John Yoo A Tough Decision to Defend for the President

I can’t agree on this decision by our President made regarding Justice Department official John Yoo, chief author of the so-called torture memos Barack Obama last week sought to nullify.

This I know creates a problem for the President’s Administration defending Yoo in federal court.

Mr. Yoo, was a former law clerk for U.S. Supreme Court Justice Clarence Thomas, following this assignment Yoo was named a deputy assistant attorney general in the Office of Legal Counsel in June 2001. An expert in presidential war powers, he became a key member of the secretive group of Administration lawyers who called themselves the “War Council.”

Unlike the others, Yoo’s position in the Justice Department gave him the authority to issue legal opinions that were binding through the executive branch, and he did so – including the now-infamous “torture memo” of August 2002.

The following PDF documents are some of the key memos generated during his assignment as Administrator of the War Council:

Memo from John Yoo to Tim Flanigan – September 25 2001

Memo from John Yoo to Jim Haynes – December 28 2001

Memo from Alberto Gonzales to President Bush – January 25 2002

Colin Powell Memo to Alberto Gonzales – January 26 2002

Memo from Jay Bybee to Alberto Gonzales – February 7 2002

Letter from John Yoo to Alberto Gonzales – August 1 2002

Action Memo to Secretary Rumsfeld – November 27 2002

As you can read Yoo was instrumental in what I consider “hiding” from the public, Bush’s policy on “torture” and doing so under the cover of the law.  This I feel is just another example of the Bush Administration operating under the “Law of Rule” as opposed to the justice system we believe in, and adhere to, namely the “Rule of Law.

The Yoo case came to the public’s attention, or at least my attention, in an online Newswire article entitled: “Obama lawyers set to defend Yoo” published by Politico.  Following are some excerpts from this article, which I have taken the liberty of high lighting what I consider key passages within the article.

Obama lawyers set to defend Yoo
By Josh Gerstein
1/28/09 4:18 AM EST

Next week, Justice Department lawyers are set to ask a San Francisco federal judge to throw out a lawsuit brought against Yoo by Jose Padilla, a New York man held without charges on suspicion of being an Al Qaeda operative plotting to set off a “dirty bomb.”

The suit contends that Yoo’s legal opinions authorized Bush to order Padilla’s detention in a Navy brig in South Carolina and encouraged military officials to subject Padilla to aggressive interrogation techniques, including death threats and long-term sensory deprivation.

The two cases raise the question of how aggressively the Obama administration intends to defend alleged legal excesses of the Bush administration in the war on terror. The Supreme Court recently gave the new president until March to decide whether to defend the detention without trial of another man held as an enemy combatant, Ali Saleh Al-Marri.

“When they go back to the privacy of their offices, they may wish that someone would draw and quarter John Yoo, but they have to wave the flag,” said a former federal terrorism prosecutor, Andrew McCarthy. “What they have to do is appear as if they are defending all the prerogatives of government that people want them to defend. … That’s the job of the Justice Department.”

Obama’s appointee for attorney general, Eric Holder, has taken issue with some of Yoo’s conclusions but does not appear to have singled him out by name. “I never thought I would see the day when a Justice Department would claim that only the most extreme infliction of pain and physical abuse constitutes torture,” Holder said in a speech last year, alluding to a 2002 memo Yoo wrote.

Other Obama Justice Department appointees have been far more strident in their criticism of Yoo. In an article in Slate just last year, Obama’s pick to head the Office of Legal Counsel, Dawn Johnsen of Indiana University, called one of Yoo’s memos “plainly flawed” and his defense of it “irresponsibly and dangerously false.”

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.”

Obama also seems to be no fan of Yoo’s work. One of the new president’s first acts upon taking office last week was to nullify every detainee-related legal opinion issued during the Bush administration by the unit Yoo worked in, the Office of Legal Counsel.

Some liberal lawyers have suggested Yoo or other officials should face not just civil suits but a full-scale investigation into possible war crimes. “People really haven’t been talking about civil exposure. People have been talking more about potential criminal exposure,” said Eugene Fidell, an attorney specializing in military law.

At present, it doesn’t look like Yoo’s sharpest critics will end up directly in the chain of command responding to the civil lawsuits. Obama has tapped an Oakland, Calif., lawyer, Tony West, to head up DOJ’s civil division, which has primary responsibility for such cases. West hasn’t played a vocal role in the debate over detainee policy, but he was one of the lawyers for John Walker Lindh, the so-called American Taliban caught in Afghanistan.

The following YouTube video is a TPM TV production of Representative Keith Ellison (D-MN) during House Judiciary Subcommittee Hearing on Detainee Interrogation, June 26, 2008

Yoo Defines ‘Implement’: 7 and a Half Minutes of Torture

I believe watching this video you can easily understand “why” I possess such an adamant distaste for Mr. Yoo and why he should be brought up before a Senate Investigating Committee on possible charges of lying to congress on June 26, 2008.

Update 03 Mar 09:

Justice Department Releases Bush Administration National Security Memos
from ACLU Newsroom

NEW YORK – The Justice Department today released nine secret memos and opinions written by the Office of Legal Counsel (OLC) that authorized some of the Bush administration’s unlawful national security policies, including a memo written by OLC lawyer John Yoo that argued the Fourth Amendment does not apply to military activities inside the United States. Some of the memos are responsive to American Civil Liberties Union lawsuits seeking OLC legal opinions and other government records.

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