David Cole was here giving a lecture last night about what to do with the Guantanamo detainees and the civil liberties violations of the Bush administration in the war on terror. He had lots of interesting stuff to say and it has me thinking about what to do going forward with the people who completely threw our constitution out the window (yes, I originally had a more colorful phrase, but I am showing restraint).
So, the underside of the George Bush Office of Legal Counsel (OLC) is finally dribbling out. We now have the memos in which George Bush relied on his clever lawyers to write memos (1) allowing torture in violation of domestic and international law; (2) allowing the US military to engage in law enforcement activity on domestic soil without regard to the first and fourth amendments to the United States Constitution; (3) allowed for the suspension of federal law on warrant-less wiretaps in violation of federal law and the constitution (and blatant disregard for the lesson Nixon learned on this one); and more. You can read the memos here and I highly recommend it. Don’t forget, these were secret memos! We did not know that these were the policies and they could not be challenged because they were not public. Amazing how that works. It seems like our constitution is specifically designed for power sharing but these memos ALL are huge power grabs from the other branches — “the president gets to decide what torture is” (even though interpreting law is constitutionally left up to the courts and passing laws with definitions is left up to congress and both had large bodies of work on these matters).
There is supposedly an unreleased memo making the “legal argument” for rendition (in violation of federal and international law).
What in God’s name were these lawyers thinking? And what will happen to them now. The NYTimes had a piece on this yesterday. It is interesting to think about the appropriate thing to happen going forward.
Surely they will be indicted internationally as war criminals (as Sapin indicted Pinochet). Is that good? What about the War Crimes Tribunal? Will the be indicted by International Courts? Should there be criminal investigation here (as David Cole pointed out last night, this is very politically tricky for Obama and may not be a good move even if we think it is justified). Also, Bush, Cheney, Rummy and the gang will use the defense of, “well, we asked our lawyers and then we followed their advice.”
Which gets me to the most interesting question — what should happen to these lawyers? We know what happens to lawyers who advocate lawless activity in business (Andy Fastow, Enron, this ringing any bells?), but what about in government? At what point can a lawyer no longer say, “I was making the strong advocacy point for my client; it was up to him to decide?
It seems that there is general agreement from the courts, from congress, and from the American people that these guys stepped out of the professional lines. Is this the political equivalent of perpetrating a fraud on the court?
Perhaps we should let the political process take care of it — that plan is already working — we elected someone who is un-doing all of this damage, but the down side is that, as David Cole said last night, that means we have torture when we have a president who believes in it and we don’t have torture when we have a president that doesn’t believe in it.
Other options – truth commissions, public shunning (WTF was Chevron thinking hiring one of these criminals? Hope he will not be required to travel abroad because he could be transported to the Hague any minute!). It is harder for Boalt to fire Yoo because of that whole “academic freedom” thing but it seems like the students of Berkeley are just as feisty as when I was there and they are making it hell of unpleasant, hence his visiting position at Chapman. Rumor has it he has resigned from the CA bar (in anticipation of being disbarred), but I can’t say that for sure.
So, dear controlling authority folk — what to wish for?