Yoo, OPR, and the Ninth Circuit
Scott Horton notes that the Obama Administration has made new sweeping arguments about why John Yoo should not be held responsible for authorizing torture used on Jose Padilla.
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.
I’m most interested in this aspect of the appellate argument (part of which Horton discusses).
In arguing that a Bivens action should not be recognized here, we are not suggesting that the actions of a Department of Justice attorney advising the Attorney General, the President and/or other agencies should go unchecked. Congress has enacted 28 U.S.C. § 530B (also known as the “McDade Amendment”). Under Section 530B, Department of Justice attorneys, as well as other government attorneys, “shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.” 28 U.S.C. § 530B. State bar rules speak to 2 an attorney’s ethical duties when advising a client. See, e.g., ABA MODEL RULES OF PROFESSIONAL CONDUCT, 2.1, 3.1. To the extent someone believes that a Department of Justice attorney has violated the applicable bar rules, under the McDade Amendment, they can file a complaint with the relevant state bar.
In fact, complaints have been filed with the District of Columbia and Pennsylvania bars against defendant Yoo. Under the McDade Amendment, Yoo potentially could be subject to discipline if he violated any of the applicable rules and/or standards.
In addition to potential discipline by a state bar, Department of Justice attorneys are also subject to investigation by the Office of Professional Responsibility (“OPR”), see 28 C.F.R. 0.39 and the Office of the Inspector General, 5 U.S.C. App. §8E. Section 1001 of the USA Patriot Act directs the Department of Justice Inspector General to review information and receive complaints alleging abuses of civil rights and civil liberties by Department of Justice employees. See Pub. L. 107-56, § 1001, 115 Stat. 391 (2001). OPR and the Office of the Inspector General have broad investigatory powers and can recommend discipline and even criminal prosecution, where appropriate. [my emphasis]
The government is arguing that Bivens isn’t appropriate because there are other means of punishing Yoo’s bad lawyering.
And they specifically invoke OPR investigations.
Now, in any case, this is an already well-worn Obama tactic. They have repeatedly done what they needed to do, legally, to ensure that the executive is the only one who gets to check the executive’s power and (just as importantly) to prevent the Courts from reviewing executive branch actions.
But it’s all the more interesting, given the delay of the OPR report which–Eric Holder told the Senate on November 18–would be out by the end of the month. Meaning, last month (and no, it’s not coming out today either).
Had DOJ already released that OPR report, that passage would either say, “we’ve already recommended Yoo be disciplined and so basically agree with plaintiffs” or “well, we looked, but we think Yoo should skate and so this claim that there are other means of redress is really just BS.”
Instead, DOJ is making a promise that OPR has the ability to discipline Yoo (in spite of the rather obvious problem that, since he’s no longer a government employee, most of OPR’s means of discipline are unavailable), without telling the Court whether it actually will discipline him.
The timing of the latest skirmishing over Yoo’s future makes the delay of the OPR report all the more interesting.
November 16: Opening brief for Yoo
November 18: Court grants USG extension to file amicus brief until December 3
November 18: Holder says the OPR report will be released by the end of November
November 20: Padilla moves for extension on response–because of the timing of government brief–until January 15
December 3: USG submits brief
December 4 [today]: Still waiting on that OPR report
I could be misreading this, but we’re in a holding pattern that seems to be a response to the Yoo schedule. (Though I don’t expect DOJ is going to stall this until January.)
And then there’s one more interesting point about these filings and the OPR report.
Remember that DOJ originally represented Yoo on this case. But back on July 9, the government revealed that Yoo would be hiring private counsel, who turned out to be Miguel Estrada. Here’s ethics professor David Luban’s explanation for why Yoo had to get private counsel.
Georgetown University Law Center professor David Luban, an ethics expert who has also written about the torture controversy, said in an e-mail that he hadn’t been tracking the case closely, but that the Justice Department’s decision could indicate the government was litigating the Bush administration’s position at the district court level, but is now rethinking whether to continue to maintain it. Or, he speculated, it might be that the OPR report will be issued soon and will recommend discipline.
“That by itself would create a conflict of interest in DOJ defending his position in a closely related civil case,” he wrote. “Even though OPR is a different subunit of DOJ, it’s not a separate law firm.”
That is, he argues the government could no longer defend Yoo after OPR had found Yoo to have acted improperly. And, in their amicus brief, they’re now arguing (in part) that because OPR can conduct investigations into improper conduct and recommend discipline, Bivens shouldn’t be available.
Like I said, I don’t think DOJ is really going to stall all the way until January 15. But it does seem like these two efforts to hold Yoo accountable are now interrelated.
I’m gonna need a shit load of information on this:
who the fuck said THAT ???
I’m calling my congresscritter
I need a name
a far lower standard of conduct
I don’t THINK SO pal
as I recall, all government officials take an oath to UPHOLD AND DEFEND THE CONSTITUTION
that is a POSITIVE CREATION OF A HIGHER STANDARD OF CONDUCT
anybody wanna bet on it ???
Obama needs to keep his own ass covered for crimes already committed and those that will be committed by himself and others in his administration.
Many of us now living the Charlie Brown life once again running toward the football with all we have and ….
Aaaarghh!
Prediction only. Your mileage may vary.
I swear it’s true: just as I read JimWhite’s comment the cd track switched to this old classic. (Very funny, whoever you are.)
What Jim White said…
So, not only are there now two sets of laws (one for us and the other for them (and they make their own laws, BTW)), but now there are two standards of conduct (one for us and the other (lower than the one for us) for them AND they get to prosecute us for our conduct using the set of laws they say applies to us. Did I get that right?
That’s what I’m getting out of it.
