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Yoo's Lawyers Warn of Flood of Political Suits
SAN FRANCISCO -- A ruling that allowed a prisoner to sue former Bush administration attorney John Yoo for devising the legal theories that justified his alleged torture threatens to "open the floodgates to politically motivated lawsuits" against government officials, Yoo's lawyers say.
John Yoo wrote a 2002 Bush administration memo on interrogation of terrorism detainees. (Photo: Susan Walsh / Associated Press)
In papers filed late Monday with the Ninth U.S. Circuit Court of Appeals in San Francisco, Yoo's new team of private lawyers argued that a judge's refusal to dismiss a suit by inmate Jose Padilla injected the courts into the political arena.
"Threatening executive branch lawyers with personal liability for reaching allegedly incorrect legal conclusions regarding the constitutionality of a president's wartime actions would infringe on the core war-making authority that the Constitution reserves to the political branches," said attorney Manuel Miranda.
Yoo, a UC Berkeley law professor, was a Justice Department lawyer from 2001 to 2003 and wrote a series of memos on interrogation, detention and presidential powers.
The best known was a 2002 document that said that rough treatment of captives amounted to torture only if it caused the same level of pain as "organ failure, impairment of bodily function or even death." The memo also said the president may have the power to authorize torture of enemy combatants.
Another Yoo memo said that U.S. military forces could use any means necessary to seize and hold terror suspects in the United States.
Padilla was arrested in Chicago in 2002 and accused of plotting with al Qaeda to detonate a radioactive "dirty bomb." He was held as an enemy combatant in a Navy brig for three years and eight months, then was taken out of the brig and charged with taking part in an unrelated conspiracy to provide money and supplies to Islamic extremist groups. He was convicted and sentenced to 17 years in prison.
Padilla's suit against Yoo covers his time in the brig. He says the government detained him illegally, denied him contact with the outside world for nearly two years, kept him for lengthy periods in darkness and blinding light, subjected him to temperature extremes, confined him in painful stress positions and threatened him with death.
Padilla says Yoo, a member of a Bush administration planning group known as the "war council," reviewed and approved his detention in the brig and provided the legal cover for his abusive treatment. His suit seeks a token $1 in damages, plus legal fees.
In his June 12 ruling, U.S. District Judge Jeffrey White in San Francisco said government lawyers, like any other officials, are "responsible for the foreseeable consequences of their conduct." He said Padilla had a right to sue the "alleged architect of the government policy" on enemy combatants.
The Justice Department, which had represented Yoo in the case, then withdrew and was replaced by private attorneys. They argued in Monday's appeal that Yoo, as a legal adviser to the president, had not been responsible for the decision to detain Padilla, for the conditions of his confinement, or for "any alleged violation of Padilla's rights."
In response, Padilla's lawyers said Yoo's arguments were the same ones White had already rejected. "Lawyers can't aid and abet their clients' crimes," they said in a statement. "And they can't aid and abet their clients' involvement in torture."
The appeals court has not set a hearing date in the case.
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55 Comments so far
Show All"allegedly incorrect legal conclusions"
another batch of twisted mouthpieces.
illegal is illegal.
immoral is immoral.
yoo needs locking up.
it's disgusting to think of him as a teacher.
Manuel Miranda needs locking up, too, as do the rest of Yoo's defence team.
We need a new Amendment that says people do NOT get the presumption of innocence for acts committed while holding public office, or while in service to such a current or former officeholder. They should be burdened with proving that their acts were consistent with their duties and oath, and based on real facts, not faked-up ones. If evidence is presented that any significant 'fact' was cooked up (e.g. the Downing Street memo showing prior intent), that should be sufficient to invalidate all claims to innocence.
With such an Amendment, Yoo and that ilk would be disbarred and sent to prison for the rest of their unnatural lives, and the main BushCo scum would be hanged, or at a minimum given the lethal jab.
So would Clinton, Albright, et al.
Ah - the twisted legal logic of it all: if you hold us accountable for the crimes that we committed it will somehow damage the system that we were elected / appointed to protect. . .
It reminds me of a story by Abe Lincoln, where he sited a case where a man pleaded for mercy, after having killed both his parents, because he was now an orphan. . .
