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Obama Administration Attorneys Defend John Yoo:

The Politico reports that Justice Department attorneys are defending John Yoo and other former Bush Administration officials in civil suits filed by Jose Padilla and other former detainees.

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.

That's not all. On Thursday, Justice Department lawyers are slated to be in Charleston, S.C., to ask a federal magistrate there to dismiss another lawsuit charging about a dozen current and former government officials with violating Padilla's rights in connection with his unusual detention on U.S. soil, without charges or a trial.

The defendants in that case are like a who's who of Bush administration boogeymen to Obama's liberal followers — former Defense Secretary Donald Rumsfeld, his deputy Paul Wolfowitz and former Attorney General John Ashcroft.

The story notes the irony that Obama Administration appointees, potentially including some who have been quite critical of Yoo and other architects of the Bush Administration's counter-terror policies, could have to help defend the former Bushies in federal court. Yet, as the story notes, this situation could also raise a potential conflict of interest.

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."

Michael Ejercito (mail) (www):
What is the precedent over suing someone for legal opinions?
1.29.2009 7:26pm
Calderon:
I'm somewhat confused by the Politico article. Presumably Yoo, Rumsfeld, etc. already had government attorneys before Obama took office. And presumably these attorneys were lower level, "line" attorneys, so to speak. Won't they have the same attorneys as they did before? I haven't read anything about Obama replacing the DoJ attorneys from top to bottom. (If the attorneys representing Yoo, etc. were singled out to be replaced, then I could definitely see the reason for independent counsel).

Now one could be concerned that the bosses of the bosses of those line attorneys are new and antithetical to Yoo, Rumsfeld, etc. But especially given the ethical duties attorneys are under, a public scandal would seem to be inevitable if those line attorneys were told by their bosses to start screwing their clients.

On the other hand, these sound like interesting cases and we clearly need a stimulus to the private litigation economy, so bring on the private defense counsel paid by the government!
1.29.2009 7:33pm
einhverfr (mail) (www):
I am going to note here that I have seen people who were sued for other reasons, and who had counsel provided by insurance, to hire their own counsel as well if they needed to fight. I personally don't see why this would be any different.
1.29.2009 7:35pm
Benjamin Davis (mail):
When a federal officer or former federal officer is sued about things alleagedly done during his/her tenure, I believe there is a decision by DOJ as to whether they will represent them, get their own representation that they pay for, or DOJ pays for the representation by someone outside. So this looks pretty unsurprising.
Best,
Ben
1.29.2009 7:54pm
Thomas_Holsinger:
Cumis Counsel:
"[A]n attorney employed by a defendant in a lawsuit when there is an insurance policy supposedly covering the claim, but there is a conflict of interest between the insurance company and the insured defendant. Such a conflict might arise if the insurance company is denying full coverage. In some states (notably California) the defendant can demand that the insurance company pay the fees of his/her own attorney rather than use an insurance company lawyer. Often the insurance company will require that the attorney for the defendant be approved by the company."
1.29.2009 8:07pm
RPT (mail):
Interesting, particularly given the California history that led to the Cumis case and the resulting statute: the Lynn Stites and company scandal of the '80's. The problem is that Cumis counsel are no longer entitled to their standard rates but must work for customary insurance defense firm rates, which are, of course, substantially lower. The same rule should apply here if there is a need for private counsel. Perhaps Ted Wells can volunteer, or Jones Day, which recently defended Michael Carona, the deposed sheriff of Orange County, on a pro bono basis, with pretty good results as well.
1.29.2009 8:17pm
Just an Observer:
I can see conflicts if, for example, Yoo's defense depends on proving that his legal opinions were actually correct, and top DOJ lawyers do not find them even colorable. In that case, if I were Yoo, I would want counsel who could keep a straight face when making the argument.

At this stage, I suspect, these cases are focusing instead on threshold process issues.

Other cases will be more interesting. Sooner or later, the Obama/Holder DOJ will have to take a position on matters such as Al-Marri and pending habeas actions by Gitmo detainees. The courts do not seem to want to give the new administration a full 180 days to study the matter.
1.29.2009 8:29pm
Constantin:
Get used to stories like this. Self-preservation lords over all else in Washington, certainly over the hysterical, purely partisan rantings of those like John Conyers and Ben Davis.