I want to impeach or recall this administration, because that’s a clear violation of their oaths of office.
Padilla’s lawyers ought to jump on the opposite ethics argument on this one – that one reason there is no viable remedy is that the same DOJ that is supposed to be investigating Padilla through its office of professional responsiblity has/had developed an attorney client relationship with Yoo and has taken positions before the court inconsistent with being able to be an aggressive and unbiased investigator.
I’m pretty fuzzy on what the procedural posture is here. Did gov lawyers enter appearances for Yoo or provide counsel to him and they have now formally withdrawn? Did they never file appearances? Did Miguel come in as co-counsel but DOJ hasn’t withdrawn yet as counsel? I’ll have to read the amicus to see if it straightens things out, but who, exactly, is DOJ filing the Amicus on behalf of? It’s OPR? Itself, institutionally, as an adverse or quasi-adverse or potentially adverse party to Yoo who might be seeking alternative discipline against him? Institutionally, to further the collegial “it’s ok to be a criminal if you’re a DOJ lawyer” process we’ve seen over and over? It’s pretty confusing.
I wonder if Padilla’s counsel could massage out of this a motion to order the OPR to turn over the investigation to duly appointed investigators for the various state bar associations at issue (based on conflict in investigating the same lawyer DOJ has represented as a defendant and also the substantial institutional conflict and separation of powers issues in having the DOJ argue that its lawyers should have immunity from direct participation in crime bc the DOJ itself will engage in internal determinations as to whether it will or won’t refer actions to state bars and even such internal determinations will be subject to the Executive branch deciding, for itself, that the crimes of its lawyers are classified and as such state bars and courts cannot take disciplinary action absent DOJ consent – which consent will be subject to the direction of the very Executive for whom the crimes were committed)
It would be interesting to see a court determine that OPR is too conflicted to investigate Yoo (not that it would happen) Anyway, if OPR was ordered to turn over the investigation to the applicable state bars, you can already here the – oh, noes, we cannots, there be the classified and the Exec privilege thingies, and only we can decide if we’s wantz our crimes to comes outs – not state bars and courts.
Oh well, if DOJ wants to treat their amicus as an admission that state bars and federal courts can examine Yoo without classification and Exec privilege constraints bc of the McDade Amendment, that would be intersting. But once they say – uh, no, we don’t mean a bar or court investigation gets around Exec privilege and classification issues – then they say that there is no recourse under the Amendment if an Executive choosing to classify his crimes and his lawyers’ participation in those crimes.
BTW – I’ve said this before, but one problem with the OPR report may be that, if they decide to give the attys as much of an “all clear” as they can, they are going to focus on all the limitations in the memos. If they do that – they pretty much frame the criminal cases and civilian recovery cases for the CIA, as well as raising substantial issues on privilege and classification.
If they try to say, “Yoo’s ok, bc he gave this very narrow opinion based on very narrow facts and relying on specific representations made to him, etc.” then you open the door for the CIA and contractors to every single “but that wasn’t in the memo” issue. And if it wasn’t in the memo, and it’s a crime, it’s not eligible for classification, plus it would be outside the scope of DOJ’s authorization and ultra vires if authorized by the Exec or his NSC anyway.
That, then, brings you to all the oral advice and wisdom, or unreleased sign offs, etc. – from Gonzales and Ashcroft.
In any event, I wouldn’t be surprised at all if the hold up on the OPR isn’t so much Yoo et al – under the cover of tsk tsking language DOJ will institutionally fail further and will provide all kinds of get out of jail free cards to Yoo, Levin, Gonzales, Comey, Ashcroft, Goldsmith etc (and will probably even get glowy about some of them vis a vis some of their actions) and will completely cover up the fact that its mandate was way to narrow to even get at most of the areas of professional and criminal mis and malfeasance – but rather CIA and its concern that the OPR not provide cover to YooWhos in a way that takes it away from their torture killers.
DOJ represented Yoo at the District level, then filed the appeal and when filing (if I understand it correctly) stated they would withdraw. Estrada came on formally in the next month for this case.
But Estrada was already representing Yoo on two other issues. First, his testimony before Congress in summer 2008 and …
…
…
In his interactions with DOJ wrt the OPR report.
One very nifty thing–if you’re the type that likes to give the government a peak at all the cards before you start betting–is that Estrada and DOJ know exactly what that report will say.
“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.”
When I sat through Holder’s nomination hearings I thought it was odd that he kept having to repeat that “no one is above the law” as if he had to convince the panel (who had some folks on it that I don’t think believe that “no one is above the law” Feinstein, Grassley were two of them.
Just kept asking myself why does he keep repeating that so often.
The peasants out here know that many of the mucky mucks in and outside the beltway absolutely do not believe that “no one is above the law”
We know that there are at least two sets of standards and laws. We know that the peasants go to prison for far far less than the crimes committed during the Bush administration. We know the truth
It’s good to keep our DoJ attorneys busy so they won’t get into any more trouble. But if the DoJ is even tangentially involved in this case, do they have the right to file an amicus brief or conversely can the judge tell them where to put the brief?
Maybe some of the legal eagles here will also consider this other brief, delivered in today’s Friday dump, filed by the government in Al-Zahrani v. Rumsfeld.
Government Reply to Motion to Dismiss
(PDF)
Government Reply to Plaintiff’s Opposition to Defendants
Motion to Substitute and to Dismiss re Federal Tort Claims Act (PDF)
According to my CCR contact:
Meant to add this link to basic info on the case.
That there is no legal recourse, and that it should be fought to keep it that way, seems to be about our government’s position on the matter.
So, does this just apply to Department of Justice attorneys or does it apply to officers of the court in general?