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DoJ Seeks Dismissal of Suit Against Yoo:

Although the Obama Administration disagrees with John Yoo's legal analyses, the Justice Department continues to defend Yoo in civil suits filed by former detainees. Politico reports:

At a court hearing Friday morning in San Francisco, government lawyers said that despite the change in administration, there has been no change in Yoo's government-run legal defense against a suit brought by Jose Padilla, an American citizen who spent more than three years in a Navy brig after being designated as an enemy combatant.

"This administration has made no secret that we disagree with many of the previous administration's legal policies on national security issues," a Justice Department spokesman, Matt Miller, said after the court session. "Nevertheless, we generally defend employees or former employees of the department in litigation filed in connection with their official duties." . . .

A Justice Department official, who asked not to be named, said the judge was advised that Obama appointees signed off on the legal strategy. "The positions taken in the briefs have been fully vetted within the administration," the official said.

Meanwhile, John Yoo defends himself from criticism over the content of just-released memos he drafted while serving in the Office of Legal Counsel.

Anderson (mail):
Congress blessed military action on Sept. 18, 2001, when it authorized President Bush "to use all necessary and appropriate force against those nations, organizations, or persons" connected to the September 11 attacks, "in order to prevent any future acts of international terrorism against the United States." Passed as the sound of Air Force combat air patrols flew over the Capitol, Congress must have understood that its words included stopping domestic attacks, since the hijacked airliners of 9/11 took off and crashed on American soil.

Now *there's* an example of dowsing for legislative intent.

I wonder if any of Yoo's students have any old lecture notes on "repeal by implication"?

And does "appropriate" include, somewhere in its definition, "legal"? Because some of us might think that *illegal* acts are "inappropriate."

But, seriously, look at the rhetoric. Yoo has to get all woo-woo with "the sound of combat jets" to trigger the reader's emotions and to get past the logical flaw: does anyone seriously think that the AUMF authorized the use of military force within the United States? That Congress was authorizing the bombing of Detroit as well as of Kabul?
3.7.2009 6:38pm
Mahan Atma (mail):
Yoo makes it sound like anyone who repudiates his memos is a crazy, leftist, terrorist-sympathizer acting purely for political purposes.

One wonders what he would say to the likes of Jack Goldsmith.
3.7.2009 6:40pm
Bart (mail):
Anderson:

The AUMF did not include a geographic limitation on the war against al Qaeda and it is doubtful that such a limitation abridging the CiC power and corresponding responsibility of the President to defend the country from enemy attack would be constitutional.

Yoo's point that Congress could hardly have intended to except the United States from this war in the immediate aftermath of the first foreign enemy attack on the United States mainland since the War of 1812 is rather well taken.
3.7.2009 6:46pm
Constantin:
Good.

I wonder if Matt Miller kept a straight face while giving his disavowal, though.
3.7.2009 6:46pm
Bart (mail):
As to the subject of the thread, it appears that DoJ, regardless of its current opinions of Yoo's work, does not think its a good idea to concede the ability of al Qaeda terrorists to bring lawfare harassment suits against its attorneys.
3.7.2009 6:48pm
zippypinhead:
Yoo was a government lawyer who, in the course of his employment, wrote legal opinions for government officials analyzing the legality of the officials' proposed policy decisions. Defending him in Padilla's civil suit is the right thing to do, even if his opinions were, in hindsight, legally incorrect, or even incompetent to the point of being legal malpractice. It's heartening to see the Administration recognizes that.

Regardless of the weakness of Yoo's legal analysis, if Padilla's suit against Yoo is successful, it will inevitably have a chilling effect government-wide on the willingness and ability of public-sector lawyers to issue legal analysis across a huge swath of policy issues. The vast majority of government lawyers don't have -- and probably can't afford on a government salary -- private malpractice insurance. I can see the conversation between the political appointee and agency counsel now: "You want to to opine on whether your policy is permissible under [fill in any statute or Constitutional provision here]? Sorry, I can't afford to put my house and my kids' college fund at risk..."
3.7.2009 6:58pm
PlugInMonster:
What happened to hopenchange? Obama promised us he would frog march all the evil Bush people ASAP! This is a HUGE betrayal to the Kos base!
3.7.2009 7:39pm
Just an Observer:
I continue to be skeptical that Padilla's lawsuit against Yoo is ultimately viable, but it is interesting to watch. FYI, here is a New York Times account of the District Court hearing.

As for Yoo's disengenuous op-ed about his 10/23/2001 opinion, I commented on an older thread.
3.7.2009 7:40pm
tvk:
zippypinhead, at what point does incompetence become evidence of bad faith? The case against Yoo is becoming increasingly strong, in that the memos are strikingly incompetent coming from someone that we do not expect to be incompetent. That raises the inference that the Yoo wasn't just mistaken in articulating what the law is, or had his head clouded under pressure, but rather that he consciously twisted, distorted, and misstated what he knew the law was to serve his boss's agenda and power grab. Say that an OLC lawyer wrote: "The President may constitutionally execute a coup d'etat and imprison all the opposing members of Congress." Surely we wouldn't say that this attorney is simply "incompetent" (even though he could be) and immune from suit.
3.7.2009 7:44pm
davod (mail):
"zippypinhead, at what point does incompetence become evidence of bad faith? The case against Yoo is becoming increasingly strong, in that the memos are strikingly incompetent coming from someone that we do not expect to be incompetent."

Just because you fail o see the logic does not make it so.
3.7.2009 7:57pm
Visitor Again:
Obama promised us he would frog march all the evil Bush people ASAP!

Obama promised no such thing. He doesn't want to bog down his administration in the partisan furor that will erupt if Bush Administration officials are prosecuted for their misdeeds in office.
3.7.2009 8:02pm
ArthurKirkland:
It is one thing to defend a former employee from legal liability despite inadequate performance. It is quite another for a law school, aware of Yoo's performance, to unleash him on students and salute his "scholarship." How many decades will it take Chapman's reputation to recover? (I assume the 'reputation incapable of diminution' defense is inapplicable, although I am open to persuasion.)
3.7.2009 8:09pm
loki13 (mail):

Just because you fail o see the logic does not make it so.


