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What in the Hell?
by: Foiled Goil

This sucks. Seriously.

White House wants suit against Yoo dismissed

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 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.

Countdown with Keith Olberman:

Bush administration gets away with torture

Dec. 9: The Department of Justice is asking an appeals court to dismiss the lawsuit accusing John Yoo for providing the Bush administration with a legal justification for torture. Prof. Jonathan Turley discusses. [ 6:08 ]

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14 comments:

Good evening, Foiled Goil.

Tomorow, if I find the time, I shall prepare and post a graphic that I'm pretty sure will upset and annoy a whole lot of people.

I am altogether sick of this neo-liberalism, and I am going to offer a suggestion.

The Dark Wraith has had enough of tedium.

by: Dark Wraith (contact) - 10 Dec '09 - 00:25

I'm really needing a good dose of energy, {{Wraith}}.

by: Foiled Goil (contact) - 10 Dec '09 - 01:25

Once I've finished the marathon session of grading final exams today, I shall set myself to a task.

I trust everyone will think my graphic is a joke.

The Dark Wraith is, of course, never serious.
[Unless I am.]

by: Dark Wraith (contact) - 10 Dec '09 - 11:28

FG,
Should you promote this from "WTH" to "WTF"? The Obama administration's actions on legal accountability, on civil rights, on !@#$%^& War Crimes for dog's sake, I fail to see how they fit the model of the US as a constitutional democratic republic that I was taught & grew up with. Are they afraid to step up and follow the !@#$%^& laws as the media will call them bad names? SURPRISE! The media already calls them bad names! Worse, there are no other people in positions of power who will restore the rule of law, at least to the plutocrats & oligarchs. None. Nobody. No one.

When scientific evidence & data do not match the model then it's generally agreed by all that it's time to change the model. And unfortunately it is that time. One person cannot do it, a thousand cannot do it, daresay a million cannot. But it is time. I won't be the first person in the street but I will be there.

Franklin's words are more than prophetic - A republic, if you can keep it

by: darms (contact) - 10 Dec '09 - 13:54

This is one where, alas, I have to line up with those who say the lawsuit should be dismissed. Giving bad advice to a client with no intent to personally benefit yourself or associates is not a crime. It is professional misconduct, but it is not a crime. Criminalizing bad advice interferes with rule of law because it interferes with lawyers giving advice to their clients. That is the same reason why we have the professional communications exemption where lawyers cannot be subpoenaed about communications with their clients. Interfering with those communications simply is incompatible with rule of law, because it interferes with the right to council explicitly denoted in our Constitution.

I realize that this isn't a popular notion, but rule of law in my opinion is more important than populism here because the alternative to rule of law is rule of gun and that's way worse. Yoo is an idiot and should be stripped of his law license for giving legal advice that was, to be blunt, an absolute atrocity, but criminalizing advice? Sorry, this penguin disagrees.

- Badtux the Rule-of-law Penguin

by: Badtux (contact) - 10 Dec '09 - 16:42

As a lawyer, Yoo knew the laws and he ignored them.

It's about accountability to the rule of law.

And being held accountable to the rule of law.

And accountability to the rule of law.

And accountability to the rule of law.

And accountability to the rule of law.

Did I mention accountability to the rule of law?

by: Foiled Goil (contact) - 10 Dec '09 - 18:58

Thing is, Yoo didn't break the law. The people who broke the law used his irresponsible and professionally incompetent memo to justify breaking the law, but Yoo himself merely provided the work product he was asked to produce. If you criminalize lawyers giving bad advice to their clients, you have a chilling effect upon all interaction between lawyers and their clients, therefore interfering with the right to council written into the Constitution.

Yoo should lose his law license because he is an incompetent ass-licker who wrote a memo that showed that he is not qualified to practice law. But being an incompetent ass-licker isn't a crime. Torturing someone, on the other hand, definitely *is* a crime, as is ordering the torture of someone. It wasn't Yoo who ordered the torture of someone. You need to look a bit higher in the food chain from that (hint, the knights that say "Nie!" might have a clue as to who that is... shall we bring them a Shrubbery?).

by: Badtux (contact) - 11 Dec '09 - 01:56

I'll let Scott Horton explain it:

When Lawyers Are War Criminals

-To the memory of Helmuth James von Moltke-

I come to the example of Moltke for another reason, namely that he very properly puts the emphasis not on the simple soldiers who invariably operate the weaponry of war, but on those who make the policies that drive their conduct. And in that process, his stern gaze falls first on the lawyers. In a proper society, the lawyers are the guardians of law, and in times of war, their role becomes solemn. Moltke challenges us to test the conduct of the lawyers. Do they show fidelity to the law? Do they recognize that the law of armed conflict, with its protections for disarmed combatants, for civilians and for detainees, reflects a particularly powerful type of law – as Jackson said "the basic building blocks of civilization"? Do they appreciate that in this area of law, above all others, the usual lawyerly tricks of dicing and splicing, of sophist subversion, cannot be tolerated?