The people at Guantanamo, many proven innocent of any wrongdoing (at least 400), were not the worst of the worst; Bush and his accomplices were truly 'the worst of the worst' as they came closer to destroying this country than any foreign force they engaged.
“open the floodgates to politically motivated lawsuits” Right up front using the term floodgates indicates that they know they abused their powers otherwise there would be no flood to come rushing through the gates. That Yoo isn’t the sharpest tool in the shed becomes a little more obvious when his own lawyer’s motion’s make the case against him stronger.
Then there’s the whole question of “why not prosecute Padilla like any other criminal? My guess; most of the evidence of Padilla’s crimes was probably from illegal wire taps because the Bush administration’s lawyers were either too lazy to bother to file a warrant with the FISA courts or Bush wanted to bypass the FISA courts because he was data mining pretty much all of the electronic communications on planet earth and not even the puppet FISA courts would have signed off on that.
UC Berkeley, once a bastion of progressive thought, needs to drop Woo. And drop the people who brought him on board.
This will not happen. Universities have lost all higher moral ground in their headlong rush for sponsors and publicity.
I saw John Yoo speak at a lunchtime debate at the UC Berkeley Law School last week. The subject of the debate was international law--specifically, whether or not the US should obey international treaties.. The irony of having Yoo as a moderator for that event was entirely lost on the many fresh-faced and smartly-attired young law students who attended the event. As I learned from discussions with these students after the event, few of them had any real concerns about the fact that one of their law professors had been involved in helping the Bush administration find ways to torture prisoners and claim it was entirely legal under US law. A number of them, to my utter dismay, seemed to think it was kind of cool to be around Professor Yoo, like he was some type of celebrity or something, a maverick of sorts, like John McCain. (It was clear that other students came just for the free burritos--which, I have to admit, were quite good.)
John Yoo, however, was not quite as comfortable as the law students in the audience. He looked nervous, and regularly scanned the crowd looking, it seemed, for any sign of an impending protest or accusatory remark.
Even so, Yoo carried on, and even loosened up enough to make a subtle joke later: "Of course, one should look at the US Constitution from time to time in a law school..." [crowd laughs] The disturbing irony of this joke appeared to be completely lost on the law students.
Yes, it's really true: a man accused of aiding and abetting torture actually teaches Constitutional Law at UC Berkeley! The law school dean refuses to challenge Yoo about his past work for the Bush Justice Department, explainig that he does not want to restrict "academic freedom." Believe it or not.
Let's hope that this new, and possibly robust, legal challenge against Professor John Yoo will be the straw that breaks the camel's back--and he decides to resign. As long as he continues to teach law at UC Berkeley--his exhorbitant salary paid by the taxpayers of California--he brings shame not just on the law school, but on the entire University of California system.
"The disturbing irony of this joke appeared to be completely lost on the law students."
Perhaps, had yoo quipped: "Of course, one should look at that 'goddamned piece of paper' from time to time..." they may have caught the reference.
Surprise_witness November 11th, 2009 10:30 am -- Very interesting report. Thanks! I wonder if the MSM did anything with this?
"The disturbing irony of this joke appeared to be completely lost on the law students."
Today's freshman law students of about 21 years of age would have been about 14 when John Yoo redefined torture, and given the limited public response at that time their lack of knowledge is understandable.
The position of the Dean of Law and the University Senate is completely different. My opinion is that his appointment should have been terminated "for cause" after a proper hearing before the appropriate body (usually the University Senate).
In an odd way, the claims of Yoo's new legal team sound like his case's version of corporate counsels inveighing for "tort reform."
Bury that sucker in law suits! Inundate him! A biblical flood! Wash him away!
TORTURE ---- ESSENTIAL ELEMENT IN CAPITALISM
Capitalism is a competition based dictatorship where the most intelligent
upper half divides all the wealth. So to accomplish this the lower half
must be kept insecure, anxiety driven and in fearful submission to
authority.
Maybe someone should crush his male childrens testicles to get him to admit his guilt?
He himself has stated that that is acceptable.
If Yoo's lawyers are correct, the USA owes the families of Hitler's lawyers an apology and restitution for their execution.
I hope for our sake he has no children!
Such twisted genes need to be eradicated.
Crush HIS nuts and stuff them down his throat.
Or would that constitute torture?
He could tell us - after.
