Last Friday, the administration conceded yet another political defeat by withdrawing the nomination of Dawn Johnsen, Obama's first nominee to head the Office of Legal Counsel - the government agency made infamous by the likes of John Yoo, Jay Bybee, and other lawyers who authorized torture under the Bush Administration.
The withdrawal of Johnsen's nomination is galling, given the principal issue motivating her opponents: Johnsen's principled stance on executive accountability for torture.
Senior executive officials, some of whom still remain in the government, stand accused of being - and appear from unearthed documents and their own public statements to indeed have been - complicit in torture. Yet none of them has faced justice for alleged crimes that, according to experienced interrogators from the Air Force, Army, CIA and FBI, helped cause the deaths of thousands of US servicemembers, as well as untold numbers of Iraqis and Afghanis.
As long as they remain unanswered, these allegations show a disregard for the law at the highest levels of not one, but now two, administrations and continue to undermine the legacy of human rights responsible for our nation's once vaunted international reputation.
Johnsen's stance for executive accountability was not merely principled but also the only defensible position to take within the bounds of international law - which the Obama administration continues to violate by overlooking torture and sweeping voluminous evidence of it under the rug. The Convention Against Torture is clear: All credible allegations of torture must be investigated, as a matter of law, without the discretion normally afforded to prosecutors. Investigating officials who authorized torture would represent not an act of political retribution but rather a neutral process compelled by the law. It is the free pass given by the Justice Department to politically connected criminals that reflects the subjugation of law by politics.
Our nation's criminal justice system balloons with 25 percent of the world's prisoners, funded by resources taken from programs addressing vital social needs such as education and health care. But the millions of Americans facing its draconian penalties include none of the senior officials who apparently stand above the law.
Prosecution is also compelled by the facts. Some observers, including bar associations waiting to resolve ethics complaints about the sheer incompetence apparent in "the torture memos," have deferred to the Justice Department, which recently released the findings of an investigation. Led by the targets' former colleagues, it predictably reflected meek hand-wringing, rather than anything resembling an impartial analysis.
The Office of Professional Responsibility (OPR) report exonerating government lawyers who authorized torture is, at best, based on unsupported factual presumptions favoring the targets, since the OPR itself concluded that "most" of John Yoo's emails "had been deleted and were not recoverable" by investigators. In the face of continuing secrecy, without any knowledge of the actual facts, OPR essentially presumed that Yoo & Company committed no violations of legal ethics.
Yet no one has even examined whether those same officials committed violations of international, constitutional, and federal statutory law - as they appear to have done on numerous occasions. For instance, they authorized a secret NSA program held unconstitutional by every federal judge ever to review it, before a Democratic Congress later threw out longstanding laws and gave presidents (from both parties) the power to spy en masse on the emails and phone conversations of law-abiding Americans.
An unprovoked war supported by their theory of limitless executive power led to the deaths of US service members, at the hands of militants recruited by calls to oppose human rights violations by CIA and DOD agents - pursuant to a torture policy that those same officials authorized, despite its clear international illegality and obvious unconstitutionality.
There is more. Last week, news emerged from an insider leak that for years, detainees have been held at Guantanamo Bay despite being known to be innocent. Claiming that the detainees represented "the worst of the worst," the Bush administration aimed to justify departures from the rule of law, such as indefinite detention without trial and even torture - while citing cases whose facts demonstrated precisely that such lawlessness begets abuse.
While US Attorney John Durham's limited investigation into junior CIA agents offers some hope, it will not lead up the chain of command without an active effort by the attorney general. But in the face of the White House's commitment to covering the CIA's criminal trail, Attorney General Eric Holder is unlikely to gain an internal mandate to prosecute senior decision-makers, and may ultimately follow other officials in a mounting exodus from the administration's senior legal ranks.
The contrast is stark. On the one hand, officials accused of deliberately violating international and federal law, and against whom strong evidence suggests guilt, are allowed to draw paychecks from taxpayer dollars through senior positions in the government and public universities, without any scrutiny from a justice system that routinely imprisons people of color en masse for vastly less severe offenses.
Meanwhile, a stalwart champion of constitutional standards, a veteran of the very office she was nominated to lead, is denied the chance to serve her country because she insists that the law should be applied equally.
Elected to enact "Change you can believe in," the administration has instead opted to entrench the worst of Bush & Cheney's abuses, effectively inviting more torture around the world by every despot eager to claim the Yoo-Holder precedent.
As the latest casualty of DC's institutional commitment to lawlessness, Dawn Johnsen joins a growing chorus of former White House and Justice Department officials. Their unfortunate departures from Washington serve as potent symbols of the Obama administration's continuing refusal to follow its campaign promises to restore the rule of law.