President Obama Rides To The Defense of John Yoo
posted by Dave Hoffman
John Yoo Has a Powerful Friend
(I haven’t seen this blogged elsewhere, so I’ll make an exception to my rule of not blogging about con law.)
The government has just filed an amicus brief in Padilla v. Yoo, currently on interlocutory appeal (from this order) and pending before the Ninth Circuit. The brief argues against recognizing a Bivens action in the context of advice rendered “relating to war powers and national security.” Part of the argument depends on the availability of other forms of relief, including habeas and disciplinary proceedings against Yoo, as well the potential for congressionally sanctioned damages. Note this brief is separate from the substantive defense of Yoo that the government has undertaken: this is the position of the United States on the policy question of whether government officials like Yoo ought to be liable in civil court for the consequences of their advice. Because the government obviously had no need to file this brief, it is sure to be greeted by Obama’s liberal base as quite demoralizing. I guess it’s lucky that Obama’s too big to fail.
(Update: Footnote 1 is fun. I translate as: “We’d like to join and expand on Yoo’s arguments about his good faith behavior. But other parts of us are still holding onto a report which may call into question the accuracy of that claim. Coincidentally and luckily, that report continues to be delayed, making it unnecessary for us to commit to a position that would be internally incoherent. Do us a favor and resolve this on constitutional grounds, would ya?”)
December 3, 2009 at 10:07 pm
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The Volokh Conspiracy » Blog Archive » DoJ’s Defense of Yoo - December 4, 2009 at 6:14 am
[...] Dave Hoffman notes that the Justice Department has filed an interesting amicus brief in Padilla v. Yoo arguing against the availabiltiy of a Bivens action in the national security context. Here’s a brief excerpt: The threshold question presented by this case is whether a court should recognize a federal common-law damage action addressing the decisionmaking process within the Executive Branch about whether the military should detain and how it should treat those deemed to be enemies during an armed conflict. As we explain below, this context, which directly implicates war powers and matters of national security, presents compelling “special factors” that strongly counsel against judicial creation of such a money-damage remedy, in the absence of congressional action. The Supreme Court and the courts of appeals have consistently refused to extend Bivens remedies to new contexts. Where there are special considerations or sensitivities raised by a particular context, the courts recognize that it is appropriate for the courts to defer to Congress and wait for it to enact a private damage action if it so chooses. That course is clearly appropriate here. [...]
Weekly Web Watch 11/30/09 – 12/6/09 « EXECUTIVE WATCH - December 7, 2009 at 1:12 pm
[...] Justice Department filed a brief in Padilla v. Yoo, arguing that the Ninth Circuit should not recognize a Bivens action against [...]
The Dude - January 4, 2010 at 4:32 pm
Does anyone know when the 9th Circuit will hear this case, and when we can expect a decision? Thanks.
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