YES! Flood Gates and the whole war criminal Company!!
"Threatening executive branch lawyers with personal liability for reaching allegedly incorrect legal conclusions regarding the constitutionality of a president's wartime actions would infringe upon the core war-making authority that the Constitution reserves to the political branches" of the federal government.
A president's wartime actions.... core war-making authority....
A civilian American citizen gets whisked away from the streets of Chicago, labeled an Al Qaeda bomb plotter with great public fanfare, languishes and suffers abuse in a US navy brig for three and a half years, before finally being indicted in federal court on charges unrelated to actual acts of terrorism.
What the hell does the arrest, illegal confinement, and mistreatment of Jose Padilla have to do with wartime actions of a wartime president exercising core war-making authority?
Nothing. Zero. Zippo.
And if the wannabe wartime president's lawyer/advisor told the president otherwise - in some secret classified legal memo, or with a whisper, wink, and nod - such disingenuous collusion is more than just an "allegedly incorrect legal conclusion" on that lawyer's part.
It is a betrayal of public trust and a breach of ethical responsibility for which that attorney should be held fully accountable. If Attorney General Holder flinches back from indicting John Yoo for conspiracy to commit torture and other crimes, at least Mr. Padilla should get a day in court under the civil rights laws on the courts' civil docket.
Politically motivated violations of the Bill of Rights merit politically motivated lawsuits in response. That's how the justice system is supposed to work.
Bill from Saginaw
These are not politically motivated lawsuits.
The motivation here is a need for justice and rule of law.
I think you will agree.
Bill from Saginaw November 11th, 2009 3:02 pm -- As always, your comments are astute and persuasive.
You say, "If Attorney General Holder flinches back from indicting John Yoo for conspiracy to commit torture and other crimes, at least Mr. Padilla should get a day in court under the civil rights laws on the courts' civil docket." My question, which I've put to you before (and I know you're an attorney, as I am): why are we required to wait for Holder, or a special prosecutor appointed by him, to take action under the criminal law against people like Yoo? Isn't there some prosecutorial person or body who could take this on, other than persons directly accountable to Obama? Don't U.S. attorneys and federal grand juries have enough independence to do it? What about state prosecutors and grand juries? The example of Jim Garrison comes to mind, and it's not a particularly encouraging one; but Garrison's motives and abilities weren't what they should have been.
Yes, there are two: The Hague and the Maffia.
Theoretically any US attorney could do this, as they could bring Bush and Cheney up on charges of war crimes, but they won't do it because Holder has undoubtedly cautioned them to not go there, ever. Obama has told Holder it's strictly hands off the Bush crime family for all its crimes against humanity. There's been something extremely secretive and sinister about Obama's complicity with those war criminals since long before the Dems rigged his nomination. And Yoo is part of that inner cabal, just as David Addington and Scooter Libby were.
Nothing will happen to Yoo, any more than it ever will to Cheney or Bush. Obama is their protector, and if some US attorney or federal grand jury tried to make a fuss over this, Holder and his team in "Justice" would bury them alive by having well- placed media figures scorn and ridicule the effort until it died a slow death by rightwing asphyxiation. We're a completely criminal government, under either wing of the Great Duopoly. Any US attorney failing to abide by that prime directive would be smeared and ruined in a matter of days, and probably disbarred.
Ephraim November 11th, 2009 11:08 pm -- I responded a few minutes ago in a general comment. But specifically about the disbarment you suggest, how could an attorney be disbarred for investigating allegations supported by probable cause, as the allegations against the Bush administration (and maybe the Obama administration, now) are? Disbarment makes sense for people like Yoo who flouted the law and clearly stepped over ethical boundaries.
Cicero: "Freedom is participation in power."
The truly scary thing is that by reauthorizing Bush II's "national security state of emergency" (de facto martial law) the executive branch seems to be making the open-ended terror war/martial law permanent. Change fascists can believe in.
beautiful. can't wait till georgie and DICK get sued as
well.i would like to see yoo stuck in a jail cell
with some of those he hurt or is there as a result of his
actions. then he would have some explaining to do.
it just shows you how flimsy the politics of america is.
Living half of my life in a Communist regime taught me one thing: what goes up comes down. Living the other half of my life in a Capitalist regime has taught me...well, essentially the same thing. The operative word in your statement is "politics" - it's all the same dirty, stinky cacadoodle wherever you are & the principles (if we can use that word when discussing politics) are the same.
