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

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 [ed note, this should be:]

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:


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);

And in a footnote to the passage above, Padilla’s lawyers note,

After losing in the district court, Y00 switched from DOJ lawyers to private lawyers, but the DOJ then filed an amicus brief. It conveniently fails to mention the Executive’s on-the-record statements regarding the availability of a Bivens remedy.

That is, even the Executive admits Bivens offers a remedy in the case of torture.

There is, however, no mention of the OPR report–neither the fact that it is supposed to be due out any day, nor the fact that it has been delayed just long enough to make it unavailable to Padilla’s lawyers for this response. They do, however, include material that might as well come from the OPR report, as it describes how Yoo’s actions violated normal procedures for OLC.

Moreover, the allegations here raise a strong inference that Y00 and his fellow policymakers knew that the policies were unconstitutional and took steps to ensure their implementation despite their ilegality. The War Council was a secretive body. ER229P15. Y00′ s participation in it was outside the scope of-and created ethical conflict with-his OLC role. ER229PP15, 16. After the CIA made it clear that line-level officials would not engage in brutal interrogations without legal cover, the members of the War Council, including Y00, “discussed in great detail how to legally justify” those harsh techniques. ER233P28. Y00 then drafted legal memoranda “with the specific intent of immunizing government officials from criminal liability for participating in practices that [he] knew to be unlawful,” ER234P31, “remov[ing] legal restraints on interrogators,” ER233P29, and “justify[ing] the Executive’s already concluded

policy decision to employ unlawfully harsh interrogation tactics.” ER233P29; see also ER232PP22,23. Violating normal procedures, the memoranda were “deliberately withheld from other agencies in order to control the outcome and minimize resistance.” ER232P25.

There’s much more in the response (including a great deal on Yoo’s selective use of Milligan and Qirin that hearkens back to Mary’s post on those cases).

But here’s the rub. Within a week, we may finally see the OPR report describing the ways in which Yoo was acting as much more, and much less, than a mere lawyer. Of course, the OPR report will then claim that such conduct deserves no real punishment.

I am curious whether the 9th will agree.

  1. readerOfTeaLeaves says:

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

    You mean he’s supposed to meet a set of professional standards?
    I suspect he simply assumed it was all about ‘winning’ and ‘losing’, no matter how depraved one had to be to achieve a ‘win’.


  2. watercarrier4diogenes says:

    Too bad Jon Stewart didn’t have this to read before he ‘interviewed’ Y OO (?) last week

  3. Peterr says:

    Within a week, we may finally see the OPR report

    Or a month, or three months, or a Friedman Unit . . .

    Keep hope alive, Marcy. Keep hope alive.

  4. tjbs says:

    Treason nothing less. Until we accept the government of laws was overturned to the whims of george and company we will resolve nothing.
    We had treaties that were ignored concerning war crimes.

    Torture war crime
    Legal memos justifying torture war crime
    Stuffing socks down someone throat war crime
    Rendition war crime
    Premptive invasion war crime
    Drones war crime
    Slaughter of kids handcuffed war crimes.

    Yoo reminds me of a child playing with fire that ran away from him and claiming he didn’t intend for that outcome.
    Tough Yoo must follow his German lawyers forefathers to his punishment though not the death penalty he richly deserves.
    He’s a treasonous bastard.

  5. hissyspit says:

    SPENCER TRACY as CHIEF JUDGE DAN HAYWOOD in Judgment At Nuremberg (1961): “You were speaking of crimes against humanity… saying that the defendants were not responsible for their acts.

    I’d like you to explain that to me.”

    JUDGE CURTISS IVES: “I’ve just been explaining it.”

    JUDGE HAYWOOD: “Maybe.

    But all I’ve heard is a lot of legalistic double-talk and rationalization.

    You know, Curtiss, when I first became a judge… I knew there were certain people in town I wasn’t supposed to touch. I knew that if I was to remain a judge, this was so. But how in God’s name do you expect me to look the other way… at the murder of six million people?”

    JUDGE KENNETH NORRIS: “I’m sure he didn’t mean that.”

    JUGE IVES: “I’m not asking you to look the other way at them. I’m asking you, what good is it going to do

    to pursue this policy?”

