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The "Torture Memos" and the Increasingly Indefensible DOJ

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A cascade of events has occurred in the last two weeks which all point to two critical needs: getting at the facts about torture of detainees in American custody; and implementing a process of accountability for those who ordered, designed, and authorized torture policy.

The dark saga of the Department of Justice "torture memos" took a disturbing turn for the worse last week. For five years, we've waited for the report from the Department of Justice's internal ethics investigation of the government lawyers, John Yoo, Jay Bybee, and Steven Bradbury, who authored the infamous memos providing legal cover for abusive interrogation techniques that violated the absolute ban on torture under U.S. and international law. Just a few weeks ago, Attorney General Eric Holder said the report would be released by the end of November. Instead of releasing the report, the Department of Justice filed an amicus brief in support of John Yoo in the case Padilla v. Yoo currently before the Ninth Circuit, arguing that any DOJ lawyer who counsels and sanctions torture or other crimes against humanity is absolutely immune from suit. This is not what a restoration of the rule of law looks like.

As deputy in the DOJ's Office of Legal Counsel (OLC) during the early Bush years, John Yoo authored the most notorious of the "torture memos," some of which were later rescinded for their patently flawed legal reasoning and ethical lapses. Following the leak of several memos to the public in 2004, the Office of Professional Responsibility (OPR), the internal ethics review board of the Department of Justice, began an investigation into the ethical conduct of the authors of the "torture memos." OPR reportedly finished its report nearly a year ago -- but then-Attorney General Michael Mukasey and his deputy Mark Filip, dismayed by the contents of the report and its documented evidence of improper communications between OLC and White House lawyers about the "torture memos," figured out ways to tone down the report and delay its release. Since President Obama took office, Attorney General Holder has faced questions about when the OPR report would become public - and every few months he has said it would be finished "soon" or "within a matter of weeks," until a few weeks ago when he testified before the Senate that it should be out by the end of November.

But the end of November came and went without an OPR report - and instead we got the Department of Justice's brief, which didn't need to be filed, arguing against allowing John Yoo to be sued for matters related to war powers and national security. Jose Padilla sued Yoo last year, alleging that he was tortured as a result of the legal memoranda written by Yoo. A district court judge in San Francisco (who is a registered Republican and Bush appointee) allowed Padilla's suit to proceed past the pleading stage because, he wrote, "Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct...." DOJ's brief asserts that no constitutional damages remedy can exist against a government lawyer for legal advice he gave to the President on matters of national security.

The DOJ's position in Padilla v. Yoo was compromised from the start. For a while, DOJ attorneys served as Yoo's counsel in the case, defending his actions as a member of the department at the same time that another branch of DOJ was conducting an ethics investigation into his conduct. At some point the Department realized this presented an insurmountable conflict, and Yoo retained Miguel Estrada as private counsel.

After turning Yoo's defense over to Estrada, the Justice Department could have stayed out of the suit, which might have been the prudent move. If DOJ recognized that it was a conflict to support Yoo's position through direct representation, it should not try to do an end run by getting its views before the court by filing an amicus brief.

The Department's amicus brief is, as a substantive matter, disingenuous at best. As Scott Horton notes, federal law has long held that government officials who are responsible for torturing individuals may be held accountable in court for their conduct - a principle enshrined in decisions from the Nuremberg and Tokyo tribunals which DOJ failed to cite in its brief. DOJ now argues that the only way a government lawyer can be held accountable for unethical and/or illegal conduct that in some way involves matters of national security is through internal review by the Department's OPR and Office of Inspector General, bar disciplinary action, and criminal prosecution. As Horton, writes, "It effectively boils down to the Justice Department saying that it alone will decide about the accountability of its staffers for wrongful conduct that damages others."

The longer the OPR report sits behind Eric Holder's closed door, the farther off the promise of the Obama Administration to promote transparency and restore the integrity of the Department of Justice, which was so debased by the improper political maneuverings of the last administration. The Justice Department has the duty to enforce our anti-torture laws and the responsibility to maintain the integrity both of the department and of our rule of law. It can do better than coming to the defense of John Yoo.