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By Josh Gerstein
In Democratic legal circles, no attorney has been more pilloried than former Bush Justice Department official John Yoo, chief author of the so-called torture memos that Barack Obama last week sought to nullify.
 But now President Obama’s incoming crew of lawyers has a new and somewhat awkward job: defending Yoo in federal court.
Next week, Justice Department lawyers are set to ask a San Francisco federal judge to throw out a lawsuit brought against Yoo by Jose Padilla, a New York man held without charges on suspicion of being an Al Qaeda operative plotting to set off a “dirty bomb.”
The suit contends that Yoo’s legal opinions authorized Bush to order Padilla’s detention in a Navy brig in South Carolina and encouraged military officials to subject Padilla to aggressive interrogation techniques, including death threats and long-term sensory deprivation. That’s not all. On Thursday, Justice Department lawyers are slated to be in Charleston, S.C., to ask a federal magistrate there to dismiss another lawsuit charging about a dozen current and former government officials with violating Padilla’s rights in connection with his unusual detention on U.S. soil, without charges or a trial.
The defendants in that case are like a who’s who of Bush administration boogeymen to Obama’s liberal followers — former Defense Secretary Donald Rumsfeld, his deputy Paul Wolfowitz and former Attorney General John Ashcroft.
The two cases raise the question of how aggressively the Obama administration intends to defend alleged legal excesses of the Bush administration in the war on terror. The Supreme Court recently gave the new president until March to decide whether to defend the detention without trial of another man held as an enemy combatant, Ali Saleh Al-Marri.
And with more than a hundred court cases pending relating to Guantanamo, the Obama team faces a fast and furious series of deadlines to adopt or reject the Bush administration’s stance regarding specific detainees.
“This is going to happen again and again across the government,” said Karen Greenberg, the executive director of the Center on Law and Security at New York University. “They’re between a rock and a hard place.”
Obama’s lawyers aren’t the first at Justice to have to stand by a prior administration’s legal work — whether they agree with it or not — merely in the interest of protecting U.S. government prerogatives.
But the Bush war-on-terror team inspires particular antipathy in the liberal legal set — and none more than Yoo, who became a sort of symbol of the Bush administration’s efforts to construct a carefully crafted legal framework to justify practices that critics say are torture.
“When they go back to the privacy of their offices, they may wish that someone would draw and quarter John Yoo, but they have to wave the flag,” said a former federal terrorism prosecutor, Andrew McCarthy. “What they have to do is appear as if they are defending all the prerogatives of government that people want them to defend. ... That’s the job of the Justice Department.”
Padilla’s lawyers, who are affiliated with a human rights clinic at Yale Law School, declined to comment for this article. Yoo also declined to be interviewed, though in an op-ed piece for The Wall Street Journal last year he described himself as the victim of an attempt to use “the tort system to harass those who served in government in wartime.”
Obama’s appointee for attorney general, Eric Holder, has taken issue with some of Yoo’s conclusions but does not appear to have singled him out by name. “I never thought I would see the day when a Justice Department would claim that only the most extreme infliction of pain and physical abuse constitutes torture,” Holder said in a speech last year, alluding to a 2002 memo Yoo wrote.
Holder said the Bush administration was “wrong” when it “authorized the use of torture,” when it “secretly detained Americans without due process” and for violating the Constitution, though he said he did not take issue with the “motives” of those who helped set the policies.
Other Obama Justice Department appointees have been far more strident in their criticism of Yoo. In an article in Slate just last year, Obama’s pick to head the Office of Legal Counsel, Dawn Johnsen of Indiana University, called one of Yoo’s memos “plainly flawed” and his defense of it “irresponsibly and dangerously false.”
Johnsen was so vocal in her criticism of Yoo that a liberal magazine, Mother Jones, branded her the “anti-Yoo.”
A leading authority on legal ethics, Stephen Gillers, said the incoming officials’ criticism of the former Bush officials has been so withering that they should press to be defended by their own lawyers — at government expense.
“If I were counseling Yoo or Rumsfeld, I would certainly advise them to have private counsel or shadow counsel,” Gillers said. “The defense has to be put in the hands of people who have not been vocal in condemning Rumsfeld and Yoo and who have not taken a public position on the legality of their conduct.”
Obama also seems to be no fan of Yoo’s work. One of the new president’s first acts upon taking office last week was to nullify every detainee-related legal opinion issued during the Bush administration by the unit Yoo worked in, the Office of Legal Counsel.
Some liberal lawyers have suggested Yoo or other officials should face not just civil suits but a full-scale investigation into possible war crimes. “People really haven’t been talking about civil exposure. People have been talking more about potential criminal exposure,” said Eugene Fidell, an attorney specializing in military law.
While such questions swirled during Holder’s confirmation hearings, Gillers said he thinks the chances of such a prosecution against Yoo remain slim. “I think he still has no worry about that,” Gillers said.
To an extent, the lawsuits against Yoo and Rumsfeld are symbolic. Padilla was transferred from military to civilian custody in 2006. A jury later convicted him on conspiracy charges unrelated to the alleged “dirty bomb” plot. A judge sentenced him to 17 years in prison, though an appeal is pending. While Padilla does want an order barring another involuntary trip to the brig, each suit seeks only $1 in damages, plus legal fees.
At present, it doesn’t look like Yoo’s sharpest critics will end up directly in the chain of command responding to the civil lawsuits. Obama has tapped an Oakland, Calif., lawyer, Tony West, to head up DOJ’s civil division, which has primary responsibility for such cases. West hasn’t played a vocal role in the debate over detainee policy, but he was one of the lawyers for John Walker Lindh, the so-called American Taliban caught in Afghanistan.
A former lawyer in Bush’s White House, Brad Berenson, said he expects the new Obama officials not only to defend against the suits but to win them. “There are just all kinds of doctrines that protect government officials, even when they’re wrong,” he said. “The dirty little secret here is that the United States government has enduring institutional interests that carry over from administration to administration and almost always dictate the position the government takes.”
This article by Josh Gerstein originally appeared on Politico.com.
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