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Guest Post: Obama Team Feared Revolt If He Prosecuted War Crimes

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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.”

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85 comments

  1. tyaresun

    There are a zillion things he could have done that fall between prosecuting for war crimes and what he ended up doing. The POTUS has constantly used this strategy of justifying doing nothing by comparing it to ridiculously high alternative targets.

  2. Steve Roberts

    One President isn’t going to go after the people in a previous administration. It’s not politically feasible. Obama himself and his staff are assured they will not be prosecuted for their illegal drone attacks by the next administrations.

    Are Gitmo detentions illegal? Many have argued the military trials are unconstitutional. Reality is that nothing has changed. Gitmo is still open and Obama has re-opened military trials.

    Is torture illegal? Yes but all we’ve done is reverted back to our previous program of having foreign officials handle the dirty work while we direct the torture (Yemen anyone?). We may now be legal (maybe) but morally nothing has changed.

    We now have a drone base operating out of Yemen and are operating routine drone attacks in the region without Congressional authority and the media isn’t covering it. The lesson is that it’s wrong for the CIA to torture a terrorist or to hold them in a camp for military trial but it’s perfectly reasonable for the same CIA operatives to kill anyone they want from 10,000 feet up with a rocket.

    1. dcblogger

      One President isn’t going to go after the people in a previous administration. It’s not politically feasible.

      Why not? It happened in the Philippines, in South Africa, in Argentina; why not the US?

    2. Francois T

      “One President isn’t going to go after the people in a previous administration. It’s not politically feasible.”

      Under this premise, any holder of high office is free to become a dictator, law breaker and criminal of the worst kind.

      Why don’t you suggest a shredding of the COnstitution, as well as a total repudiation of the rule of law for the politically important and well connected?

      Oh wait! We’re already there aren’t we?

  3. dcblogger

    I think that Hugh is correct, Edley is just making excuses for his own complicity in torture.

    But let us consider the possibility of a military revolt against Obama. The critical military installations in the Greater Washington area. A successful revolt against an American President would require control of the Marine barracks in southeast DC, Ft Myer in Arlington, FT Belvoir in Fairfax VA, Andrews AFB, and Langley AFB. You would also need control of the Quantico Marine HQ in Prince William County. Last, but not least, you would need control of the Pentagon. And you would need control of all those resources, not just some of them.

    The only way you could have a coup in the US is to have a completely corrupt political system aided and abetted by a corrupt press and judiciary, which is what happened in 2000.

    By failing to prosecute war criminals now, Obama has increased the possibility that a future president will be overthrown by a military coup.

    We have a corrupt society and by employing Yoo Edley has made himself party to that corruption.

    Even if all the Joint Cheifs of Staff were prepared to overthrow a new President who came in on a landslide vote, they would have to depend upon enlisted men, NCOs, and junior officers to carry out such a coup. I just do not see it.

    1. Dave of Maryland

      At the time Obama could fill entire stadiums with people. Anyone who fears the military would dare overthrow that is too paranoid to be in office, or offering a cold, calculated excuse.

      1. dcblogger

        At the time Obama could fill entire stadiums with people.

        and many of those people would be enlisted service members or their family. not for one minute do I believe that a coup could have been carried out against Obama. And by bringing war criminals and banksters to justice he would have made himself look stronger. Republicans would have been far more reluctant to confront a President who was prepared to act as the sword of justice.

        1. Dave of Maryland

          The long term consequences of taking on the military might not have been so good, but long term, as Keynes said, we’re all dead. A skilled operator knows how to watch his back and manage the consequences of his actions.

        2. abprosper

          The consequences would have been instead of retiring a millionaire on banker money and having his kids guaranteed posh jobs, he would have had to live on his modest pension and some book deals and his kids probably would have had to work for a living at a modest upper middle class or middle class job.

          Since Obama’s ambition is well being part of the elite, of course he’d choose not to rock the boat.

    2. Jim Haygood

      Arguably a ‘silent coup’ has already occurred. The so-called USA PATRIOT Act, to take one example, constitutes de facto martial law, in that it trumps provisions of the Bill of Rights. So does the retroactively-authorized spying on Americans’ electronic communications. But the judiciary turns a blind eye to these obvious conflicts of law, in which the constitution is supposed to govern.

