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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 Yoo’s outlandish opinions have been rescinded, but the question remains: can a Justice Department lawyer be held to account for grossly incompetent and unethical work that results in severe physical harm?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.
More from Scott Horton:
Conversation — March 30, 2016, 3:44 pm
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.
i. stand with israel
I listen to a lot of conservative talk radio. Confident masculine voices telling me the enemy is everywhere and victory is near — I often find it affirming: there’s a reason I don’t think that way. Last spring, many right-wing commentators made much of a Bloomberg poll that asked Americans, “Are you more sympathetic to Netanyahu or Obama?” Republicans picked the Israeli prime minister over their own president, 67 to 16 percent. There was a lot of affected shock that things had come to this. Rush Limbaugh said of Netanyahu that he wished “we had this kind of forceful moral, ethical clarity leading our own country”; Mark Levin described him as “the leader of the free world.” For a few days there I yelled quite a bit in my car.
The one conservative radio show I do find myself enjoying is hosted by Dennis Prager. At the Thanksgiving dinner of American radio personalities (Limbaugh is your jittery brother-in-law, Michael Savage is your racist uncle, Hugh Hewitt is Hugh Hewitt) Dennis Prager is the turkey-carving patriarch trying to keep the conversation moderately high-minded. While Prager obviously doesn’t like liberals — “The gaps between the left and right on almost every issue that matters are in fact unbridgeable,” he has said — he often invites them onto his show for debate, which is rare among right-wing hosts. Yet his gently exasperated take on the Obama–Netanyahu matchup was among the least charitable: “Those who do not confront evil resent those who do.”
Average number of Americans who are injured by chain saws each year:
A farmer in Kenya bit a python who tried to eat him.
A former prison in Philadelphia that has served as a horror-movie set was being prepared as a detention center for protesters arrested at the upcoming Democratic National Convention, and presumptive Republican presidential nominee Donald Trump fired his campaign manager.
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“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.'”