Just because you really want something to be logical, doesn't mean that it is legal.

Despite the obfuscation of some that have started to post here after wrecking the balkinization board (rhymes with tart), there is no credible legal argument advanced by Yoo. Having a legal "scholar" versed in ConLaw writing about an exercise in the legality of the exercise of inherent executive power without even trying to distinguish Youngstown (Steel Seizures) is malpractice to begin with, perhaps rising to the levl of bad faith (I think it is). This would be similar to someone advising about, say, the legality of a proposed law an abortion without mentioning Casey or Carhart. Sure- you can still say that you (from a normative standpoint) think the current law is wrong, but you have to at least point out what the current law *is*.

All that said, I also agree with zippypinhead. Govt. employees don't have malpractice insurance. It should be left to the government to defend their (ex) employees, and it would be a bad precedent to leave them dangling in the wind even when they commit so egregious a violation. There are other remedies.
3.7.2009 8:11pm
ArthurKirkland:
I agree that a lawyer in Yoo's shoes should note be made to answer financially, but need that end the analysis? If a court ordered the United States to compensate a plaintiff in these circumstances, or ordered the lawyer to apologize in open court to one wronged by the lawyer's conduct, I would see no chilling effect on a lawyer asked by a government employer to perform legal work.
3.7.2009 8:19pm
Steve:
Let's be clear that there is a difference between paying for someone's legal defense and paying for a money judgment that might ultimately be rendered against them.
3.7.2009 9:15pm
Public_Defender (mail):

The vast majority of government lawyers don't have -- and probably can't afford on a government salary -- private malpractice insurance.

While I agree that the government should defend Yoo, you are wrong as to the neediness of federally employed lawyers. Federally employed lawyers do quite nicely, especially when compared to the vast majority of lawyers handling state criminal cases. A lot of private lawyers making only a fraction of Yoo's federal salary pay for their own malpractice insurance.
3.7.2009 9:32pm
Howard Gilbert (mail):
Yoo may have to answer to someone, but Padilla isn't on that list. Padilla claims that Yoo's opinions contributed to the President's decision to classify him as an enemy combatant, and that some of Yoo's decisions led to his alleged torture.

When the Supreme Court got Padilla's original case, they ruled that jurisdiction over the question of whether Padilla was legally detained or not belonged exclusively to the Fourth Circuit. The Fourth Circuit then ruled that Padilla was an enemy combatant and was properly detained. Now a Fourth Circuit decision as to the law is not binding in the Ninth Circuit, so if some other person were detained within the jurisdiction of the Ninth Circuit then the District Court there is free to come to a different decision. That does not, however, mean that the Ninth Circuit can use this litigation to review or overturn a question that has already been decided by the one Circuit that has jurisdiction over the question. The principle of comity applies and the Fourth Circuit decision is binding. In any event, you cannot claim legal malpractice if Yoo advanced a position that was also embraced by the Fourth Circuit. By definition, that position cannot be legal malpractice.

What is left is the claim that Padilla was tortured. The problem here is that we a pretty sure he wasn't tortured by any definition of the term. Every minute of his life in prison was recorded on video. He was not in some Afghan prison guarded by the National Guard. He was not in some secret prison managed by the CIA. He was in the main Navy Brig guarded by the same professionals who manage the facility in peacetime. There is no evidence that anything Yoo wrote applied to him or affected his treatment. There is no credible evidence that he was mistreated in any way.

The commanders of the prison have already filed documents describing his treatment. If someone wants to, they can certainly depose the commanders and guards, or subpoena the tapes. The case probably will not get that far.

Ultimately, the case cannot proceed without Padilla testifying about his detention, treatment, and interrogation. During that testimony and cross examination, someone will almost certainly ask him about the thousands of hours of statements he made to military interrogators about his two years of enemy military service and Treason. The problem is that if he confirms anything he said in those thousands of hours of recorded statements he made, he will be confessing to Treason in open court. While the statements he made are not admissible against him, anything he says in cross examination will be admissible. Yet he cannot plausibly proceed to claim mistreatment without testifying to his treatment, including during interrogation, including when he made those statements.

Therefore, I would be really disappointed if the DOJ won these preliminary threshold questions. Padilla deserves his day in court. He deserves the right to take the stand and testify. He deserves the opportunity to take that rope and hang himself. He is a traitor who by his own inadmissible statements admitted to coming to the US on a military mission to kill thousands of American women and children while they slept. He has not yet been charged for that crime, and I would look forward to seeing him meet the requirements under the Constitution (confession in open court) for him to answer for it.
3.7.2009 9:32pm
Anderson (mail):
it will inevitably have a chilling effect government-wide on the willingness and ability of public-sector lawyers to issue transparently bogus, bad faith legal analysis

See, with the proper emendation, that's a chilling effect we can ALL be proud of.
3.7.2009 9:37pm
Anderson (mail):
The problem here is that we a pretty sure he wasn't tortured by any definition of the term.

Pooh. Severe mental harm to the extent of damaging the personality is torture, and that's exactly what was done to Padilla -- deliberately, for the express purpose of "breaking" him.
3.7.2009 9:39pm
Bruce Hayden (mail):
Pooh. Severe mental harm to the extent of damaging the personality is torture, and that's exactly what was done to Padilla -- deliberately, for the express purpose of "breaking" him.
You still have the problem that he would need to testify to make a case of being tortured, and if he does testify to that, he is likely to be subject to cross examination concerning what he said in those interrogations.
3.7.2009 9:49pm
MarkField (mail):

It is quite another for a law school, aware of Yoo's performance, to unleash him on students and salute his "scholarship." How many decades will it take Chapman's reputation to recover? (I assume the 'reputation incapable of diminution' defense is inapplicable, although I am open to persuasion.)


Your assumption in the parenthetical is wrong when it comes to Chapman. However, Yoo is only there for a semester; his permanent position is at Berkeley, and it used to have a reputation. Past tense used advisedly.