      As Garet Garrett used to say,

      There are those who still think they are holding the pass against a revolution that may be coming up the road. But they are gazing in the wrong direction. The revolution is behind them. It went by in the Night of Depression, singing songs to freedom.

      http://mises.org/daily/2726

      Something went wrong in the cover-up of the JFK assassination, and it happened again after OKC, and after 9/11. Vast bodies of damning secrets are now classified; even tens of billions in the national budget are concealed from all but a handful of Congressional leaders. Such secrecy is utterly incompatible with democracy, which is now just a convenient fig leaf on an authoritarian regime which does what it wants.

    3. Alfreda Weiss

      Last week Carolyn Kennedy released a statement from her Mother saying that she believed JFK was killed by some Texans and some in the US government. It was an easy coup. JFK was resisting Vietnam, LBJ was more than happy to go along and the cover-up was masterful. OK On with the conspiracy insults.

      1. nonclassical

        ..those who call JFK questions “conspiracy theory” havn’t viewed recent (1995) German digital clean-up of Zapruder tapes…which clearly show Kennedy hit from various angles.

        Those who don’t know about Deutche Bank (ex-CIA higher up employee “Buzzy Krongard”) optioo-puts place by “someone” there for $$millions days prior to 911, on American and United Airlines are not in the know on 911..

        Krongard was involved in CIA, then banking=Iran Contra while with banks (absorbed by Deutche), then after 911 landed at Blackwater:

        http://www.fromthewilderness.com/free/ww3/10_09_01_krongard.html

    4. Crazy Horse

      Americans are well known to have a memory span no longer that the viewscreen refresh rate of an I-Pad, but I’d expect better from those who lurk on this site.

      Have you forgotten that we have already had a successful political coup in this country? If the same thing had occurred in one of our neighbors to the South, Jimmy Carter would have flown in on his white horse and declared that the smell of rot permeated the air.

      Little bush ascended to the Presidency on the back of well documented massive voting fraud in the state of Florida, a state governed by his brother. When no amount of ballot stuffing could seal the deal, he was anointed by a Supreme Court stuffed with his father’s appointees.

      And of course his vice president Cheney/Vader was constitutionally prohibited from holding the office, as he was clearly a resident of bush’s home state Texas. I doubt if the founding fathers had in mind the ownership of a vacation home in another state used for two weeks of the year as sufficient grounds for ignoring a qualification that they considered important enough to write into the Constitution.

      When re-election time rolled around bush’s handlers had eliminated the sloppy problem of paper ballots in key states like Ohio and installed electronic voting machines designed so that the average 13 year old could hack into them and take control. Simple problem to win an election when you control the program—. Perhaps that explains why exit polls predicted results 10% different from the published final tallies? When discrepancies like this turn up in banana republics, it is considered solid evidence of electoral fraud, but of course everyone knows that the USA isn’t a banana republic.

  4. za

    Wondering aloud if rule by the MIC might not be preferable to the current rule of the banksters.

    At least under the MIC in the 60s, there were lots of jobs.

    1. Neo-Realist

      There were lots of jobs in the 60′s, but no cheap industrialised base to outsource to, nor technology to make workers obselete.

      There were plenty of body bags too, which might have been part of the price for the jobs.

  5. KnotRP

    “He shrugged and said they will never be prosecuted, and that sometimes politics trumps rule of law.”

    Looks like the Law “Profession” (though I see no sign
    of professionalism here) is going to commit
    the same act of suicide that has already
    taken down the Economics “Profession”.

    I wonder how much use post-collapse USSR societies
    had for lawyers and economists, since that’s where
    we appear to be headed. I suspect a lot of
    these white collar folks are in for a surprising change
    of career prospects, through their own neglect….

    1. KnotRP

      I guess while we’re building Funeral Pyre, we can
      using the Rating Agencies as kindling….

      The heat from burning professions is getting to be intolerable.

    2. SidFinster

      Actually, quite a lot. Law jobs, in particular have boomed in the post-Soviet sphere.

      It’s not that there are no laws – there are lots of laws, some well-intentioned, some archaic, some decent, some blatant rent-seeking. But all are confusing and all are capriciously applied. So every business needs good lawyers and good book-keepers.

      In the West, it is said that companies are really run by the secretaries. In Russia or Ukraine, companies are really run by the book-keepers.

      Often abused, underpaid and taken for granted, but the book-keepers know the byzantine accounting regulations companies here are required to follow. They also know where the bodies are buried, the slush funds, the rip-offs, the inflated pricing and tax dodges, the ways of hiding assets to jackroll creditors, the payoffs to officials and how to disguise them and so on.

