No Comment — December 4, 2009, 12:11 pm

DOJ to the Rescue… of John Yoo

The Holder Justice Department has filed a sweeping amicus brief in the Padilla v. Yoo case before the Ninth Circuit, seeking to make absolute the immunity granted Justice Department lawyers who counsel torture, disappearings, and other crimes against humanity. The case was brought by Jose Padilla, who claims that he was tortured as the direct result of memoranda written by Yoo, now a law professor at Berkeley. At this stage, the case does not address the factual basis of Padilla’s claims, but documents that have been declassified by the Department of Justice make it clear that the charges have a firm basis in fact. Here’s the portion of the opinion authored by a lifelong Republican, Bush-appointed judge that the Justice Department found so objectionable:

Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct….

The Holder Justice Department insists that they are absolutely not responsible, and that they are free to act according to a far lower standard of conduct than that which governs Americans generally. Indeed, this has emerged as a sort of ignoble mantra for the Justice Department, uniting both the Bush and Obama administrations.

According to the allegations in the suit, Padilla’s extraordinary regimen of abuse was imposed only after John Yoo personally gave it a green light, knowing that the torture prescription awaited his say-so. The result was long-term physical and psychological damage. Yoo’s outlandish opinions have been rescinded, but the question remains: can a Justice Department lawyer be held to account for grossly incompetent and unethical work that results in severe physical harm? It’s long been a tenet of federal law that agents of the government who are responsible for torturing individuals may be held to account for their conduct. The Holder Justice Department has been working feverishly to overturn this law, at least as it applies to employees of the Justice Department. With the solid backing of Republican-appointed judges on the Second Circuit, they achieved a major breakthrough on the Second Circuit in the Maher Arar case. Now they’re peddling the same pap to the Ninth Circuit.

The Justice Department once argued that no doctrine of immunity could be invoked to protect a person who, under cover of law and the authority of office, engages in torture, conspiracy to torture, or the holding of individuals outside of access to justice for prolonged periods (“disappearings”). These arguments were made in cases brought before the Nuremberg and Tokyo tribunals, including United States v. Altstoetter and the Ministries cases—authorities which the brief filed by the Justice Department fails to note. Now the Justice Department argues that there are only three possible avenues for accountability of a Justice Department lawyer: internal review by the Department’s Office of Professional Responsibility and Office of Inspector General, bar disciplinary action, and criminal prosecution. It effectively boils down to the Justice Department saying that it alone will decide about the accountability of its staffers for wrongful conduct that damages others.

Moreover, the courses that the brief describes are a chimera. The Office of Professional Responsibility has investigated John Yoo’s abusive and unprofessional memo writing for five years. As of this morning, its findings still have not been released—notwithstanding a representation by the attorney general to the Senate Judiciary Committee that they would be made public before November was out. More generally, OPR rarely actually investigates even the most serious allegations of misconduct, and almost never actually recommends any form of discipline. The only exceptions occur when a federal judge becomes involved, insisting on action (and often not even then), or when the misconduct becomes a matter of public outrage sustained in major newspapers and broadcast media for years. The ABA Journal has correctly summarized the situation by calling OPR the Justice Department’s “roach motel”—“the cases go in, but nothing ever comes out.”

The brief’s reference to the Inspector General’s office is also absurd. As OIG notes, it does not even have jurisdiction to deal with legal professional staff at the Justice Department—that rests with OPR.

Next, the Department suggests that state bar associations can address these questions. As a matter of established practice, however, state bar associations do not take up cases involving Justice Department employees. They defer instead to the Justice Department to deal with them, choosing only to look at cases involving Justice Department lawyers when the DOJ asks them to do so. Bars also apply guild rules, and like the ancient guilds, don’t much like punishing their own.

