The Obama Administration has decided to press on with the Justice Department's defense of a civil lawsuit brought against John Yoo, a former department lawyer attorney whose controversial legal opinions have been roundly criticized by many members of Obama's legal team.
At a court hearing Friday morning in San Francisco, government lawyers said that despite the change in administration, there has been no change in Yoo's government-run legal defense against a suit brought by Jose Padilla, an American citizen who spent more than three years in a Navy brig after being designated as an enemy combatant.
"This administration has made no secret that we disagree with many of the previous administration's legal policies on national security issues," a Justice Department spokesman, Matt Miller, said after the court session. "Nevertheless, we generally defend employees or former employees of the department in litigation filed in connection with their official duties."
As POLITICO first reported, Judge Jeffrey White issued written questions Thursday asking whether the position taken by Yoo's defense had been "fully vetted" by the Obama administration.
A Justice Department official, who asked not to be named, said the judge was advised that Obama appointees signed off on the legal strategy. "The positions taken in the briefs have been fully vetted within the administration," the official said.
Padilla's lawsuit claims that Yoo deliberately crafted erroneous legal memoranda in an effort to shield Bush Administration officials from liability for the decision to place Yoo in military custody and for the harsh treatment he received in his early months at the Navy prison facility in Charleston, S.C. The suit also alleges that Yoo participated directly in some of those decisions.
Government lawyers, who are representing Yoo, have argued that the case should be thrown out on a variety of grounds. At Friday's hearing, they said the Obama Administration's promise of policy changes and Congress's current debate over setting up a "truth commission" to investigate Bush-era practices both demonstrate that Padilla's case belongs with the political branches of government and not the courts, a courtroom source said.
Padilla's attorneys replied that fixing the problems now would not redress wrongs done to him in the past, the source said.
A government lawyer, Mary Mason, told White that proceeding with the suit would make government employees skittish about doing their jobs. According to a San Francisco legal newspaper, the Recorder, Mason said that an employee might decide that "I'm not designating you an enemy combatant, and I'm not going to interrogate you, because I might get sued."
One of the lawyers who argued for Padilla Friday, Hope Metcalf, declined to criticize the Obama administration for its involvement but offered a pointed critique of the former Office of Legal Counsel lawyer whose actions are at the heart of the case.
"We're disappointed that Mr. Yoo is still trying keep courts out of these important Constitutional questions just like he tried to sideline the courts during the time of Mr. Padilla's detention," she said. "We think it's really important for the rule of law and our client's rights for Mr. Padilla to have his day in court."
Earlier this week, the Justice Department released several legal opinions written by Yoo and colleagues who worked with him. Civil libertarians denounced the arguments in the opinions, including one which said the Fourth Amendment did not apply to military anti-terrorist actions on U.S. soil. The Bush administration itself eventually renounced many of Yoo's conclusions.
Yoo, who is now a visiting professor of law at the Chapman University School of Law in California, declined to comment for this article. In a recent interview, he told the Orange County Register that the memos "lack a certain polish" and were not intended to be read by the public. However, he added, "I don't think I would have made the basic decisions differently."
Padilla was arrested in Chicago in 2002 by officials who suspected he was planning to detonate a radiation laced explosive device or dirty bomb. Bush quickly designated him as an "enemy combatant." He was held by the military until 2006 when he was transferred back into civilian courts to face an indictment charging him with participating in a terrorist conspiracy abroad.
After a trial, Padilla was convicted on the criminal charges and sentenced to 17 years in prison. He is currently housed at the federal "supermax" prison in Colorado.