Barack's people realize it'll be them in four or eight years. And if we haven't "tortured" some terrorist somewhere since noon on the 20th--I wouldn't doubt it--it'll happen soon enough.
1.29.2009 8:58pm
Chris Bell (mail):
Michael Ejercito:
What is the precedent over suing someone for legal opinions?

Generally, non-existent. However, I think that some of the people hanged at Nuremberg were German lawyers that wrote opinions justifying the Holocaust.
1.29.2009 9:02pm
Time Bard:
Guys at my high school used to get shadow counsel all the time when their government attorneys' ideology created a putative conflict of interest. It was no big deal.
1.29.2009 9:20pm
Anderson (mail):
I don't think any Nazi lawyers were hanged, tho some did prison time.

(Hans Frank was a lawyer, but he certainly wasn't executed for his acts in that capacity.)
1.29.2009 9:26pm
Bill Poser (mail) (www):

Guys at my high school used to get shadow counsel all the time when their government attorneys' ideology created a putative conflict of interest. It was no big deal.


What kind of high school did you go to that had multiple students tried for federal crimes for which the Justice Department defended them?
1.29.2009 9:34pm
Calderon:
I can see conflicts if, for example, Yoo's defense depends on proving that his legal opinions were actually correct, and top DOJ lawyers do not find them even colorable. In that case, if I were Yoo, I would want counsel who could keep a straight face when making the argument.

I think the first sentence here is probably right, so long as part of the correct / reasonableness determination can involve expert opinion. If it's a pure matter of law and so the outside opinions don't matter, then a judge should not be considering what top DoJ officials think (and if a judge is considering that, changing lawyers isn't going to help).

For the second sentence, though, if the person who will be representing him in court is the same under the Obama administration as it was under the Bush administration, then I don't think that keeping a straight face would be any more of a concern now than it was before.
1.29.2009 9:56pm
Time Bard:
What kind of high school did you go to that had multiple students tried for federal crimes for which the Justice Department defended them?
It was this one.
1.29.2009 10:29pm
Calderon:
"Guys at my high school used to _________ all the time. It was no big deal." is the Frat Stud meme from Above The Law. I wonder with the changes to the Balkinization and ATL comment policies if those sites' more ... problematic commenters will come here.
1.29.2009 10:44pm
Howard Gilbert (mail):
The last opinion in Padilla's case was the Fourth Circuit finding that if the facts were as the government alleged them to be, then Padilla's detention as an enemy combatant was justified and proper as a matter of law. Now the Fourth Circuit does not absolutely control a California case, but it is rather difficult to claim that Yoo's legal opinion was negligent in some way when it was supported by the courts in the circuit that had jurisdiction over the question. You can still argue that he and the Fourth Circuit were wrong, but you cannot find his position so wrong as to admit any possible claim for damages.
1.29.2009 11:11pm
Just an Observer:
As far as Padilla goes, I could be wrong but I have a hard time taking this case against Yoo very seriously.

Once again, the more interesting questions arise about what the new DOJ might do in other cases. For example, the government might petition for reconsideration of its motion to vacate the Fourth Circuit ruling against Padilla. That, in turn, might depend on what position the government will take with respect to the Al-Marri case -- a significant indicator of DOJ's theory of the scope of the current war.
1.29.2009 11:28pm
Christopher Cooke (mail):
Cumis counsel is irrelevant to government attorneys. The US government is self-insured by us taxpayers.

Calderon is correct: the DOJ attorneys are line AUSAs, in the civil division. Probably the same attorneys who were representing Yoo et al before the Presidential election. I see no problem unless thee is some reason for the new DOJ to take a position on whether Yoo's legal memoranda were correct. I am sure the DOJ can duck the issue by saying that Yoo can't be sued for his opinions, even if incorrect, so long as he did not knowingly issue a false opinion to facilitate a crime and there is no evidence that he did that (the "he may be an idiot but so what? defense).
1.29.2009 11:39pm
Just an Observer:
(the "he may be an idiot but so what? defense)

A variant of Hanlon's Razor?
1.29.2009 11:47pm
Thomas_Holsinger:
Bill Poser,

The School of Hard Knocks, obviously.
1.29.2009 11:48pm
Richard Aubrey (mail):
National Review (on Dead Tree) has a suppposed letter from Ariana to her (paid) contributors regarding health benefits.
The beginning of the concern was when Olbermann's head flat exploded as he was explaining why FISA actions under The One were good and true, while not so under Bush.
Then there were cases of whiplash.
Some babbling.
Said it before. There are going to be a lot of people pretending to enjoy what they're swallowing before they'd admit they got snookered.
1.30.2009 8:09am
david's lats:
Time Bard,