Having a legal "scholar" versed in ConLaw writing about an exercise in the legality of the exercise of inherent executive power without even trying to distinguish Youngstown (Steel Seizures) is malpractice to begin with, perhaps rising to the levl of bad faith (I think it is).


Also interesting is Yoo's conclusion that the President could authorize military operations inside the US. According to Tom Daschle, the Administration asked for such authority in the AUMF and it was denied. I don't know if Yoo knew that when he wrote his October 2001 memo, but I'd like to find out. Note that, either way, it doesn't bode well for the Bush Administration.
3.7.2009 10:03pm
Psalm91 (mail):
"Yoo:

Passed as the sound of Air Force combat air patrols flew over the Capitol, Congress must have understood that its words included stopping domestic attacks, since the hijacked airliners of 9/11 took off and crashed on American soil."

1. Nice after the fact realization. Too bad Rice, Bush and Cheney didn't have any of those patrols in the air on the morning of 9/11, when the airlines were still in the air, but it was, of course, more important to focus on the ABM system than the advance warnings. Bad drama.

2. Chapman's faculty also includes full professor Hugh Hewitt, whose academic record and analytical skills are well known.
3.7.2009 10:04pm
Fidelity (mail) (www):
"Why suspend the habeas corpus in insurrections and rebellions? The parties who may be arrested may be charged instantly with a well defined crime; of course, the judge will remand them. If the public safety requires that the government should have a man imprisoned on less probable testimony in those than in other emergencies, let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages. Examine the history of England. See how few of the cases of the suspension of the habeas corpus law have been worthy of that suspension. They have been either real treasons, wherein the parties might as well have been charged at once, or sham plots, where it was shameful they should ever have been suspected. Yet for the few cases wherein the suspension of the habeas corpus has done real good, that operation is now become habitual and the minds of the nation almost prepared to live under its constant suspension." --Thomas Jefferson to James Madison, 1788
3.7.2009 10:11pm
Howard Gilbert (mail):
Padilla broke down while being interrogated by the FBI in the Federal lockup in NYC. He told them everything he remembered, then he told it again to the military in Charleston. The problem he now has is to figure out a plausible reason why the US would torture someone who was already spilling his guts and telling us everything we wanted to know. That is why he cannot dodge these questions. His cooperation is itself a major piece of evidence. The government will want to go over the questions they asked and the answers he gave before and after any alleged incident of torture. If he had already said everything he knew, and if he was neither asked nor answered anything new after the alleged torture, then the claim of torture seems dubious. Of course a side effect of this detailed analysis will be his confession to Treason in open court.

A lot has been made of the fragile mental state that Padilla is currently in. What nobody mentions is the actual documentary record, that back in the early '90s before this all started, Padilla ended up in Florida state prison because he fired a gun at a fellow motorist in a road rage incident near Fort Lauderdale. I have no doubt that he detention did not improve his mental condition much, but he was a few cans short of a six pack long before he ever arrived in Charleston. He was, after all, an American who traveled to Afghanistan and volunteered to return to the US on a military mission to blow up buildings and kill thousands of women and children for Bin Laden. Then when the FBI questioned him he immediately spilled out everything he knew. To accuse the government of being responsible because he is now a bit flaky is itself a mark of instability.
3.7.2009 10:13pm
KenB (mail):
This may be a case of thinking ahead on the part of Obama's people. They may not like Yoo or what he said, but someday they are going to be past officials, and there may be a Republican in the White House. A precedent of cutting former officials loose to twist in the wind would be destructive.
3.7.2009 10:21pm
Constantin:
This may be a case of thinking ahead on the part of Obama's people. They may not like Yoo or what he said, but someday they are going to be past officials, and there may be a Republican in the White House. A precedent of cutting former officials loose to twist in the wind would be destructive.

Yep. Might not even take that long. Imagine, somehow, the GOP takes over Congress a la Newt in 1994. Think anybody might be interested in any memos Eric Holder wrote to get Marc Rich his pardon? Did those comport with applicable statutes and DoJ policies and procedures? I don't think there's a statute of limitations when it comes to witch hunts.
3.7.2009 10:27pm
Kazinski:
The comments in this thread remind me why I'm glad it was George Bush, Don Rumsfeld, Dick Cheney and John Yoo deciding the necessary security measures after 9/11, and not the current administration or most of the commentators on this thread.
3.7.2009 10:46pm
Psalm91 (mail):
Kazinski:

Unfortunately, your guys were AWOL from 1.20.01-9.11.01. That's not what one would call a good record on security matters.
3.7.2009 10:57pm
Curt Fischer:
The comments in this thread remind me why I'm glad it was George Bush, Don Rumsfeld, Dick Cheney and John Yoo deciding the necessary security measures after 9/11, and not the current administration or most of the commentators on this thread.

What makes you so sure that George Bush, Don Rumsfeld, John Yoo, and/or Dick Cheney are not commentating in this thread?
3.8.2009 12:33am
Sarcastro (www):
Little known fact: Kazinski was sent back from a post-American future to vote in Florida in 2000 and make sure the hellish reality he knows will never come to pass.

So he, the lonely hero, knows of which he speaks. If it weren't for Bush et. al. we'd all be dead from like 9-11 times a million!
3.8.2009 3:09am
Kazinski:
Sarcastro,
True, but I was sent back as Democratic voter, and I just couldn't figure out the ballot.
3.8.2009 3:17am
Jeff Hall (www):

Also interesting is Yoo's conclusion that the President could authorize military operations inside the US. According to Tom Daschle, the Administration asked for such authority in the AUMF and it was denied. I don't know if Yoo knew that when he wrote his October 2001 memo, but I'd like to find out. Note that, either way, it doesn't bode well for the Bush Administration.

MarkField, why should we parse out what Sen. Daschle claims to remember, when we have the actual text of the actual resolution that Congress actually voted for?
3.8.2009 3:34am
Ricardo (mail):
I have to say the Yoo memo that was just released (unless I got the wrong one) is rather boring. I was expecting this would be the memo that specified certain specific interrogation methods and said whether or not they were legal. That would have been a rather juicy release. Instead, all I could find (link here) was a statement that the U.S.'s obligations under international law don't extend any further than its obligations under domestic torture law and under 18 U.S.C. 2340 in particular. It also rehashes Yoo's view as expressed in his earlier memo that the Geneva Conventions do not apply to al-Qaeda and the Taliban but we knew that already.

