White House: Dismiss John Yoo Lawsuit
The Obama administration is fighting to dismiss Jose Padilla’s lawsuit against John Yoo, citing executive privilege.
The Obama administration has asked an appeals court to dismiss a lawsuit accusing former Bush administration attorney John Yoo of authorizing the torture of a terrorism suspect, saying federal law does not allow damage claims against lawyers who advise the president on national security issues.
Such lawsuits ask courts to second-guess presidential decisions and pose “the risk of deterring full and frank advice regarding the military’s detention and treatment of those determined to be enemies during an armed conflict,” Justice Department lawyers said Thursday in arguments to the Ninth U.S. Circuit Court of Appeals in San Francisco.
Other sanctions are available for government lawyers who commit misconduct, the department said. It noted that its Office of Professional Responsibility has been investigating Yoo’s advice to former President George W. Bush since 2004 and has the power to recommend professional discipline or even criminal prosecution.
The office has not made its conclusions public. However, The [San Francisco] Chronicle and other media reported in May that the office will recommend that Yoo be referred to the bar association for possible discipline, but that he not be prosecuted.
What more could you ask for, really?
This isn’t the least bit surprising, of course. Indeed, it would be shocking if the administration sided against its own power and interests in a case.
Beyond the rational cited by DOJ, I’m actually persuaded by Yoo attorney Miguel Estrada’s argument that it threatens to “open the floodgates to politically motivated lawsuits” against government officials. To the extent that Padilla has grounds to recover damages caused by Yoo’s advice being carried out, it’s the United States Government that’s liable, not an individual employee. Even if Yoo’s strained legal analysis crossed the line into malfeasance, the advice was given to higher ups in the government and either relied upon or not. It’s therefore an institutional failure.