    JUDGE HAYWOOD: “Curtiss, you were saying that the men are not responsible for their acts.

    You’re going to have to explain that to me.

    You’re going to have to explain it

    very carefully.”

    JUDGE HAYWOOD: “The tribunal is now in session.

    God bless the United States of America and this honorable tribunal.

    The trial conducted before this tribunal began over eight months ago.

    The record of evidence is more than 10,000 pages long… and final arguments of counsel have been concluded.

    Simple murders and atrocities do not constitute… the gravamen of the charges in this indictment.

    Rather, the charge is that of conscious participation

    in a nationwide, government-organized system… of cruelty and injustice…

    in violation of every moral and legal principle known to all civilized nations.

    The tribunal has carefully studied the record and found therein abundant evidence to support… beyond a reasonable doubt…

    the charges against these defendants.

    Herr Rolfe… in his very skillful defense…

    has asserted that there are others who must share the ultimate responsibility for what happened here in Germany.

    There is truth in this.

    The real complaining party at the bar in this courtroom…

    is civilization.

    But the tribunal does say that the men in the dock are responsible for their actions.

    Men who sat in black robes in judgment on other men.

    Men who took part in the enactment of laws and decrees the purpose of which was the extermination of human beings.

    Men who, in executive positions actively participated in the enforcement of these laws illegal even under German law.

    The principle of criminal law in every civilized society…

    has this in common:

    Any person

    who sways another

    to commit murder…

    any person who furnishes…

    the lethal weapon for the purpose of the crime…

    any person who is an accessory to the crime…

    is guilty.

    Herr Rolfe further asserts that the defendant Janning was an extraordinary jurist and acted in what he thought

    was the best interest of his country.

    There is truth in this also.

    Janning, to be sure is a tragic figure. We believe he loathed the evil he did.

    But compassion for the present torture of his soul must not beget forgetfulness of the torture and the death of millions by the government of which he was a part.

    Janning’s record and his fate illuminate the most shattering truth that has emerged from this trial.

    If he and all of the other defendants had been degraded perverts…

    If all of the leaders of the Third Reich had been sadistic monsters and maniacs then these events would have no more moral significance than an earthquake, or any other natural catastrophe.

    But this trial has shown that under a national crisis ordinary, even able and extraordinary men, can delude themselves into the commission of crimes, so vast and heinous that they beggar the imagination.

    No one who has sat through the trial can ever forget them.

    Men sterilized because of political belief.

    A mockery made of friendship and faith.

    The murder of children.

    How easily it can happen.

    There are those in our own country, too, who today speak of the protection of country, of survival.

    A decision must be made in the life of every nation…

    At the very moment

    when the grasp of the enemy is at its throat.

    Then it seems that the only way to survive is to use the means of the enemy…

    to rest survival upon what is expedient, to look the other way.

    Only, the answer to that is: Survival as what?

    A country isn’t a rock.

    It’s not an extension of one’s self.

    It’s what it stands for.

    It’s what it stands for when standing for something is the most difficult.

    Before the people of the world,

    let it now be noted,

    that here in our decision,

    this is what we stand for:



    And the value of a single human being.”

    • perris says:

      even able and extraordinary men, can delude themselves into the commission of crimes, so vast and heinous that they beggar the imagination

      yoo has not only deluded himself, now he defends that dellusion

    • Mnemosyne says:

      Thanks. Time to get Nuremburg out of the library and see it again.

      Have been reading Kitty Kelley on The Family, history of the Bushies. Big flap when it came out, although I haven’t seen much that that we didn’t by now know. [ no idea why the FDL site doesn’t like my apostrophes } But it’s the cumulative effect, like reading Shock Doctrine, with all the episodes piled up one after the other.

      That’s an intro to saying that Prescott Bush, grandfather of Dubya, was a Republican gentleman of the old school, but he was also prejudiced, arrogant, isolationist and racist. Neither George apple fell far from the tree, and as the book makes clear Prescott was the best of the bunch. To call it a severely dysfunctional family is being very kind.

      So you begin to see where some of the present horror came from.

      • Mnemosyne says:

        How very strange. In preview, the apostrophes showed as multiple backslashes, hence my bracketed comment. But they seem to have printed properly. Oh well.