  6. brian

    let the world court do the work the us political system prevents out legal system from

    at best/least
    a complete historical record
    an indictment
    and the refusal of the us government to extradict
    let them
    all of them
    die as indicted but unextradicted
    prisons at least of the borders of this country

  7. hello

    apologies for being snarky, but c’mon are people this naive?

    Team Obama, like all post-FDR administrations, have no qualms about expanding the role of the executive branch. Bush conveniently left behind a bag of executive power goodies. No way that Team Obama would undo W’s work.

    A President Clinton would’ve done the exact same thing.

    1. YankeeFrank

      Your cynicism, masquerading as realism, is one of the big problems in our society today. Claiming that we who expect the highest office holders to respect the rule of law are naive, denies the fact that its one of the first duty of a patriot to hold “leaders” accountable. This Edley fellow’s shrug says more to me than any words could’ve. Our society is morally bankrupt, murderous and callous, because we have too many who are willing to shrug… or the other type, who, feigning worldliness, belie their callow souls in the process of avoiding what to them is the greatest humiliation — to be called naive.

      Edley is a comfortable little man in his comfortable little limousine “liberal” enclave who knows how to play the game all too well. He has no wisdom and no moral courage in him, he just knows how to swim with the tide. Its no surprise he was on the Obama transition team.

    2. Jim

      I agree with you 100%, hello.

      The US did not get to be the Big Boy on the block by following international law, and President Obama knows it. To have prosecuted Bush administration officials would have resulted in compromising future military operations under his administration.

        1. nonclassical

          http://www.amazon.com/Killing-Hope-C-I-Interventions-II–Updated/dp/1567512526/ref=sr_1_2?s=books&ie=UTF8&qid=1316052957&sr=1-2

          http://www.amazon.com/Confessions-Economic-Hit-John-Perkins/dp/0452287081/ref=sr_1_1?s=books&ie=UTF8&qid=1316053003&sr=1-1

          http://www.amazon.com/Shock-Doctrine-Rise-Disaster-Capitalism/dp/0312427999/ref=sr_1_1?s=books&ie=UTF8&qid=1316053041&sr=1-1

          http://www.amazon.com/Power-Nightmares-Adam-Curtis/dp/B000ZI3G30/ref=sr_1_1?s=movies-tv&ie=UTF8&qid=1316053082&sr=1-1

          ..documentation of history is relevant..

          1. skippy

            Its almost a case of the *sociopath in waiting* dissed by all family members (see Europe), biding time, till individually their weakened (North Atlantic treaty stuff), then your the first to get the Bomb, one by one picked off (even russia, quasi family effort, peasantry don’t kill kings stuff), but, the wild card was china (religious fail), only for china to utilize their economic metric at its full potential, acquiescence ensues, donner party, everyone stuck in the same valley during a blizzard / long winter, cannibalism is the only recourse.

            Skippy…will fundamentalists absolve the survivors for their sins under pressure, history says yes, see moby dick.

  8. Shane

    He’s not prosecuting Bush’s war crimes because he’s too busy committing his own. Expect a lot of spin like this from Obama and his surrogates as they try to avoid blame as their political operation goes up in flames.

    1. Black Smith

      History books in 2100: Obama’s presidency was marred by the belief that banksters carried automatic weapons in their briefcases.

    1. YankeeFrank

      Its a different era now, not so easy to pull off. And even if they would’ve, the man swore to uphold the constitution and the laws of the land, and in order to avoid any danger he betrayed his oath before he even made it. Dying for a noble cause is better than living for nothing. Too many want the trappings and the power without taking on the responsibility. Our American failure is at root a failure of character.

      1. Neo-Realist

        The more overt means of neutralization are difficult to pull off without raising enormous suspicion and would in all likely hood not be used. There are many ways the so-called power elites can handicap a President when straying too far from their interests. Journalist Russ Baker at his website http://www.whowhatwhy.com and in his book Family of Secrets gets into how presidents are constricted by powerful institutional interests in governing the country.

        In no way shape or form am I surprised by the concern over the administration’s concern over the possible reaction from the MIC, CIA, etc.

  9. tejanarusa

    Professor Edley’s confirmatory remarks are even more appalling than his answers at the forum, at least regarding John Yoo. His understanding of academic freedom is different from mine; it has the ring of “if I don’t look [at candidate's previous work] I won’t have to know, and if I don’t know I won’t have to judge; if I don’t judge, I won’t have to take a position; without taking a position, I can be excused and safe.”
    How is a professor’s previous work not relevant? How is there “none” relevance to his teaching? I don’t want a kid of mine being taught in law school that torture is okay if the president says so, and I don’t believe that that principle will stay out of his teaching.

