Yoo, Who — Ministries, not the Justice Case

by Kevin Jon Heller

Scott Horton has a typically must-read post today at Harpers.com on Jose Padilla’s lawsuit against John Yoo, which, happily, just survived a motion to dismiss and appears to be headed to trial.  Scott takes apart the state-secrets defense advanced by both Yoo and — predictably — the secrecy-obsessed Obama administration.  Here’s a taste:

In seeking dismissal, Yoo argued that the case asked the courts to look at the president’s exercise of his war-making powers, and that the courts should butt out. But his principal argument was utterly predictable: state secrets. “Yoo contends that the Court should abstain from reviewing the alleged constitutional violations presented in this matter because the claims necessarily would uncover government secrets, thereby threatening national security.” The “secrets” here, of course, are of two sorts: first, the torture techniques used to turn Padilla into the human equivalent of an eggplant and second, the legal voodoo employed by Yoo in his efforts to justify Padilla’s torture and thus promise the torturers legal protection from criminal prosecution. But neither of these “secrets” are actually secret.

I do, however, have to take issue — again — with Scott’s claim that “the potential criminal liability of government attorneys for misstating the law relating to armed conflict… was confirmed in United States v. Altstoetter,” better known as the Justice Case.  As I have pointed out before, that case confirms nothing of the kind.  The case that Yoo should worry about — are you listening, Yalies? — is Ministries.


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