Jonathan Turley Criticizes Eric Holder for being Politically Motivated

Eric Holder has resigned as attorney general. Like Barack Obama, he has spent his entire term engaged in partisan battles. Jonathan Turley writes that Holder was too political, that he should have paid more attention to the Constitution. This is good advice if you make a living speaking about the Constitution and arguing cases based on Constitutional law. It's not such good advice for someone in the political maelstrom of Washington.

Turley chastises Holder for not bringing charges against Bush and Cheney for violations of international treaties, in particular the Geneva Convention against Torture. Obama already stated that he considered waterboarding to be torture and ordered that it not be used. The Bush administration had withdrawn the documents (written by John Yoo) that justified torture. The goal, therefore, of outlawing torture had already been achieved.

Turley, and many others, wanted more: an indictment and trial of top Bush administration officials for their violation of international law. Turley does not state the major impediment to this plan, namely the high cost in time and treasure to pursue it. Obama understood at the beginning of his first term that he would have only two years to pass his agenda. He had to make some hard choices and chose to work on health care reform.

Obama and Holder could have worked on trying members of the Bush administration for war crimes. The Geneva Convention specifies that the country whose leadership had committed the crimes should try them. But Obama would have required a strong mandate of the people to get a conviction, and he did not have one. The majority of the population still believed that waterboarding was not torture and that Bush had not involved the country in a war of aggression. All the defendants in such a suit would be wealthy men who could afford high-priced lawyers. The trial would take years and the appeals might take decades.

In addition to all the other problems with a war crimes trial, all the lower level employees of the CIA could claim that the government's lawyers had advised them that waterboarding was legal. Only upper-level government attorneys could be indicted for falsely declaring that torture was legal. Obama decided not to indict John Yoo and William Buzbee, the two Justice Department Lawyers who acted as shills for Vice-President Cheney. Their conviction would have led to indictment of many CIA agents, and Obama made it his mission to heal the agency after it had been demoralized by the war.

Turley called for Holder to be "fired" when he claimed that Holder's primary offense was not being ethical enough to follow the Constitution instead of following his boss's orders. Holder did not break any laws, since the actions he took to find whistle-blowers were sanctioned under the Espionage Act of 1917. Turley has arguments about the constitutionality of the Espionage Act, but Holder broke no laws when he subpoenaed journalists' records to find leaks in the Justice Department.

Turley believes that Holder should have ignored the political consequences of such an agenda, as well as the orders of his boss, the President. This would not have been possible for anyone to do, even though Turley believes the Constitution required it. The Constitution has no power to enforce itself; it is a scrap of paper. The executive can ignore it with impunity. His subordinates must obey or resign, but if they resign they lose any opportunity they may have to do good for the community.

Holder may have made mistakes, but they were the kind that only office-holders can make. As a professor and lecturer, Turley can afford to be ethical and condemn others for their lack of ethics. As an office-holder, Holder cannot.

John Woo Debates Bruce Fein: US Constitution as Ouija Board

A fachidiot is someone who knows a whole lot about some one thing but lacks ordinary common sense. The lawyers involved in the current debate about whether Obama's actions are unconstitutional are fachidiots. These people look at the problems faced by the federal government in relationship to the only thing they have studied, the US Constitution. What they do not say is how the federal government is going to solve real-world problems if Congress refuses to do its job, which is defined by the Constitution as providing the funds for the executive branch to do its job.

John Yoo, War Monger

John Yoo, a Professor of Law at UC Berkeley, proudly proclaims he is a conservative, yet seems only concerned with one aspect of presidential power, namely war-making. This is a sure sign of the fachidiot: He considers all problems in light of the one thing he knows about. Yoo knows all about the history of warfare and how past presidents have taken over the waging for war from the Congress since WWII. This change has come about because Congress has ceased to show any real understanding of international politics. Instead they have replaced the study of issues, which would require time and intelligence, with application of platitudes, which only requires reading talking points prepared by weapons manufacturers.

Professor Yoo used to work for the George Bush administration. He gave his legal opinion that torture, indefinite imprisonment without trial, and assassination were all perfectly fine under the Constitution. All three of these practics (and several others Yoo approved) violate the Geneva Conventions of War, a treaty which the US signed but which Yoo said we could ignore in its entirety. Professor Yoo says that the Constitution gives warmaking powers to the President and hence, anything he wants to do is legal under the Constitution.

The world is a simple place for Yoo. Might makes right. Presidents are all-powerful when it comes to war. This is similar to the view of Chinese government espoused by Confucius. Confucius maintains that the Emperor is the supreme authority of the state, essentially a god on earth. Therefore, he can do no wrong. Yoo has incorporated a similar totalitarian belief into his study of Constitutional law. He does not seem concerned that the nations of Western Europe and North America have advanced beyond this view of an absolute ruler. He finds the basis for absolute dictatorship in the US Constitution.

Yoo goes further. Finding the UN Charter fundamentally flawed, he suggests a new world order in which countries engage in preventative wars and establish democracies at the point of a gun. His views are not new. They were tried out in Iraq with disastrous results, both in lost treasure and in human slaughter and suffering.

