Obama Team Feared Coup If He Prosecuted
War Crimes

By Andrew Kreig, Justice Integrity Project

09 September 11

resident-Elect Obama's advisors 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 on Sept. 2 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 lawbreaking that the president-elect announced on a TV talk show in January 2009.

But 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 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 "revolt."

Overview

As the nation approaches the third anniversary of Obama's election, many of his proposals have been thwarted by Republicans in Congress despite his cave-in on a wide variety of justice issues. His poll numbers have rapidly dropped this year, including results reported Sept. 6 by two polls putting his approval rating at 43 percent. To top it off, former Vice President Dick Cheney, who left office with a 13% approval rating in one national poll, is now staging a comeback. Cheney's return to the public arena includes his boasts during his book tour about the supposed legality of his never-investigated Bush-era initiatives. These have long been suspected as criminal under U.S. and international law, with potential execution for violators.

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. The former Justice Department attorney is nicknamed by war crimes critics as the "torture memo lawyer" for his legal justifications for interrogation techniques for those suspected of terror. Also, Harman believed last week that Yoo advised the Miller Institute based on a still current listing on Boalt Hall's website. But Edley responds that he co-directs the institute with no special status for Yoo. Edley is a former White House aide and otherwise a major player at high levels in legal and political circles. He was so high-ranking on the transition team that Janet Napolitano, Arizona's governor and now Homeland Security secretary, was listed six spots below him.

After the forum, Harman described the prepared remarks by Boalt Hall speakers calling for accountability, human rights and the rule of law as being so "surreal" in such circumstances that, "I felt dizzy, and could barely speak" during Q&A.

But she did ask questions. 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. Swanson published, Insider Tells Why Obama Chose Not to Prosecute Torture, the only such blog or news report I've found of Edley's explanation of how Obama decided justice issues. Swanson's blog recalled 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. Here is Swanson's description of the Obama transition:

They had questions from ordinary people for the President Elect submitted on their website and voted up or down. The top question at the end of the voting had come from Bob Fertik of Democrats.com and it was this: "Will you appoint a Special Prosecutor - ideally Patrick Fitzgerald - to independently investigate the gravest crimes of the Bush Administration, including torture and warrantless wiretapping?"

Not only was the answer no, but it had to be inferred because President Change U. Wish refused to answer the question. I've always assumed I could guess why: a president wouldn't want previous presidents subject to the rule of law, because then he would be too. Just this week I was suggesting that allowing the Justice Department to enforce laws against Cheney could save Obama's electoral prospects at the risk of seeing Obama, too, land in prison some day. I have no doubt that this really is a factor. However, we now have an account from someone involved in the decision process way back when.

In similar fashion, I published on Huffington Post an Inauguration Day scoop: Why the President 'Stepped Out' During His Inaugural Parade. The front-page column extolled the new president's "ability to mix action with powerful symbolism" as he emerged from his limo to walk on foot and thereby honor national traditions exemplified by the National Archives, Navy Memorial and Justice Department....

But that hopeful start gave way to a warning and then scandal. My next Huffington Post column, Probe the Past to Protect the Future, argued for the new administration and Congress to protect the nation's legal traditions by investigating suspected law-breaking under the Bush administration. That set the stage for an investigative report on how the Bush Justice Department framed Don Siegelman, the Democratic former governor of Alabama, on corruption charges with the connivance of the federal trial judge: Siegelman Deserves New Trial Because of Judge's 'Grudge', Evidence Shows.... $300 Million in Bush Military Contracts Awarded to Judge's Private Company. The Obama Justice Department has abetted the frame-up every step of the way, creating a huge mystery about its motives and alarming former Obama supporters across the nation.

Justice Accountability As 2012 Campaign Issue

Since then, justice and accountability issues have become important wedge-issues (along with jobs, the economy, war policies and environment) in dividing Democratic factions. To take one example, more than 1,200 environmental protesters against Obama policies have recently been arrested outside the White House. That's the forerunner of much larger protest demonstrations planned during the next two months near the White House on a variety of issues. Congressional Black Caucus leader and former House Judiciary Chairman John Conyers (D-Michigan) has encouraged those seeking to protect Social Security and Medicare to aim their protests at the Obama White House since, in his view, they are the prime actors in setting the scene for bipartisan agreement on cuts.

The issue of accountability for Bush-era lawbreaking resonates especially strongly in some quarters, with crossover appeal beyond party lines. The above-mentioned question in 2008 by Bob Fertik received some 22,000 votes on the Obama transition website, some 3,000 more than the next highest vote-getter in the Obama team's poll.

Similarly, a list-serve run by Alabama Democrat Pam Miles that reaches tens of thousands of Democratic voters around the nation was abuzz last weekend with grassroots opposition to Obama on a variety of issues. Miles is a tireless advocate for Democratic causes and candidates. She started her list because of the Bush frame-up on corruption charges of her state's most recent Democratic governor, Don Siegelman. One reader is the intrepid Alabama blogger Roger Shuler, who last week posted on his Legal Schnauzer site a citizen's guide to self-protection from anonymous threats of the kind frequently sent his way. Shuler's near-daily investigative commentaries include scores about the imprisonment of Mississippi trial attorney and Democratic donor Paul Minor on corruption charges, a victim of a cruel, Siegelman-style frame-up by the Bush administration. Over the weekend, Shuler posted this comment about the Obama administration's reaction to the many injustices in the legal system that Shuler has chronicled in the Deep South:

Obama's first betrayal came before he even took office, when he said he would "look forward, not backwards" on Bush-era crimes. That meant he was going to sell out the victims of torture and political prosecutions, the U.S. attorneys who were unlawfully fired, and so on. He's been selling out ever since. One of our political parties must believe in the rule of law; Republicans obviously do not, so it's up to Democrats.

Obama should be forced out and replaced with a Democrat who believes in the 14th Amendment protections of due process and equal protection. The erosion of those protections is what led to the Siegelman and Minor cases. Obama's refusal to examine such abuses indicates he is not fit to be president. He took an oath to uphold the constitution - and he has not done it from day one. I, for one, will not go to the polls in November 2012 if he is the Democratic nominee and there is no viable third-party option.

As a reaction to such comments, some of the Miles list-serve readers continue to post pro-Obama comments and denounce the president's critics as fools and ingrates. Another reaction was by Steve Walker, the Democratic National Committee Southern Regional Coordinator for the Obama re-election effort: He bluntly demanded this weekend that Miles remove him from her distribution list, saying he was not interested in postings by those who believe Obama has failed. She promptly complied and sent an apology, explaining that she was under the impression that he'd asked to be included. Loyal also to her readers, she posted the correspondence as a news item. That enables bloggers and Democratic grassroots sympathizers around the nation to observe first-hand how the Obama re-election campaign, like most such efforts, apparently relies on top-down messaging to voters, with scant interest in meaningful feedback.

Summing Up

With this context, last Friday's Boalt Hall forum provides important new insight on why the White House and Justice Department have, in effect, ignored countless news reports and what must be hundreds of thousands of reader phone calls, letters and emails seeking accountability for Bush-era injustices.

As a routine precaution, our non-partisan Justice Integrity Project wrote Edley to confirm Susan Harman's quotations, which he did.... Also, we invited Edley, Yoo and the DNC's Walker to provide any further comment. An addendum below includes the comments we have received. For now, read Harman's account below of her comments during the audience Q&A segment at Boalt Hall's forum Sept. 2:

I said 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 Adm. 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.

The Justice Integrity Project is a research and education initiative established in 2010 by concerned citizens to improve oversight of abusive prosecutorial and judicial decisions in the federal justice system.