Wednesday, September 7, 2011

Obama Advisors Feared a Coup if the Administration Prosecuted War Crimes

Barack Obama

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."

Christopher Edley

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 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."


Anonymous said...

Hello, and thanks for posting this very important, telling, and utterly depressing insight into the current administration.

If true, and it certainly appears to be and is consistent with events, our republic is closer to its demise than even a cynic such as me feared. If the "security" agencies can literally get away with murder (as well as torture), and secure their impunity with the mere whisper of "coup", then the American Fascist State is on the stoop about to ring the bell.

Farewell Constitution, hello the New American Weimar Republic. Well, it was a good run of over 200 years - most governments don't get nearly so long.

Ishmael said...

Let's remember the context of these discussions. I point you to this article dealing with Treasury Secretary Hank Paulson's threats of Martial Law imposition during the TARP bailout process:

Additionally, remember that the Bush admin already had it's private mercenary Praetorian Guard in Blackwater who had made their bones confiscating legally-owned firearms from law-abiding citizens in New Orleans after Hurricane Katrina. That said, my personal opinion is that the greatest fear of the Bush admin was that ANY prosecutions of War Crimes and Torture would, inevitably, reach up the chain-of-command to the Executine Branch. After all, any prosecuter worth his salt, starts with the lower level criminals in a conspiracy and flips them to provide evidence against the higher levels of that conspiracy.

Anonymous said...

I had a feeling that Obama was scared of pissing off the "real" government in Washington, but I still think that he's doing exactly what he wants to do. He's a moderate to conservative republican, not a Democrat. The problem is that republicans have moved Washington so far to the right that Democrats don't have anyone representing us anymore.

Henry Pelifian said...

If this is accurate then we have entered a new dark age in American politics where the forces of dictatorship are forming, just as that "controversial" Gore Vidal said several years ago was occurring in this country. There is courage on the battlefield, then there is political courage, which appears to be waning day by day.

How Gore Vidal can be considered "controversial" when Bush 43 commenced two wars with the flimsiest evidence and irrational thinking with the backing of Congress is incredible!

jeffrey spruill said...


I'll always remember July16,2009 when I met Erik Prince's "Rent an Assassin Service."


"What we know now, if this is true, is that Blackwater was part of the highest level, the innermost circle strategizing and exercising strategy within the Bush administration," Schakowsky told The Nation. "Erik Prince operated at the highest and most secret level of the government. Clearly Prince was more trusted than the US Congress because Vice President Cheney made the decision not to brief Congress. This shows that there was absolutely no space whatsoever between the Bush administration and Blackwater."

Anonymous said...

Cross Posted at FIREDOGLAKE

Michael Cavlan RN September 7th, 2011 at 12:46 pm «

Of course it has nothing to do with the fact that Democrat Senator Dick Durban of Illinois, who was on the Senate Intelligence Committee knew that the Iraq War excuses of WMD lies were, well lies. Then Senator Durban repeated the lies.

Or that Speaker of the House Nancy Pelosi, while on the House Intelligence Committee also KNEW about torture. Yet said nothing. One could even surmise that she even approved of the torture.

It has got nothing to do with that, right? Why that might explain to the public that the Democratic Party leadership were complicit in said war crimes.

Might even explain why the Democrats were the ones who got in the way of Impeachment of Bush/Cheney.

choggs said...

Maybe he's justifying this "fight the power" mentality that we thought Obama had to take on the loyal Bushies.

and why do we refer to these Obama prosecutors as whitwashing when they themselves are loyal Bushies too. This will take a revolution at this point.

Is anyone watching Rupert Murdoch and Julian Assange. Hypocracy.

The gov't is censoring the information. Omg theirs so much evidence of it.

If Obama is afraid of a coup he's a coward in my eyes.

Did anyone check out the Alford Plea by the WM3

Anonymous said...

"If Obama is afraid of a coup he's a coward in my eyes."

I agree with that, but I also think that the "real" government gave him an offer he didn't refuse. Once he won, he was probably taken aside by a representative of the "real" government and told that he had three choices as a Democratic president: go down like JFK, get destroyed like Carter, or play nice and we'll treat you like Clinton. He chose the Clinton route...which is in HIS best interests, not the country's or the Democratic party.

Robby Scott Hill said...

This supports my belief that the President is not the Commander-in-Chief of the Armed Forces. The Pentagon is the boss of him.

Redeye said...

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.

Well, we see how that worked out. Snark

Anonymous said...

Liberal bankers bankrolled Obama into the White House and he has performed excellently for them. Both of these points are a matter of record at this point.

As Chris Hedges argues modern liberalism has lost it's moral standing in society because it had been bought and sold by corporate interests so often that it could offer no effective opposition to Bush Jr.'s regime.

Obama et al.'s inability to
effectively oppose torture or prosecute war crimes was the final nail in liberalism's coffin.

Edley's justification of Obama's behavior by saying Obama feared being politically bullied (no matter how true) just further illustrate liberalism's impotence and moral vacuity.

Morality requires courage! This is what liberals have forgotten in order to keep their 6 figure salaries.

jeffrey spruill said...

Only Jeffrey Immelt(Obama's job czar)Conrad Shumadine,Frank Batten Jr.....

& a few others know that the deck is stacked & the fix is in:

Quite an ingenious idea -- a coup!!

Choggs said...

Why is this coming out now? Does it have anything to do Issa calling for Holder to fired over fast n furious

Anonymous said...

In other words, America is effectively the reincarnation Imperial Japanese Empire, this time with H-Bombs.

I always did find it odd the way the collapse of Japanese democracy in the '30s has been so roundly ignored in American schooling and media, compared with the rather detailed examination generally given to Hitler's and Mussolini's rises to power in the years leading up to WWII.

If Japan is discussed at all it's usually as a caricature--little more than some vague implications that before the U.S. occupied it had always been a monarchical despotism going back into antiquity. Nothing about how a functioning democratic government was slowly and steadily marginalized and finally neutered and gutted by the military-security establishment ostensibly under its command.

I find it quite unsettling that this part of history is largely unknown to Americans, as the parallels with the U.S. since 2000 are, far, far more alarming than the Italian or German experiences. Almost as if the ground had been prepared for this long in advance...

legalschnauzer said...


I must admit I'm ignorant about this part of Japanese history. Thanks for bringing it to our attention. Any good books or articles you can recommend on the subject?