These are questions Moltke asked. They are questions that the US-led prosecution team in Nuremberg asked. They are questions that Americans should be asking today about the conduct of government lawyers who have seriously wounded, if not destroyed, the Geneva system.

For this issue, one Nuremberg case forms the key precedent: United States v. Altstoetter, also called the Reich Justice Ministry case. That case stands for some simple propositions. One of them is that lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong.

by: Foiled Goil (contact) - 11 Dec '09 - 11:11

Jonathan Turley says:

The Obama Administration has gutted the hard-fought victories in Nuremberg where lawyers and judges were often guilty of war crimes in their legal advice and opinions. The third of the twelve trials for war crimes involved 16 German jurists and lawyers. Nine had been officials of the Reich Ministry of Justice, the others were prosecutors and judges of the Special Courts and People’s Courts of Nazi Germany. It would have been a larger group but two lawyers committed suicide before trial: Adolf Georg Thierack, former minister of justice, and Carl Westphal, a ministerial counsellor.

They included Herbert Klemm, who was sentenced to life imprisonment and served as minister of justice, director of the Ministry’s Legal Education and Training Division, and deputy director of the National Socialist Lawyer’s League.

Oswald Rothaug received life imprisonment for his role as a prosecutor and later a judge.

Wilhelm von Ammon received ten years for his work as a justice official in occupied areas.

Guenther Joel received ten years for being an adviser (like Yoo) to the Ministry of Justice and later a judge.

Curt Rothenberger was also a legal adviser and was given seven years for his writings at the Ministry of Justice and as the deputy president of the Academy of German Law,

Wolfgang Mettgenberg received ten years as representative of the Criminal Legislation Administration Division of the Ministry of Justice,

Ernst Lautz (10 years) had been chief public prosecutor of the People’s Court.

Franz Schlegelberger, a former Ministry of Justice official, was convicted and sentenced to life for conspiracy and other war crimes.

by: Foiled Goil (contact) - 11 Dec '09 - 12:02

& John Yoo gets tenure...

But Yoo himself is such a minor figure in all of this, just a sorry lawyer crafting tissue-thin rationales for blatantly illegal actions which were & are being used to justify behaviour that is truly appalling. What leaves me speechless is that nobody's going to do anything about the death of the rule of law, either, certainly no politician or media figure. Oh sure, you & I are subject to the full force of law, same as always. But not the rulers, the leaders, the barons of finance. the captains of industry - they walk.

by: darms (contact) - 11 Dec '09 - 15:39

That is what's so g/d frustrating, Darms.

Lawyers giving legal "advice" that "allows" anyone to commit a war crime is in itself a war crime. That's why those lawyers were tried at Nuremberg.

Yoo's "opinion" that violating the Convention Against Torture, International Humanitarian Law, the Geneva Conventions, the United Nations International Bill of Human Rights (WAR CRIMES AND CRIMES AGAINST HUMANITY), and the War Crimes Act (part of U.S. Law) was "legal" only qualifies him (and his cohorts) for tenure at the Graybar Hotel, as far as I'm concerned.

And those people have no business teaching law.

by: Foiled Goil (contact) - 11 Dec '09 - 17:03

Some of the internal links to the UN office of Human Rights in my May post are 404. Here's a new list, for reference, to my comment above:

Convention Against Torture

International Humanitarian Law

The Geneva Conventions

United Nations International Bill of Human Rights-- WAR CRIMES AND CRIMES AGAINST HUMANITY:

Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity

War Crimes Act

by: Foiled Goil (contact) - 11 Dec '09 - 17:12

I guess our involvement with the Geneva Convention rules don't count to U.S. Law.
If I'm right, murder is a crime. So if a lawyer tells a client it's ok in his opinion to kill someone, and his client goes out and kills, the lawyer's not culpable? Is the killer possibly guilty because he believed the advice? Accomplice? Stooge? Dipshit?
Anyway you look at it, the lawyer knowingly aided in the client breaking the law.
But don' take my word for it, I just asked two criminal lawyers at Pitt's law school. They agree. But what do they know. Of course, the laws have changed since yesterday...and Bush's administration. National Security, you know?

by: Father Tyme (contact) - 11 Dec '09 - 17:50

The Geneva Convention does count because it is specifically linked within our U.S. code of the War Crimes Act!

(c) Definition.— As used in this section the term “war crime” means any conduct—
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d) ) when committed in the context of and in association with an armed conflict not of an international character; or

From what I've read, Yoo is culpable because he knowingly made an essential material contribution to a criminal enterprise that actually resulted in the commission of crimes. Lawyers are not exempted from criminal sanction when they knowingly use their knowledge of the law to advance the perpetration of a crime. That's why lawyers for the mafia can find themselves charged with crimes. What Yoo did is no different from a mob lawyer helping his employer find creative ways to commit crimes.

He (they) misused legal knowledge to redefine, justify, and cover up torture.

by: Foiled Goil (contact) - 11 Dec '09 - 21:25

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Title: What in the Hell?
Date posted: 09 Dec '09 - 23:45
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Filed under: Law
Good Karma: 6 (vote)
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Next entry: » And now a special memo from the White House.
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