President Obama Rides To The Defense of John Yoo
(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?”)