The DOJ wants the lawsuit filed on behalf of Jose Padilla against torture architect John 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.
And the compelling reason why these attorneys must be protected from the consequences of their advice, according to the Department of Justice?
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.
Put another way, attorneys must be protected from lawsuits arising from the consequences of giving illegal and morally reprehensible advice to the President of the United States.
The DOJ argues that the Office of Professional Responsibility is responsible for investigating "misconduct" - yes, the brief uses the word misconduct, as if authorizing the systematic torture and degredation of human beings is akin to writing one's name on a bathroom wall with a Sharpie - which means that the executive branch is claiming that it is beyond the reach of the courts, even when the Administration is potentially violating both U.S. and international law.
The Justice Department's filing Thursday said Padilla is asking the courts to determine the legality of Yoo's advice, Bush's decision to detain Padilla, the conditions of his confinement and the methods of his interrogation - all "matters of war and national security" that are beyond judicial authority.
Attorney General Holder and the Department of Justice are arguing that the conduct of attorneys in the White House is beyond judicial authority, even when that conduct amounts to a criminal conspiracy for the specific purpose of violating U.S. law.
Attorneys are not free to give advice in the furtherance of a criminal enterprise or conspiracy. In short, they cannot help a client to break the law. This is firmly in the jurisdiction of the judicial system.
But now here comes the AG to claim that the Administration is immune from such pedestrian considerations as obeying the law. The advisors to the President are above such quaint concepts as legal and illegal. National security trumps the concerns of lesser men.
Conduct that shocks the conscience is not limited to the act of torture. It is also acts in the continuance of a criminal conspiracy to protect torturers from prosecution.
Your conduct shocks the conscience, Mr Attorney General.
Update: I forgot to link the Chronicle's article: "White House wants suit against Yoo dismissed".
Update 2: Nan Aron blogged about this at HuffPo: 'The "Torture Memos" and the Increasingly Indefensible DOJ'.