  6. MaryCh says:

    I apologize if this question is answered elsewhere – can Padilla preserve or at least usefully assert a reservation of right to amend his brief upon release of the OPR report? While the report contents are unknown, enough of 43 Admin’s relevant actions are known to provide reasonable basis (or whatever the correct standard is) to believe that the to be later reported information will be substantive and germane to the issue(s).

    • JohnJ says:

      That’s what most of us think lawyers do for a living; get continuances (until they get paid in full). /s

      sorry bmaz, couldn’t resist.

      • earlofhuntingdon says:

        You wouldn’t get that if you haven’t paid up. More likely, your “advocate” would find that s/he could no longer represent you. The vagaries of finding a new lawyer mid-case being what they are, that would effectively terminate your case and possibly leave you holding the bag for part of the other side’s costs.

  7. perris says:

    he protests that a case cited by Plaintiffs involved “claims against government lawyers for providing intentionally incorrect legal advice.”

    it seems to me yoo is accepting a given, that his advice is incorrect but he gave it thinking it was correct

    it seems to me, with this motion, he does not want to argue the merrits of his advice

    • NMvoiceofreason says:

      His defenses are constitutionally barred:

      The Supremacy Clause of the United States Constitution states:

      “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

      We note that in statutory construction, the word “shall” confers a binding and affirmative duty. Therefore the treaties ratified by Congress, such as the Convention Against Torture, are the law of the land, not subject to repeal by secret Executive branch memorandum.

      The Convention Against Torture, ratified in 1988 under Ronald Reagan states in Article 2 in part:

      1. “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”
      2. “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
      3. “An order from a superior officer or a public authority may not be invoked as a justification of torture. . . .”

      In no case were Yoo’s actions an effective measure to prevent acts of torture, nor are his claims of exceptional circumstances available, nor may the President as Commander in Chief in a time of war be invoked as a justification of his criminal and unconstitutional acts.

  8. Arbusto says:

    As this is a Civil trial,and should it go forward and Yoo loses, the DOJ/Tax payer will pick up the tab. No criminal trials for any criminality under Bushco are likely under Obamaco. To restate what hissyspit excerpted from Judgment at Nuremberg: “… this is what we stand stood for: Justice. Truth. And the value of a single human being.”

  9. JohnLopresti says:

    I wonder how much is in NARAs archive of 20 million *rediscovered*# Bushco emails, which, in 14 years, will be FOIA responsive, and germane to complainant*s current case. I heard as reasonable bmaz*s ready dismissal last year of there being any impact by Garzon*s investigation of the Wah Council*s principals. There is a lot of hype about these issues always; I am sure ICRC has seen the international gamut issuing from various governments in many cases. Although there is some august commentary on the centrality of habeas, my take has been that is a knottier issue for Padilla*s advocacy than the corporeal in-brig matters. Even the mild prof Guiora characterizes as anomalous the prarie justice modality which YooCo oversaw in the introduction to the abstract of this paper December 2009 [406KB].


    #v. MSloane*s site, out of court settlement agreement December 14 2009 [708KB].

  10. phred says:

    OT, sorry to OT here, but I finally had a chance to read the Horton piece on Camp No and I have a question. It’s likely no one knows the answer, but maybe someone does, so if WO or nextstopshicago or Jeff or Mary happens to see my tardy request, would you mind taking a peek at my comment at 228 and let me know what you think? Thanks.

    Sorry for the interruption…

    • bobschacht says:

      I think your question comes too soon. Remember, just a few days ago, Camp No was unknown. Furthermore, although I haven’t read the Scott Horton piece, we don’t have much testimony about what happened at Camp No. Now that we do, perhaps we’ll start to get more info about what happened at Camp No.

      Bob in AZ

    • WilliamOckham says:

      There’s a real conundrum in this story. Three identical deaths that were pretty obviously not self-inflicted just cries out as a premeditated event, but the camp commander was clearly taken by surprise. If the black ops guys killed these men at Camp No, they took a stupid risk by just dumping the men at the GITMO clinic with little or no warning. They could have pulled off a much better suicide cover-up with just a little planning. The main reason I floated the admittedly bizarre theory that the men were killed by other prisoners was the slipshod nature of the cover up conspiracy.

