No One's Above the Law

Still from Amnesty film on waterboarding

Still from Amnesty film on waterboarding

Last Thursday the Washington Post columnist and Bush administration speechwriter Marc Thiessen launched a vitriolic attack on Amnesty International for advocating for former President Bush’s arrest during a trip to Africa.

Amnesty urged officials in Ethiopia, Tanzania and Zambia to detain Mr. Bush so that his role in ordering the torture of detainees in US custody could be properly investigated. Thiessen called for official Washington to shun Amnesty for taking this position, which he said took the organization out of the political mainstream and into the fever swamps:

“Conservative groups concerned with freedom, democracy, and human rights should similarly refuse to work with Amnesty. The group should pay a steep reputational price for stupidity such as this. If Amnesty wants to behave like a left-wing fringe group, it should be treated as such.”


Obama Through the Looking Glass

The withdrawal of Dawn Johnsen’s nomination to Head the Office of Legal Counsel (OLC) at the Department of Justice in the same week that the White House publicly authorized the targeted killing of US national Anwar al-Awlaki marks a new low in the human rights record of the Obama administration.

Dawn Johnsen was acting Head of the OLC during the Clinton administration and is a respected law professor at Indiana University. No aspersions have been cast on her past performance in government or on her legal competence.

The principal complaint made against Johnson’s candidacy was that she raised her voice in protest at the Bush administration’s attempt to provide legal cover for torture. It was insinuated that this might make her soft on terrorism.

Johnsen’s withdrawal came within days of an appearance of the Head of the CIA’s National Clandestine Service, Michael Sulick, at an event at Fordham University. In response to a question regarding the possible impact of the Obama administration’s prohibition on waterboarding Sulick commented:

“I don’t think we’ve suffered at all from an intelligence standpoint.”

So it would seem Johnsen’s stand was both principled and practical but rather than make this case both the Obama administration and Congressional Democrats opted instead to abandon her to the wolves.

What a contrast to the steadfast protection the principal authors of the torture memos, John Yoo and Jay Bybee, have received from the White House over the past fifteen months.

The President has resolutely stood fast against calls for a wide-ranging investigation into the torture practices of the Bush administration. A damning disciplinary report by the Department of Justice’s Office of Professional Responsibility was watered down to the point of meaninglessness.

The world has surely gone crazy when morally bankrupt lawyers can pervert the law and go on to high paying jobs in academia and the judicial circuit, but an individual who had the moral courage to criticize their behavior when others about her were running for cover has her career cut short.

The past eight years demonstrated all too graphically how important an organ of government the Office of Legal Counsel is. It can be a bulwark for liberty or a powerful instrument for abuse.

This is not a position for a consensus builder or a political weathervane. It is a position that requires unimpeachable integrity. It is a position that should be filled by a candidate who stood up for what was right when it was unfashionable to do so.

There are not many names left on that list.

The Canary in the Coalmine

As the Justice Department’s Office of Professional Responsibility prepares to release its long awaited report on former Office of Legal Counsel deputy John Yoo’s alleged abuse of his office, there has been a renewed interest amongst political commentators in prosecuting human rights abuses committed as part of the Bush administration’s war on terror.

Writing for The Daily Beast Scott Horton, a law professor and commentator who has consistently led calls for such prosecutions, noted:

“It is widely suspected that the memos were requested as after-the-fact legal cover for draconian policies that were already in place… If the Justice Department internal probe concludes this is the case, that could have clear consequences for the current debate surrounding the Bush administration’s accountability for torture.”

The release last week of previously classified Justice Department memos written by Yoo, including a memo offering guidance on the handling of War on Terror detainee Jose Padilla, has further blackened his reputation and bolstered calls for his prosecution.

In the Huffington Post Monday, the widely respected trial lawyer Martin Garbus contributed a passionate call pushing for prosecutions over truthfinding, noting that senior members of the Bush administration violated some clear specific crimes.

Garbus expressed concern that the political establishment – both left and right – might have vested reasons for not digging too deeply in the course of a commission of inquiry. He particularly questioned House Speaker Nancy Pelosi’s equivocations regarding the extent of her own knowledge of the Bush administration’s use of torture.

“I don’t have a religious faith in the majesty of the law. It is just the far best alternative… At the end of the day, I would rather have American jurors, bound by the Constitution and the law, make the decision rather than politicians or unelected blue ribbon commission members. I would rather have judges, bound by precedent and law, determine what is, and is not legal.”

So watch this space. Prosecutions remain very much in play and John Yoo is likely to be the first target. In Horton’s words:

“For the legacy of the Bush administration, John Yoo is the canary in the coalmine. He is the most public face attached to policies he facilitated but did not originate. Yoo’s problems today may well become their problems tomorrow.”