    As to fearing a military coup—who are these people who were so paralyzed with fear? A coup? In the U.S.?
    I’m reluctant to say it, but I wonder if it’s because few of the transition people had military experience, so they didn’t realize just how deep-seated the military belief in staying out of politics, in civilian command, is in THIS country.
    I’m no apologist for US military adventures, but if they could not understand the difference between the US and other countries where coups happen, they had/have no business being in government in any capacity.
    Unbelievable.

    And of course, as pointed out, they/he failed to comprehend that no matter what he did, the Republicans would oppose every damn thing he proposed anyway. And I’m not sure he gets it yet.
    That is not who I intended to elect with my 2008 vote.

    1. Sleeper

      If the Obama team is using this for a justification it is way off base.

      this is the classic bogey man in the closet arguement.
      It goes like this.

      You want to do what ? Open that closet door ?

      You can’t do that – the sky will fall – the heavens will shift – something terrible will happen – a bogeyman will be set loose.

      We don’t quite know what it is but it will be awful. Just don’t open that closet door.

      And after a few years of worry if not terror the closet door is opened to reveal a few dust bunnies and a rusty hanger.

      Sorry folks the operating words ought to be -apologies to Davey Crockett – Make sure you are right then go ahead.

  10. Middle Seaman

    The fear of revolt seem to lack evidence and seems to be based of scares and even being frightened individuals to start with.

    The history of this country doesn’t have revolts except for the civil war. The military and the intelligence community would have been upset, but they are committed to a civilian rule unless shown otherwise.

  11. hurumpf

    There are no Bush era “war crimes”. That is just Marxist agi-prop. They liberated million of people and killed a great may of our enemies. The Nation know this; why do you not know this?

    What filth you people are to through this out in the shadow of the 10th anniversary of 911.

    I can’t wait until Nov. 2012 when the American people show you how sick we the rest of us all are with Progressive perversity and treason.

    1. Binky the Bear

      Denial is the first phase. I’m seeing some rage coming as well.
      Wikipedia for Kubler Ross:
      Denial — “I feel fine.”; “This can’t be happening, not to me.”
      Denial is usually only a temporary defense for the individual. This feeling is generally replaced with heightened awareness of possessions and individuals that will be left behind after death.
      Anger — “Why me? It’s not fair!”; “How can this happen to me?”; ‘”Who is to blame?”
      Once in the second stage, the individual recognizes that denial cannot continue. Because of anger, the person is very difficult to care for due to misplaced feelings of rage and envy.
      Bargaining — “I’ll do anything for a few more years.”; “I will give my life savings if…”
      The third stage involves the hope that the individual can somehow postpone or delay death. Usually, the negotiation for an extended life is made with a higher power in exchange for a reformed lifestyle. Psychologically, the individual is saying, “I understand I will die, but if I could just do something to buy more time…”
      Depression — “I’m so sad, why bother with anything?”; “I’m going to die soon so whats the point… What’s the point?”; “I miss my loved one, why go on?”
      During the fourth stage, the dying person begins to understand the certainty of death. Because of this, the individual may become silent, refuse visitors and spend much of the time crying and grieving. This process allows the dying person to disconnect from things of love and affection. It is not recommended to attempt to cheer up an individual who is in this stage. It is an important time for grieving that must be processed.
      Acceptance — “It’s going to be okay.”; “I can’t fight it, I may as well prepare for it.”
      In this last stage, the individual begins to come to terms with her/his mortality or that of a loved one or tragic event.

      Kübler-Ross originally applied these stages to people suffering from terminal illness, later to any form of catastrophic personal loss (job, income, freedom). This may also include significant life events such as the death of a loved one, divorce, drug addiction, incarceration, the onset of a disease or chronic illness, an infertility diagnosis, as well many tragedies and disasters.

  12. A. Quintana

    This story is stupid. If Obama and crew were really as serious about opposition, he wouldn’t have continued the same policies, for which they themselves could also be persecuted under the same standard.

    If he had not persecuted but instead went in an opposite policy path, then you could make a case that this story is true. But not now. Not with his justice dept making the Bush era civil liberties violations worse. Not with the porno scanners and TSA sexually molesting people at airports. Not with increased drone attacks and military presence in the middle east. And definitely not with the unilateral and stupid military action in Libya. With the exception of the very bad health care stuff, everything has been basically a continuation of Bush II policies—Deficits, bailouts, war, lack of due process, and a general creepiness in regards to public security.

