Citing an argument that hallmarked the Bush years, Obama administration attorneys have asked a San Francisco court to drop all charges against Berkeley law professor John Yoo, who authored legal opinions that permitted the torture of prisoners.
An amicus curiae brief [PDF link] filed by the Department of Justice with the 9th Circuit Court of Appeals on Thursday essentially argues that because he was giving advice to the president on a national security matter, Yoo should not be held accountable for his actions as it would have a chilling effect on advice provided to future presidents.
In other words, the DoJ explained, accusations of torture in this case present "special factors" that the court should not address "in the absence of congressional action."
"Yoo's new attorney, Miguel Estrada, argued for dismissal in a filing last month, saying the case interfered with presidential war-making authority and threatened to "open the floodgates to politically motivated lawsuits" against government officials," noted Bob Egelko, writing for The San Francisco Chronicle.
The DoJ's argument was not so broad, as it also noted that the Office of Professional Responsibility is investigating Yoo and a number of other Bush administration attorneys. Their report was due out at the end of November but its release has been delayed and is expected "soon," according to a recent report.
In June, Yoo was ordered to testify in a suit filed by attorneys representing Jose Padilla, an American citizen who was held for more than three years and allegedly tortured while in U.S. military custody.
Padilla was convicted in January, 2008 of conspiracy to aid terrorism and sentenced to 17 years, four months in prison. At his trial, the judge noted the government had not presented enough evidence to convict him for attempting to detonate a “dirty bomb” in the United States, of which he was originally accused. The judge also noted the American citizen’s imprisonment and subsequent “harsh” interrogations, saying it would be weighed in Padilla’s sentencing.
Yoo, while at the Office of Legal Council in 2002, authored a majority of the department’s opinions on torture along with Jay Bybee, who now serves as a judge on the U.S. 9th Circuit Court of Appeals, and Steven Bradbury, the former OLC chief who now practices law in Washington, D.C.