John Yoo: Much More, and Much Less, Than a "Mere Lawyer"

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Yoo casts himself here as a mere lawyer, but he was much more (and much less).

So reads the Padilla response to Yoo’s efforts to dismiss Padilla’s suit against him.

Padilla’s team goes on to argue why the 9th Circuit must allow Padilla’s suit against Yoo for violation of his constitutional rights to continue.

The district court’s order should be affirmed. First, the court properly concluded that an American citizen seized from a civilian jail and subjected to years of military detention and torture has a remedy under Bivens. The habeas statute does not extinguish a damages remedy: while habeas can stop an unconstitutional detention from continuing, it cannot remedy an unlawful detention that has already occurred-and provides no relief to a torture victim. Bivens deters unconstitutional conduct, and the Supreme Court long ago affirmed that this deterrence is, if anything, more important when a defendant–even the Attorney General–invokes national security in an effort to preclude judicial review. The need to deter the military imprisonment and tortre of Americans in America strongly counsels providing Padila with a remedy for the serious, systematic and willful constitutional violations.

Second, the district court properly rejected Yoo’s claim to lack causal responsibility.. He set the constitutional violations in motion: as a member of the War Council, he formulated policies of extra-judicial detention and brutal interrogation visited upon Padilla; then, as a government attorney, he provided interrogators with the legal cover they demanded before implementing those policies.

Third, it has long been clearly established that military agents cannot seize a citizen from a civilian jail, transport him to a military prison, detain him there indefinitely and incommunicado without criminal charge or conviction, and subject him to a program of brutal interrogations, sensory deprivation, and inhuman conditions. Y 00 contends that all those rights became unclear when the Executive labeled Padila an “enemy combatant,” but no reasonable official could have believed that the Executive’s unilateral labeling of a citizen would allow it to transgress core freedoms long recognized by the Supreme Court.

They go onto to explain why lawyers’ conduct must not be immune from liability.

If merely being a government lawyer insulates Yoo’s conduct from liability, then there is no limit to what government lawyers fired up with personal “zeal” can counsel: the construction of secret and lawless interrogation sites in American cities, dragnets based entirely on race or religion, the summary execution of American citizens on American streets.

And note that Yoo tried to dismiss precedents that are directly on point in this suit.

Y00 does not cite any case holding that lawyers cannot be held liable for giving knowingly false advice. Instead, he protests that a case cited by Plaintiffs involved “claims against government lawyers for providing intentionally incorrect legal advice.” Br.32 (citing Donovan, 433 F.2d at 744-45). Padilla alleges exactly that-that Y00 intentionally misrepresented the law to shield policies that he helped formulate and set in motion, providing legal cover for unconstitutional policies. Like Y00, the government lawyers in Donovan claimed that they had provided advice “in good faith” and that their opinion was based on a reasonable legal belief. But the defendants’ assertions of good faith were factual issues for the jury, not matters for the court even on summary judgment.

Padilla’s team then goes on to remind of the German lawyers prosecuted for war crimes.

Perhaps the most interesting argument in here, though, is the reference to a State Department document asserting that victims of domestic torture have access to Bivens.

Congress has criminalized torture, see 18 U.S.C. § 2340, the President has signed and the Senate has ratified the Convention Against Torture, 6 U.S.T. 3314, under which “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war. . .may be invoked as a justification of torture,” and the Executive has not only prohibited the use of sensory deprivation, cruel and degrading torture, and physical or mental torture, Army Reg. 190-8 (criminalizing acts “intended to inflict severe physical or mental pain or suffering”), but plainly stated that a Bivens remedy is available to domestic torture victims like Padilla, see U.S. Written Response to Questions Asked by U.N. Committee Against Torture

ir 5 (Apr. 28,2006), available at http://www.state.gov/g/drl/rls/68554.hrm.8 [ed note, this should be: http://www.state.gov/g/drl/rls/68554.htm]

The State reference goes to a passage which reads:

U.S. law provides various avenues for seeking redress, including financial compensation, in cases of torture and other violations of constitutional and statutory rights relevant to the Convention. Besides the general rights of appeal, these can include any of the following, depending on the location of the conduct, the actor, and other circumstances:

[snip]

Suing federal officials directly for damages under provisions of the U.S. Constitution for “constitutional torts,” see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and Davis v. Passman, 442 U.S. 228 (1979);

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The Murders (?) at Camp No

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I don’t have time to comment at length on this Scott Horton article–revealing many details surrounding the deaths of three Gitmo detainees claimed to have killed themselves. But go read the whole thing.

