OLBERMANN: He called water boarding, sleep deprivation, sexual degradation the Bush system. But now the case against torture memo author and legal fig leaf creator John Yoo might be dropped. Our third story in the COUNTDOWN, more tortured logic about torture. The Obama administration coming to the rescue of Bush-era justice.
The DOJ is asking an appeals court to dismiss a lawsuit against John Yoo, filing a briefing support of Mr. Yoo of having authorized torture of a terror suspect, filing an amicus brief in support of Mr. Yoo, claiming federal law does not allow claims against counselors who advise the president on national security issues.
Their concern, the lawsuits force courts to second-guess presidential decisions, posing, quote, “the risk of deterring full and frank advise regarding the military’s detention and treatment of those determined to be enemies during an armed conflict.” The lawsuit at the heart of the matter, Padilla versus Yoo, Jose Padilla, often known as Jose Padilla, now serving a 17-year sentence for conspiring to aid Islamic extremist groups.
He’s has accused Mr. Yoo of providing legal cover for what Padilla claims was abusive interrogation. Yoo authored a now infamous memo that concluded that it’s only torture if it causes the same kind of pain as, quote, “organ failure, impairment of bodily functions, or even death.”
Meanwhile, Justice is pointing to its internal ethics arm for more definitive word on Mr. Yoo. The Office of Professional Responsibility has been investigating Mr. Yoo’s advice to then President Bush since 2004. Its conclusions have yet to be made public. Although, as we reported on this program in May, its report will recommend disciplining Yoo through his local Bar Association.
Let’s turn, once again, to Jonathan Turley, professor of constitutional law at George Washington University. John, good evening.
JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY: Hi, Keith.
OLBERMANN: Why is the Obama Justice Department doing this?
TURLEY: I don’t know, Keith. The timing could not be worse. The president literally has gotten on a plane this evening to go to Norway to accept the Nobel Prize, while his Justice Department is effectively gutting a major part of Nuremberg. This is actually the anniversary of the judge’s trial. It’s December 4th-so it just passed — 1947.
As appoint out on my blog tonight, if you go through the defendants of that trial, three of them held positions very much like John Yoo’s. They were legal advisers to the Ministry of Justice. We insisted on their being prosecuted. And now the Obama administration is arguing not only that they shouldn’t be prosecuted, because the administration has basically blocked any prosecution for torture. But it’s now saying that Yoo shouldn’t even be able to sue them civilly.
It’s not just a national disgrace to do that on the eve of accepting this prize. It’s an international disgrace. This was something that was fought hard for. The brief they filed in this case could have been used for people like Gurt Joel, who argued the same thing. He argued he was giving full and frank advice to that regime. And we rejected it.
OLBERMANN: Domestically, by this argument, how will any Justice Department lawyer ever be held accountable for his or her actions of any kind, let alone pertaining to something as important as this?
TURLEY: Keith, you just hit the major point here. When you read this brief, there is no limiting principle here. John Yoo was essential to this torture problem. They picked him and other people, like Viet Dinh and others, because they wanted them to reaffirm the ability of the administration to commit something that was against our laws, and would, in John Yoo’s case, involving torture.
He was essential to that program, just as these other people were essential to their war crimes. If John Yoo cannot be sued for an alleged war crime, what possibly could a justice official be sued for? You really went to the top of the list on this one and said that even that is not good enough to bring a Justice Department attorney to court.
OLBERMANN: What is a lawyer’s responsibility in everyday, ordinary, not protected by president’s life, if he tells a client that an action is legal when it isn’t?
TURLEY: As you know, I’m a practicing criminal defense attorney and it’s not real hard. You’re not allowed to commit crimes, because you’re an officer of the court, because you took an oath. When you passed the Bar, you took an oath to uphold the law, to be part of it, be a part of that system.
John Yoo broke that oath. So did so many others in the Bush administration. It’s not a hard standard when you consider war crimes. What the Bush administration did was they tried to roll back the law to pre-1945. And I’m afraid what this brief that was just filed by the Justice Department does, it does precisely that. It is turning back the clock.
OLBERMANN: I appreciate the possibility that somebody at Justice is saying, and maybe has a little corner of the moral room to be standing in, you never know when one of Mr. Obama’s attorneys may not be able to hide behind, in essence, executive privilege when there’s nothing wrong that they’ve done and it’s a political prosecution. Lord knows what else is being actually protected here.
Is there no legal way that an executive can protect himself and his attorneys against that without standing completely and unequivocally on the wrong side of the ethical divide over torture?
TURLEY: Well, Keith, there is. There’s a great number of ways to protect attorneys. Courts are very sympathetic. They’re lawyers. These judges are lawyers. They’re sympathetic to giving legal advice.
We’re talking about the most extreme case. This is a case of-this is an example of a bad case making bad law. If they succeed here, then it’s hard to imagine what a lawyer could do. Now, the Justice Department’s prosecuted lawyers who give advice to mobsters, and say, well, you’re part of the criminal enterprise. But apparently if you give advice to advance a war crime, that’s just full and frank advice.
The problem here is they didn’t have to do that. And by the way, we’re paying for his private counsel. The Department of Justice pulled out of this case. So they didn’t even have to come back into this case. So they’re carrying a lot of water for John Yoo.
OLBERMANN: Judgment at Nuremberg, but never judgment at the White House. Jonathan Turley of George Washington University, great thanks for making it intelligible to folks like me.
TURLEY: Thanks, Keith.