    In regards to the line at the end, “the highest office.” It is not “United States Citizen.” Please. If that was reality, then things wouldn’t be in the state they’re in. Thanks for the joke, though. Unintentional it may have been, I still laughed.

    1. scraping_by

      Of course it isn’t true in the “telling the truth” sense. It’s true in the “truthiness” sense. Just one more thread of Bush II that Barry has kept alive.

  13. wunsacon

    While I conclude Obama made the immoral choice, I think there’s some truth to this vague concern. I thought so a few years ago, even before Obama played his hand.

    When Obama won (unfortunately with my vote), I asked my wife: “But, the American people are still the same and mostly believe the same ideas as before. How likely will policy change?” Although Obama won, the fact is that many Americans — thanks to the amplifications by Murdoch News — would claim/interpret the prosecution of Republican crimes as “political” and ultimately “anti-American” vendetta. A tiny subset of right-wingers are prone to act out violently. Had Bush tried to prosecute Cheney and W, I suspect that tiny subset would be slightly larger than it’s been so far. As in all things I’ve seen from him so far (save his one-time appearance at the Republican Party), Obama chooses to be non-confrontational rather than stand by principles.

  14. ed

    Contempt-for-the-law is usually thought of as a characteristic of those who break the law and through influence or corruption expect not be prosecuted. But a worse contempt is shown by those whose job it is to enforce the law but who wont do it out of fear.

  15. Wharheit

    There are many nuanced meanings of the word “coup”. I suspect the kind of coup Edley was suggesting was not a violent overthrow of the government. It would more likely have been the kind where officials in the military and intelligence agencies started a virulent whisper campaign to Congress and a rash of leaks to the media calling into question any policy objectives that the Obama administration tried to implement. That sort of effort could cripple and administration just as effectively as removing them from office.

    1. Lyle

      To put it further Obama is not Harry Truman. Truman stood up to MacArthur. It is not possible to see Obama in the same situation firing MacArthur.

      1. ReaderOfTeaLeaves

        He fired McKrystal, who’d been head of JSOC, basically for insubordination. Bush would have turned it into a spectacle; Obama showed some dignity.

        I think the fear of subversion was probably well-founded. But it accommodates, rather than restores.

    1. Neal Deesit

      The late, great comedian Bill Hicks explains it all to you:

      “I have this feeling man, ’cause you know, it’s just a handful of people who run everything, you know … that’s true, it’s provable. It’s not … I’m not a fucking conspiracy nut, it’s provable. A handful, a very small elite, run and own these corporations, which include the mainstream media. I have this feeling that whoever is elected president, like Clinton was, no matter what you promise on the campaign trail – blah, blah, blah – when you win, you go into this smoke-filled room with the twelve industrialist capitalist scum-fucks who got you in there. And you’re in this smoky room, and this little film screen comes down … and a big guy with a cigar goes, “Roll the film.” And it’s a shot of the Kennedy assassination from an angle you’ve never seen before … that looks suspiciously like it’s from the grassy knoll. And then the screen goes up and the lights come up, and they go to the new president, ‘Any questions?’”

  16. Sauron

    C’mon people. Everybody knows it would never get to that point–he’d be scared off by his own shadow first.

    1. Sauron

      There once was a man named Obama,
      Who thought of change but didn’t wanna,
      He found any excuse,
      To sit on his caboose,
      And ended up doing nada

      1. wunsacon

        [Flashback to the acting coach watching Naomi Watts's character audition in Mulholland Drive]: “Goood. Verrrry good.”

  17. Fiver

    He may well have faced a “revolt” of some kind, even assassination, but all he needed to do was call a live press conference and lay it all out in front of the people, i.e., “Here’s what we’re going to do (prosecute vigorously), here’s what I expect from law enforcement, the military, etc., and here’s what I want YOU THE PEOPLE to do should there be any illicit attempt of any kind to block this.”

    This was and is all about treason, for crying out loud. If Obama could not personally stomach it, he should’ve resigned instead of endlessly losing at poker against himself.

    1. CaitlinO

      “it was thought that the CIA, NSA, and military would revolt”

      Did Edley confirm that he meant ‘revolt’ in the sense of coup d’etat? The military/intelligence community can easily cause an executive a great deal of trouble via resignations, leaks, intransigence, collusion with unfriendly members of the legislative and judicial branch, etc. It wouldn’t require an out and out putsch for an unhappy, determined military to make a president pretty immediately ineffective and unelectable.

      1. SidFinster

        Very good point.