Verily so. The gentlemen at my preparatory school habitually experienced an analogous state of affairs. It was not a conspicuous event.
1.30.2009 9:58am
Phil Byler (mail):
The advice of Jonathan Adler to John Yoo and Donald Rumsfeld, which applies as well to Paul Wolfowitz, to obtain their own shadow counsel is very, very wise.

Don't tell me that it can be assumed that the Justice Department attorneys will be completely loyal to their individual clients Yoo, Rumsfeld and Wolfowitz.

You should asssume, rather, that Justice Department attorneys are quite capable of rationalizing a course that is not in the best interests of their individual clients Yoo, Rumsfeld and Wolfowitz, but accords with their own policy preferences and perceived career ambitions in a Democrat Administration that has condemned, as torture, the aggressive questioning technique of waterboarding and that has taken a wholly different tack of appeasement-minded diplomacy as to the radical jihadists.
1.30.2009 11:06am
Bart (mail):
Interesting.

Perhaps, now that they are in positions of responsibility at DoJ, it may be dawning on these Yoo critics (or their bosses) that this kind of lawfare can be used against them as well.
1.30.2009 11:08am
Happyshooter:
I took a class in law school from a former Clinton assistant White House counsel.

He was University GC at the time, and by the way did a very nice job with the class. Hands down the best class I took third year.

He said what Clinton did to keep you loyal during your proceedings was he made you pay for your own lawyer. If you stayed loyal and didn't drop Clinton in it, then they paid you back for the fees and expenses after you were totally off the hook.
1.30.2009 11:18am
Richard Aubrey (mail):
happy
Another use for coercion-by-lawyer's fees.

Like a Swiss Army Knife.
1.30.2009 11:59am
Paul A'Barge (mail):
Who are Padilla's lawyers?

Tell us their names and the law firms that represent him?
1.30.2009 12:09pm
RPT (mail):
"Bart:

Perhaps, now that they are in positions of responsibility at DoJ, it may be dawning on these Yoo critics (or their bosses) that this kind of lawfare can be used against them as well."

Not unless they engage in similar wrongdoing. In the meantime, of course Yoo, et al, should have conflict-free defense counsel for alleged wrongdoing within the scope of their employment, etc., as under the usual rules for such matters. If they believe that AUSA's appointed to defend them are not acting properly they can exercise their remedies. However, there is no presumption to that effect just because higher authorities have made general comments about the obvious wrongfulness of certain kinds of conduct. They will have to show facts that their particular counsel was acting improperly.
1.30.2009 12:19pm
Bart (mail):
RPT (mail):

BD: Perhaps, now that they are in positions of responsibility at DoJ, it may be dawning on these Yoo critics (or their bosses) that this kind of lawfare can be used against them as well."

Not unless they engage in similar wrongdoing.

Do you really think that terrorists like Padilla and their sympathizers are going to stop the legal harassment of the United States simply because Mr. Obama has taken office?

Making false accusations of mistreatment in court is literally straight out of the al Qaeda training manual.
1.30.2009 12:39pm
Howard Gilbert (mail):
Jose Padilla was a soldier in the Afghan army who volunteered to join a special operations unit planning an attack inside the US that would have killed thousands of Americans. He is arguably protected from most criminal charges by combatant immunity, but there is one criminal charge that is not blocked. He committed Treason, but cannot be convicted without either two witnesses or confession in open court. He has confessed during thousands of hours of taped interrogation, first by the FBI in NYC and then by the military in Charleston, but those statements were un-Mirandized and not in open court.

However, if he claims damages because of Yoo's opinion that he was an enemy combatant, then he will not be able to avoid being deposed. With his classification as an enemy combatant part of the dispute, any competent lawyer will ask him about his videotaped statements that show that he was an enemy combatant. I suggest that some of this should be done in open court.

You see, Padilla has shown that he is not very smart and tends to panic and say things not in his best interest. The constitution requires the confession to be "in open court" but does not require that it be given during the Treason trial itself. Basically, it is impossible for this case to proceed without a very high possibility that Padilla incriminates himself for Treason with statements that can be used against him.

