Obama's Prisoner Dilemma: Reject Torture, Defend Torturers
February 04, 2009Â 
President Barack Obama finds himself in a quandary of sorts over his public position opposing torture and secret detentions.
The new U.S. president has renounced those Bush administration practices, but government lawyers continue to defend the previous administration's top officials accused of authorizing and carrying out those policies.
"The Obama administration, from day one, said waterboarding is torture," says Mary Dryovage, a civil rights lawyer who represents federal employees suing the government. "How can one simultaneously state waterboarding is a crime and represent one of the architects of one of the legal arguments in support of waterboarding, which is defined in the Geneva Conventions as a war crime?"
Chief among those enjoying a taxpayer-funded defense is John Yoo, now a Boalt Hall School of Law scholar at the University of California, Berkeley. As a Bush administration lawyer, Yoo wrote the so-called torture memos the previous administration invoked to rationalize torture of enemy combatants.
The Justice Department is supplying Yoo with several government lawyers to defend himself in federal court in San Francisco, in a lawsuit (.pdf) brought by Jose Padilla. The one-time alleged "dirty bomber," Padilla claims Yoo's internal legal opinions paved the way for his harsh interrogation while he was secretly held without charges at a Navy brig in South Carolina.
Government lawyers are also defending former Secretary of Defense Donald Rumsfeld, former Deputy Secretary of Defense Paul Wolfowitz, former Attorney General John Ashcroft and other Bush administration officials in a second lawsuit by Padilla accusing (.pdf) them of violating his constitutional rights.
The dilemma inherited from the Bush administration comes as Obama's newly-formed cabinet re-examines the government's position in these lawsuits, and begins to untangle eight years of Bush policy on national security, domestic spying, the environment and the economy. Still, while the fledgling administration is just beginning to take shape, the new president has made clear that it has renounced torture and secret detentions and has already moved toward closing Guantanamo Bay.
The Bush administration initially supplied lawyers for Yoo, pictured left, and the others under a federal law that requires the government to represent its current and former employees in court, when they are being sued for actions performed in the course of their employment.
That law, though, only applies when the government determines that such representation does not conflict with the interests of the United States. If he chooses to, Obama could reverse Bush's finding to that effect, and end the Justice Department's representation of the accused torturers.
Unless or until that happens, the government's legal representation of Yoo, Rumsfeld and the others suggests that the Obama administration is not about to pursue criminal charges against these officials.
"If the government is looking into possibly prosecuting these people at all, it can't possibly have one arm looking to prosecute and the other arm defending them," says William Balin, a California attorney and legal ethicist.
The Justice Department declined comment.
Some civil libertarians believe the Justice Department's ongoing defense of the officials sends a message to the public that perhaps Obama is not serious about reversing course from the Bush administration. Even after Obama's inauguration, Justice Department attorneys have urged federal judges in South Carolina and California to dismiss the lawsuits.
"What it says to the citizens of the United States and the world when the Justice Department is representing these individuals, like Mr. Yoo, that war crimes and torture are not being taken seriously," said Wendy Musell, a human rights attorney in San Francisco.
But even if the Obama administration concludes that it should not represent Yoo, Rumsfeld and the others,federal employment law requires that taxpayers foot the bill for their private counsel in civil lawsuits -- a bill that likely would run into the millions of dollars.
"In my personal opinion," Musell said, "this is just another example of a bailout."
http://blog.wired.com/27bstroke6/2009/02/analysis-dilemm.html