Here’s an excerpt–which suggests that when the three detainees died, they were not in Camp Delta, but outside of their cells.

At approximately 11:45 p.m.—nearly an hour before the NCIS claims the first body was discovered—Army Specialist Christopher Penvose, preparing for a midnight shift in Tower 1, was approached by a senior Navy NCO. Penvose told me that the NCO—who, following standard operating procedures, wore no name tag—appeared to be extremely agitated. He instructed Penvose to go immediately to the Camp Delta chow hall, identify a female senior petty officer who would be dining there, and relay to her a specific code word. Penvose did as he was instructed. The officer leapt up from her seat and immediately ran out of the chow hall.

Another thirty minutes passed. Then, as Hickman and Penvose both recall, Camp Delta suddenly “lit up”—stadium-style flood lights were turned on, and the camp became the scene of frenzied activity, filling with personnel in and out of uniform. Hickman headed to the clinic, which appeared to be the center of activity, to learn the reason for the commotion. He asked a distraught medical corpsman what had happened. She said three dead prisoners had been delivered to the clinic. Hickman recalled her saying that they had died because they had rags stuffed down their throats, and that one of them was severely bruised. Davila told me he spoke to Navy guards who said the men had died as the result of having rags stuffed down their throats.

Hickman was concerned that such a serious incident could have occurred in Camp 1 on his watch. He asked his tower guards what they had seen. Penvose, from his position at Tower 1, had an unobstructed view of the walkway between Camp 1 and the medical clinic—the path by which any prisoners who died at Camp 1 would be delivered to the clinic. Penvose told Hickman, and later confirmed to me, that he saw no prisoners being moved from Camp 1 to the clinic. In Tower 4 (it should be noted that Army and Navy guard-tower designations differ), another Army specialist, David Caroll, was forty-five yards from Alpha Block, the cell block within Camp 1 that had housed the three dead men. He also had an unobstructed view of the alleyway that connected the cell block itself to the clinic. He likewise reported to Hickman, and confirmed to me, that he had seen no prisoners transferred to the clinic that night, dead or alive.

New ACLU Torture FOIA Docs Working Thread

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There are new documents in at the ACLU from their ongoing FOIA effort on the torture tape destruction matter. Here is the ACLU press release with link:

We’ve received some new documents in our DoD torture FOIA lawsuit, related to the CIA’s destruction of interrogation videotapes. They are posted here: http://www.aclu.org/national-security/aclu-v-department-defense, at the end of the section titled Documents Relating to CIA Contempt, with the date of 01/08/2010.

One thing we found interesting – there are a number of documents that focus on “lessons for the future,” some of those from as early as 8/2002, as though the documents memorialize what the CIA is learning as its interrogation program marches on.

Jeff Kaye has already spotted this one:

I think this is first evidence of actual approval from HQ for tape

destruction. Compare this with previous ACLU timeline (as of 11/09):

http://www.aclu.org/files/assets/20091124_Chronology_of_Videotapes.pdf

We knew about the 11/8 request, but not that permission was granted on

that day. If I’m wrong about this, please set me straight.

Another New Month, and Still No OPR Report

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John-YooJohn Yoo has spent the last several weeks insisting he did not give George W Bush a blow job–while admitting that sometimes, he just had to play favorites with the President.

Were you close to George Bush?

No, I’ve never met him. I don’t know Cheney either. I have not gone hunting with him, which is probably a good thing for me.

[snip]

So you’re saying you were just one notch above an intern, you and Monica Lewinsky?

She was much closer to the president than I ever was.

[snip]

When you say you had “a client,” do you mean President Bush?

Yes, I mean the president, but also the U.S. government as a whole.

But isn’t a lawyer in the Department of Justice there to serve the people of this country?

Yes, I think you are quite right, when the government is executing the laws, but if there’s a conflict between the president and the Congress, then you have to pick one or the other.

Meanwhile, it has been 48 days since Eric Holder said the OPR Report on John Yoo and other OLC lawyers would be released by the end of November. And yet we still don’t have that report.

That’s particularly interesting because–as I pointed out a month ago, just days after Holder promised the OPR report imminently, the lawyers for Jose Padilla got an extension on their appellate response to Yoo and the government’s claim that Padilla couldn’t sue Yoo for all the bad lawyering he did. Their deadline? January 15, now just 11 days away.