Treason is the most difficult case to make. There have only been a handful of convictions in the entire history of the country. Any AUSA who obtains a confession and a conviction on this particular charge cannot help but advance his career. It is like a pitcher throwing a perfect game.

On the other hand, a lawyer representing Padilla who files a civil case and ends up getting his own client convicted of Treason doesn't have much of a career ahead for himself. That is why this case cannot really proceed much further before it is quietly withdrawn.
1.30.2009 12:55pm
Happyshooter:
There is the Detroit case on treason. I found it a few years ago researching a witness evidence issue.

WWII german POW, an officer/pilot, was in a camp in Canada. He escaped, crossed into Michigan, and was aided by a US citizen.

He was recaptured. At the treason trial of the citizen, he testified as to the citizen's involvement but declined to discuss the methods of escape or others in other networks.

The court upheld his refusal to testify fully since he was a serving officer and had some sort of right to limit his testimony as to 'military secrets'.

The court also said that two witnesses were not required to the criminal intent of the traitor, only two witnesses as to the facts and circumstances.

The treason convicton was upheld en banc. At the time the default sentence was death by hanging with the court allowed to lower the sentence at its option. The court didn't take that option.

IIRC the president commuted him to life in prison.
1.30.2009 1:24pm
Just an Observer:
As for Yoo, I am certainly no fan or ally. I think he generally did serious damage to the law and the nation, and I confess that I would like to see him experience some reckoning someday somewhere. But I have a hard time envisioning that Padilla's case is a legally serious path to that end.

Can anyone make a sober argument that it is?
1.30.2009 1:32pm
Benjamin Davis (mail):
I believe that the Padilla case is seeking a declaratory judgment. I understand - read this some time ago - that by putting it in the posture of a declaratory judgment against a specific individual the procedural rule is that even if it wants to throw out the case it has to make findings. I believe the findings are about Padilla's assertions that Yoo memos led to his torture. I may not have that completely clear as I am working from memory on the case (assuming this is the case that is being brought on Padilla's behalf by a student clinic at Yale).

Best,
Ben
1.30.2009 5:48pm
Howard Gilbert (mail):
To reduce a case to a declaratory judgement, you have to assume all the facts as asserted by the person defending against the judgement. The court makes finding of law, but no findings of fact.

In pre-trial motions in Florida Padilla's lawyers claimed that he had been injected with mind altering drugs and subjected to noxious fumes. The commander of the Navy brig testified that the only injection he received was the same flu shot everyone else got, and that the brig in Charleston is located in an industrial part of town and when the wind blows from an unfavorable direction you get some stink from neighboring factories that he, the guards, and all the other prisoners had to endure.

Yoo may have issued opinions that led to other people being tortured, but there is no evidence that Padilla was tortured or even treated badly or differently from other prisoners. Certainly in any declaratory judgement the court must assume that he was treated properly, for any other claim would be a disputed fact requiring a trial and evidence.

I made a comment earlier that the decision of the Fourth Circuit might not be binding, but I think that was wrong. The Padilla case went to the Supreme Court, which ruled specifically that jurisdiction over the question of whether Padilla was being properly held as an enemy combatant belonged exclusively in the Fourth Circuit. The Circuit ruled (on a declaratory judgement) that if the facts were as the government claimed, then he was an enemy combatant and was properly detained. Now if the government captured some new detainee and held him in the Bay area, then a District Court in California would not be bound by the Fourth Circuit precedent in a different case about a different prisoner. However, in the specific case of Jose Padilla, a court that does not have jurisdiction over his detention would be bound based on the principle of comity to accept the decision of the court that had been explicitly granted exclusive on that question by the Supreme Court.
1.30.2009 7:24pm
Thomas_Holsinger:
HappyShooter,

My recollection is that that particular German pilot had a very adventurous career. He was shot down over Britain, evaded capture for some time, and was finally caught in the cockpit of an advanced Spitfire prototype, which was fully fueled, on the runway of an RAF field while he was trying to figure out how to start its engine without a ground crew.

He escaped in Canada by kicking out a restroom window on a train loaded with POW's, and swam the half-frozen Detroit River in winter to get into the U.S. while we we still neutral. He was recaptured after we entered the war.
1.30.2009 10:39pm
MarkField (mail):

To reduce a case to a declaratory judgement, you have to assume all the facts as asserted by the person defending against the judgement. The court makes finding of law, but no findings of fact.


