Advisors for President-Elect Barack Obama feared the new administration would face a coup if it prosecuted Bush-era war crimes, according to a new report out this morning.
Christopher Edley Jr., law dean at the University of California and a high-ranking member of the Obama transition team, made the revelation during a 9/11 forum at his law school on September 2. Andrew Kreig, director of the D.C.-based Justice Integrity Project, reports that Edley's comments were in response to questions from Susan Harman, a long-time California peace advocate.
Edley apparently tried to justify Obama's "look forward, not backwards" policy toward Bush-era lawbreaking. Instead, Kreig writes, Edley revealed the Obama team's weakness in the face of Republican thuggery:
Edley's rationale implies that Obama and his team fear the military/national security forces that he is supposed be commanding--and 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 responded to our request for additional information by providing a description of the transition team's fears, which we present below as an exclusive email interview. Among his important points is that transition officials, not Obama, agreed that he faced the possibility of a coup.
In their prepared remarks, speakers at the Cal law school, known as Boalt Hall, repeatedly called for accountability and support for the rule of law. Based on the Obama administration's record on justice issues, Harman said she found the comments "surreal."
Former Bush Justice Department official John C. Yoo, known as the "torture memo lawyer," serves as a faculty member at Boalt Hall, perhaps making the occasion seem even more surreal.
Harman decided to ask some tough questions--and she received news-making answers. Reports Kreig:
Edley responded that Obama’s team feared that leadership in the U.S. armed forces, the CIA and NSA might “revolt” if the new Obama administration prosecuted war crimes by U.S. authorities and lower-ranking personnel. Also, Edley told Harman that his fellow decision-makers on Obama's team feared that a prosecution inquiry could lead to Republican efforts to thwart the Obama agenda in Congress.
Harman shared this account by email and Google Groups with our Justice Integrity Project and others. Among recipients was David Swanson, an antiwar activist who since last January has been organizing a grassroots effort to replace Obama on the Democratic 2012 ticket.
Here is Harman's account of what transpired on September 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.
Then 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).
Afterwards I told him that CIA friends confirmed that Obama would have been in danger, but I added that he bent over backwards to protect the criminals, and gave as an example the DOJ’s defense (state secrets) of Jeppesen (the rendition arm of Boeing) a few days after his inauguration.
He shrugged and said they will never be prosecuted, and that sometimes politics trumps rule of law.
“It must not," I said.
“It shouldn’t," he said, and walked off.
This is the Dean of the Berkeley School of Law.
Kreig sought a response from Edley, who confirmed the comments that Harman reported. Here are several points Edley made in his written reply:
Thanks for the opportunity.
1. You can read about the Miller Institute at http://www.law.berkeley.edu/1194.htm. The faculty cochairs of it are me and Prof. David Caron, who also happens to be Honorary President of the American Society of International Law. I don't know why Ms. Harman thinks Professor Yoo has received a "promotion" or special position.
2. I didn't hear anyone burbling. I think the panelists, along with me, were perfectly cogent and articulate. I've also written about it to my students and alumni several times. Ms. Harman strongly disagrees. She did not specifically engage our points about academic freedom, including the McCarthy era precedents. Those examples are especially important to Californians for whom the ugliness of that era had special significance for Hollywood and state universities. Remember, too, that Berkeley was the home of the Free Speech Movement.
3. Ms. Harman accurately conveyed the substance of my comment about the Obama Transition. I'd add three points: 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.
4. 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.
5. 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.
6. 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 caselaw. Does 3 out of 9 make it extreme? If so, then a lot of my heroes are or were "extreme."