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President Barack Obama finds himself in a quandary of sorts over his public position opposing torture and secret detentions. President has renounced those Bush administration practices, but government lawyers continue to defend the previous administration's top officials accused of authorizing and carrying out those policies. 'The Obama administration, from day one, said waterboarding is torture,' says Mary Dryovage, a civil rights lawyer who represents federal employees suing the government. 'How can one simultaneously state waterboarding is a crime and represent one of the architects of one of the legal arguments in support of waterboarding, which is defined in the Geneva Conventions as a war crime?' Chief among those enjoying a taxpayer-funded defense is John Yoo, now a Boalt Hall School of Law scholar at the University of California, Berkeley.
As a Bush administration lawyer, Yoo the previous administration invoked to rationalize torture of enemy combatants. Government lawyers are also defending former Secretary of Defense Donald Rumsfeld, former Deputy Secretary of Defense Paul Wolfowitz, former Attorney General John Ashcroft and other Bush administration officials in a second lawsuit by Padilla (.pdf) them of violating his constitutional rights. The dilemma inherited from the Bush administration comes as Obama's newly-formed cabinet re-examines the government's position in these lawsuits, and begins to untangle eight years of Bush policy on national security, domestic spying, the environment and the economy. Still, while the fledgling administration is just beginning to take shape, the new president that it has renounced torture and secret detentions and has already moved toward closing Guantanamo Bay.
The Bush administration initially supplied lawyers for Yoo, pictured left, and the others under a that requires the government to represent its current and former employees in court, when they are being sued for actions performed in the course of their employment. That law, though, only applies when the government determines that such representation does not conflict with the interests of the United States. If he chooses to, Obama could reverse Bush's finding to that effect, and end the Justice Department's representation of the accused torturers. Unless or until that happens, the government's legal representation of Yoo, Rumsfeld and the others suggests that the Obama administration is not about to pursue criminal charges against these officials. 'If the government is looking into possibly prosecuting these people at all, it can't possibly have one arm looking to prosecute and the other arm defending them,' says William Balin, a California attorney and legal ethicist. The Justice Department declined comment.
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Some civil libertarians believe the Justice Department's ongoing defense of the officials sends a message to the public that perhaps Obama is not serious about reversing course from the Bush administration. Even after Obama's inauguration, Justice Department attorneys have urged federal judges in South Carolina and California to dismiss the lawsuits.