        Even if “revolt” simply meant “mass resignations” without a hint of anything more, this could be very damaging. For that matter, even if noone resigned, it would not encourage military personnel to obey orders from the Executive if they feared that the next Administration would initiate prosecution.

        Further, anything like a war crimes trial would also provide ripping propaganda for every Islamicist in Iraq or Afghanistan.

        This is not saying that Bush-era war crimes should not be prosecuted, simply noting that the matter may have unpleasant consequences.

  18. steelhead23

    Even from a purely political frame of reference, Obama’s decision to not only not prosecute these obvious crimes, but to not investigate and publicly disclose them was a massive strategic error (or perhaps not – see below). I also do not find the concept that leadership feared a coup to be credible. Obama’s popularity was enormous and the potential for a successful coup, literally nil. No, that excuse simply makes no sense at all and encourages the kind of thinking Matt Stoller has recently railed against – that Obama’s betrayal isn’t his fault – he’s a victim. The real reason had to be a fear that the Republicans would derail his agenda – which, as noted previously, they did anyway.

    But I don’t wholly buy that either. What Bush did, and Nixon before him, was to expand the authorities claimed by the Executive Branch under a theory now known as the Unitary Executive Theory. Could it be that the Unitary Executive Theory is so strongly attractive that Obama basically abandoned the limits on his authority presented in the Constitution in order to “get things done?” That is, might Obama have been seduced by the powers Bush had usurped and didn’t prosecute Bush for the simple reason that any legal decision adverse to BushCo would also be adverse to ObamaCo? No longer would these FISA and other authorities be claimable under the guise of ambiguity – there would then be new legal precedents and dicta, drawing a clear line, where the power hungry would prefer a fuzzy grey.

    Whether this decision was an political error with terrible implications on the rule of law, or the telltale signs of megalomania, only a few besides Obama will likely ever know.

  19. François

    It’s all well and good to defend academic freedom but this is not some law review article Yoo wrote; it was a series of actions that led directly to people being tortured and the international treaties being broken. The dean is being cowardly to say that it’s outside his university’s purview. Yes, these things should have been prosecuted but to point the finger and say, in effect, “Well they didn’t do anything so why should we?” is a cop out.

  20. BKM817

    President Zero, sums him up.
    He is one of the few people who will have have increased his net worth greatly during the depression. Zero is a pimp. Regrettably, the people of the U.S are his bitches.

  21. Some Bloke from Australia

    You’re doomed, Americanos. You’ll never elect a President with courage or integrity because of your fatally flawed selection process. You’ll just get another puppet that suits Rupert Murdoch and his mates. You’ll berate other countries for committing the same atrocities that you do, you’ll continue trashing the world financial system, and you’ll put out your crap Law & Order shows.

    It’s up to other countries to break the shackles from the US, but unfortunately Australia elects American lap dogs just as regularly as other western countries.

    So, we’re all doomed.

    1. different clue

      Thank you for your concern about our welfare. Good luck on breaking free from those shackles or whatever. In the particular case of Australia, breaking free from those shackles won’t help you anyway.

      Why would I say that? Because you Australianoids base much of your economy on shovelling coal for Satan (selling coal to China). China burns the coal you sell and puts the CO2 in the atmosphere you live under. The coal you sell to China helps warm the global. Australia will become a sterile desicated Venusian hell-continent in due course because you are busy replacing your shackles to America with shackles to China. Your global warming heat-death-doom is separate and very much your own. Ta Ta and good luck.

  22. K Marquard

    They feared the military, CIA, etc. would revolt if they investigated and prosecuted war crimes? Really?? That might have been a valid excuse in 1980′s Turkey, but why in the hell is it a valid excuse in 2010′s US?

  23. tralaka

    We live in a country of lame duck politicians and leaders who give more support to their side lovers more than the legal voting citizens who built this country with hard sweat and blood and a whole lot of tears.
    I Do not like either side democrat’s or republicans they are just different sides of sleeping with the same crazed demon lovers . So much of the tea party is such a joke and inputs from both sides to make the tea party to keep turning the tea party inside out and a laughing stock.
    I was kidding a person the other day –telling him that the earthquake on the east coast was our founding fathers loathing in hate for what our politicizations and hidden agenda’s have done to this once GREAT NATION Illegal wars.illegal drug trafficking within our Government,Illegal guns sales by our Government to criminals in other countries.Letting our country get burned by fires one state after another and not allowing the citizens to help put it out.Not stopping the oil wells still disrupting /leaking in the gulf of Mexico. not addressing more seriously the issues of traffic controllers sleeping on the Job.Not telling the truth about the radiation flowing into this countries air on the west coast and Canada

