By Andrew Kreig, executive director of Justice Integrity Project.



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, revealed the team’s thinking in moderating a forum on 9/11 held by his law school (also known as Boalt Hall).

Edley sought 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 series of Connecticut Watchdog columns published since last year, most recently July 21, revealing how two nationwide Obama probes of Bush-era law-breaking were compromised from the start and doomed to become whitewashes.

The separate probes of torture and political prosecutions were led by the prominent Connecticut federal prosecutors John Durham and Nora Dannehy, respectively. Dannehy has since become a top aide in the office of Connecticut Attorney Gen. George Jepsen.

This week’s revelations have a consumer focus in addition to legal and political implications. The story arose because Susan Harman, a California resident opposed to torture, asked Edley a question Sept. 2 at his forum and mailed his comments to me, among others.

The process raises a question to anyone who relies on our best-known national news-gathering organizations for political information: 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? Whatever the case on that, let’s examine the political implications. 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’s credentials and knowledge make him an authority. 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. Edley confirmed to me in an exclusive email interview Harman’s quotations, and provided additional information about the transition team’s concerns. Among his important points is that transition officials, not Obama, agreed that he faced the possibility of a revolt.

Here’s what happened: 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, a Yale Law School graduate and former Justice Department attorney. Yoo holds stellar career credentials in terms of scholarship and important posts, but is notorious in anti-torture and pro-privacy circles for authoring Bush-era legal justifications for waterboarding terror suspects and similar Executive Branch actions alleged to violate U.S. law.

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 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.”

That’s the gist of the story, which I published in two different formats. One on the Justice 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. Readers clicked 16,000 page views in 24 hours, with more than of them making comments in that time.

My first instinct as a longtime news reporter is to stop right here – and let readers make your own judgments about any larger implications. But we’re in a new world of blogs, where the mainstream is reluctant to cover this kind of story and readers are busy. So, let me address some of the reactions and provide my own.

First, it’s time for mainstream reporters to start doing their job on this story, now that it’s 2 and a half years old. Expand it. Debunk it. But don’t ignore an important issue. Those who care about due process in this country won’t. The same thing goes for Democratic critics appalled at the implied criticism of the president. Well, unlike Monica Goodling, the notorious Bush Justice Department executive during the Bush political purge of U.S. attorneys, I do not recall taking an oath of loyalty to the President. Instead, I published (above) a list of all the transition executives. If someone doesn’t think that Edley, at No. 6, knew what occurred let’s see others go on the record by name with their views, just as he did, thanks to Susan Harman.

As for the bigger picture, the U.S. president should be a fearless leader who enforces our laws with a passion for justice to the very best of his ability. Many who are protecting our liberty – including soldiers on the front-lines, government undercover agents, first responders, and taxpayer-protecting whistleblowers – 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?

To that end, President Lincoln is reputed to have said during the Civil War that he’d rather risk death than give up one star of the nation’s flag. As one who works in the nation’s capital a block from the site on Pennsylvania Avenue where his assassins plotted their crime and four blocks from Ford’s Theater, it seems appropriate to me that any conspirators against today’s elected leadership should be prepared, as he was, to pay the ultimate price, just they did. Boarding house owner Mary Surratt may even have been innocent, as Robert Redford noted last spring in his film, “The Conspirators.” But she swung with the rest.

Finally, 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, as I heard in my own studies at Yale Law School, 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.”