Sunday, March 8, 2009

Obama DOJ: torture memos apparently protected under sovereign immunity...

... which means if the government decides it's OK to torture you, only the government has to power to decide it's OK for you to sue in response ...

From SFGate:

(03-06) 18:08 PST SAN FRANCISCO -- President Obama's Justice Department defended former Bush administration lawyer John Yoo in a San Francisco federal court Friday, arguing that a prisoner formerly held as an enemy combatant had no right to sue Yoo for writing legal memos that allegedly led to his detention and torture.

"We're not saying we condone torture," department attorney Mary Mason said at a hearing on the government's request to dismiss a lawsuit filed by Jose Padilla. But any recourse against a government lawyer "is for the executive to decide, in the first instance, and for Congress to decide," not the courts, she said.

"You're not saying that if high public officials commit clearly illegal acts, a citizen subject to those acts has no remedy in this court?" asked U.S. District Judge Jeffrey White.

Not unless Congress has expressly authorized a lawsuit, Mason replied. She cited the argument the Justice Department made in Yoo's case last year, with President George W. Bush still in office, that courts should not interfere in executive decision-making, especially in wartime.

At issues, Yoo's various memos on torture:

The best-known memo, written to then-White House Counsel Alberto Gonzales in 2002, said rough treatment of captives amounted to torture only if it caused the same level of pain as "organ failure, impairment of bodily function or even death." It also said the president may have the power to authorize torture of enemy combatants.

Yoo also advised the Bush administration that the Geneva Conventions on humane treatment of captives did not apply to terrorist suspects classified as enemy combatants.

A 2001 Yoo memo, made public recently by the Obama administration, said U.S. military forces could use "any means necessary" to seize and hold terror suspects in the United States, without constitutional restrictions.

Stem-cell research, medical marijuana, human rights for LBGT--all of these are good things the Obama administration is doing.

Yet the simple ugly fact of the matter is that President Barack Obama has demonstrated with great consistency through his first six weeks in office that he plans to keep all the State powers he inherited from the Bush administration.

That, regardless of whether or not the economy recovers, whether or not my liberal/progressive friends get universal health care, or whether or not Michelle gives something better than a toy helicopter as White House gifts, represents a major betrayal of campaign promises, the US Constitution, and the American people.

And, yes, it really is that simple.


Anonymous said...

I can't wait to see how the DelawareLiberal crowd explains this one away. Most likely, they'll simply ignore it.

Anonymous said...

Sovereign immunity has been around for most, if not all, of the history of this country, and stems from British law. It was not new with Bush or Obama, it has been used by both dem and repub administrations. Obama NEVER pledged or promised to repeal sovereign immunity. Ever. Unless you can find a campaign promise to repeal sovereign immunity (which you won't) writing hysterically that this position "represents a major betrayal of campaign promises, the US Constitution, and the American people" is flat-out false.

You headline is also misleading. It is not the "torture memos" that are protected from lawsuits under sovereign immunity, but the authors of the memos, including Yoo, one of the most heinous of the Bush lawyers.

(I am still somewhat amused that you, as a Libertarian, think private citizens should have the right to sue anybody for writing an "opinion," legal or otherwise.)

Obama has released 9 documents that Bush refused to release, with more to come, showing that the country was essentially under a dictatorship during most of the years of republican rule – no first or fourth amendment rights. The justice department is investigating the abuses that occurred during the Bush years, but they are only 6 weeks into it. I will be extremely disappointed if those who broke the law are not prosecuted.

Nevertheless, Obama and Holder have said clearly and unequivocally that they are not going to allow torture like the repubs did (including waterboarding).

I share your impatience with the pace of investigations and document releases, but these things do take time. But as Martin Luther King said: "The arc of history is long, but it bends toward justice."

We can only hope.


Steve Newton said...

Of course sovereign immunity has been around. The campaign pledge was to "restore the Constitution"

Your second paragraph makes no sense even as grammatical parsing.

The fact that you don't think Libertarians recognize a court system is the surest positive indication, A1, that you know absolutely nothing about libertarianism. Not that such lack of knowledge either surprises anyone or stops you from asserting that you do.

You will be disappointed if those who broke the law are not prosecuted? You obviously don't pay real close attention: Leon Panetta has already assured all CIA employees in writing that as long as they "followed policy" they will not be prosecuted no matter what they did. Should we assume the current Director, CIA, does not speak for the administration.

Obama and Holder can say any damn thing they please, as long as they keep the Red Cross and objective witnesses out of Bagram, where reports of US brutality continue to emerge. Why have they been silent on Bagram?

And they have carefully parsed the no-torture stance in policy documents to allow for extraordinary circumstances.

My indignation is not with the slow pace: it is with the fact that the Obama administration continues to use and cite Bush-era legal tactics and discredited policies in the Federal courts.

Anonymous said...


You write:

The campaign pledge was to "restore the Constitution"

Sovereign immunity has not been found by the Supreme Court to be unconstitutional. I can only guess that you think that "restore the Constitution" meant doing away with "sovereign immunity". Perhaps that is what a Libertarian might think, but it is not the view of the Supreme Court or the Congress or the repubs or the dems. Sorry, but the Libertarian candidate lost.

In regards to my second paragraph, you can't sue documents as your headline implies. Sovereign immunity protects govt officials, not memos, from lawsuits. I never said or implied that Libertarians don't recognize the court system. Where'd that come from?

I know what Panetta, Holder, and Obama have said. If people who broke the law are not prosecuted, I will be very angry and disappointed. I think Panetta's statement is wrong, and I hope an international court weighs in. "Following orders" is no excuse for torture and murder. I am not an "Obama right or wrong" person; for example, I think his stand on FISA was horrible, and I think his economic advisors are awful.

But I keep reading here and other places about "Obama breaking this promise and that." When you cite a broken promise, you should be specific about exactly what promise you think he broke.

In this case, your statement that the DOJ support of sovereign immunity "represents a major betrayal of campaign promises" to "restore the Constitution" is without merit since sovereign immunity has not been found to be unconstitutional, even after multiple challenges. Can you show me in the Constitution where sovereign immunity is disallowed? Article III, Section 2 has been consistently interpreted by the SCOTUS as supporting sovereign immunity.

The fact is that Obama is restoring Constitutional protections, such as the first and fourth amendments, after 8 years of repub tyranny.

Is he perfect? No. Is he a Libertarian? No. Has he broken any campaign promises relative to sovereign immunity, as you claim? Clearly, the answer is no.

To write that claims of sovereign immunity is one of "Bush-era legal tactics and discredited policies in the Federal courts" is factually and historically incorrect.

And I write that as one who would love to see Yoo, Bradbury, Cheney and the rest be tried for their crimes.