Gee, how "political" is it to say someone falsely arrested, held in violation of the Constitution and tortured can sue?
The Shyster Enabler of Waterboarding to be "Flooded" with law suits?
Maybe it will only 'simlulate' the feeling of being stripped of all his worldly possessions, but will not cause actual organ failure.
So, if my lawyer tells me that its perfectly legal for me to murder my next door neighbour..I am protected by the shield of his opinion, and he is protected by the fact that it is only his opinion?
but only if your gripe with your neighbour is political.
Law suits in the
legal system?
Preposterous!
The defense rests.
Yoo is guilty of malpractice and his customer, GWB, has the right to sue him if and when GWB is (rightly) convicted of torture, murder, or treason. But Yoo should be dis bared and driven from civil society; no rational person would stain their reputation by associating with him. I for one would not sell him water to save his life.
Aaaaaw, poor Yoo! Sounds like he may want to consider a long vacation at Club Guantanamo just till the dust settles over here.
Alleging that a lawsuit is "politically motivated" is saying politicians are above the law.
Right you are ezflyer. Politically motivated? So what? It is almost impossible to avoid political motivations when dealing with political situations.
Joe
Yoo is a Federalist of the worst His love affair with John Adams, who brought us the Sedition Acts, is largely responsible for this foolishness that has him so deep in hot water. Looking over the web pages for the "Federalist Society" you will begin to see why the Bush administration enjoined such heretics of Democracy as policy writers in the first place. Considering Centralized government being unconstitutional and "reordering priorities within the legal system to place a premium on individual liberty and traditional values" is how they have determined to deconstruct the Constitutional norms we have lived satisfactorily with all these years. Yoo is a pustule of corrupted legal interpretation, but he is only one of thousands who would replace him. If ever there was a need to lock up citizens in this country without benefit of a trial we should start with these clowns, and give them a taste of their kind of legality.
Lawsuits? The US has hanged war criminals!
I'd like to remember Jose Padilla because I believe he might become a historical figure.
we were introduced to him by headlines screaming "dirty bomb terrorist apprehended". i think ashcroft was in moscow, and canceled whatever he was doing so he could fly to chicago and handle the guy.
anyway a day or two later everyone agrees there is no dirty bomb. bush said "never mind. keep him in jail. I declare him an enemy combatant". the new charge was that Jose wished he had a dirty bomb, or some kind of bomb, or that he was conspiring with somebody, maybe, or maybe by himself, to build one.
he spent way too much time in solitary in a navy brig, and by the time he got to a courtroom, his lawyer said he was no longer right in the head.anyway it all gets a bit complicated after this, but it is a spectacular miscarriage of justice, and Jose never got a break. somebody said that what the u.s. did to Jose did far more harm to the constitution and to justice in the u.s. than any terrorist could even imagine.
if any supernatural power is watching this, i sure hope they can spring him. he has suffered a hundred times more than he deserved.
What a crock. Bring on the law suits. There better damn well be some criminal prosecutions as well. If you take an oath, and exceed the bounds of your office (as by criminal behavior), let the message out that you do so at your peril. So bring on the law suits and Constitutional questions. Obviously, we need solutions, answers.
The importance of the Padilla case is that he was a U.S. citizen.
His case shows that any U.S. citizen can now be abducted, locked up for years and tortured - all on the say-so of U.S. government officials. The fact that Padilla wasn't released, but was convicted, means effectively that basic rights specified in the U.S. Constitution no longer apply.
The important point is that the Constitution is now nullified for all U.S. citizens. That's really the lesson of the Padilla case.
Padilla, I read somewhere, was driven insane by the abuse meted out by U.S. officials, as well as his years of isolation in a navy brig - a clear violation of habeas corpus legal rights that used to apply to all U.S. citizens.
The Rehnquist Supreme Court weakened habeas corpus, saying that you can be held in jail at most two days before being charged, because the court bureaucracy needs that amount of time to process the paperwork. However, two days really pales before Padilla's three years.
Yoo wasn't negligent in helping make this nightmare a legally sanctioned reality. He intentionally went out of his way to ignore the Constitution and existing laws. He assigned un-Constitutional dictatorial powers to George W. Bush.