Finally, there is the question of criminal accountability. In the face of actual criminal investigations, the DOJ has behaved usually like a criminal accused, and intent on obstruction, not like a law enforcement agency. Criminal investigations involving the conduct of Yoo and his fellow torture-memo writers are underway at this moment in a number of foreign jurisdictions, most notably including the two pending criminal cases in Spain. It’s noteworthy that the U.S. Justice Department, presented with letters rogatory from the Spanish court probing into the torture of Spanish citizens at Guantánamo and the role played by DOJ lawyers in this process, elected not to respond. Attorney General Holder traveled to Europe at the outset of his term, promising European justice officials a new era of cooperation. But in the first significant test case, he has continued the Bush-era cover-up of potentially criminal misconduct deep inside the Justice Department.

The Holder Justice Department’s brief can only be squared with prior DOJ arguments this way: foreign lawyers in foreign Justice Departments have no immunity and can be held accountable, but lawyers who work for us have absolute immunity from any meaningful form of accountability. The path to a renewal of the criminal misconduct of the Bush years is being prepared right now. And Obama Justice Department lawyers are doing the work.

Share
Single Page

More from Scott Horton:

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

August 2016

Don the Realtor

= Subscribers only.
Sign in here.
Subscribe here.

Atlas Aggregated

= Subscribers only.
Sign in here.
Subscribe here.

The Origins of Speech

= Subscribers only.
Sign in here.
Subscribe here.

Four in Verse

= Subscribers only.
Sign in here.
Subscribe here.

A Sigh and a Salute

= Subscribers only.
Sign in here.
Subscribe here.

Four in Prose

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
Martin Amis on the rise of Trump, Tom Wolfe on the origins of speech, Art Spiegelman on Si Lewen, fiction by Diane Williams, and more

In Havana, the past year has been marked by a parade of bold-faced names from the north — John Kerry reopening the United States Embassy; Andrew Cuomo bringing a delegation of American business leaders; celebrities ranging from Joe Torre, traveling on behalf of Major League Baseball to oversee an exhibition game between the Tampa Bay Rays and the Cuban national team, to Jimmy Buffett, said to be considering opening one of his Margaritaville restaurants there. All this culminated with a three-day trip in March by Barack Obama, the first American president to visit Cuba since Calvin Coolidge in 1928. But to those who know the city well, perhaps nothing said as much about the transformation of political relations between the United States and Cuba that began in December 2014 as a concert in the Tribuna Antiimperialista.

Illustration by Darrel Rees
Article
Don the Realtor·

= Subscribers only.
Sign in here.
Subscribe here.

"If you have ever wondered what it’s like, being a young and avaricious teetotal German-American philistine on the make in Manhattan, then your curiosity will be quenched by The Art of the Deal."
Photograph (detail) © Polly Borland/Exclusive by Getty Images
Article
The Origins of Speech·

= Subscribers only.
Sign in here.
Subscribe here.

"To Chomsky...every child’s language organ could use the 'deep structure,' 'universal grammar,' and 'language acquisition device' he was born with to express what he had to say, no matter whether it came out of his mouth in English or Urdu or Nagamese."
Illustration (detail) by Darrel Rees. Source photograph © Miroslav Dakov/Alamy Live News
Article
A Sigh and a Salute·

= Subscribers only.
Sign in here.
Subscribe here.

"Si told me that various paintings had spoken to him, but he wished they had been hung closer together 'so they could talk to each other.' This observation planted a seed that would come to fruition years later in his mature work."
Artwork (detail) by Si Lewen
Article
El Bloqueo·

= Subscribers only.
Sign in here.
Subscribe here.

"Amid the festivities and the flood of celebrities, it would be easy for Americans to miss that the central plank of the long-standing cold war against Cuba — the economic embargo — remains very much alive and well."
Photograph (detail) by Rose Marie Cromwell

Estimated temperature of Hell, according to two Spanish physicists ‘ interpretation of the Bible:

832°F

The ecosystems around Chernobyl, Ukraine, are now healthier than they were before the nuclear disaster, though radiation levels are still too high for human habitation.

A TSA agent in Seattle was arrested for taking up-skirt photos of women in the airport, a Maryland police officer was arrested for taking up-skirt photos of an off-duty colleague, and the Georgia Court of Appeals ruled that taking up-skirt photos is legal in the state.

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

HARPER’S FINEST

Mississippi Drift

By

Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'

Subscribe Today