  24. tralaka

    Maybe it is getting to the Time where Patience for waiting for the President and leaders to get serious about America and its need has been to long
    Perhaps it is time to do a nation wide walk out of work and let them know on a personal level from every legal voting citizen– enough is enough get serious about their sworn job. or We the people united will put in a system which we the people feel will work better– because of what we have had for so long system is been pronounced dead long ago.
    Throw out both parties from capital hill and replace it with a system which is not ILLEGALLY CONTROLLED BY N.W.O. OR MASONS OR KNIGHTS OF COLUMBUS.ETC. OR ANY OTHER OF THE WANT-A-BEE HIDDEN GROUPS WHICH SERIOUSLY NEED TO GROW UP AND GET A LIFE– OR AS THEY SAY IN THE CHEESE STATE–GET A GRIP!!!-
    WE HAVE PLENTY OF INDUSTRY LEADERS WHO ARE OF GOOD NATURE AND TRULY GOD LOVING WHO COULD DO THEIR JOBS IF THINGS GOT TO A FULL UPRISING AGAINST A FAILED ONCE AGAIN COUNTRIES leadership.

    1. Skippy

      “WE HAVE PLENTY OF INDUSTRY LEADERS WHO ARE OF GOOD NATURE AND TRULY GOD LOVING”

      Name a few, other than that why do you berate your industry leaders political picks, that they payed so much for…eh.

      Skippy…ohhhhh I get it, no middleman, no need to expend the lobbying dollars, revolving door appointments, the bribes, just take what is your god given right, so saith my wallet.

      It would be a refreshing reality, no more smoke and mirrors, does your master tell you he loves you too?.

  25. tralaka

    YOU can debate back and forth all you want yada yada yada but in the end the facts ARE still the Same .THE SYSTEM IS BROKEN AND HAS BEEN.YET WE KEEP “GETTING INTO OFFICE” PEOPLE WHO CAN BARELY READ A TEL-PROMOTER OR ARE SO REMOVED FROM OUR REALITY THEY JUST “DO NOT GET IT” AND SO THEY KEEP DOING AS THEIR TOLD BY THE HIDDEN PUPPET MASTERS WHO HOLD THE LEADERS STRINGS.
    we need a leader who is not afraid to fight the puppet masters to restore the Leadership of this country BECAUSE WE ARE A UNITED COUNTRY NOT A EMPIRE– AS OTHER COUNTRIES MAY RE-GUARD US AS.
    To restore honor and respect with other countries again and also honor within this country and countrymen(persons)
    Or as the late roman and Greek empires said–We will be doomed to repeat the same failure–
    The Governments has to get its fingers out of the public media and also stop with paying the BIG MEDIAS with our tax money.
    There was a time where misleading the public purposely by the media was wrong and their job was to report only absolute truths . ALSO INCLUDE GREAT THINGS INDIVIDUALS ARE DOING FOR THEIR COMMUNITIES.
    NOT THE ISSUED BY DIRTY MONEY NEWS WHICH NOW IS SO SLANTED EVEN A DRUNK THREE SHEETS TO THE WIND . WILL STILL KNOW IT DOESN’T SOUND TRUTHFUL
    COME ON CITIZENS. SURLY IN THE 21ST CENTURY WE CAN BECOME BETTER THAN THE SUMS OF OUR ERRORS PAST. WE CAN RISE TO THE OCCASION AND BE WARRIORS WITHIN PEACE WITHIN THE TRUTHS AND EARN A BRIGHT SPOT IN OUR NATIONS FUTURE HISTORY. OR WE COULD BE REMEMBERED IN HISTORY AS THE “BIG MISTAKE” IN WHICH THE CITIZENS SCREWED ITS OWN COUNTRYMEN(PERSONS) OUT OF MONEY/PROPERTY BECAUSE OF THEIR OUT OF CONTROL GREED AND LUST FOR POWER AND CHEAP THRILLS.——— WE HAVE A CHOICE NOW——— WHICH PATH WILL IT BE——–

  26. wodun

    Considering the actions of the Obama administration from renditions, assassination squads and going to war without the approval of congress, it is no wonder that he didn’t try and prosecute people from the prior administration.

