Over the years, there have been a handful of famous former government attorneys. Chief Justice John Roberts worked as an attorney both in the White House and the Department of Justice. Justice Samuel Alito also served in the Justice Department during the Reagan years.
Then, there are government attorneys -- like Torture Memo author John Yoo -- who might have preferred a life in the shadows. When Yoo was revealed to be the author of the Bush Administration "Torture Memo" in 2008, all hell broke loose. (One tortured detainee even tried to sue Yoo personally for allegedly endorsing torture.)
So will history repeat itself with the author of the Obama administration white paper on extra- judicial killings?
The 16-page paper, obtained and published by NBC on Monday, concludes that the U.S. government can order the killing of American citizens if they are believed to be "senior operational leaders" of al-Qaida or "an associated force" — even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.
If you care to read a lengthy explanation of why extra-judicial drone assassinations are
terrible controversial, check out Glenn Greenwald's post for The Guardian. Or read just about anything on the Internet. It's not a terribly popular idea.
Popularity aside, the white paper author may be open to greater liability than his torture memo predecessor because extra-judicial killings are more likely to be deemed unconstitutional.
Last year, the Ninth Circuit Court of Appeals ruled that Yoo — now a Con Law professor at Berkeley — was immune from liability for writing the memo because it was not clearly established at the time that harsh treatment was unconstitutional, Wired reports. A government-directed drone assassination, absent due process, probably wouldn't get the same pass.
Who is this year's John Yoo? And will he or she end up teaching a top law school or litigating at fancy firm?
Your guess is as good as ours, but we don't envy the media storm that person will endure if his/her identity is ever revealed. It's enough to make you second-guess a high-profile government gig altogether.
- Torture's Paper Trail (FindLaw)
- Court Dismisses Torture Lawsuit Against Donald Rumsfeld (FindLaw's Seventh Circuit Blog)
- Chief Justice Roberts: Supreme Court Advocate to Legal Legend? (FindLaw's Supreme Court Blog)