I think you're mixing summary judgment and declaratory judgment. What you say here is generally true of summary judgment, but not the case with declaratory relief.
1.30.2009 11:02pm
Howard Gilbert (mail):
I was confused. All previous litigation in the Padilla case was for summary judgement, which since it did not involve a finding of fact would avoid Padilla having to testify and possibly incriminate himself. The complaint clearly alleges facts ("Mr. Padilla is not an enemy combatant", "Mr. Padilla was forced to endure the introduction into his cell of noxious fumes", etc.) that require his testimony and cross examination. With thousands of hours of videtaped interviews contradicting his claim to not be an enemy combatant, he cannot proceed without providing admissible evidence that he participated in making war on the US.
1.30.2009 11:55pm
RPT (mail):
"Bart:

Do you really think that terrorists like Padilla and their sympathizers are going to stop the legal harassment of the United States simply because Mr. Obama has taken office?"

Just who are these terrorists and their sympathizers? The defense lawyers?
1.31.2009 12:06am
Christopher Cooke (mail):
Howard, I am not sure I follow your description.

Here is how I predict the litigation will proceed. The government will try to knock out Padilla's complaint on immunity grounds, and failure to state a claim, via a 12(b)(6) motion. That motion will likely be granted, which will result in an appeal that will take some years to decide.

If, however, Padilla's complaint survives a motion to dismiss, Padilla's attorneys will take depositions, engage in discovery, etc. During this process, the government attorneys will also take depositions, of Padilla, his expert witnesses, and maybe third parties (e.g. other prisoners, former prison guards). There will likely be lots of special privilege issues unique to the government that should produce motions to compel, etc. The government will then file a summary judgment motion against Padilla, which will probably be granted. Now, it is possible that Padilla will have to testify, and will not assert his Fifth Amendment privilege, but I for one don't see him confessing to treasonous acts if he does, either at his deposition or during the very unlikely trial of his claims. That is what 20 years of federal litigation suggests to me is the most likely outcome. Boring, but predictable if you have been doing this long enough.
1.31.2009 12:12am
Howard Gilbert (mail):
Everything Padilla did from Jan, 2001 until his capture was Treason. He was engaged full time in training for and planning an attack on the US on behalf of the enemy. He was extensively questioned, first by the FBI in civilian custody and then by the military. Since he had already confessed, the purpose of the questioning was to extract as much detail about others, particularly the KSM cadre.

If he now asserts that he was not an enemy combatant, everything he said about his two years of military service in the enemy army becomes relevant. While he has given details about everything he can remember about the nine months that he was at the facility near the Kandahar airport studying demolition for "the apartments operation", the Treason isn't any single act but that was that he was there at all.

The government also has recorded video of pretty much his entire detention. The cameras ran 24x7 covering not only his interrogation but everything he did in his cell. Padilla's lawyers cannot claim abuse without trying to show some abuse on the tape. Since the government will claim that it is insane to assert coercive interrogation of someone who was cooperative almost from day one,they will have the opportunity to play back some of his voluntary statements, particularly the ones about planning to blow up thousands of women and children in their sleep. Once introduced in court, the video becomes public record and becomes available to the nightly news. I think this is going to be a very interesting process.

Padilla was the lead operator in the next attack on the US by the specific individuals responsible for the 9/11 attack. His detention prevented the sequel to 9/11. The information he provided may have led to the capture of the 9/11 plotters now in Guantanamo. His is a much more important case than any of the other people tried so far.
1.31.2009 8:49am
Richard Aubrey (mail):
RPT
The Lynne Stewart and Ramsey Clark wannabes.
1.31.2009 10:05am
Oren:


Making false accusations of mistreatment in court is literally straight out of the al Qaeda training manual.

Which proves, of course, that no detainees were mistreated.
2.1.2009 11:37am
Oren:
Do we have any evidence that the principles of the Obama administration think that Yoo's arguments weren't colorable (of course, most of them, along with everyone else you ask, think they are wrong)?

Certainly they had issue with the manner in which the OLC was run (again, along with everyone else that signed that declaration of principle), but it's quite a bit different than Padilla's claim.
2.1.2009 11:41am

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