Enter your new information and click on Save My Changes.
Subscribers can find additional help here. Not a subscriber? Subscribe today!
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.
More from Scott Horton:
No Comment — March 28, 2014, 12:32 pm
On CIA secrecy, torture, and war-making powers
No Comment — November 4, 2013, 5:17 pm
An expert panel concludes that the Pentagon and the CIA ordered physicians to violate the Hippocratic Oath
No Comment — August 12, 2013, 7:55 am
How will the Obama Administration handle Edward Snowden’s case in the long term?
Percentage of non-Christian Americans who say they believe in the resurrection of Christ:
A newly translated Coptic text alleged Judas’ kiss to have been necessitated by Jesus’ ability to shape-shift.
Russia reportedly dropped a series of math texts from a list of recommended curricular books because its illustrations featured too many non-Russian characters. “Gnomes, Snow White,” said a Russian education expert, “these are representatives of a foreign-language culture.”
Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!
Science’s crisis of faith