For the Department of Justice, this has been a week of both rejecting and defending John Yoo.
On Monday, Justice Department released memorandums documenting its shift away from several controversial legal propositions made by Yoo, a former deputy in the Office of Legal Counsel. In the aftermath of 9/11, Yoo wrote in one legal opinion that the Fourth Amendment didn't apply to domestic military operations. He also suggested that First Amendment speech and press rights “would potentially be subordinated to overriding military necessities."
These propositions and others have drawn criticism, if not incredulity, from a growing number of legal scholars and several high-ranking Justice officials in the Obama administration. But on Friday, the department aggressively defended Yoo in a lawsuit brought by Jose Padilla, who was detained for more than three-and-half years in a military brig in South Carolina.
The awkwardness was not lost on U.S. District Judge Jeffrey White, who in a notice filed last night, asked the Justice Department whether it was considering dumping its client. White, noting that the "current administration has signaled a significant change in policy regarding the treatment of detainees,” wanted to know: “Have counsel for Yoo fully vetted their position in this case with the Obama administration? Is there any change in legal position as a result of the change in administration?” (Hat tip: Politico)
It's a nuanced question, but Justice Department lawyers assured White that the new administration had vetted their arguments. Senior trial lawyer Mary Mason said a civil lawsuit is not an appropriate vehicle for addressing issues raised in Padilla's complaint.
Padilla, a U.S. citizen, claims that Yoo was one of the architects of unlawful policies that led his designation as an "enemy combatant," his detention at the military brig, and the harsh interrogations and extreme isolation he allegedly suffered there. His lawsuit asks for a judgment declaring the policies unlawful, $1 in damages, and attorneys fees.
Yoo specifically addressed Padilla's case in a 2002 opinion in which he reasoned that the president's powers as commander in chief allowed him to hold a U.S. citizen in military custody, indefinitely.
Mason asked the judge to consider what would happen if national security decision-makers were saddled with the fear of litigation. “I’m not designating you an enemy combatant, and I’m not going to interrogate you, because I might get sued,” she said.
But White, steering the conversation back to the underlying claims in the case, said the idea that the Fourth Amendment wouldn’t apply in situations such as Padilla's was “astounding.”
“If that’s your position, that’s a pretty scary position,” he said.
Mason said that wasn’t the government’s position, rather that Congress hadn’t created a civil remedy for this situation.
Padilla's lawsuit largely contributed the Obama adminstration's decision to release seven legal opinions and two memorandums. The Bush administration had sought to introduce three of the OLC memos under seal to show that Yoo's advice really wasn't very substantive. Padilla's lawyers argued they should be made public, and after President Barack Obama took office, the Justice Department asked for more time to consider the case. White issued an order last Thursday directing the government to take a stand whether the opinions should be released to the public. The Justice Department gave it's answer on Monday.
Padilla was arrested in 2002 on suspicions that he had been involved in the “dirty bomb” plot, but the government eventually abandoned the allegations. After his transfer from military to civilian custody in 2006, he was convicted of terrorism conspiracy charges in federal court and sentenced to 17 years in prison.
Recorder reporter Dan Levine, in San Francisco, contributed to this report.