It’s Not Yoo, It’s the History

/47 Comments/in /by

If you had to guess the first several words that Miguel Estrada would use to argue that John Yoo should not be held accountable for his bad lawyering, what would those words be? (Answer below the fold.)

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If you guessed, “On September 11, 2001,” you’d be absolutely correct.

On September 11, 2001, members of the al Qaeda terrorist organization hijacked commercial airliners and crashed them into the Pentagon and World Trade Center, destroying the latter and killing nearly 3000 civilians. In the aftermath of this unprecedented attack, the President of the United States and his advisers grappled with how to faithfully apply Supreme Court precedents developed in the context of conventional warfare to a changed world in which America’s enemies no longer wore uniforms or targeted only the military. Defendant-Appellant John Yoo, then a Deputy Assistant Attorney General in the Department of Justice, provided legal advice to the President about some of the rules governing the detention and treatment of such unlawful enemy combatants.

Based on evidence that Plaintiff-Appellee Jose Padilla had entered the United States to conduct terrorist operations for al Qaeda, the President determined that Padilla satisfied the criteria for enemy-combatant status. Invoking both his own constitutional powers and the authority granted by Congress to “use all necessary and appropriate force . . . to prevent any future acts of international terrorism against the United States,” Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001), the President ordered Padilla’s detention. Three-and-a-half years later, Padilla was transferred from military to civilian custody and convicted of conspiracy to commit terrorist acts abroad. In this civil suit, Padilla and his mother seek to hold Yoo personally liable for the President’s determination that Padilla is an enemy combatant, as well as the treatment he allegedly received from other federal officials while in military custody.

Now, I’ll have more to say about this brief after I go walk the dog. But for now, I wanted to point to not just the myth-making around 9/11, but also to the way that Estrada turns Yoo in a mere advisor simply struggling to faithfully apply Supreme Court precedent, to the way that laws are described as rules, and to the way that poor John Yoo and President Bush were just helpless before the evidence here, regardless of how they had screwed with the rules about what constituted evidence.

47 replies
  2. BoxTurtle says:

    I think it’s going to be a real tough job to hold Yoo liable for acts he committed at the direction of the President.

    Yoo did not personally order Padilla held. Nor did he personally order Padilla denied due process.

    I see PLENTY of criminal charges against Yoo, should Holder choose. But I bet this civil suit gets tossed long before a jury is seated.

    IANAL, so I invite all lawyers here to correct me if I need corrected.

    Boxturtle (And I would like to be wrong in this case)

  4. Mary says:

    Defendant-Appellant John Yoo, then a Deputy Assistant Attorney General in the Department of Justice, provided legal advice to the President about some of the rules governing the detention and treatment of such unlawful enemy combatants

    Ah, yes, The Rules. Except, of course, that’s the opposite of what he did. He provided advice as to how to make up a label to use, so they could then pretend there were no rules. I hope the response brief mentions Yoo’s version of “the rules governing teh detention and treatment” vis a vis crushing a non-combatant child’s testicles. Amazing the things they call “rules” these days.

    • emptywheel says:

      I confess, Mary, I put this up right away bc there was so much that I thought you’d tee off on and I wanted to get the fun started.

      And yeah, “rules” is just the beginning.

    • earlofhuntingdon says:

      Even Estrada’s preliminary description makes painfully wrong assumptions:

      treatment of such unlawful enemy combatants

      One of the first rules his client should have given advice about, but which he failed to understand or willfully misunderstood, is what constitutes an enemy combatant or an “unlawful” enemy combatant. What process must be used to make that determination and how quickly must it be used? What must we do after we properly and timely establish that prisoners we hold are not combatants and are, therefore, wrongly detained?

      Under Mr. Yoo’s advice and that of his successors, we hold prisoners at Gitmo whose status as anything other than innocent bystanders has not been properly adjudicated. At this rate, Mr. Yoo will have a tenured position at Harvard Law before we have more competent answers to the questions Mr. Yoo was asked, and then act on that advice.

