Obama Team Feared Revolt If He Prosecuted War Crimes

President-Elect Obama’s advisers feared in 2008 that authorities would “revolt” and that Republicans would block his policy agenda if he prosecuted Bush-era war crimes, according to a law school dean who served as one of Obama’s top transition advisers.

University of California at Berkeley Law School Dean Christopher Edley, Jr., the sixth highest-ranking member of the 2008 post-election transition team  preparing Obama's administration, this week confirmed to me language he used in moderating a forum on 9/11 held by his law school (also known as Boalt Hall). Anti-torture activist Susan Harman elicited the language from Edley during Q&A at the Sept. 2 forum, and this site's David Swanson broke the story here shortly afterward -- making the important additional point that Obama is protecting himself from crimes allegations by not creating precedents.

Bur Edley, carrying unquestioned authority within the campaign, did confirm enough so that I could follow David's lead this week in bluntly raising a question on several progressive sites about Team Obama's motives on justice issues.   

Edley's rationale implies that Obama and his team fear the military/national security forces that he is supposed be commanding. It suggests also that Republicans have intimidated him right from the start of his presidency -- even though voters in 2008 rejected Republicans by the largest combined presidential-congressional mandate in recent U.S. history. 

Edley was seeking to justify Obama's "look forward" policy on Bush-era law-breaking that the president-elect announced on a TV talk show in January 2009. Edley’s comments provide context for a longstanding series of disappointments by the antiwar community in the Obama administration. For example, I broke stories last year reporting how the Obama Justice Department's internal probes of misconduct in torture and political prosecutions were doomed from the start to be whitewashes. My most recent column on that, July 21, summarized how the probes by Connecticut federal prosecutors John Durham (on torture) and Nora Dannehy (on the 2006 U.S. attorney firings) were compromised because the investigators themselves had been found by a court to have hidden evidence in a major corruption case, unknown to the public. That seems to be the formula for a "successful" DOJ internal investigation: A presidential team at the top that doesn't want results, and investigators who are secretly compromised.

The more recent revelations about the dawn of the Obama administration have a consumer focus in addition to their obvious legal and political implications. Why does a story of this scope arise almost by happenstance more than 2 1/2 years after decision-making by Obama’s top advisers? Why is Susan Harman, above, breaking this news on a PDA Google Group? What about our vaunted national political pundits? We on this site know the answers, of course. So, our challenge is to figure out ways to spread the word even better.

In this case, Edley’s credentials and knowledge make him an authority hard for the corporate media to ignore on this, although they have so far. His rank on the transition team in 2008 put him close to the top of the millions of Obama volunteers. He was twice as high, for example, as Arizona Gov. Janet Napolitano, who is now Obama’s Cabinet Secretary for Homeland Security.

To recap: Harman elicited Edley's opinions during Q&A at the Boalt Hall forum, which was organized by the school’s Miller Institute for Global Challenges and the Law. Boalt Hall's faculty includes Professor John C. Yoo, the notorious former Justice Department attorney. Yoo, below, authored Bush-era legal justifications for waterboarding terror suspects and similar Executive Branch actions.

Here’s Harman's account of her actions at the Boalt Hall forum, which focused on such goals as human rights and the rule of law:

I said I was overwhelmed by the surreality of Yoo being on the law faculty . . . when he was single-handedly responsible for the three worst policies of the Bush Administration. They all burbled about academic freedom and the McCarthy era, and said it isn't their job to prosecute him. Duh.

Dean Chris Edley volunteered that he'd been party to very high level discussions during Obama's transition about prosecuting the criminals. He said they decided against it. I asked why. Two reasons: 1) it was thought that the CIA, NSA, and military would revolt, and 2) it was thought the Repugnants would retaliate by blocking every piece of legislation they tried to move (which, of course, they've done anyhow).