As a non-lawyer, I always understood 18 U.S.C. 2340 to simply be the criminal law that gives force to the torture convention and to the U.S.'s understanding of international law on torture. As I said, it seems like a pretty boring memo to me.
3.8.2009 6:58am
lesser ajax (mail):
I have to ask about the Yoo 4th Amendment Memo: Why not just claim that military activity against terrorists would be reasonable (as he finally does in the linked article)? That certainly seems to comport with a lot of the jurisprudence about non-law enforcement searches and seizures, and, even if we think of the military activity as "law enforcement", also seems consistent with the warrant exception for responses to immediate threats to human life. I can't help but come away with the impression that Yoo deliberately ignored defensible legal justifications for the postulated activity in order to advance his far more questionable pet theory of inherent executive power. Maybe that's the real sin here.
3.8.2009 9:21am
jukeboxgrad (mail):
psalm91:

it was, of course, more important to focus on the ABM system than the advance warnings


Indeed. During his first 234 days in office, Bush said repeatedly that we needed SDI to protect ourselves from terrorism. On 9/9/01, Rummy argued that SDI was more important than counterterrorism.

============
constantin:

Think anybody might be interested in any memos Eric Holder wrote to get Marc Rich his pardon?


Good point. And maybe there are some interesting memos to and from Scooter Libby. After all, he was Rich's lawyer. So I figure the GOP is very eager to rip open that can of worms.

============
kaz:

The comments in this thread remind me why I'm glad it was George Bush, Don Rumsfeld, Dick Cheney and John Yoo deciding the necessary security measures after 9/11


The comments in this thread remind me why I'm glad it was Bill Clinton deciding the necessary security measures after 2/26/93, when the WTC was attacked. We then went through the rest of Clinton's term (almost 8 years) without suffering another domestic attack (unless you want to claim that Timothy McVeigh is part of the vast Islamofascist conspiracy). And Clinton managed to do it without bankrupting us by spending money we didn't have on a war we didn't need.
3.8.2009 9:41am
Anderson (mail):
The problem he now has is to figure out a plausible reason why the US would torture someone who was already spilling his guts and telling us everything we wanted to know.

What torturer, Howard, has ever believed that a little more torture wouldn't produce more secrets?

Anyway, the abuses of Padilla as alleged by his attorneys have never been seriously denied by the feds, and there appear to be several people from the detention facility who would testify adversely to the government.
3.8.2009 10:31am
Howard Gilbert (mail):
"abuses of Padilla as alleged by his attorneys have never been seriously denied by the feds"

From the complaint: "50 e. Administering to Mr. Padilla, against his will, chemicals that Mr. Padilla believed to be psychotropic drugs."

Reuters coverage of testimony during his trial in Miami: Al Qaeda suspect "drugged" with flu shot: jailer

From the complaint: "49. Mr. Padilla was forced to endure the introduction into his cell of noxious fumes that caused pain and discomfort to his eyes and nose."

Washington Post coverage of testimony: "while Padilla said he was subject to noxious odors that made his eyes and nose run, Seymour said a nearby paper mill sometimes makes the brig stink."

Padilla came to the US to blow up apartment buildings and kill thousands of Americans. If his delicate nose can't take the same industrial stink that every prisoner, guard, and administrator in the navy brig has to put up with, that is just too bad. Of course, if some lawyer invents a few hundred unsubstantiated allegations, the government will not waste time dealing with each and every one of them before it has to do so in court. It disposed of much of this crap in Miami, only to have it pop up again in the complaint in San Francisco. When the time comes, I am sure they will present whatever evidence is required to show it is either irrelevant or a complete fabrication. Remember, every minute of Padilla's detention and interrogation were video taped. A lot of that tape contains details of his training and his mission under the command of KSM, the guy responsible for 9/11. That stuff has not been released because unlike a bunch of lawyers, under international law the government cannot just go around releasing details that would put a captured enemy soldier in an unfavorable light. Unless, of course, he sues them in which case he will have made it open season on his character and reliability.
3.8.2009 11:16am
MarkField (mail):

MarkField, why should we parse out what Sen. Daschle claims to remember, when we have the actual text of the actual resolution that Congress actually voted for?


Because a good lawyer would mention the issue even if only to give an argument for disregarding it.
3.8.2009 11:19am
zippypinhead:
What makes you so sure that George Bush, Don Rumsfeld, John Yoo, and/or Dick Cheney are not commentating in this thread?
Nuts, Sarcastro has been outed...
3.8.2009 11:42am
Sean Gleeson (mail):
If the suit against John Yoo is allowed to proceed, will that mean we can sue all the government employees whose wilfully erroneous legal reasoning has resulted in hardship? That's, like, five Supreme Court Justices, just for starters.
3.8.2009 12:07pm
Anderson (mail):
Way to cherry-pick, Howard. Try a little harder:

Those who haven't experienced solitary confinement can imagine that life locked in a small space would be inconvenient and boring. But according to a broad range of experts who have studied the issue, isolation can be psychologically devastating. Extreme isolation, in concert with other coercive techniques, can literally drive a person insane, these experts say. And that makes it a potential instrument of torture, they add. * * *

* * * The new Army Field Manual bars the use of isolation to achieve psychological disorientation through sensory deprivation. "Sensory deprivation is defined as an arranged situation causing significant psychological distress due to a prolonged absence, or significant reduction, of the usual external stimuli and perceptual opportunities," the manual states. "Sensory deprivation may result in extreme anxiety, hallucinations, bizarre thoughts, depression, and anti-social behavior. Detainees will not be subject to sensory deprivation." * * *

The technique is not new. The Soviets used isolation and sensory deprivation to identify and discredit political dissidents. US prisoners of war confessed to nonexistent war crimes in the Korean War after similar treatment.

