Legal Commentary

The Yoo Conundrum For The Obama Justice Dep't

By Big Tent Democrat

A year ago, John Yoo was sued by Jose Padilla:

"John Yoo is the first person in American history to provide the legal authorization for the instiution of torture in the U.S.," said Jonathan Freiman, an attorney representing Padilla in the suit. "He [Yoo] was an absolutely essential part of what will be viewed by history as a group of rogue officials acting under cover of law to undermine fundamental rights.it never would have happened without the legal green light. That made it possible."

Now the Obama Justice Department is charged with defending Yoo, presumably raising claims of qualified immunity. Steve Gillers makes a good point:

A leading authority on legal ethics, Stephen Gillers, said the incoming officials’ criticism of the former Bush officials has been so withering that they should press to be defended by their own lawyers — at government expense.

“If I were counseling Yoo or Rumsfeld, I would certainly advise them to have private counsel or shadow counsel,” Gillers said. “The defense has to be put in the hands of people who have not been vocal in condemning Rumsfeld and Yoo and who have not taken a public position on the legality of their conduct.”

I know I would have a very hard time arguing to a court that John Yoo's "conduct d[id] not violate clearly established statutory or constitutional rights of which a reasonable person would have known." US law on torture was quite clearly established and it is impossible to believe that his opinions could credibly be described as providing a reasonable view of the law. Remember that a showing of "malice" is not required to defeat a claim of qualified immunity. The standard is that of a reasonable person.

From the President to the Attorney General-designee to the designee to head the OLC, almost all significant figures in the Obama Administration have previously expressed that Yoo's opinions were not reasonable. I think Yoo really needs to have his own lawyers.

Speaking for me only

Full post as published by TalkLeft on January 28, 2009 (boomark / email).