Grant immunity? Obama's making Bush criminals into heroes!
Key words: Bush Regime, Obama response to Bush Regime crimes, John Yoo, Westfall precedent, curious argument that Obama has "not granted immunity" for criminal activity by Bush-era officials.
In 2001, a regime came to power following a highly public electoral fraud. As this fraud was being challenged, an unconstitutional judicial fiat suspended the rule of law in determining the true results of the 2000 presidential election. The Court stepped in, stopped the process, and appointed the loser as the winner.
After this seizure of the United States executive branch, the responsible cabal prepared and launched a long-planned war of aggression, employing a fabricated and fabulated pretext. This resulted in the deaths of hundreds of thousands of civilians, and the destruction of more than one nation. The direct consequences remain with us today.
Among many other constitutional violations, breaking of laws, obstructions, obfuscations, atrocities and war crimes, officials of the Bush Regime also ordered and oversaw the imprisonment without charges and in many cases the torture of an unspecified number of persons - dozens, hundreds, thousands - who were held at illegal and often secret sites in many countries around the world.
In creating a framework against future prosecution, the main conspirators of the Bush regime circulated secret memoranda among themselves, deploying spurious legal arguments to justify their lawbreaking. In any serious criminal case against the cabal, the lawyers who issued these enabling memos would have been a prosecutor's first targets, because their role had been to provide legal cover for the entire criminal enterprise.
In 2008, a successor administration was elected legitimately under the terms of the U.S. constitution. The winning candidate had issued promises that charges of wrongdoing by the outgoing government would be investigated.
However, the personnel of the new government chose to ignore the overwhelming prima facie evidence of criminal conduct by their predecessors. The Obama team made a clear series of decisions not to investigate, not to prosecute, and not even to reveal the full extent of the Bush Regime's criminal activity. On the contrary, with regard to the national security and surveillance state, they oversaw an expansion of this activity and sought to render it retroactively legal.
It should be noted that while the majority of Democratic voters had not (or only rarely) supported Bush Regime actions, indispensable collaboration was given at key points by Democratic Party leaders and politicians. In the most egregious example, one-half of the Democrats in the Senate - including Hillary Clinton, John Kerry and Joe Biden - voted for the 2002 motion enabling the announced plans to invade Iraq. This granted invaluable political legitimacy to the subsequent war of aggression.
When the Democrats regained control of the Congress on a wave of antiwar sentiment in 2006, their leadership promptly announced that impeachment was "off the table," in Nancy Pelosi's words, and accommodated the continuation of the Bush-initiated wars.
In 2008, key Democrats including the presidential candidate, Senator Obama, voted for the FISA amendments granting retroactive immunity from prosecution and civil liability to phone companies that had participated in the illegal Bush eavesdropping program - in effect, ending any chance that Bush officials would be held accountable for their massive expansion of domestic spying.
Now, starting in 2009, the new chief executive did not just fail to prosecute but morally exonerated the Bush-era perpetrators. Obama kept Bush's secretary of defense, Gates, in office for several years. He appointed the war criminal, Petraeus, to head the CIA. He bestowed medals on members of the Bush gang. Most recently, he trivialized torture as something "we" did to some "folks" out of understandable fear and patriotic over-reaction.
At the beginning of the Obama administration's public and legal efforts to exculpate the Bush regime - and thus, effectively, to cover up its crimes before history - use was made of a legal device known as the Westfall exception, which provides the government with the option of giving legal representation to former employees who are accused in criminal or civil cases.
Rather than bringing charges for legal misconduct against John Yoo - the former DOJ counsel who wrote memos to justify torture - the Obama government instead provided Yoo with a government lawyer when the latter was sued by one of the Bush Regime's many victims.
The practice of issuing Westfall certifications is based on a judicial precedent, not on legislated law. The Obama administration could have chosen to declare Yoo's Westfall certification null and void, because his actions had involved the witting commission of crimes - in fact, constitutional violations.
As I wrote here years ago:
Yoo's legal opinions served as the basis for clearing illegal actions by the executive. If your lawyer advises you that you may commit an illegal act because in his opinion it is actually legal, he makes himself liable to prosecution, and you are still subject to prosecution for your crime. Both of you may face an additional conspiracy charge for your collusion in justifying that crime.
The difficulty is in demonstrating any one individualís witting intent, although as a group they obviously set out to break the law and then did so. (This is why lawmakers invented RICO for going after organized criminal activity in which a refined division of labor and code of silence helps to shield individual conspirators.)
This is how it works: Yoo can issue a secret opinion that Cheney has the right to shoot you in the face. Gonzalez (or Ashcroft) then secretly but officially certifies that Yoo issued this opinion as part of his official duties at OLC. (This may later entitle Yoo to government defense under a precedent known as Westfall). Now Cheney can face-shoot you. Everyone's in the clear. Except you. As the face-shot victim, when you sue for damages (like Padilla has sued Yoo), Yoo's hope is that all future executive branches will not join the suit, but on the contrary must represent him in court thanks to his "Westfall certification." The Obama Justice Department, which should be hauling Yoo (and the rest) off in shackles, has in fact provided representation for Yoo. Cheney theoretically will get representation also, if his turn comes, thanks to Yoo's legal malpractice in issuing the memo that made a secret exception to the laws against face-shooting. Is Gonzalez in the clear? I'm sure somebody in the round-robin of preemptive exoneration issued a memo that covered his ass, too.
The latest argument therefore that the Obama administration has "not granted Bush immunity" is an example of completely irrelevant, legalistic hair-splitting. A cheap diversion. The administration paid for a lawyer to defend Yoo. Under these circumstances, what does it even mean to "grant immunity"?
Clearly, the Obama position is that nothing the Bush organization did even rises to the level of an offense actionable enough to bring immunity up as an option. To grant immunity would admit that something wrong may have been done. Obama administration officials instead chose to justify, to heroize, to valorize, and to follow in the footsteps of their criminal predecessors on many issues, including mass domestic surveillance and secret and unsanctioned military actions around the world.