Clearly, U.S. and international laws don't support torture under any circumstances. The Constitution's language is "no cruel and unusual punishments." Of course, that's after being convicted of a crime. Yoo was arguing for extrajudicial punishments, which is even worse.
We tend to think that the criminal policies of the Bush administration are over, but they are not. The illegal wars, domestic spying, illegal detentions and torture are all being continued today by the Obama administration.
Obama has already suggested that the crimes of people like Yoo should be ignored - especially when such officials were merely following orders. (That turns the Nuremberg defense on its head.)
Essentially, we're living in a lawless state, or where the laws only apply to some.
By the way, Yoo's attorney talks about the war-making powers of the President. Well, there simply is no such power! Only Congress has the power to declare war, per the Constitution, and they never did it.
-TIA
The Constitution is clear: the POTUS is Commander in Chief of the combined Armed Forces "when in actual service"; i.e. only AFTER a declaration of war by Congress.
Congress is not authorised to grant "neccessary military action" powers, as it presumed.
BRING 'EM ON!!!! The lawsuits, I mean! AND the charges pending against the felon, John Yoo! Do his lawyers really think they can intimidate us enough to DROP charges against this persom? GUESS AGAIN!!!!
I have news for Yoo - he may have more suits than he thinks. If Padilla has the right to sue the "alleged architect of the government policy" on enemy combatants - what about the legal memos John Yoo wrote undergirding theunprecedented classified surveillance operation of the Bush Administration? A target of organized gang stalking told me he just lost his business as a result of organized gang stalking. Visit my web site - www.theintrovertspeaks.com - under "Summary" to read my article, "Is COINTELPRO Back Using Organized Gang Stalking." The Bush Administration put itself above the law, above the Constitution, not only as regards enemy combatants, but also regarding the treatment of U.S. citizens being harassed and surveilled for years. That's why we need a Commission to investigate ALL "the abuses of power; the violations of law; the distortions of the constitutional structure, including the sweeping assertions of executive power and the undermining of checks and balances - as well as who was responsible, and how it has harmed us," as was called for in testimony give before Senator Feingold's Subcommittee on the Constituion, Civil Rights, and Property Rights on the topic of Restoring the Rule of Law in America after the outrages of the Bush Administration. It's not just about the treatment of enemy combatants, but also the treatment of American citizens under classified U.S. Surveillance Policy. Google - "Bush Surveillance Program Was Massive" by Pamela Hess, July 10, 2009, AP story.
what makes you think COINTELPRO ever went away?
you have their word for it?
LOL!
Bring 'em on!
FREE AMERICA
REVOLUTIONARY (DIRECT) DEMOCRACY
Ephraim November 11th, 2009 11:08 pm and constitutionlady November 12th, 2009 1:09 am -- I appreciate the time and effort you have put into this. But my question for Bill from Saginaw, addressed by Ephraim, remains. Out of the hundreds or thousands of federal law enforcement officials, including U.S. attorneys and grand juries, is there no one who will enforce the black letter law against torture? It was done with respect to a few bottom-rung people. Why not the people who really are responsible? I understand the scenarios Ephraim poses, but they aren't mandated by law. As I mentioned before, Jim Garrison, for all his faults (which were completely ignored by Oliver Stone, by the way), had the guts to challenge the establishment. Is there no one today with that kind of courage? Has anyone even tried to get something going? And is it written in stone that we must rely exclusively on the feds to enforce the extremely important laws the Bush administration trashed?
I'm tired of endless hand-wringing about the fact that Obama won't do anything. He's made it clear where he stands. So let's stop the hand-wringing and do something constructive. Those of you writing here are capable of doing this. Contact law enforcement officials and lay out the case to them. Ask them to act. Surely someone will take up the challenge, if those of us who are talking about this represent more than a lunatic fringe.
If what I'm suggesting has already been tried, let's hear from the people who tried it and figure out how to fix the problems.
