President-Elect Obama’s advisors feared in 2008 that authorities would oust him in a coup 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 advisors.
University of California at Berkeley Law School Dean Christopher Edley, Jr., left, 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 -- and 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 coup.
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 ja 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. 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 that 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 at the Boalt Hall forum, which was organized by the school's Miller Institute for Global Challenges and the Law. Boalt
Hall's faculty advisor 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 erroneously believed last week that Edley had named Yoo to be an adviser to the Miller Institute,
but Edley responds that he co-directs the institute. Edley, a former White House aide and otherwise a longtime player at
high levels in legal and political circles, was so high-ranking on the transition team that Homeland Security Secretary
Janet Napolitano, Arizona's governor, 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
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
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, portrayed from left to right in my photo at right. A finger points to the President and First Lady
(in a yellow dress), with both more clearly visible at the far left in my photo below. 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.
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 has been abuzz this 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 of many blogger readers 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 in a cruel and obviously unfair 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.
With this context, last Friday's Boalt Hall forum could provide 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 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.
Professor Yoo's Response
"I've no idea who this is, but you should ask the people who claim to have been party to this alleged conversation to
confirm it, not me."
Dean Edley's Response
Thanks for the opportunity.
1. You can read about the Miller Institute at http://www.law.berkeley.edu/1194.htm
. The faculty cochairs of it are me and Prof. David Caron, who also happens to be Honorary President of the American
Society of International Law. I don't know why Ms. Harman thinks Professor Yoo has received a "promotion" or special
2. I didn't hear anyone burbling. I think the panelists, along with me, were perfectly cogent and articulate. I've also
written about it to my students and alumni several times. Ms. Harman strongly disagrees. She did not specifically engage
our points about academic freedom, including the McCarthy era precedents. Those examples are especially important to
Californians for whom the ugliness of that era had special significance for Hollywood and state universities. Remember,
too, that Berkeley was the home of the Free Speech Movement.
3. Ms. Harman accurately conveyed the substance of my comment about the Obama Transition. I'd add three points: 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.
4. 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.
5. 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.
6. 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
caselaw. Does 3 out of 9 make it extreme? If so, then a lot of my heroes are or were "extreme."
Editor's Note: Edley, dean of the law school since 2004, has written about the Yoo appointment here and earlier here.
[Original article with more notes at justice-integrity.org