      • phred says:

        Three identical deaths that were pretty obviously not self-inflicted just cries out as a premeditated event, but the camp commander was clearly taken by surprise.


        Bob, I agree with you and Jeff that the scenario I laid out is speculative, but it seems to me, as it clearly does to WO and nextstopchicago, that the current set of known facts don’t add up. There is no way that 3 simultaneous deaths are accidental if the 4 prisoners were handled by different sets of interrogators at Camp No.

        If it’s one set of interrogators, how the heck do you kill 3 (but not the 4th) by mistake?

        And if it wasn’t a mistake, then why all the commotion and concocting of cover stories, that a child could have improved upon?

        It doesn’t add up.

        • bobschacht says:

          It is obvious that the facts don’t add up.
          Horton’s work makes this even more plainly obvious (although the evidence was not adding up even before his most recent reporting coup.)

          What is needed now, IMHO, is a lawsuit to force some action. One might hope that the new revelations will force Gitmo to clean up its situation report, but short of a lawsuit, I don’t have much confidence that they will.

          Bob in AZ

        • Mary says:

          Phred, I don’t think Aamer was questioned at Camp No. I think tossing him in the story blurs some things. I may be wrong and there may end up being a more direct connection, but I think Horton talks about abuse of Aamer (about 20 days after the *suicides*) in a more standard interrogation setting – he refuses a retinal scan and is tortured by MPs. He throws in Aamer imo for two things – one is to show that the MPs also used a suffocation tactic with him (not necessarily a rag in the throat). The other, more importantly imo, was to show how they have played games at GITMO with who they release and who they don’t, based not so much on national security as on the crimes by the Exec that they could recite. fwiw. There could be a stronger tie, but I wouldn’t get too distracted with fitting Aamer into too tight a pattern with the three deaths.

          @33 I think you do have to look at the possibility that they weren’t killed for the same reason, but you also have to look at fact that often the simplest answer works too – that they were all killed for a similar reason. YOu come up with theories on both and see what holds together best.

          @40 – they should have done that a long time back. I swear, living in the land of red and having had input from lots of both “conservatives” (as it has come to be used) and non-political Republicans-by-habit, what has been clear over and over is that they are scared off by mandates (me too), scared off by the hundreds and hundreds of pages of bill, put off by the stories that “they” will be paying for all of Nelson’s state’s healthcare, worried vaguely about what the heck is behind death panels and changes to medicare etc. but “the” thing they’d all have been ok with is the “too liberal” public option concept. If Dems had made that a centerpiece and hammered it over and over, things would be different. Instead, Obama thought he could jump in bed with big pharm and the healthcare industry without getting screwed.

      • PJEvans says:

        I can see the slipshod cover-up, though. They really weren’t expecting any of the prisoners to die, and they had nothing to tell them how to handle it, so they didn’t handle it well. I’d be a lot more worried if it had been done smoothly, because then I’d be wondering how many others had died before these.

        • WilliamOckham says:

          Well, once the prisoners have ISNs, you have to account for them to the ICRC. The big question I have is: How on earth do you kill three people on the same night accidentally? Even if only one was accidental and the other two were to cover up the first, why kill all three that way if the cover story was going to be hanging (which is one of the few believable cover story for prisoner deaths, since there weren’t any tall buildings for the men to fall out of).

          I think it’s pretty clear that the cover story was orchestrated by the camp commander who was taken by surprise. That’s not a shocker if the deaths were attributable to black ops. Those guys don’t have tell the camp commander anything.

      • JTMinIA says:

        Premise #1: People in a panic can be really stupid.

        Premise #2: At least one was killed for a different reason than the other(s).

        Possibility: They killed one by mistake and – in a panic – thought that three deaths would be more plausible. Or: They killed one by mistake, but the other two saw it and, so, in a panic…. Or: They killed one on purpose, but the other two saw it…. Or: They killed one on purpose in front of the other two as a form of EIT, then came to their senses, panicked, and….

        Have at it. But please don’t assume they were all killed for the same reason. There’s no evidence for this.

        • PJEvans says:

          I could see killing one accidentally, and the other two either witnessing it or otherwise somehow finding out about it, and being killed to keep it quiet.