Harman says that she approached Edley privately after the forum closed and said she appreciated that Obama might have been in danger but felt that he "bent over backwards" to protect lawbreakers within the Bush administration. She recalled, "He shrugged and said they will never be prosecuted, and that sometimes politics trumps rule of law."

I wrote Edley to check on Harman's quotations, which he confirmed. Edley, dean of the law school since 2004, also sent me links to his statements on the Yoo appointment here and earlier here. And, he amplified with six bullet-points, primarily about the Obama transition process and academic freedom for professors.

Regarding the transition, he wrote:

I never discussed these matters with the President Elect; the summary offered by one of the senior national security folks was, "We don't want to engage in a witch hunt," to which I replied, "Neither do I, but I also care about the Rule of Law and, whether or not there ultimately are prosecutions, the question of whether laws were broken and where the lines should be drawn deserve to be aired"; that discussion as a whole was brief.

Also:

My point about politics is simple and non-controversial to people trained in law. I was not referring to politics trumping Law in the sense of President Nixon thinking he could do anything he wanted with respect to the Watergate scandal. I was referring to what every first year law student learns about prosecutorial discretion and the political accountability of prosecutors, which the "system" assumes will be a check on prosecutorial abuses more often than a source of them.

Regarding Yoo's invitation to return to Boalt Hall as a faculty member after his work in the Bush Justice Department, Edley wrote:

A frustrating thing to me about these discussions is that non-academics don't seem particularly to appreciate the fragility and importance of academic freedom. A university isn't equipped or competent to do a factual investigation of what took place at DOJ or in secret White House meetings. Nor should it make judgments about what faculty do outside of their professorial duties when there is no evident impermissible impact on their teaching. (For Professor Yoo, there is none.) The right forum investigating and punishing alleged crimes is in the criminal justice system, not a research university. Our job is already tough enough.

Finally, another frustrating thing is that advocates are often fierce in their belief that they know what the law is, and they know when someone else's view is extreme. Your typical law professor is, I think, far more humble. We tend to see multiple sides to important issues, and lots of gray. Even if we are convinced of something, we work hard to understand the counterarguments, just to be sure. If there aren't any, then MAYBE one could characterize the other position as extreme. My guess is that Professor Yoo's constitutional theories and statutory interpretation would win at least three votes among current justices of the U.S. Supreme Court. I don't like it, but that's my reading of the case law. Does 3 out of 9 make it extreme? If so, then a lot of my heroes are or were "extreme."

That’s the gist of the story, which I published Sept. 7 in two different formats. One on myJustice Integrity Project site is nearly 2,000 words long, and contains twice that amount of links to source materials for context. A shorter and more opinionated version was published on OpEd News late in the afternoon of Sept. 7. Readers clicked 16,000 page views in 48 hours thanks to prominent placement by publisher/editor Rob Kall and alerts via Facebook by the equally tireless Michael Collins, founder of The Money Party commentary site, and other activists. Alabama blogger Roger Shuler excerpted my piece on Daily Kos, prompting more than 500 comments from a readership usually loyal to the president. .  

What's next? I suggest building on what we now know about the Obama team's early fears, and pushing for at least one intrepid MSM mainstream reporter to explore the story for wider audiences. This kind of information needs to be part of the larger dialogue about who should  lead the United States in 2012. It's less than impressive, to say the least, if a leader seeking an Obama-sized mandate is intimidated by the military/CIA and NSA as well as by the other major party.

The U.S. president should be a fearless leader who enforces our laws with a passion for justice. Many who are protecting our liberty are risking their health, money, family future and even their lives on a frequent basis. Why shouldn't those at the top take some risks? As for academic freedom, it's a fine goal -- but so is freedom from torture and freedom from being falsely imprisoned for political reasons.

Knowing the law constitutes the basic tool of every lawyer. But working for what the law should be is an even higher calling for our lawyers and top office-holders. And in our democracy, I'm not the first to stress that our highest office does not go by the title "Senator," "Mr. Chief Justice" or even "Mr. President." Instead, it's "United States Citizen."