K-Lo, I think the Obama White House only agrees that convicted terrorist Jose Padilla should leave John Yoo alone . . . not that the Obama Justice Department should do so. As the last paragraph in that excerpt you posted from the San Francisco Chronicle reports, DOJ told the court that “Other sanctions are available for government lawyers who commit misconduct,” and 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.”
It’s worth pausing over this for a moment. In urging the dismissal of Padilla’s claims about abusive detention and interrogation, Justice reasoned: ”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.’” But how much worse is it when the second-guessing is done by the political adversaries of the president who made the decision? How much worse, in particular, when the ultimate second-guess is to be rendered by an Attorney General, Eric Holder, who, as an Obama campaign adviser, gave a speech in which he famously prejudged that “Our government authorized the use of torture, [and] . . . secretly detained Americans without due process of law”?
The Chronicle goes on to say that, while DOJ has not made its conclusions public, the paper has reported “that the [Office of Professional Responsibility] will recommend that Yoo be referred to the bar association for possible discipline, but that he not be prosecuted.” Hopefully, the business about no prosecution is true, but the OPR referral to the state bar associations, under the circumstances, would be outrageous.
It’s obviously true that a threat of civil liability, such as Padilla’s suit, would incentivize the president’s advisers to refrain from giving him frank advice about matters of public importance. But courts are at least supposed to be objective. If DOJ now recognizes that even an impartial judge should not be able to entertain these claims, what does it have to say about the comparative risk posed by a politicized investigation that holds out criminal liability and professional ruin as incentives against giving the president frank advice?