I'm entirely sympathetic, manning, with all you say, but I guess my point was that is spite of the legal necessity of pusuing justice in the Yoo issue (and for that matter the equally culpable David Addington), this Justice Dept. and its several court appendages, US attorneys, federal grand juries, simply will not proceed, for reasons I gave before. Now, I know I may be wrong and hope to hell I am, and I'm not a lawyer though I've known quite a number of them, some are close friends. Talk to them about this and they unanimously blow the whole thing off as a pipe dream. Just more of my crazy leftist daydreaming. They understand the issue as well as you and Saginaw Bill do but in terms of DOING ANYTHING about any of it, to them it's all hypothetical.
No one is willing to step forward and put themselves on the line. I have no more influence over matters like this than my cats, and a friend of mine who's a state Supreme Court justice is convinced he has no more influence there than I do. See, everyone feels powerless. That's the result of 8 long and tortured years under a quasi-military dictatorship (Bush). Yoo was an important point man for that criminal regime; it got way with serial murder, theft, illegal torture and several other crimes against humanity without being challenged by the "opposition" party in the slightest; Obama is now the figurehead for that totally complicit party and he won't lift a finger or breathe a word to begin investigations into the Bush crime spree. Neither will Holder and neither will anyone else. Don't ask me why, except I would say it's because they're ALL IN THIS TOGETHER.
Any serious legal moves against Yoo translate ultimately to implicating the Democrats somewhere down the line. There are just too many Dems who looked the other way or condoned through passivity all those memos Yoo wrote, because they essentially supported the policies. They may have squawked publicly once or twice but they never really intended to step between Bush/Cheney/Addington/Yoo et al. and the war on Iraq, Afghanistan, Islam. All under the phony rubric War on Terror, meant strictly for gullible-public consumption.
You say, "Contact law enforcement officials and lay out the case to them. Ask them to act. Surely someone will take up the challenge, if those of us who are talking about this represent more than a lunatic fringe." I appreciate the idealism but I for one wasn't born yesterday. Any law enforcement officials I might lay out the case before would only ask me when I stopped taking my meds, or condescend for a minute until I finally went away. Individuals approaching the legal apparatus about this will be less effective than even the many media-ignored protests against the War that have gone on since 2003.
You write, "I understand the scenarios Ephraim poses, but they aren't mandated by law." That's not especially relevant in a system that routinely flouts and disobeys the law, any time it may advance an utterly extra-legal agenda, such as the entire GWOT, founded and prosecuted on nothing but lies. Where is there is no truth to be found anywhere, the law is irrelevant. US imperialism is all about ignoring inconvenient laws, which was Yoo's charge to rationalize.
If there's anything that can be done, in actuality instead of hypothetically, I can't wait to witness it. Let the investigations begin! If only. Since you and Bill from Saginaw ARE lawyers, go for it. Be the next Jim Garrison, without all the flaws.
Ephraim November 12th, 2009 3:31 pm -- Appreciate the thoughtful comment, especially the information about your conversations with lawyers. I don't interact socially with other lawyers (except on CD). I belong to the ACLU. That organization may be one of the best hopes for getting something started, although they don't typically work to enforce criminal laws. I still think Kevin Zeese and his organizations may make a difference.
I think you put your finger on the greatest problem in pointing out that the Democrats are also heavily involved. But after studying and discussing this matter at length, I just can't believe the clear legal prohibitions in the federal codes and treaties are unenforceable.
I couldn't be a Jim Garrison. I can't get a job as a city prosecutor, let alone district attorney! But in this endeavor, we definitely need leadership from a prosecutor.
"But after studying and discussing this matter at length, I just can't believe the clear legal prohibitions in the federal codes and treaties are unenforceable."
Agreed, all such prohibitions and codes are enforceable, or should be, or they wouldn't be legally prohibited and in the federal code, I suppose. But first they have to be applied, and my point is that I seriously doubt they ever will be, for the reasons given. We're a lawless state regarding the overarching nationalistic imperative of Imperialism. All those ancient Constitutional prohibitions against treating others inhumanely (torture, wars based on a mountain of lies fully supported by the whole institutional order of power, violations of the Constitution itself at every turn) are tedious irritants to our mandarin class, of which Yoo and his legal associates are preeminent members.
John Yoo should be tried by the International Criminal Court (ICC) in The Hague, on charge of Crimes Against Humanity.
And when found guilty, immediately executed.
newsflash my Yankee friend:
European countries don't do executions.
They are civilised.
I'm Canadian.
And too bad. He is definitely one who would show no remorse for his actions. The world is better off without him.