      • lawordisorder says:

        Qoute
        One of the first rules his client should have given advice about, but which he failed to understand or willfully misunderstood, is what constitutes an enemy combatant or an “unlawful” enemy combatant. What process must be used to make that determination and how quickly must it be used? What must we do after we properly and timely establish that prisoners we hold are not combatants and are, therefore, wrongly detained? Unqoute

        Were trying were trying… i think you might wana go do a little international on that one its called “the copenhagen Process” and no it has nothing to do with climate change…but change Rotfl we know we dropped the ball on that one but give us a little mojo willja

        http://docs.google.com/gview?a=v&q=cache:fhVbE6mhsqkJ:www.ambottawa.um.dk/NR/rdonlyres/E13E6FCF-C0D0-48E8-BC5C-BD172BA44786/0/CopenhagenProcess.pdf Copenhag

        The trick here is focus on the Geneva convention no 3 art 11-12 cuz that acording to lokals is what been riding the “decisionmakers” for years over here after they figured out WTF papadick and his boys where up to i think its safte to say that over here you don’t go helping out friends and expect to be fucked over….not that i dident tell the bras that when i layed my eyes on the Bush 2007 memo the first time…. but over here thats as close as you get to a “hanging offence”

        Just my five cents worth

      • Jeff Kaye says:

        Thanks for posting this, EW.

        Under Mr. Yoo’s advice and that of his successors, we hold prisoners at Gitmo whose status as anything other than innocent bystanders has not been properly adjudicated.

        And earlofhuntingdon you are absolutely right, because such Article 5 hearings (which would determine the status of such captured individuals) were of course never held. The substituted CRST hearings, finally shot down by the Supreme Court last year, were “inadequate”. With Padilla, though, we have an even more egregious situation, as he was a U.S. citizen. His seizure and incarceration — not to mention his torture — had an even more ominous significance, since the legal argument that a U.S. citizen could be so seized, held and treated, was a total refutation of the Constitution.

        Don’t expect anything but spin from the likes of Estrada and anyone associated with the legal work on Yoo (or his cohorts, should further legal actions occur).

        By the way, I’m not sure when it will be posted, but I should have an article up soon at FDL (today or tomorrow, maybe) following up on the latest activities of Yoo, and a surprise admission from former Bush Asst. Atty. General, and author of one of the torture memos, Daniel Levin.

    • Cynthia Kouril says:

      And, once again Mary writes the argument that SHOULD carry the day!

      Brava

      [standing on chair clapping]

  5. phred says:

    On a more serious note, can I just ask why anyone at all buys this bs about how the world changed?

    In the aftermath of this unprecedented attack, the President of the United States and his advisers grappled with how to faithfully apply Supreme Court precedents developed in the context of conventional warfare to a changed world in which America’s enemies no longer wore uniforms or targeted only the military.

    Can anyone tell me why it wasn’t changed by Timothy McVeigh? Why was killing innocent people by destroying a building merely a crime in that case, but somehow when someone else does it it is a world changing event? You don’t suppose that is because BushCo needed the world to change. You don’t suppose they wanted it to change. BushCo could not carry out their political agenda unless the world changed. They saw an opportunity and they took it. The world only changed because BushCo said so and the media played along. Had they treated 9-11 as a criminal act the world need not have changed and many many lives would have been saved.

    • Mary says:

      why it wasn’t changed by Timothy McVeigh

      Or, for that matter, a little group of boys and girls known as Anarchists who have been around a long long time now and have never worn uniforms. I’m not joking much when my response to the GWOT is to ask how the *war* on anarchy went.

      @6 – unfortunately I have to go get some docs ready for a closing – but I’ll be checking back.

      @10 And for that matter, when it comes to a US citizen who is claimed to be a non-uniformed enemy of state (as opposed to out of uniform members of the German army), we already very specific precedent. Ex parte Milligan. And btw, the President wasn’t the named recipient on much of what Yoo did and the President had his own lawyer. Yoo was providing advice specifically to the military on intel communities – his role was to determine what were legal orders and what were things for which, “just following orders” would not constitute a defense. IOW, he’s claiming to be giving advice to the President who issued the orders, but in large part he was giving advice to the agencies who were coming to him with their proposals and asking, “can we?”

      Not “can the President as CIC” but “can we” So even though some of the memos are couched in terms of what the President can authorize, much of what he did was couched in terms of what can be done by us an agency, not what can be done by us on a direct order from the President. Yoo and others basically went out of their way to make sure the President didn’t have to have his fingers all over what was done.