        • WilliamOckham says:

          [Apologies for the continued hijacking of thread, but this is related to Yoo v. Padilla, at least tangentially.]

          Your premise #1 is axiomatic and the guards (and camp commander, etc.) were clearly in a panic. Black Ops guys, OTOH, are the least likely people to panic over three dead bodies.

          Your premise #2 is possible, but I’d put the odds at less than 50-50. There haven’t been very many deaths at GITMO. Three in one night almost demands a connection and strongly suggests the same reason was behind the deaths.

  11. Leen says:

    When the powers that be start prosecuting Yoo and the other Bush thugs who operated outside of the law Americans might start to have a little faith in our leaders

  12. Jeff Kaye says:

    That last quoted passage in the EW piece is a doozy.

    Yoo and the others will be prosecuted (sooner or later). The government cannot stand this public a revelation of its criminality and survive without addressing it somehow. The Horton piece is a body blow to a criminally negligent administration, at best. Obama and Holder are at risk of being as culpable as Yoo. I know people will think that’s harsh, but it is true, adding up use of torture already (not far from the EIT model in Appendix M, only absent waterboarding and hooding), use of torture at black sites, rendition to torture (which is what turning over prisoners in Afghanisan to the Afghan security forces amounts to: see my article on this at Truthout, just up today). Is Camp No closed even now? I don’t know, but I don’t believe so or we would have heard about it.

    To Phred at 17: I don’t know. I wasn’t there. I don’t believe speculation of that sort will get us very far.

    • Mary says:

      Jeff or others – I have no medical background and have no clue on what I’m about to ask, but let me know your thoughts.

      OT _ Let’s say someone wanted to suffocate a person by stuffing a rag down their throat – maybe putting a cloth or bag over their head while they were at it. What are the chances that the person they are trying to suffocate might react so violently that they swallow the rag to a point where it can’t be just pulled out? I would guess you’d be closing nasal passages as well with something, but maybe it remains ez to pull out. Would there be a chance that the rags, that were perhaps supposed to cause suffocation but then be pulled out would get so far down the throat that, absent cutting into it, they couldn’t be pulled out. Maybe someone might even break teeth and a jaw trying to get the damn rag out? Then realize that it wasn’t going to work and they’d have to come up with a different story/approach on the fly? I haven’t seen any questions asked about what was really involved in extracting the rags. I’d guess if they were easily extractable, the first thing that would have happened before all these resuscitation attempts and when the bodies were cut down would be that the rags were pulled out. I also wonder if you can tell from an examination of the rags (assuming you still have the original evidence) whether they made the kind of descent downt the throat that would have made them difficult to extract manually?

      I dunno – just a thought that occured to me.

        • Mary says:

          Thank you – and thanks to your prof consultant too *g*

          Kind of like you, I like to think of different possibles. Helps when you think through the kind of questions you might want to ask.

  13. Mary says:

    I’ve got too many work and sick animal issues going on right now to sit down and really dig in on Padilla’s brief. I read one section and thought it was well done. I do agree with EW that the OPR isn’t going to be helpful at all – it won’t gtet into the most egregious of Yoo’s acts and after spreading around a lot of words, quite a few blacked out, it will go on to “… then claim that such conduct deserves no real punishment.”

    I really do think, though, the best arguments to be made against Yoo haven’t been made and no one has investigated, from a legal and professional ethics standpoint, some of the most reprehensible acts.

    IMO, there is a strong attainder argument to be made re: Padilla and there you have a flat out, in the body of the Constitution, not EVEN reliant on the bill of rights, argument. If the Constitution prohibited Congress from legislating to give the Executive the right to detain and punish (forget the “is it torture or isn’t it” Madge telling her customer she’s soaking in it arguments – torture or not, what was done to Padilla meets any and every standard under any definitions of punishment) then you quite obviously can’t have the Executive give such power to himself, via secret Executive Orders and secret OLC memos.

    Another prong of the argument against Yoo in particular (as opposed to the others more directly carrying out the torture for which he solicited) is his deliberate attack on the separation of powers, his deliberate use of Executive branch secrecy (a merely implied and circumstantial right, unlight the explicit prohibitions on attainder) to prevent Congress from being able to legislate and the courts from being able to act on legislation with respect to his torture soliciations.