In the government’s amicus brief in this suit, they boasted that Padilla didn’t need to sue Yoo personally, because the government had means to punish him for bad lawyering on its own. One means they boasted of? An OPR investigation.

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]

At the rate we’re going, Padilla’s lawyers will have to file their response to the boast that OPR can offer adequate discipline in cases like this, without yet learning what OPR did in this particular case.

I’m increasingly convinced that’s by design.

Holiday Season Torture Document Dump Open Thread

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Sorry for even suggesting that there could be a “holiday season” torture document dump. But if you need a break from health care fights, here are some torture docs. Consider this an open thread.

SCOTUS: Rummy Is Immune in Torture Suit

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Today, SCOTUS declined to review an Appeals Court decision that ruled that Rummy and 10 other DOD officials are immune from suit for torture.

The Court’s denial of review of Rasul, et al., v. Myers, et al. (09-227) leaves intact a federal appeals court ruling that former Defense Secretary Donald Rumsfeld and ten military officers are legally immune to claims of torture and religious bias against inmates who were at Guantanamo but have since been released.  The Obama Administration had urged the Court not to hear the case, saying that, whatever claims the four ex-detainees were now making, they had no legal basis for those challenges at the time they were at the U.S. military prison in Cuba — that is, between January 2002 and March 2004.

The D.C. Circuit Court had ruled in favor of immunity, and in doing so avoided a repeat of its earlier decision — vacated by the Supreme Court — that Guantanamo prisoners had no constitutional rights.  The Justices had ordered reconsideration of that conclusion. Instead of ruling anew on the legal challenges, the Circuit Court opted for an immunity finding.  The Supreme Court’s denial of review does not stand as a precedent on that point, or on the substance of the ex-prisoners’ challenges.

As Adam Serwer points out, SCOTUS’ refusal to review the immunity ruling once again deprives the American justice system of a definitive ruling that torture is wrong.

This case, Rasul v. Rumsfeld, was important not just because of the alleged abuse involved. It’s important because civil liberties groups are seeking, as Ben Wizner of the ACLU, who is one of the lawyers in the Mohamed, et al. v. Jeppesen, rendition case, said last week, a “binding definitive determination” from the courts that the kind of treatment suspected terror detainees were subjected to under the Bush administration was illegal.
Without one, government sanctioned torture may make a comeback.

But I guess Rummy and the others who facilitated torture like it that way.

In Honor of Obama’s Nobel “Peace Through War” Prize, Donate to the ACLU

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I was going to make this pitch somewhat differently. But as the jist of Obama’s “Peace through War” speech has sunk in today, I’ve just gotten more and more frustrated.

First some background. As Glenn points out, the ACLU is in a whole bunch of hurt right now after their biggest single donor told them that cash flow issues prevent him from donating for the foreseeable future.

As The New York Times reported yesterday, the ACLU this year, largely without warning, lost its single largest source of funding as a result of the financial crisis.  The loss of that individual donor, who had been contributing $20 million per year, was a major blow to the organization, “punching a 25 percent hole in its annual operating budget and forcing cutbacks in operations.”  That loss came on top of substantial fundraising losses last year from the financial crisis and the Madoff fraud, which had already forced the group to lay-off numerous employees and cut back substantially on its activities.  The lost donor made clear yesterday that he continues to support the ACLU’s work emphatically but is simply now financially unable to continue his support.

I agree with Glenn that the ACLU has been utterly critical over the last decade in fighting to sustain our Constitution and the rule of law. But this funding set-back puts their ability to maintain their leadership position on these issues in jeopardy. And it sure looks to me like we’re going to continue to need their services in the coming years.

So if you can afford to do so at all, please consider supporting ACLU.

ACLU: “No Prohibition against Monstrous Conduct” without Ajudication of Torture

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The ACLU just finished up a conference call on the status of accountability for torture. Jameel Jaffer talked about accountability generally, Ben Wizner gave an update on the Jeppesen lawsuit (which he will argue next Tuesday, Alex Abdo gave an update on the torture FOIA, and Christopher Anders gave an update on the long-awaited OPR report.

While there were a range of questions, most of the answers converged on one theme best summed up by an answer explaining the cost to our judicial system in holding up the legal judgments on torture. Until we have a binding decision on these cases, Ben Wizner argued, there is “no prohibition against monstrous conduct.”