      And then there’s the “evidence”

      Based on evidence that Plaintiff-Appellee Jose Padilla had entered the United States to conduct terrorist operations

      Evidence = Binyam Mohamed statements and AZ statements. If Yoo wants to call that evidence, maybe Padilla’s counsel can get a subpeona to compel evidence from Yoo. So his lawyer says, *there was evidence Yoo was going to “conduct terrorist operations” here in the US, but somehow, after years of torture, when it came time to go to trial, that “evidence” had become evidence that Padilla was going to provide “material support” (not conduct operations) for terrorist activities (although what they are were never really proven) overseas. You know, like when the CIA was supporting the Muhjahdeen in Afghanistan, or the John Birchers, or …

      I don’t know how broad the group is that Padilla is suing, but if he isn’t suing Comey too with respect to the presser I think they are making a mistake on several fronts, in particular the tactical front of getting at the underlying evidence for the facts DOJ was asserting to the public as facts about Padilla before he ever was tried in a civilian court. After that, who’s not going to convict him on anything they trump up? Which pretty much happened. Give the jury the pictures of slashed penises and a crazy guy with severe seizures and brain injuries etc. being waterboarded and frozen and stripped and beaten – rinse, repeat – and they might (or not) have felt a bit differently.

      But mostly I’d like to see Yoo address the fact that the “evidence” being proferred by AZ, for example (and KSM, etc.) is that Padilla never actually joined up with al-Qaeda. I know that the CIA magically produced his application form, but all the evidence, even from the tortured sources, was that Padilla was not a member of al-Qaeda. So what did that do to Yoo’s legal opinions, theories and memoranda that did specify membership in al-Qaeda as a high value operational asset as the basis for torture detentions?

      What did Yoo do with respect to his “advice” the the “President” when he realized that Padilla was not a high ranking member of al-Qaeda who could direct operations? Did Yoo do what all lawyers are supposed to do when they find out that their advice cannot be relied upon due to new facts?

      notsomuch

      And in particular, what did Yoo and OLC do once they were ruled against (over and over) by the Sup Ct? Did they reissue opinions with an admonition of caution. Not so much.

      • emptywheel says:

        Your work is done. I was expecting a reference to Milligan (check) and a description of “evidence” collected from AZ.

        So you’ve covered everything. Thank you!

      • Leen says:

        “Give the jury the pictures of slashed penises and a crazy guy with severe seizures and brain injuries etc. being waterboarded and frozen and stripped and beaten – rinse, repeat – and they might (or not) have felt a bit differently.

        But mostly I’d like to see Yoo address the fact that the “evidence” being proferred by AZ, for example (and KSM, etc.) is that Padilla never actually joined up with al-Qaeda. I know that the CIA magically produced his application form, but all the evidence, even from the tortured sources, was that Padilla was not a member of al-Qaeda. So what did that do to Yoo’s legal opinions, theories and memoranda that did specify membership in al-Qaeda as a high value operational asset as the basis for torture detentions?

        What did Yoo do with respect to his “advice” the the “President” when he realized that Padilla was not a high ranking member of al-Qaeda who could direct operations? Did Yoo do what all lawyers are supposed to do when they find out that their advice cannot be relied upon due to new facts?

        notsomuch

        And in particular, what did Yoo and OLC do once they were ruled against (over and over) by the Sup Ct? Did they reissue opinions with an admonition of caution. Not so much.”

        Insane

    • klynn says:

      Yep. I asked that same question yesterday but in the context of the Lone Wolf provision. When these arguments are made, I think we can come back to Timothy McVeigh a number of times to question their faulty context.

  7. tjbs says:

    If the world changed, what pisses me off is,why didn’t the Administration go before congress and argue we have to drop out of the Geneva conventions up front. Dick could have made a convincing argument that some times a little crucifixion is needed,no?
    The world changed my ass it’s the same as it ever was ,just a little worse off. But we sure got us a nice new scary boogyman, now don’t we ?

    • mattcarmody says:

      It was a crime and should have been investigated as one but Rudy allowed the crime scene to be dismantled so that any evidence of government complicity disappeared until it sailed into New York harbor recently as the USS New York. The failure to maintain that site as a crime scene was a disgrace but just the prelude to the massive disgrace that was the Bush administration.