    He’s an officer of the court and he expressly tried to move his “client’s” criminal behavior to places where he could argue that Congress could not legislate and the courts could not assert jurisdiction and even when the courts did take jurisdiction he never amended. He never sent out lit holds when they should have gone out – immediately – based on the activities for which he was being consulted (even when Gonzales was putting in writing in January 2002 that by taking up Yoo’s/OLC’s solicitations, Bush would be putting everyone who followed that advice in line for possible future prosecutions under the War Crimes Act (sorry – but when the lawyer for a client says, “hey, yeah, do this, but you know you’re real likely to face criminal charges for it later” then you need to take action with respect to evidence.)

    I really think the deliberate subversion of the other elements of government so as to cut out judicial review of the actions against US citizens that he was soliciting needs to be put a bit more at issue. He didn’t just put out a memo that said – “go ye forth and torture in the name of your Lord and Master” He connived at disenfranchising Congress (which he has basically admitted in his interviews where, when asked about his duty to *the law* and *the citizenry* he ducked and said that sometimes as an Executive branch lawyer he had to pick between the Exec and Congress and he picked the Exec). He much more so connived at disenfranchising the courts – of which he was an officer and to which he owed duties – and disenfranchising the victims of his solicitations and the Constitutional itself, with its protections against arbitrary Executive whim abuse and punishment (prohibited attainder and violations of due process).

    So he deliberately used Executive branch power to undermine Congress (by not keeping them informed and by legislating by secret memo) and the courts (by disavowing their power to review and by allowing for destruction of evidence on activities that were admittedly likely to give rise to future litigation and by keeping secret the acts of attainder & torture solicited by secret Executive Order and memo – secret under threat of the use of the Executive’s police and military power against Congress and the courts)

    It’s not really the content of his memos. It is kind of, but not really. It’s that they were deliberately hatched in secret by the Executive, to solict crimes against its own citizens in a manner that used the powers of the Executive and secrecy to prevent Congressional and Judicial knowledge and review. If OLC had just published, publically, the memo (which is now says it is partly rejecting) that says when the Executive declares war on a concept, the courts and Congress have no power and the Executive can direct its military and law enforcement/police powers to disregard legislation and court orders on whim and at will and engage in torture and warrantless search and seizures etc.- – – well, if not the decrepit Congress, at least courts would have sat up and taken notice.

    A lawyer, to the extent that they are acting as a lawyer – they are always acting as an officer of the court. Yoo was trying to both claim that the courts had no power (bc of the Exec decision that it could set aside the courts and Congress if it unilaterally decided that national security would be benefitted by such action) and yet that this determination, i.e., that the courts have no power, should be respected because of . . . his STATUS as a lawyer and the powers (derived in large part from the courts) that he had as a result of that status.

    To have it both ways, he was saying “as a lawyer (a status that only has operative effect where the judiciary gives it operative effect), I can advise my client that they don’t have to respect the courts, including the Sup Ct of the United States.

    He’s basically held to that – still saying that the Sup Ct has no power to issue the rulings that it has issued. And saying that exposure of Exec crime by the other branches of gov would, itself, be grounds for the Exec to take punitive action against members of Congress and the Courts.

  14. nextstopchicago says:


    I’d say what Jeff Kaye said, but in a more encouraging way. Speculation won’t get us far, but posing the question is important, because it keeps us thinking about different scenarios, so that we don’t settle into some unstated scenario in our head, which is likely false. Yes, it would be important to know the “rounds” of the interrogator or interrogators, and since we don’t know, it’s important to keep in mind that we don’t.

    Mnemosyne, I’ve had similar issues with Preview. Last week, I reposted something because it looked wrong in preview. Then, when I refreshed the page, I discovered it had looked all right all along. The software has limitations, which probably help keep it fast. I just thought I’d mention what I found in case it helps someone else. If something looks wrong in preview, it may still look okay when it’s posted.

    And I just want to remind people that EW used ‘murder’ in her post’s title. So it’s not like I or WO should be credited for original thinking in saying the three simultaneous deaths were fishy. She was ahead of us, stating things more clearly and more forcefully earlier than we did. As usual.