  27. glassline

    Ok all you know it alls, riddle me this. As a point of discussion let’s grant Obama his good intententions. The calculation (political) that he made in not prosecuting Bush era war crimes seems to be similar to that of the decision to not prosecute the financial elite for the MBS frauds: that the resulting risk of collapse of major institutions would completely overwhelm the benefits of “justice served.” So in a nutshell, he is an establishment politician muddling through, kicking the can down the road, appeasing various powerful interests. Do you think his calculation was correct? My guess is that it was spot on. Look at the hysteria created by the attempts to close Guantanamo! That’s nothing! Prosecuting former administration members, CIA personnel, leaders of the military? It’s inconceivable, especially by the first black president. What powerful forces would Obama have on his side if he took on the MIC and the financial elite? I’m not being sarcastic here, how could he have possibly done this?
    To this day there are huge numbers of us citizens who gave been convince he is some kind if commie pinko.
    Yes, I think it’s tragic but the tragedies roots spread deep in our world. Putting this on one mans shoulders is ridiculous.

    1. aet

      There’s no Statute of Limitations applicable to war crimes. Times change.

      In contrast to any alleged crimes done by financial institutions and their agents and accomplices, which usually are subject to some such Limitations.

      Mr Obama will not be the only or the last President to need to make a decision as to whether or not ordering people to be tortured is a criminal offence under the laws of the USA, where the person so ordering is an appointed or elected Official of the US Government, acting so as to fulfill what they see to be their duties under the US Constitution.

      Other States shall make their own determinations.

      But I think no man ought to be in a position to judge their own case….

      1. aet

        In an ideal world, imho this could be one of those “convict-but-pardon” situations.

        In turn, that consideration may ground an exercise of prosecutorial discretion not to prosecute.

        OTOH, that is why individual States are NOT always trusted to prosecute “their own” war criminals – indeed, that is the very reason the International Criminal Court was established; and why war criminals are considered to be under “universal jurisdiction”. Those who CAN prosecute, MAY prosecute.

        1. aet

          I wouldn’t know what the correct course of action would be; and I am thankful I’m not the one needing to make any decision about it.

          But imho the bottom line as to undertaking the trouble of any such proposed prosecution – indeed, the same consideration applies broadly to the proposed prosecution of ANY offense – what good would it do? That is to ask: What benefit would undertaking the prosecution of this alleged offense yield?

          Or, is the quest for justice, as it is said of art, something to be undertaken for its own sake?

  28. indio007

    This no action is the type of lawyer behavior (highlighted by Edley’s last quoted paragraph) that highlight the difference between “illegal” and “unlawful”. The argument leaves the realm of reality and takes up the strawman taint of whether the views are extreme in a “legal” sense. WHO CARES! The arguments are “unlawful” in the customs and usage of mankind sense and should not be taught as acceptable.

  29. ep3

    Yeah Yves, it’s one thing to say “it wasn’t politically feasible to prosecute the previous administration”. But who’s decision was it to continue those acts? In fact, to increase some of those activities.
    Just read glenn greenwald to see how much “better” Obama is at following the rule of law.
    I like how Edley chooses 3 Supreme Court justices; i.e. Thomas, Scalia, and pick one at random.
    Finally, I think we all agree the US is no longer a representative democracy, it is an oligarchy. And the rule of law doesn’t apply to the oligarchs.
    What an amazing moment in history this is.

  30. Francois T

    Obama chose people to his image, didn’t he?

    Edley: “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.”

    Academic freedom trumps the rule of law and human life? Fucking great, Professor!!

    Obama: A frustrating thing to me about these protests on civil rights is that they’re not helpful. (For whom is this not helpful is left unanswered, of course!)

    Prez political agenda trumps the rule of law and human life? What an awesome legacy to leave this country, Bro!

    Is it any wonder the US is sliding backward? The so-called “best and brightest” have no moral fiber, nor the courage and attitude to do the right things.

  31. Francois T

    ““He shrugged and said they will never be prosecuted, and that sometimes politics trumps rule of law.”

    Hmm! Pray tell why? They were never put on trial, hence there is no case of double jeopardy here.

    Therefore, someone will need to explain to me what would prevent a future president to re-open this whole clusterf**k and decide that the national psyche needs closure.

    Finally, I’m not aware that prosecutorial discretion is the last word on a potentially criminal case.

  32. Nun

    Obama used this and other points to rally votes. Over the past few years he’s actually embraced many of the Bush policies he once complained about while campaigning. In other words, he doesn’t care about this issue. Only the author does.

  33. decora

    i find it funny that John Yoo gets a job at Berkeley but David Graeber was kicked out of Yale.

    then again, Doug Feith got booted from his university.

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