  8. Mary says:

    OT – Dana Priest is heard from again – I guess since everyone else is leaking, someone hooked her up with a 2007 power point prepared by Hasan.

    http://tpmmuckraker.talkingpointsmemo.com/2009/11/hasan_wanted_muslim_soldiers_to_be_eligible_for_co.php#more

    Hasan made the argument back in 2007 that Muslim soldiers being ordered to go to war in Muslim countries should be allowed to take conscientious objector status based on Koranic teachings.

    He thought it was a necessary option to prevent “adverse events.” Back in 2007. Because Muslim soldiers who became convinced that the war was not just, etc. could become suicide bombers, etc. Back in 2007. In a power point. To other people. Including military psychiatrists.

    The last bullet point on that page reads simply: “We love death more then [sic] you love life!

    2007
    Bullet Point.
    Public presentation.
    To Military psychiatrists.
    From a guy who later objects to his deployment.

  9. runfastandwin says:

    “In the aftermath of this unprecedented attack”

    That about describes the whole Bush era doesn’t it? Nothing remotely like this has EVER happened before, right? It would be laughable if the consequences of the Bush response to almost every “unprecedented” event that came along, were not so tragic.

  12. Hmmm says:

    …use all necessary and appropriate force…

    And when the force used is unnecessary and inappropriate? What remedy then? What consequence?

    The AUMF was an incomplete law.

  14. klynn says:

    grappled with how to faithfully apply

    By the way, if you participate in “grappling to faithfully apply the law” or take action within the confines of the law,then you understand what actions break the law.

    You cannot “grapple faithfully” to apply actions within the context of the law and not know you broke the law. It cannot be done. Otherwise, you did not faithfully grapple. IANAL. Stressful times do not rationalize breaking the law.

    This is just a twist on the “in good faith” crap that Bushco keeps on pulling out to cover their …

  15. oldtree says:

    This blatant accusation that these folks belonged to an organization and that they did something is like calling the Elks Lodge an organization that didn’t respond properly on 911. Blatant, mind you. The organization called “Elks” don’t answer your 911 calls. Calling a foreign version of a similar type of lodge by a name someone told you because you can’t pronounce it doesn’t guarantee it even chartered a plane to Guantanamo to volunteer for torture in lieu of testimony.
    The history, it burns… Make them turn it off.

  16. DeadLast says:

    And I thought his job description was to keep people from running amok in times when they were freaking out so the could be advised not to side-step the law. I feel sorry for John Yoo if he really was so emotionally unstable that he couldn’t do his job without also freaking the fuck out! I guess this is essentially an insanity defense??!!!

    • person1597 says:

      Madness! Madness! Madness!

      (Oh, that was the “memory defense”…)

      But hey, these are on sale:

      YooDoo Voodoo       dolls…

      Perfect companion for your Michelle Bachmann Tea-Party action figure playset.

      Thrill as Palin, Bachmann and Larry Craig probe the anatomically correct Yoo doll using stainless steel “ornate decorated pins”. What a great gift idea for your conservative friends… just don’t mention the “unlawful carnage” or the knowledge you received from your victims during their pre-trial detention and torture! Worried about blow-back? Yoo’s got no balls! And when Joe the Plumber’s judicial crowbar drops — it’s “Case Dismissed! — Insufficient evidence!”

  18. bobschacht says:

    EW,
    Yeah, after reading through all that crap from Miguel Estrada, walking the dog was a good idea. But thanks for sharing, first.

    Estrada’s rationale is crap, of course, but some within the WH at the time , perhaps even including George W., really believed it (while others took advantage of their credulity to cram all manner of unconstitutional BS through the pipeline.)

    Oops, I left this comment hang for several hours before remembering to “submit.” Please excuse the delay.

    Bob in AZ

  19. MadDog says:

    OT – From EFF, another disturbing read:

    From EFF’s Secret Files: Anatomy of a Bogus Subpoena

    Can the U.S. government secretly subpoena the IP address of every visitor to a political website? No, but that didn’t stop it from trying.

    In a report released today, EFF Senior Staff Attorney Kevin Bankston tells the story of a bogus federal subpoena (4 page PDF) issued to independent news site Indymedia.us, and how the site fought back with EFF’s help. Declan McCullagh at CBSNews.com also has the story.

