Padilla vs Yoo
John Yoo (Wikimedia)
Ady Barkan has a great piece in Slate about the case of Padilla vs Yoo which he characterizes as the best chance going to see some legal accountability for torture. The key point is that a week ago judge Jeffrey Wright rejected Yoo’s requests to dismiss the case, requests that had actually been supported by the Obama administration. Now we’re in a situation where an actual trial might take place, complete with a discovery process and some light being shined on what was going on. But what role will the Obama administration plan?
Barkan says they have three options:
First, it can accept the decision rather than appeal. This would allow Padilla’s attorneys to proceed with the evidence-gathering of discovery: reviewing Yoo’s classified memos, reading his e-mails, and even questioning him under oath. Although the government could try to keep what Padilla gleans from this confidential, Padilla’s lawyers will correctly argue that the public has a strong interest in seeing the material: The American people deserve to know which officials set our interrogation and detention policies. Scores of detainees would then use the evidence from Padilla’s discovery to establish their own plausible legal claims. The administration isn’t likely to go for any of this.
Second would be to continue down the path Obama’s trailed thus far, and keep on embracing the strong, Bush-style conception of the state secrets doctrine. This, he thinks, “would draw international condemnation and would surely give momentum to the Senate’s current effort to roll back the privilege by statute.” Last, they could simply argue that Yoo should be immune from prosecution which would likely wind up pushing this issue to the Supreme Court. In any essence that ought to lead to the torture accountability issue returning to the front pages.
14 Responses to “Padilla vs Yoo”
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June 20th, 2009 at 10:46 am
Revenge and retribution is not a good idea considering the issue going forward is resolved. OTOH it will likely inspire considerable blowback, exposure of Democrat perfidy, and cripple Obama even more by taking over the headlines.
Keep up the good work.
June 20th, 2009 at 10:50 am
Uh, yeah, shooter, just look at how the last round of torture debate tanked the popularity of Obama and the Democrats.
Umm…
June 20th, 2009 at 10:52 am
That’s just it: without sufficient punishment of the offenders to provide a strong deterrence to the next group of would-be torturers, the issue going forward isn’t resolved.
June 20th, 2009 at 11:17 am
Actually, Yoo can appeal the ruling at this time whether or not DOJ wants to do so. (Denials of qualified immunity are immediately appealable.)
June 20th, 2009 at 11:26 am
Hey shooter,
So, if I rob a bank, but promise not to do it again after they catch me, the issue is ressolved going forward and I can keep the spoils?
Has a kind of nice ring to it. In which jurisdiction is it being applied?
June 20th, 2009 at 11:28 am
Any of these cases that get to the Supreme Court are going to go FIVE to four in favor of the TORTURERS. There won’t be any 6-3’s, 7-2’s, or unanimous decisions, just FIVE to four in favor Yoo, Ashcroft, Rumsfeld, Cheney et al.
Like I’ve said many times, objectivity would be better served if the Justices voted by flipping coins.
June 20th, 2009 at 11:55 am
Why isn’t someone acknowledging the obvious, we’re STILL torturing those we have in custody? $50 says somewhere someone in nominal custody and control of the United States is being tortured for information (or just plain meanness and “fun”) by persons employed by or paid by this nation. Of course this is occurring with full knowledge and permission of higher ups, protected by 7 layers of separation and much plausible deniability. Takers?
June 20th, 2009 at 12:21 pm
So far as I know, giving a legal opinion isn’t a crime.
June 20th, 2009 at 12:45 pm
Shooter, it certainly can be a crime. Advising someone how to commit a crime is always a crime, even if you put it in writing and get it notarized. You and Yoo are just trying to take refuse in audacity by proclaiming that Yoo is too powerful to be charged with conspiracy.
No, putting down a load of BS and calling it a legal opinion doesn’t actually protect you from prosecution. IT might be a cutesy little move in a courtroom to look for stretches to make legal arguments, but that’s a courtroom. The moment you do it to further a criminal conspiracy, you have become a part of said conspiracy.
June 20th, 2009 at 1:14 pm
Any of these cases that get to the Supreme Court are going to go FIVE to four in favor of the TORTURERS. There won’t be any 6-3’s, 7-2’s, or unanimous decisions, just FIVE to four in favor Yoo, Ashcroft, Rumsfeld, Cheney et al.
That’s not how these cases have been playing out so far, and Justice Kennedy in particular is not a guaranteed vote for the defense. Basically, in his concurrence in Hamdan v. Rumsfeld, Kennedy made it clear that he believes that Common Article 3 of the Geneva Conventions apply to these cases, as do any relevant Congressional statutes. That concurrence has had everyone like Yoo running scared ever since, because together those two holdings make them all into war criminals.
June 20th, 2009 at 1:17 pm
So far as I know, giving a legal opinion isn’t a crime.
Not only is it possible for giving legal opinions to be a crime, but in the case of United States of America v. Alstötter et al., we specifically held Nazi lawyers responsible for war crimes as a result of preparing legal opinions excusing violations of international law and helping other officials structure the programs which did in fact violate international law. So that is very much a highly relevant case.
June 20th, 2009 at 2:38 pm
“So, if I rob a bank, but promise not to do it again after they catch me, the issue is ressolved going forward and I can keep the spoils?”
Isn’t it more like “if I rob a bank, say that I would do it again given the opportunity because I’m a firm believer in bank-robbery, and say that people in the same circumstances who wouldn’t rob a bank are weak, the issue is resolved etc?” The torturers haven’t promised not to do it again, as far as I know.
June 20th, 2009 at 3:59 pm
Re SRW1
Maybe we should put this question to the blogs resident bank robber, Richard Steven Hack.
June 21st, 2009 at 1:29 am
Seeing the Wikimedia photo of Yoo in Honolulu makes me wonder if there’s a rationale to get the venue moved out here. Yeah, he could use more Asians in the jury pool, that’s the ticket. We could use a few Mainland news crew and writer expense accounts to get some cash flow around here.
Not that having a few KAms in the jury would necessarily keep his okole out of gaol. When you’re not showing much aloha, people can get pretty judgmental.