    • bmaz says:

      Technically it should probably be homicide I suppose; as it seems crystal clear that there were killings of humans by others (i.e. we seem to all agree they are not suicides); but we do not necessarily know that it was intentional, which is required for a homicide to be elevated to murder. Not to say that I have much doubt in that regard, but the evidence is somewhat in flux still.

    • phred says:

      Speculation won’t get us far, but posing the question is important, because it keeps us thinking about different scenarios, so that we don’t settle into some unstated scenario in our head, which is likely false.

      Thanks : ) Apparently, I should have worded my comment better, because posing the question was the important bit. The speculative scenario was intended as an illustration for why the question is important.

      There was a great deal of speculation on the prior thread that was headed straight into conspiracy theory territory, but that seemed to me to be putting the cart before the horse. First, we need to know whether the deaths were accidental (the camp response suggests it was). But if they were, how the heck do you kill 3 people by mistake? That’s a lot of fucking up in just one night.

  15. bobschacht says:

    Now that Brown has defeated Coakley for Ted Kennedy’s senate seat, the long knives have come out. I’ll bet Rahm Emanuel was among the first to draw his knife, probably on the theory (learned from Rove?) that if you have a weak position, attack first before anyone else does. I think he does have a weak position, and probably gave bad advice on strategy during the last two weeks.

    I have started to hear that during Year 1, ObamaRahma’s strategy was to play the inside game, focusing on passing major legislation with Republicans if possible, without them if necessary. As I have suggested before, during Year 2, Obama’s inner populist will re-emerge, beginning with the State of the Union message. Several recent elections have shown that the Independents (not to be confused with the so-called “moderates”) are still angry, are in a 2008 mood, and are tired of inside-the-Beltway games.

    Howard Dean was on TRMS tonight arguing that the Democrats should be done with the “60 vote” strategy and take the populist route. Choose their fights well, and make the Republicans filibuster bills that are popular, but don’t have the support of Lieberman, Nelson, et al. I think we might see more of that.

    Bob in AZ

    • JTMinIA says:

      Now that 60 is known to be dead (as opposed to being the corpse in Weekend at Bernie’s), I’m hoping I won’t have to hear the label “Committee Chairman Lieberman” much longer.

      But I’m sure Rahmbo will force me to.

  16. bobschacht says:

    bmaz @ 37,

    [I am forced to reply without normal edit functions as my browser is stuck trying to download more ads for me to look at.] Anyway, the opinion on Rasul v. Myers said that “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.” Which leads me to suspect that a well-presented lawsuit might find an angle that the Supremes might be willing to take up.

    Bob in AZ

    • bmaz says:

      I don’t think so. It is certainly established law in the circuit decided in, which is the DC Circuit, the likely spot for any suits from foreign subjects claiming damages from acts at Gitmo. So there is that. But even beyond that, the decision is consistent with a long line of law on inability of foreign subjects to bring civil suit against the US government for acts occurring outside the physical US jurisdiction, unless the US consents to the suit which of course they will not do. The only exception has been for Habeas cases.

  17. bobschacht says:

    bmaz @ 45 [I’m still plagued by a balking browser that will not allow me to use edit functions until it has loaded every dam* ad]:

    But don’t we have torture cases in which the subject was not foreign, for acts that occurred within physical US jurisdiction? Perhaps Padilla, for example?

    Bob in AZ

    • bmaz says:

      Oh, yes, but I thought you were talking about trying to get at the Camp No case. Padilla is still being litigated as this post indicates. Where it goes, time will tell.

  18. nextstopchicago says:

    Forgive a small, latenight threadjack. I just finished the Seton Hall report, and posted some analysis at the end of EW’s Camp NO post that I think many of you might find interesting. I think it properly belongs there, but I don’t want it to get lost at the end of a 236-comment thread that’s now 36 hours old. Please take a look if you’re interested. I’m going to go back and re-read the Horton piece now that I have more background.

  19. Andersonblogs says:

    Nice brief, but man, I wish they had caught “IN THE UNTIED STATES COURT OF APPEALS” on the cover.

    Never trust spell check, boys and girls!