Fear of "brainwashing" prompted the CIA and Defense Department to underwrite research in the 1950s and '60s into the impact of isolation and sensory deprivation. The findings were included in a 1963 CIA handbook, later declassified. The book discusses the possible use of such techniques, including isolation. But it warns of the "profound moral objection" of applying "duress past the point of irreversible psychological damage."


We did with Padilla what we did with KSM and others: applied the lessons we learned from the Soviets and their ilk. Have you not seen how they moved Padilla from his cell -- blindfolded, ears plugged, like he's Hannibal freakin' Lecter?

(The linked CSM article is also interesting for a rare example of a purported expert, not a talking head or law prof, supporting the use of torture:

"There's something to be said for sending the message that the gloves are coming off," says Capt. Bryce Lefever, a Navy psychologist and former SERE school instructor. "You don't take a knife to a gunfight."

Captain Lefever says it is unfair to compare US antiterror interrogations with Soviet interrogation techniques. "Their abuse was a systematic practice to conceal the truth," he says. "If Padilla was abused, then it was for a righteous purpose – to reveal the truth."


Good intentions. Yay. It's unclear from the ascription whether Capt. Lefever has any experience doing interrogations. The title of his "Brainwashing: The Method of Forceful Interrogation" does not inspire confidence.)
3.8.2009 1:56pm
markm (mail):
Howard Gilbert: Your theory appears to be that the government spent years interrogating a lunatic, under the impression that Al Quaeda had imparted their secrets to them.
3.8.2009 2:00pm
Howard Gilbert (mail):
In the second half of March, 2002 Padilla was being trained by KSM and the same cadre of men who planned, trained, and supported the 9/11 hijackers (Binalshibh, al Baluchi, al Harsawi). He received disposable cell phones, E-Mail protocols, travel documents, a cover story, and $15,000 in military operating funds. Then he left on his mission. When captured he was the only intelligence asset who had recently met and was willing to describe the guys who were numbers 3, 4, 5, ... on America's most wanted list. They had given him no military secrets (other than his own mission). The intelligence was what what he knew about them and their methods. Where did they meet? Who knew computers, who handled the documents, who made the travel arrangements? The secrets were seemingly inconsequential. If you know the brand of cell phone they used, the type of printers, what kind of food did they bring in for lunch. Any random fact might help locate them in Pakistan. Padilla was captured in May 2002. The first batch of these guys were rounded up in Sept, and the last back, including KSM, were captured in March, 2003. The government has not disclosed what if anything they learned from Padilla helped in the capture.

Padilla may have been a weak minded neurotic, but he was not a lunatic. He knew reality. He was easily manipulated by al Qaeda, and when captured he was easily manipulated back by the FBI. Crazy Zack Moussaui was a lunatic, but even al Qaeda figured that out and didn't use him for anything important.

KSM hand picked the 9/11 hijackers. Padilla clearly wasn't the same quality operator, but technically he wasn't KSM's choice. Mohammed Atef selected Padilla for "the apartments operation" in the fall of 2000, and Padilla was fully trained on the demolitions but not the trade-craft after Atef died in an air strike and KSM was promoted to replace him. Whatever Padilla's limitations, he was the only naturally born US citizen available and he was susceptible to recruitment. Using him was a calculated risk. It might have worked, had a truckload of enemy military personnel records (including Padilla's) not fallen into allied hands in Dec, 2001.
3.8.2009 2:46pm
Dissenting Justice (mail) (www):
Why do many of these "Obama supports Bush practice or staff member" stories include the a statement "this position has been vetted among Obama appointees"? Do people still really believe that he has embraced radically different policies?
3.8.2009 3:18pm
Anderson (mail):
Howard, you lay out an excellent case for what no one is contesting. Of course Padilla should have been interrogated.

He should not, however, have been tortured or abused. He should not have been denied access to counsel. He was at all times an American citizen.

I would agree that he could also be interrogated outside the presence of counsel for intelligence purposes, provided a "Chinese wall" was maintained (and any revelations kept out of any Ashcroft press conferences). If any law forbids such interrogation, I'm sure that Congress would amend it with alacrity.
3.8.2009 4:24pm
Anderson (mail):
Remember btw the rationale for denying him access to counsel: that otherwise, his personality would not be so gravely affected by the imprisonment and abuse as to cause him to break down utterly.

One of the things we may find out someday is just how serious an effort was ever made to interrogate him by effective, non-NKVD methods. "Not much," I'm guessing, but we will see, I hope.
3.8.2009 4:28pm
Anderson (mail):
Incidentally, w/r/t Yoo, I'm struck by the "manifest disregard for the law" standard, which used to be argued to set aside arbitration awards:

The error must have been obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator. Moreover the term “disregard” implies that the arbitrator appreciates the existence of a clearly governing principle but decides to ignore or pay no attention to it.

Whatever its relevance to arbitration, such a standard offers a benchmark for evaluating whether an OLC attorney's written opinions were beyond the pale.

The second sentence would seem to fit Yoo's disregard of Youngstown Sheet &Tube, for instance. (Whether the scattershot of ops in Youngstown is "clearly governing" is another matter, but I would look to later, pre-2001 cases to demonstrate that Congressional ability to limit the commander-in-chief function by positive statute was a "clearly governing principle.")
3.8.2009 4:53pm
Howard Gilbert (mail):
If Padilla or any other detainee is accused of a crime, civilian or military, then he has a right to counsel. However, being an enemy combatant (a soldier in a foreign army at war with the US who was captured on a military mission under the command of an enemy military commander) is not a crime. During WWII 435,000 Axis POWs were captured and held in camps across the US, and none of them had a right to counsel. Being an American citizen doesn't change anything. If I go to the Federal Courthouse and demand my right to a speedy trial, after calling the hospital to get someone to pick me up they will explain that my right to a speedy trial depends on my first having been accused of a crime.

