If you can think back all the way to January 2009, back when wars were ending, Guantanamo was closing, the Pentagon was getting oversight, employees were going to have free choice, the rich would start paying taxes, the air would be getting cleaner, and so forth, you'll recall that the Obama transition team was acting super populist and high-tech.
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?"
-Bob Fertik, New York City
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. And he reports two other reasons for the decision to let all the war criminals off and devote vast energies to protecting them and covering up their crimes. The first of the two reasons is not terribly shocking: the CIA, NSA, and military would revolt if their crimes were exposed and prosecuted. This explains the cover-up portion of the past two-and-a-half years' immunity-granting campaign particularly well. It fits with the known record, which has included seven former heads of the CIA publicly writing to President Obama to tell him not to prosecute torturers in the CIA.
The second reason, we're now being told, was that if laws were enforced against Bush, Cheney, or their subordinates, the Republicans in Congress would retaliate by trying to block any useful piece of legislation. This is sort of morbidly funny in that the Republicans in Congress have spent the past two-and-a-half years trying to block any useful piece of legislation and many horrendous ones as well. They've just done it with the background hum of war criminals on promotional book tours. This explanation fits with the theme of "looking forward, not backward." Just as House Judiciary Chairman John Conyers told us in 2008 that it was more important to elect Obama than to impeach Bush or Cheney (as if you couldn't do both), Obama's preference in early 2009 (and in 2008 when he had told Will Bunch the same thing) was for looking forward to the passage of hideously corporatized legislation rather than enforcing laws against anyone powerful (as if you couldn't do both). Nonetheless, there is something jarringly pathetic about the notion that Dick Cheney is unindicted because Barack Obama was dreaming of a working relationship with the party Cheney had left behind in Washington. This shouldn't be as jarring now as it might have seemed in 2009, however, after watching Obama "negotiate" away anything Republcans opposed in any number of areas.
So, who is the source of these belated explanations?
The Dean of the University of California at Berkeley Law School Christopher Edley, Jr. His comments will probably be showing up on video, but here is a report I was just sent by long-time peace and justice activist extraordinaire Susan Harman:
"World Can't Wait (in orange) and I (in pink) attended a surreal panel on 9/11 today at Boalt (UC Berkeley Law School), where John Yoo teaches.
"That should be surreal enough. But (unintentionally, I think) each of the panelists mentioned one of Yoo's policies (warrantless domestic surveillance, aggressive war, and that old favorite, torture). One even talked about the need for accountability. I felt dizzy, and could barely speak.
"I said I was overwhelmed by the surreality of Yoo being on the law faculty, and having just been appointed the new head of the sponsoring Miller Institute for Global Challenges and the Law, 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.
"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."
Another approach was taken to the divergence of official conduct from clear demands of morality by an activist at Berkeley in 1964 named Mario Savio, who said,
"There's a time when the operation of the machine becomes so odious -- makes you so sick at heart -- that you can't take part. You can't even passively take part. And you've got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus, and you've got to make it stop. And you've got to indicate to the people who run it, to the people who own it, that unless you're free, the machine will be prevented from working at all."