Dispatches from the Culture Wars

But now that the DOJ is no longer in the position of defending Yoo, they're still filing briefs that defend his position:

Now, despite having already filed briefs on Yoo's behalf in the district court arguing that as a former DOJ lawyer he should not be held liable for the consequences of his legal advice sanctioning torture, the Justice Department has filed yet another brief in the case, making essentially the same argument, this time on the government's own behalf.

In an amicus (friend-of-the-court) brief filed to the appeals court yesterday (the lower court had refused to dismiss the case), the Justice Department argues that the court should not allow a lawsuit against a government lawyer providing advice to the executive branch where the case implicates national security and war powers. Such liability "could deter frank and full discussions within the Executive Branch regarding such matters."

It's obvious why the DOJ would take this position. They are, after all, DOJ attorneys and Yoo is being sued for his actions as a DOJ attorney. They are defending him because doing so also defends them and might prevent them from being held accountable for their own actions later.

But this also puts them in a real bind because another part of the DOJ, the OPR, is supposedly about to put out a report that may be very critical of Yoo and may well conclude that he acted in bad faith (which would effectively negate any claim of qualified immunity on his part). So they're having to finesse this issue just a bit:

Footnote 1 of the brief implicitly acknowledges the weird conflict involved in the DOJ's even filing this brief, though without explicitly noting that the DOJ already made these same arguments on Yoo's behalf earlier.

The first footnote essentially says that the Justice Department is going to repeat only some of its earlier arguments this time but not others. Specifically, it's not going to make the argument now that Yoo didn't do anything wrong because the right not to be tortured wasn't clear at the time he approved it. That's because since filing that first brief making just that argument, the department realized that, whoops, Yoo is under an internal ethics investigation, so maybe we should just stay out of this.

Dave Hoffman at Concurring Opinions interprets the footnote this way: "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?"

Hoffman may be exactly right. And that may well explain why the OPR report continues to be delayed, even though Holder has publicly said that it is finished and is just in a final review. Which tells me that the report is likely to find that Yoo violated legal ethics with his advice, which would void claims of immunity and make the DOJ's position much less convincing.