"Andrew Kreig"- Obama Team Feared Coup If He Prosecuted War Crimes

http://www.opednews.com/articles/Obama-Team-Feared-Coup-If-by-Andrew-Kreig-110907-156.html

September 7, 2011

President-Elect Obama's advisers feared in 2008 that authorities would oust him in a coup 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., above, the sixth highest-ranking member of the 2008 post-election transition team preparing Obama's administration, revealed the team's thinking on Sept. 2 in moderating a forum on 9/11 held by his law school (also known as Boalt Hall). Edley was seeking to explain Obama's "look forward" policy on suspected Bush-era law-breaking that the president-elect announced on a TV talk show in January 2009.

But Edley's rationale implies that Obama, or at least his team, feared the military/national security forces that the president is supposed be commanding -- and that Republicans have intimidated him right from the start of his presidency even after voters in 2008 rejected Republicans by the largest combined presidential-congressional mandate in recent U.S. history.

Edley responded to my request for additional information by providing a description of the transition team's fears. Edley said that transition officials, not Obama, agreed that he faced the possibility of a coup.

I'm grateful, of course, that this eminent scholar took time on short notice to describe such important decision-making. But I have two blunt reactions that frame the details below:

First, this doesn't look like presidential leadership, no matter what the rationales. Voters "hired" the Obama team to lead the country, not fret about possible retaliation. No one wants to see an assassination or coup. But the kids fighting Mideast wars, like those in wars before them, have no guarantees -- or even Secret Service protection.

Our country has a long history that the President is the boss, not the military or the covert agencies. President Eisenhower stood up for this principle time and again, including in his Farewell Address in 1961 warning of the dangers of the "military-industrial complex." So did President Truman when he fired the popular General MacArthur over different strategies for the Korean War. As for Republicans, the Democratic President Johnson knew enough not to treat them any better than his friends -- whom he treated terribly many times.

Second, shouldn't such an important matter have been revealed long ago? The mainstream news organizations, courts and Congress are supposed to be ferreting out this kind of information.

Here, it took an anti-war activist asking the right question during Q&A at a law school forum to bring the tale to light. I suppose that's inspirational in a sense: Perhaps it's like a destitute blind person stumbling on a bag of money and finally, with the help of kind strangers, being able to afford an eye operation. But is this really the best procedure?

You be the judge.

First, we summarize below what happened. Those interested in more historical background and related controversies can find them on the longer version of this column cross-posted today on the website of the Justice Integrity Project, the non-partisan legal reform group I lead.

Overview

Longtime peace advocate Susan Harman, a Californian, 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, above, a former Justice Department attorney with stellar career credentials but a notorious reputation for his legal justifications for waterboarding terror suspects and similar Executive Branch abuses.

Harman shared her observations Friday by email and Google Groups with our Justice Integrity Project and others. David Swanson, the prominent antiwar activist, wrote a blog noting that accountability under the law was a top concern of Obama supporters, as illustrated by the incoming administration's own 2008 poll of supporter suggestions.

Around that time, I published my first blogs in a series of Huffington Post and OpEd News columns. The first chronicled my fond hopes for Obama, with a scoop about "Why the President "Stepped Out' During His Inaugural Parade." Next was a call for the new administration to "Probe the Past to Protect the Future." Finally, and more ominously, came my reports on the huge scandals involving the Bush Justice Department's frame-up of former Alabama Gov. Don Siegelman, his state's most important Democrat. His persecution, like those of many other Bush-Rove political victims, continues under the Obama Justice Department.

Summing Up

With this context, last Friday's Boalt Hall forum provides vital new insight on why the White House and Justice Department have been so disappointing in responding to public demands for accountability for injustices, particularly for clear-cut cases during the Bush administration that carry fingerprints of malefactors such as Rove and Yoo.

Let's start with Harman's account below of her comments during the audience Q&A segment at Boalt Hall's forum Sept. 2:

I said I was overwhelmed by the surreality of Yoo being on the law faculty . . . when he was singlehandedly 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. According to her account: "He shrugged and said they will never be prosecuted, and that sometimes politics trumps rule of law."

I wrote Edley to confirm Harman's quotations, which he did. 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 bulletin-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."

Much as I appreciate his efforts to provide these expert, behind-the-scenes insights, I'm afraid I'm more comfortable with a few basic rules:

First, the U.S. president should be a fearless leader who enforces our laws with a passion for justice, to the best of his ability. Many in the justice system -- both intrepid government agents and taxpayer-protecting whistleblowers alike -- are risking their health, money and even lives on a frequent basis. Why shouldn't those at the top?

Second, as one who works a block from the site on Pennsylvania Avenue where Lincoln's assassins planned their crime (where the Newseum is now located), I'd suggest that any conspirators against today's elected leadership should be prepared to pay a similar and rapid price to the hangman; Third, academic freedom is 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 a democracy, I'm not the first to stress that our highest office does not go by the title Senator, Justice or even President. Instead, it's "Citizen."