[THS] Lawyers petition court to hold Yoo accountable

[Peter Webster]

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/02/10/MNVB1BS0VE.DTL


Lawyers petition court to hold Yoo accountable

Bob Egelko, Chronicle Staff Writer

Wednesday, February 10, 2010
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As reports circulate that the Justice Department has softened its criticism of attorney
John Yoo for memos approving the Bush administration's treatment of terrorism
suspects, several prominent lawyers are urging a federal appeals court in San
Francisco to hold Yoo accountable.

They have submitted arguments opposing dismissal of a prisoner's lawsuit that
accuses the former Justice Department attorney of providing a legal cover for torture.
The suit covers much of the same ground as the department's ethics investigation of
Yoo.

Yoo, a UC Berkeley law professor, worked from 2001 to 2003 for the department's
Office of Legal Counsel, which advises the president on legal issues. He wrote a 2002
memo that justified waterboarding and other forcible interrogation methods and said
the president may have the power to authorize torture. Another memo said U.S.
military forces could use "any means necessary" to seize and hold terror suspects in
the United States.

The Chronicle and other newspapers reported in May 2009 that Justice Department
investigators had decided Yoo violated standards of professional conduct by letting
administration officials influence his conclusions. They found no grounds for criminal
prosecution but recommended forwarding their findings to state bar disciplinary
authorities.

But last week Newsweek and the Washington Post, quoting anonymous sources,
reported that a final draft found Yoo guilty only of poor judgment and not
professional misconduct.

If the reports of the still-unreleased findings are accurate, they would remove the
possibility of government action against Yoo.

Yoo says he always gave good-faith legal advice and denies authorizing torture.
Those claims could be tested in a San Francisco federal court, however, unless Yoo
can persuade a court to dismiss Jose Padilla's lawsuit.

Long stretch in brig

Padilla, a U.S. citizen, was arrested in Chicago in 2002 and held for nearly four years
in a Navy brig, accused of plotting with al Qaeda to detonate a radioactive "dirty
bomb." He was then convicted of taking part in an unrelated conspiracy to provide
money and supplies to extremist groups and sentenced to 17 years.

While in the brig, Padilla said, he was subjected to sleep deprivation, sensory
deprivation and stress positions, kept for lengthy periods in darkness and blinding
light, and threatened with death. He claimed that Yoo, as a Justice Department
lawyer and self-described member of the Bush administration's "war council,"
approved his detention and wrote legal opinions that justified his treatment.

U.S. District Judge Jeffrey White refused to dismiss the suit in June. It was the first
time a court had held a Justice Department attorney potentially responsible for the
abuse of prisoners.

Yoo has appealed, saying the suit would interfere with presidential war-making
authority. The Obama administration has taken his side, arguing that courts should
not meddle in questions of national security.

But in filings over the last 10 days, groups of constitutional law professors, legal ethics
scholars and former government attorneys urged the court to keep Padilla's suit alive.

They argue that this is not a dispute over legal advice, as Yoo contends, but the case
of a lawyer who allegedly stepped out of his role to take part in planning detention
and interrogation policies, and then devised legal opinions to justify those policies.

No 'blank check'

"It is the essential role of the judicial branch to prevent the 'war on terror' from
becoming the blank check for official torture that Yoo and the United States (Justice
Department) seek," nine constitutional law teachers told the court.

They include Erwin Chemerinsky, law school dean at UC Irvine; Alan Morrison, an
assistant law dean at George Washington and former director of Public Citizen
Litigation Group; and Norman Dorsen of New York University, former president of the
American Civil Liberties Union.

The legal ethics professors include Stanford's Deborah Rhode and former California
Supreme Court Justice Cruz Reynoso, now at UC Davis. They stressed the importance
of applying ethical standards to lawyers who advise the president on constitutional
issues.

Integrity at issue

"The integrity of the legal profession and the sanctity of the rule of law hang in the
balance" in this case, the professors said.

The third filing came from three former government lawyers, including Bruce Fein,
special assistant to the director of the Justice Department's Office of Legal Counsel in
President Ronald Reagan's administration, the same office where Yoo worked under
President George W. Bush.

They argued that the office has built its credibility by candidly telling the chief
executive when his proposed actions overstepped constitutional boundaries. If Padilla
can prove his allegations, Yoo "must be held to account," they said.
Yoo's position

Yoo spelled out his position Jan. 25 on Tavis Smiley's PBS show.

"What we were trying to do," he said, "was provide our intelligence agencies with
guidance about what they can do to interrogate al Qaeda leaders ... but not just
restrict them to giving them a lawyer, and their Miranda warnings, but not to violate
any federal laws prohibiting torture either.

"Obviously, we didn't tell them what to do either," Yoo said. "I think it's still up to the
CIA and president, ultimately, what measures to take."

E-mail Bob Egelko at begelko at sfchronicle.com.

This article appeared on page A - 1 of the San Francisco Chronicle