SAN FRANCISCO — Over the years, the Bush administration has faithfully shielded a war-on-terror memo signed by Ninth Circuit U.S. Court of Appeals Judge Jay Bybee, even from senators on a key oversight committee.
But the government apparently has no problem letting plaintiff lawyers see the document.
The Ninth Circuit judge’s controversial role in the Justice Department has bubbled up again, this time in a civil rights claim brought against former Deputy Assistant Attorney General John Yoo. Lawyers for Jose Padilla, an American citizen locked up and allegedly tortured by the military, claim that Yoo — now a UC-Berkeley School of Law professor — offered legal opinions which led directly led to their client’s suffering.
In support of a motion to dismiss, the government asked Northern District Judge Jeffrey White for permission to file, under seal, a memo entitled “Determination of Enemy Belligerency and Military Detention.” Yoo’s boss, Bybee, signed that memo on June 8, 2002 — roughly three weeks after former President Bush nominated him for the federal bench, according to a declaration from Paul Colborn, of the Justice Department’s Office of Legal Counsel.
While the government argues the documents are protected by attorney-client privilege, Jonathan Freiman, a Connecticut-based Wiggin and Dana partner representing Padilla, says they should be open to the public.
“The documents that Yoo wants the court to consider in secret are themselves the subject of a public interest so intense that the Senate Judiciary Committee has issued a subpoena demanding that the memos be turned over,” Freiman wrote.
To bolster its motion to dismiss, government lawyers want to file two Yoo memos in addition to the Bybee document. Colborn’s declaration says those two Yoo memos have been offered to the Judiciary Committee for a secret read, but it makes no mention of Bybee’s “Enemy Belligerency” memo. In its court filings, the government says the memos are relevant to the Padilla claim because plaintiffs mischaracterized their contents — owing to the fact Padilla’s lawyers haven’t read them.
“Yoo believes it is important for both the court and plaintiffs’ counsel to review the three memoranda to see for themselves the limited reach of the analyses contained therein,” wrote DOJ trial attorney Glenn Greene, “and that the documents, as a matter of law, demonstrate that Yoo did not violate any of the plaintiffs’ constitutional rights.”
Another OLC opinion signed by Bybee, the so-called “torture memo,” caused much consternation when revealed in full by the Judiciary Committee last year. Chairman Patrick Leahy has regularly fumed against the Justice Department for refusing to make all of its war-on-terror memos public.
“Just as there is no justification for denying the incoming administration legal opinions that were the basis for executive branch policy, there is no justification for denying them to the Senate Judiciary Committee,” Leahy said last month. “The next administration and the next Congress will be left to clean up the mess at the department.”
On Wednesday, Senate Republicans delayed a confirmation vote for Attorney General-designate Eric Holder as they sought assurances he wouldn’t seek to prosecute former administration officials for torture. A government spokesman declined to discuss why the government wants to file the Bybee document in the Padilla litigation but apparently won’t reveal it to the Judiciary Committee.
Should Judge White deny the protective order, the government will not file the memos at all, Greene wrote, and will instead rely on its other arguments to dismiss the case.
The matter is currently on White’s calendar for Feb. 6.