Summing Up
With this context, last Friday's Boalt Hall forum provides vital new insight on why the White House and Justice Department have been so disappointing in responding to public demands for accountability for injustices, particularly for clear-cut cases during the Bush administration that carry fingerprints of malefactors such as Rove and Yoo.
Let's start with Harman's account below of her comments during the audience Q&A segment at Boalt Hall's forum Sept. 2:
I said I 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 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. According to her account: "He shrugged and said they will never be prosecuted, and that sometimes politics trumps rule of law."
I wrote Edley to confirm Harman's quotations, which he did. 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."
Much as I appreciate his efforts to provide these expert, behind-the-scenes insights, I'm afraid I'm more comfortable with a few basic rules:
First, the U.S. president should be a fearless leader
who enforces our laws with a passion for justice, to the best of his ability. Many in the justice system -- both intrepid government agents and taxpayer-protecting whistleblowers alike -- are risking their health, money and even lives on a frequent basis. Why shouldn't those at the top?
Second, as one who works a block from the site on Pennsylvania Avenue where Lincoln's assassins planned their crime (where the Newseum is now located), I'd suggest that any conspirators against today's elected leadership should be prepared to pay a similar and rapid price to the hangman; Third, academic freedom is a fine goal, but so is freedom from torture and freedom from being falsely imprisoned for political reasons.
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