It is not the state of being a recognized POW that blocks access to the courts. It is the state of not being accused of a crime. The Fifth and Sixth Amendments are pretty clear in their language: "in any criminal case" and "In all criminal prosecutions". Those pieces do not apply to enemy soldiers. Now the "deprived of .. liberty .. without due process of law is more complicated. If someone really is an enemy soldier then he gives up his liberty when he enlisted. From that point he has to go where he is told and do what he is told by superior officers. When captured, the US becomes his superior officer. An enemy combatant can be ordered to go to Charleston and sit inside the brig, and he has no more right of access to the courts than a Marine who is ordered to go the Charleston and sit outside and guard the brig. However, if someone claims to be a civilian who was captured by accident, then he does have a due process right to contest his classification. Hamdi established this. The problem is that Padilla already had thousands of hours of interrogation in which he admitted to being an enemy combatant, and since being an enemy combatant is not a crime those statements are admissible to show that he was not detained by mistake. There was so much evidence of his combatant status that his Habeas petition did not contest the classification or any other questions of fact, but asked for a declaratory judgment as to the law.

Padilla was not accused of any crime. He was held in military custody as a common law POW (not entitled to protection of the Third Geneva Convention because he was captured under circumstances that made him a spy and saboteur). He did not have the right to remain silent, although whatever he said could not be and was not used against him in any criminal prosecution. He did not have the right to counsel until he was released from military custody and charged with an ordinary crime that he committed way back in 1996-98 long before he became a soldier.

It turned out that he did have a right of Habeas to challenge the legal basis for his detention. In order to prepare for that challenge, his counsel had a right to see him. [Nobody raised the issue, but if a declaratory judgment has nothing to do with the facts, and if the law can be determined without finding facts, just why did counsel have to interview Padilla? He certainly could not give them some pointers on legal questions.] It took a couple of years for the courts to work this out. Padilla was never denied any rights once those rights were established. The delay in granting access for Habeas didn't matter, since the final decision in that case found that if the facts were as the government claimed, he was being detained properly according to law.

His counsel and litigation probably left him in military custody far longer than was necessary. After 21 months, the military stopped questioning him. He no longer had anything useful to say. The criminal charges from 1996-98 were still sitting around waiting. At that point the sensible thing to do would be to transfer him to civilian court in Miami. However, his case was in litigation, and the government had to wait another 21 months until the Fourth Circuit handed them a complete victory. Only then could Padilla be transferred without any legal basis for someone to claim he had be denied his rights. Of course, that doesn't prevent people from making the claim anyway.
3.8.2009 5:18pm
Anderson (mail):
Howard, if Padilla was a POW, then he was entitled to be treated as such under the Geneva Conventions, which he very obviously was not. He was at the very least entitled to the protections of Common Article 3, which again he did not receive.

I won't repeat my diatribe against the folly of denoting as "enemy combatants" those who join criminal conspiracies against the United States and its citizens, so that for instance, on the Padilla example, members of the Mafia could be treated as Padilla was.
3.8.2009 5:34pm
Howard Gilbert (mail):
First, I believe that Hamdi and all the other soldiers captured on the battlefield should have been granted the full protection of the Third Geneva Convention. That would include protection against mistreatment. That said, Padilla was captured while in civilian clothes pretending to be a civilian he attempted to cross through a line of military defense, specifically the Customs counter at O'Hare Airport. This means he was guilty of attempting to cross lines without uniform or of being a spy.

OK, now the Third Geneva Convention doesn't explicitly exclude spies, and while the Fourth Geneva Convention mentions them it does not claim exclusive applicability. It is the position of pretty much everyone that spies are excluded from everything except Common Article 3. Still, a spy is a kind of soldier and therefore a kind of prisoner of war. I say he is a common law prisoner of war, covered by the Laws of War even before the 1949 Convention. See the case of Captain Nathan Hale (1776) and Major John Andre (1780).

So after that, yes if he did not receive proper treatment under Common Article 3, then Hamdan clearly establishes that this was wrong. He would have had a claim for injunctive relief had such a motion been made at the time. It is not clear that CA3 provides a legal basis for monetary damages, but in a case where you are asking for $1 and an apology you can certainly try to make the argument for the apology.

Padilla traveled to Afghanistan, a country at the time being ruled under Shari'a. It had a government based on local tribal tradition, but not with Western ideas of a legislature or executive. It had an army of 45,000 soldiers, but without ranks or officers like a Western army. Some of the soldiers were recruited into special operations units that committed or intended to commit war crimes. Whether this was a military force or a criminal conspiracy depends on how strongly you believe that everyone has to be Western and behave like us. I won't repeat my diatribe against the Christian Colonialist racist attitude that soldiers have to dress in uniforms, parade around, and say "yes sir" to sargents and lieutenants before they look white enough to be treated as soldiers. That is what International Law is supposed to resolve. It should not be up to whether we like them or not to decide if they are entitled to combatant status, because there has never been a war in history where anybody liked the enemy soldiers.
3.8.2009 6:52pm
ArthurKirkland:
It is striking and depressing that a United States military officer would describe abuse/torture of an American citizen as "righteous," distinguishing it from abuse/torture effected by those he dislikes by referring to a 'search for truth' (rather than an 'effort to conceal truth').

According to the captain's reasoning, if a foreign power detained an American citizen who had spied (politically, militarily, commercially), and extracted accurate information by use of electrical connections implanted in the American's genitals (or, applying Yoo standards, in the genitals of the American's child), that would be "righteous." Ditto for any American operative offering support to rebels.

Unless this officer's thoughts are far outside the mainstream of his colleague's thoughts, we have dipped too far below the "best and brightest" standard in our officer ranks.
3.8.2009 8:05pm
Howard Gilbert (mail):
Anderson establishes an argument that prolonged isolation should be considered a violation of Common Article 3 of the Geneva Conventions. For the purpose of argument, lets assume the court will accept this but rejects all the spurious Miranda-like claims.

On this one question there may be a basis for $1 and an apology from someone. Whether Yoo is the right target depends on making the claim that his opinions actually affected Padilla's isolation.

This is then not a Bivens case. It is not just that the principle that "isolation is mistreatment" is not a previously accepted legal principle. More importantly, it is a violation of international law and not of the US Constitution. US citizens held as any type of prisoner of war are treated the same as any other POW. The Constitution adds no additional protection to their treatment, until they are accused of a crime and then that protection also applies to non-citizens (in re Territo, ex parte Quirin, and Padilla v Hanft).