To a later question, Chris Anders talked about the significant repercussions this has around the world: so long as we don’t hold anyone accountable for torture, then other countries “do not have to be accountable for their actions.”

Here are some comments from Obama’s speech in Oslo today:

To begin with, I believe that all nations — strong and weak alike — must adhere to standards that govern the use of force.

[snip]

Furthermore, America — in fact, no nation — can insist that others follow the rules of the road if we refuse to follow them ourselves.

[snip]

Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct.  And even as we confront a vicious adversary that abides by no rules, I believe the United States of America must remain a standard bearer in the conduct of war.  That is what makes us different from those whom we fight.  That is a source of our strength.  That is why I prohibited torture.  That is why I ordered the prison at Guantanamo Bay closed.  And that is why I have reaffirmed America’s commitment to abide by the Geneva Conventions.  We lose ourselves when we compromise the very ideals that we fight to defend.  (Applause.)  And we honor — we honor those ideals by upholding them not when it’s easy, but when it is hard.

[snip]

First, in dealing with those nations that break rules and laws, I believe that we must develop alternatives to violence that are tough enough to actually change behavior — for if we want a lasting peace, then the words of the international community must mean something.  Those regimes that break the rules must be held accountable.

Obama talked a lot about consequences today. But he fails to demand any for his own government. And until he does, that means torture will still be used.

Sotomayor Refuses to Give Government Privilege for Me But Not for Thee

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Justice Sonia Sotomayor’s first opinion, released yesterday, is interesting for several reasons. Clarence Thomas was a predictable asshole to her about her opinion. (h/t fatster) It was the first time anyone has used the phrase “undocumented immigrant” in a SCOTUS opinion.

But I’m interested in the Obama Administration’s unsuccessful attempt to get the Court to bail them out of troubles they’re having on national security cases like al-Haramain and Jeppesen.

The case, Mohawk v. Carpenter, concerned whether a District Court’s order allowing discovery that threatened the attorney-client privilege merited an immediate appeal. The Government submitted an amicus brief in the case, basically arguing that it did not. But at the same time, the Government tried to write an exception for itself, arguing that attorney-client privilege should not get to bypass the normal appeals process, but state secrets and presidential communications privileges should.

As noted above (pp. 11-12, supra), the collateral order doctrine does not categorically exclude all discovery orders irrespective of their nature or the interests that are at stake. This Court has recognized that important governmental interests, principally of constitutional and statutory significance, justify immediate appealability under the collateral order doctrine. See, e.g., Osborn, supra (Westfall Act certification); P.R. Aqueduct, supra (Eleventh Amendment immunity); Helstoski, supra (Speech or Debate Clause immunity). Although the attorney-client privilege does not meet that high bar, privileges such as those protecting Presidential communications and state secrets qualify for such treatment in light of their structural constitutional grounding under the separation of powers, relatively rare invocation, and unique importance to governmental functions.

The Presidential communications privilege, which draws its authority from the constitutional role of the Executive and “can be viewed as a modern derivative of sovereign immunity,” is well established. Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 398 n.2 (D.C. Cir. 1984) (citing Raoul Berger & Abe Krash, Government Immunity from Discovery, 59 Yale L.J. 1451, 1459 n.46 (1950)). “The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution,” and it derives largely from the “necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking.” United States v. Nixon, 418 U.S. 683, 708 (1974). Unlike the attorney-client privilege (see pp. 15-17, supra), the Presidential communications privilege is invoked relatively rarely and only after authorization of senior Executive Branch officials.

[snip]