    The report describes how, earlier this year, U.S. attorneys issued a federal grand jury subpoena to Indymedia.us administrator Kristina Clair demanding “all IP traffic to and from http://www.indymedia.us” for a particular date, potentially identifying every person who visited any news story on the Indymedia site. As the report explains, this overbroad demand for internet records not only violated federal privacy law but also violated Clair’s First Amendment rights, by ordering her not to disclose the existence of the subpoena without a U.S. attorney’s permission…

  20. MadDog says:

    And more OT – From the NYT:

    Blackwater Said to Approve Iraqi Payoffs After Shootings

    Top executives at Blackwater Worldwide authorized secret payments of about $1 million to Iraqi officials that were intended to silence their criticism and buy their support after a September 2007 episode in which Blackwater security guards fatally shot 17 Iraqi civilians in Baghdad, according to former company officials…

    …Four former Blackwater executives said in interviews that Gary Jackson, who was then the company’s president, had approved the bribes, and the money was sent from Amman, Jordan, where Blackwater maintains an operations hub, to a top manager in Iraq. The executives, though, said they did not know whether the cash was delivered to Iraqi officials or the identities of the potential recipients…

    …Cofer Black, who was then the company’s vice chairman and a former top C.I.A. and State Department official, learned of the plan from another Blackwater manager while he was in Baghdad discussing compensation for families of the shooting victims with United States Embassy officials.

    Alarmed about the secret payments, Mr. Black cut short his talks and left Iraq. Soon after returning to the United States, he confronted Erik Prince, the company’s chairman and founder, who did not dispute that there was a bribery plan, according to a former Blackwater executive familiar with the meeting. Mr. Black resigned the following year…

      • MadDog says:

        Yes, I’ll have plenty of questions, but likely given few satisfactory answers. g*

        I’m guessing that the NYT got some (much? all?) of their story from Cofer Black, and one would be wise to consider whether the tale has some self-serving embellishments.

        The story notes that Cofer Black resigned the following year. I guess Blackwater’s bribery wasn’t nearly enough to stop the piggies from continuing to feed at the trough.

    • bobschacht says:

      Rachel Maddow had Jeremy Scahill on her show tonight talking about the NYT article (Blackwater Said to Approve Iraqi Payoffs After Shootings).

      From my perspective, perhaps the most interesting sentence in the NYT report is this (emphasis added):

      If Blackwater followed through, the company or its officials could face charges of obstruction of justice and violating the Foreign Corrupt Practices Act, which bans bribes to foreign officials.

      Hmmm, what else can you think of that might fall under the scope of the FCPA? How about covering up, say, extraordinary renditions? Or CIA black sites for torturing people? And remember the Bush administrations fondness for subcontracting sleazy activities to outside contractors– like Blackwater?

      This could be the gift that keeps on giving, and might solve for us the Gordian knot of the Statute of Limitations. After all, even now, deals could be in the making between the CIA and representatives of foreign governments involved in, say, spiriting captives to Bagram, or Diego Garcia– or an Eastern European country…

      Bob in AZ

      • skdadl says:

        I agree. That article left me with a lot of questions — it gets more and more complicated the further you get into it — but the passage you’ve quoted plus the conclusion especially left me wondering. Does the conclusion mean that the deal never actually got done? Otherwise, how could the Iraqis have decided not to renew the licence?

        It’s a funny bit of reporting. Interesting, but odd.

      • Mary says:

        or officials working to block the release of US torture information by the British court system …

        I’ll have to come back to this thread for the links later – lots of bases getting touched here. Nice for Blackwater that the attention is elsewhere.

  21. BayStateLibrul says:

    Why isn’t Prince in the slammer.
    Ever since Waxman left, there’s been no accountability…
    Didn’t Waxman hold hearings?

  22. worldwidehappiness says:

    phred,

    “The world changed” and “no one could have predicted” were phrases used to cover Bush for letting 9/11 happen on his watch. No president would have had the psychic abilities to know that the world would change and to predict 9/11, so Bush must be blameless, right?

    And, yes, it also worked for grabbing power.

    It is astonishing how the media swallowed and reproduced the “world changed” narrative. It’s dramatic and exciting and those emotions sell newspapers.

  23. lawordisorder says:

    @41

    LOOOOOOL

    The answer to that one would be ….. “Haven’t the foggiest”

    Just my five cents worth

  24. Batocchio says:

    Wait, so Yoo wasn’t a radical monarchist type before 9/11?

    9/11 changed everything – he met David Addington!

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