Since Bivens is what gets you in the door against a federal employee, once the smokescreen of spurious constitutional claims is disposed, there may be a tort but Yoo may be out of reach.
3.8.2009 8:10pm
Andrew J. Lazarus (mail):
Captain Lefever says it is unfair to compare US antiterror interrogations with Soviet interrogation techniques. "Their abuse was a systematic practice to conceal the truth," he says. "If Padilla was abused, then it was for a righteous purpose – to reveal the truth."
Four legs good; two legs better.
3.8.2009 10:40pm
LM (mail):
Dissenting Justice:

Why do many of these "Obama supports Bush practice or staff member" stories include the a statement "this position has been vetted among Obama appointees"? Do people still really believe that he has embraced radically different policies?

I suppose in Straw World there are such people. But here on planet Earth, I for one only hope that after thorough investigation and deliberate analysis he'll have embraced policies that are different enough. Time will tell. At this early stage I see cause for both encouragement and concern.
3.8.2009 10:50pm
Ricardo (mail):
The problem for Howard Gilbert is that an American citizen enlisting in a foreign army and proceeding to wage war -- even in uniform -- against the United States is indeed a well-defined crime: treason. And the Constitution is quite explicit on how to deal with treason cases.

For that matter, U.S. law is quite explicit on how to deal with spies and saboteurs also. Aldrich Ames wound up being prosecuted in the ordinary criminal justice system even if FISA warrants were used to investigate him.
3.8.2009 11:34pm
markm (mail):
Howard Gilbert: Is there any evidence, other than Padilla's own words, that he actually got into Al Quaeda? From everything I know about the man, AQ would have had to be incredibly desperate or unperceptive to have given him anything but disinformation or a lone-hand assignment that couldn't endanger any of their serious plans. But a crazy American could be useful to a terrorist organization as a distraction...

What was he carrying when he was caught, plans for dirty bombs? Apparently that did not include any contacts for obtaining the materials, since such information would have led to arrests that made the news. Either the government greatly exaggerated the case, or his alleged plans were so unrealistic as to sound more like the fantasies of a paranoid schizophrenic, who wanted to be a key member of a terrorist organization in a plot to top 9/11 but never got past the initial interviews. (Not that he'd be aware that he'd been kept out.) That his story matched things known from other sources is not evidence against that, unless you can prove that no interrogator gave him hints about those facts; paranoid schizophrenics are often quite good at incorporating new information into their fantasized worldview, without changing the basic premise, and they can be quite good at "cold reading".
3.9.2009 12:01am
Howard Gilbert (mail):
Do not confuse civilian spies who commit espionage with military spies who "cross lines without uniform". These are two entirely different things. A civilian spy is a criminal who must be handled by the justice system. A military spy is a soldier who commits an offense against the laws of war and who can be held as a POW, and tried in a military court, and also tried in a civilian court.

As the Supreme Court points out explicitly in ex parte Quirin, the fact that a US citizen who becomes an enemy military spy may be charged with Treason does not prevent him from being held and tried by the military. Both are possible and the choice is entirely at the government's discretion. Huber Haupt was tried and executed by the military while his father Hans who helped him was convicted of Treason.

In Dec 2001 a truckload of enemy military personnel records fell into US hands. It included the records from the enlistment and basic training of Jose Padilla. That is why he got picked up in the first place. The Afghan camps were not a very big place, and a lot of people knew Padilla and he knew them. Plus, it is pretty hard to fake the specialized knowledge from nine months of specialized demolition training.

On March 1, 2003 KSM was captured in Pakistan with documents and intact laptop computers. Intelligence agencies have not yet disclosed any material from these disks. However, they would be the major plausible source of evidence against Ali al Marri, who just this week the new administration announced would be tried in civilian court. If they are going to be released, Padilla's "apartments" operation would also be included among the files.
3.9.2009 8:30am
Anderson (mail):
Is there any evidence, other than Padilla's own words, that he actually got into Al Quaeda?

I believe he had al-Qaeda contact info when he got off the plane in Chicago.
3.9.2009 9:27am
Just an Observer:
FYI, today's New York Times has a roundup of the controversy over Bush administration lawyering by Yoo and his contemporaries: Terror-War Fallout Lingers Over Bush Lawyers

There is not much news in it; the article is basically just a Monday-morning thumbsucker.
3.9.2009 9:45am
wfjag:

Is there any evidence, other than Padilla's own words, that he actually got into Al Quaeda?


Key Evidence in Padilla Case: An Al Qaeda Job Application
Prosecutors Say an al Qaeda Job Application Will Be a Key Piece of Evidence in the Trial of Jose Padilla
By JIM AVILA &ELLEN DAVIS
ABC News Law &Justice Unit
May 14, 2007

http://abcnews.go.com/TheLaw/story?id=3170794
3.9.2009 12:41pm
Anderson (mail):
The article JaO flags is at least interesting inasmuch as it seems that David Addington is still looking for work.

There's a "where are they now" graphic from which Delahunty has somehow been omitted.
3.9.2009 1:46pm
Anderson (mail):
Also, if anyone's still out there, Scott Horton has an article up in which he claims to've heard interesting stuff re: Yoo:

... the Justice Department’s ethics watchdog is now finalizing its own report.

Sources at the department who have examined this report state that it echoes some of the harshest criticisms that have appeared in the academic literature, but the report’s real bombshell, they say, will be its detailed disclosure of Yoo’s dealings with the White House in connection with the preparation of the memos.


*That* of course is where the incrimination will lie, if it's to be found. Horton is never one to miss a favorable inference, so I'll believe it when I see the report ... but it's an intriguing hint.
3.9.2009 2:02pm
Just an Observer:
Anderson,

I wish the NYT article had included some reporting on controversial FISA opinions, too, although that topic seems to rank below torture on the docket of the court of public opinion right now.

