Why The Obama Administration Defends John Yoo

In January 2008, five months after he was convicted for conspiring to commit terrorism, Jose Padilla filed a lawsuit claiming he had been tortured. His suit named former Department of Justice lawyer John Yoo, whose memos authorized the methods used. As President Bush left office and President Obama entered, the case worked its way toward the Ninth Circuit Court of Appeals, and by this summer it looked like Yoo could face trial. Now, the Department of Justice is asking the court to dismiss the case. Why?

Civil libertarians will see this as further evidence that Obama is continuing the Bush-era policies Yoo helped justify. Obama has indeed maintained some practices such as detention and surveillance (though he does not appear to use them to nearly the extent of his predecessor), and he may fear a precedent that could be used against his own administration. But this White House is no friend of John Yoo. A long-promised, long-delayed report from the Office of Professional Responsibility (OPR is part of DoJ) evaluating Yoo's tenure will probably condemn him of ethical violations once it is released. The DoJ officials who asked for Yoo's case to be dismissed hinted as much, and Marcy Wheeler points out that would also explain why Yoo had to abandon his government lawyer for private counsel. DoJ is likely waiting for this case to resolve before dropping the report so as not to give Padilla's lawyers additional leverage.

This move is nothing particularly new for President Obama. Recall that, even before he stepped into the West Wing, he worked hard to beat back fervent calls -- many of them from congressional Democrats -- to investigate or even prosecute Bush administration officials. As Marc explained back in April, the White House dismisses backward-looking reviews of the Bush administration as distractions from forward-looking policy work. His administration's desire to prevent the lengthy circus of a Yoo trial, then, would be characteristic.

My sense is that, as his critics charge, Obama is indeed working to keep his own DoJ lawyers free from investigation for their national security recommendations. At the same time, the OPR report, which is expected to condemn Yoo's actions as unethical, would publicly distance the administration from the practices of Yoo and Bush's DoJ, much as the White House wants to distance itself from the prison at Guantanamo while maintaining the one at Bagram. The detention centers are just one example where Obama has tried to reduce and soften, but not sever, Bush-era national security tools. (The Bagram center still appears legally and ethically dubious but, with detentions limited to months rather than years and waterboarding replaced with isolation, it's certainly less horrifying than it was seven years ago.)

That aside, the primary concern here could be Afghanistan. Obama is putting a great number of American lives, American money, and personal political capital at stake in the war in Afghanistan. That war appears to include extensive operations in Pakistan, much of it by shadowy agencies like JSOC and CIA with assistance from Blackwater. Whether those actions are prudent or imprudent, legal or illegal, he's not going to want them exposed to daylight, especially as he tries to convince Pakistan that America is its ally and the Taliban is its enemy, and not the other way around. But if Yoo goes to court, practices of rendition, detention and surveillance will certainly be explored. Even if Obama took great care to bring those practices within the law (an open question), his own policies and the legal reviews behind them are likely deeply tangled with Yoo's Bush-era work on them.

In 2006, then-Senator Obama made a fiery speech condemning torture and the legal abuses that permitted it. As a former professor of constitutional law, this is something he cares about. Since he took on the presidency, his priorities have clearly shifted. Either he has decided that the costs of trying Yoo so outweigh any benefits of recrimination that the trial should be dismissed, with the OPR report and public shaming as Yoo's only punishments. Or, as his critics contend, Obama has taken up practices he once lambasted Yoo for justifying and fears the precedent of judges peeking into his DoJ. Given Obama's past actions, I am inclined to believe the former. But with the White House's use of secrecy and executive privilege still going strong, I have little but faith to go on.