In addition to the Presidential communications privilege, this Court has long recognized a state-secrets privilege. That privilege may be invoked to avoid “a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.” United States v. Reynolds, 345 U.S. 1, 10 (1953). The state-secrets privilege, whose origins extend to early Anglo-American law, “performs a function of constitutional significance, because it allows the executive branch to protect information whose secrecy is necessary to its military and for eign-affairs responsibilities.” El-Masri v. United States, 479 F.3d 296, 303 (4th Cir.), cert. denied, 128 S. Ct. 373 (2007) (emphasis added); cf. Totten v. United States, 92 U.S. 105, 107 (1876) (noting that in comparison to cases involving common-law privileges—including the attorney-client privilege—“[m]uch greater reason exists for the application of the principle [against maintenance of a suit resulting in disclosure of confidential matters] to cases of contract for secret services with the
government”). As a matter of practice, the privilege is invoked by a formal request “lodged by the head of the department which has control over the matter, after actual personal consideration by that officer,” underscoring its unique significance to the functions of the Executive Branch and the restraints on its invocation. Reynolds, 345 U.S. at 7-8 (footnote omitted). In addition to their paramount “public importance” and “the need for their prompt resolution,” Nixon, 418 U.S. at 687, orders denying the applicability of the Presidential
communications and state-secrets privileges also satisfy the other traditional elements of the Cohen inquiry. First, an order requiring the disclosure of information over the government’s assertion of those privileges would conclusively resolve the issue. The Executive cannot be expected to persist in withholding information that a court has ordered to be disclosed; to suggest otherwise would be to invite the “unseemly” interbranch conflict that this Court declined to let unfold in Nixon. Id. at 692.

Second, neither the Presidential communications privilege nor state-secrets privilege turns on the merits of the action in which they arise, but rather on the nature of the constitutional prerogatives of the Executive Branch. Accordingly, when compared to the attorney client privilege (see pp. 17-21 supra), the governmental privileges are more readily severable from the merits of the underlying case. For example, the question whether disclosure of a state secret would endanger national security or diplomatic efforts is independent of the merits of the underlying action that seeks the disclosure. If information is properly deemed a state secret, then any assessment of the potential merits of the action or the disclosure’s impact on the merits is beside the point—the state secret cannot be divulged regardless. See Reynolds, 345 U.S. at 11 (state-secrets privilege cannot be overcome by “even the most compelling necessity”). The Court in Nixon, a criminal case where the asserted Presidential communications privilege reflected a “generalized interest in confidentiality,” engaged in a more case-specific inquiry, but only after finding appellate jurisdiction. 418 U.S. at 711.6 [my emphasis]

Now, it’s crystal clear what the Government was trying to do with the state secrets stuff. They were trying to dig themselves out of several holes in the 9th Circuit, by pushing the Court to back their argument that they can appeal an order to disclose evidence anytime a question of state secrets is involved. In particular, if I understand correctly (and please correct me if I’m wrong), this is what the Government tried to do in al-Haramain–appeal Judge Walker’s ruling that al-Haramain’s lawyers could have access to materials on their wiretapping so as to litigate the case.

Note, too, their claim that the Government would never refuse to turn over information after a Judge had ordered them to. Except that was precisely what they seemed to be preparing to do in al-Haramain, not just refusing to turn over information, but to take information already lodged with the Court Security Officer, along with filings that are the property of the Court, away from the Court.

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Yoo to OPR: Law is “Largely Irrelevant”

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(Mary has graciously tutored many of us here about the significance of the Civil War case, Ex parte Milligan, to contemporary debates about detention (see also here and here and here). So when I saw that John Yoo had written an article trying to explain why he’s been ignoring Milligan all these years, I asked Mary to rip the article to shreds. She does not disappoint.)

The hugely relevant (at least, in the context of a completed but unreleased Office of Professional Responsibility investigation) John Yoo has taken to the heavily trafficked pages of the Chapman Law Review to pursue his personal war – on law. In his piece titled, Lincoln and Habeas: Of Merryman, Milligan, and McCardle Yoo utilizes the resources of Boalt Hall and Chapman to finally find and discuss the Civil War case of Ex parte Milligan; a case which managed to elude Yoo during his time spent writing memos for the Office of Legal Counsel. Yoo chooses the cases of Ex Parte Merryman and Ex Parte McCardle to bookend his claims of the “irrelevance” of Milligan, and of law in general, during times of war.

Before we even get to that discussion, though, here’s a heads up.

A few facts and at least one important contemporaneous case – Ex parte Yerger – are as mysteriously missing from Yoo’s law review article as Milligan was from his OLC opinions. On the other hand, when your central argument is that case law means nothing, perhaps it is no flaw to fail to include relevant and contemporaneous case law.

Yoo’s argument (to OPR, the Supreme Court, state bars, and courts where claims against him for his role in torture are now pending) goes pretty much like this: Lincoln didn’t always follow the letter of the law and he “got away” with it. Ich bin ein Lincoln.

In essence Yoo claims that, when the courts try to impose law on the Executive branch, both the President and Congress will respond by disenfranchising and enfeebling the courts, so if courts know what is good for them, they’ll butt out. Read more →