As I understand it, the OPR review is about the latter subject, while FISA issues are the subject of a separate IG investigation due to be completed this summer. I don't know if the methodology and mandates of the two are similar.
3.9.2009 2:38pm
Oren:
Interesting that Obama has put the kibosh on Bush's signing statements (pending Holder's review) that were derived from Yoo's theory that Congress has no power to make rules that the Commander in Chief must follow. So Obama has pretty clearly shown that he does not approve of Yoo/Addington analysis of the Constitution while still defending them in court.

It's as if he doesn't want to criminalize policy difference after all!
3.9.2009 2:52pm
zuch (mail) (www):
Howard Gilbert:

If Padilla had already spilled the beans, then, yes, you might ask what was the purpose of torturing him and "breaking" him. But that hardly shows that such was not done. And the prohibitions against torture are not just against those designed to elicit information and a confession. In fact, the standard "excuse" for torture is that they are not intended punitively (or to elicit confessions), and are 'just' for the purposes of gathering information. If the torture (or mistreatment) happened, it would go to show the malum in se of the treatment.

And on another note, if we assume he'd spilled the beans beforehand (or early), this defeats this particular case as some exemplar in favour of allowing torture for purposes of extraction 'necessary' or 'vital' information.

Cheers,
3.9.2009 3:11pm
Ricardo (mail):
As the Supreme Court points out explicitly in ex parte Quirin, the fact that a US citizen who becomes an enemy military spy may be charged with Treason does not prevent him from being held and tried by the military.

First you said the Constitution and civilian legal system could not apply to an American citizen accused of being a combatant for a foreign power. When I pointed out that this is simply wrong, you change tactics and say even though such a person could be charged in the criminal justice system, Ex Parte Quirin says that person could also be tried by the military. But Quirin says nothing, as far as I know, about indefinitely holding an American citizen as if he was a POW. You seem to be making it up as you go along.
3.9.2009 9:51pm
Howard Gilbert (mail):
Ricardo:

An enemy combatant who happens to be a US citizen continues to enjoy all the protections of the Constitution, but none of them affect his treatment as a POW. The things we normally call "constitutional rights" are mostly protections for accused criminals. Should the question arise, a POW would still have freedom of religion and if he owned property it could not be taken without due process or compensation.

However, as a captured enemy soldier and POW he does not have the right to bear arms, his living area can be searched at any time, and his detention does not require any judicial process. As I said, a lot of this is not particularly different from an American who joins the US instead of the enemy army. He too retains freedom of religion, but maybe not complete freedom of speech, association, and his lieutenant certainly doesn't need a warrant for inspection.

An enemy soldier (civilian or alien) has combatant immunity and cannot be charged in the civilian criminal justice system for anything he does as a soldier. The military spy who in civilian clothes passes through lines of defense loses his combatant immunity and can be charged with any civilian crimes he commits as a spy. The US Citizen who fights for the enemy commits Treason which is separate and not protected by combatant immunity.

In re Territo says that an American citizen can be held as a POW the same as non citizens. Ex parte Quirin says he can be tried as a spy before a military court and the fact that he may also be a Traitor does not bar his military detention.

What does Quirin say about holding US citizen unlawful enemy combatants?

"Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but, in addition, they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. [n8] The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals." (Quirin)

So a spy is an unlawful enemy combatant who is subject to detention (and optionally to military trial). What about Citizenship?

"Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and, with its aid, [p38] guidance and direction, enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war. Cf. Gates v. Goodloe, 101 U.S. 612, 615, 617-18. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused." (Quirin)

The availability of Treason as a possible additional charge does not effect the legal legitimacy of simple detention or military trial on other charges.

"It is that each petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress and with hostile purpose. The offense was complete when, with that purpose, they entered -- or, having so entered, they remained upon -- our territory in time of war without uniform or other appropriate means of identification. For that reason, even when committed by a citizen, the offense is distinct from the crime of treason defined in Article III, § 3 of the Constitution, since the absence of uniform essential to one is irrelevant to the other. Cf. Moran v. Devine, 237 U.S. 632; Albrecht v. United States, 273 U.S. 1, 11-12." (Quirin)

Put simply, ex parte Quirin says that an American citizen who did exactly what Padilla did could be given a military trial and be executed. It says that he can also just be detained like a POW. It does not explicitly say in words that he can be detained indefinitely, but I was under the impression that a life sentence is regarded as less punishment than execution.

All of which ignores the real point. In every previous case in every previous war, the US tried and hung spies. That gave them some legal process, although it was process before a military court. What is new is the idea that spies would simply be held as POWs, and because they were not charged with a capital offense they did not require any sort of legal process at all. Certainly at the start the Bush administration believed it has a legal loophole that would avoid any type of judicial review.

It turned out that Habeas would always be available. So Padilla's case was reviewed by the courts and it was found that he could be held as an enemy combatant, he could be held as a spy, he did not have to be charged with Treason or any other crime, he did not require a trial. He did not challenge the government's allegations of fact, so the court did not inquire into the government's evidence. They could have if Padilla raised the question.
3.10.2009 12:58am
zuch (mail) (www):
Howard Gilbert:
The things we normally call "constitutional rights" are mostly protections for accused criminals.
I think you're wrong here. These are rights that everyone possesses (and it would be quite silly to imagine that accused criminals have more rights that the rest of us). Think, for instance, about the Second Amendment (post Heller). Same goes to rights to jury trial in civil cases, freedom of speech, press, assembly, etc.

I will agree that these issues come up most often in the realm of criminal prosecutions, but that hardly means that the rights involved don't pertain to all.

The right to be free from unreasonable searches applies to all, even if questions concerning it arise most often in criminal investigations and prosecutions. This is why I think that it's wrong that the Fourth Amendment hasn't been held to apply to FISA searches of U.S. citizens; the idea that the gummint can search all they want without a proper [Title III] warrant, as long as no criminal procedure pertains, seems to me to be completely backwards. [I acknowledge that In re: Sealed case looked at the exigencies of "national security" investigations, and the parallels between the FISA procedures and standard Title III warrants in deciding against a challenge to FISA on Fourth Amendment grounds, but I'm unconvinced.]

Cheers,
3.10.2009 5:51pm

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