protecting U.S. government prerogatives

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John Yoo on Capitol Hill
Former Bush Justice official John Yoo was the chief author of the so-called torture memos.
Photo: AP

In Democratic legal circles, no attorney has been more pilloried than former Bush Justice Department official John Yoo, chief author of the so-called torture memos that Barack Obama last week sought to nullify. 

But now President Obama's incoming crew of lawyers has a new and somewhat awkward job: defending Yoo in federal court. 

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 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.

And with more than a hundred court cases pending relating to Guantanamo, the Obama team faces a fast and furious series of deadlines to adopt or reject the Bush administration's stance regarding specific detainees. 

"This is going to happen again and again across the government," said Karen Greenberg, the executive director of the Center on Law and Security at New York University. "They're between a rock and a hard place." 

Obama's lawyers aren't the first at Justice to have to stand by a prior administration's legal work -- whether they agree with it or not -- merely in the interest of protecting U.S. government prerogatives. 

But the Bush war-on-terror team inspires particular antipathy in the liberal legal set -- and none more than Yoo, who became a sort of symbol of the Bush administration's efforts to construct a carefully crafted legal framework to justify practices that critics say are torture. 

"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." 

Padilla's lawyers, who are affiliated with a human rights clinic at Yale Law School, declined to comment for this article. Yoo also declined to be interviewed, though in an op-ed piece for The Wall Street Journal last year he described himself as the victim of an attempt to use "the tort system to harass those who served in government in wartime." 

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.


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This page contains a single entry published on January 29, 2009 1:57 AM.

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