Bruce Fein, Human Rights Advocate

In debate with Woo about Constitutional powers of the president, Bruce Fein claims that the Constitution does not give the president extraordinary powers to make war. He says he does this by examining the motives and opinions of the Framers outside the Constitution. This he calls, examining the spirit of the Constitution as opposed to the letter of the Constitution. Woo commented that Fein obviously didn't care for the views of Robert Bork, the conservative judge who failed to be confirmed to the Supreme Court. Woo assuredly made this comment to chide Fein for not being a true conservative.

Fein is a traditional conservative who believes the Constitution guarantees rights to our citizens and proscribes the government from taking unjust actions against them. In a letter to President Bush in 2007, Fein and his co-authors explained that the policies of the Bush administration would

obliterate the conservative philosophy of individual liberty and limited government celebrated by the Founding Fathers.

Fein also respects the human rights initiatives of the United Nations, writing that

waterboarding, detentions without accusation or trial, the suspension of habeas corpus, spying on Americans without judicial warrants, and threatening lawyers for defending accused terrorists or terrorist organizations are earmarks of tyranny, not liberty.

What Does It All Mean?

The problem with this debate is that both sides claim to be conservatives, following the explicit instructions they find in the US Constitution, yet their conclusions are diametrically opposed. Yoo thinks the president can order waterboarding and spying on Americans. Fein thinks he can't.

For these two lawyers, the question is an intellectual exercise. For the rest of us, as we attempt to assert our rights in courts and on the streets, the question of what the Constitution protects or guarantees is more practical. We want to know, what can the police officer do to me? The answer would seem to be that the police can do whatever they like, just as the president does.

I suggest that the constitutional experiment has failed.

Bush Trials: What lawyers can and can't get away with

Many lawyers believe that their knowledge of the law places them beyond its reach. After all, they spend their lives inventing elaborate means for their clients to circumvent justice.

But there are some things a lawyer just can't do. The Justice Trial, one of the trials at Nuremburg after World War II, set the limits. According to Douglas O. Linder,

"prosecutors had to show that the defendant consciously furthered...human rights abuses."

Among those on trial were judges who sentenced Jews and other Nazi victims to death. Eventually, again according to Linder,

“the police were given carte blanche to punish all 'criminal' acts committed by Jews without any employment of the judicial process.”

Those accused were not only judges, but also members of the Ministry of Justice who wrote decisions that made such treatment legal under German law. They were not necessarily members of the Nazi party. Instead, they were frequently

“ultraconservative nationalists who were largely sympathetic to Nazi goals.”

The men on trial had not participated in the worst excesses of the Nazi regime. In comparison with others who were more directly involved, they were minor figures. Some had sentenced hundreds to death, some had only facilitated the transfer of prisoners to the SS. But the court at the Nuremburg trials concluded that their crimes were just as great, because

The prostitution of a judicial system for the accomplishment of criminal ends involves an element of evil to the State which is not found in frank atrocities which do not sully judicial robes.

Crimes against humanity are defined in the War Crimes Act of 1996 to be violations of the Geneva Conventions, that is, crimes

...committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health.

Among those specifically protected by the Conventions are prisoners of war. Notice that the Convention doesn't get bogged down defining torture. It could be inhuman treatment or willfully causing great suffering. It is clear the delegates to the convention forsaw the likelihood that someone might try to define torture narrowly in order to avoid prosecution. It is just as clear that they made the definition very broad so that there was no room to weasel out.

John C. Yoo, in his capacity as Deputy Assistant Attorney General in the Office of Legal Council(OLC), gave the opinion that members of the US government, including soldiers, need not regard the War Crimes Act as binding because the President was given the sole responsibility for waging war by the constitution and later court rulings. He failed to acknowledge that the responsibility for treatment of prisoners of war was given to the Congress, both by the Constitution and subsequent court rulings. Therefore, his opinion, submitted as a memo to the Attorney General, could be considered to consciously further human rights abuses, which the Nuremburg Justice Trial set as the standard for determining guilt.

Jack Goldsmith took over the OLC in 2003. He withdrew the memos written by Yoo, writing that he was

“astonished by the deeply flawed and sloppily reasoned legal analysis”

But its ideas informed Bush administration policy for 2 years, while an unknown number of prisoners were tortured in accordance with its faulty legal reasoning, an unknown number of innocents locked up without a trial, and an unknown number of people killed. Yoo performed exactly the same function for the Bush administration that those jurists had provided to the Third Reich: He gave their crimes the color of law.

Furthermore, Yoo's action sullies the reputation of the United States. It turns us from a 'City on the Hill', whose existence inspires the world, into a pariah, the butt of insults from our friends as well as our enemies. Instead of using our strength to help the weak, we torment helpless individuals already in our power and deny hold them indefinitelyl. How can we boast of our liberties and rights when we have so clearly abandoned them?

So what should be done? Should we, as many suggest, investigate the Bush administration to find the truth? Or should we punish the wrongdoers and set an example for future apparatchiks of what happens when someone robs another of their rights and dignity as human beings?

Look at it this way. John Yoo is currently enjoying the rights and privileges of a successful party hack. He is a tenured professor at one of the country's most prestigious law schools. His case was referred by the OPR to the Bar Association for possible disciplinary action. But he won't even need to give up teaching if he is disbarred. So what penalty will he suffer?

The jurists on trial at Nuremburg committed similar crimes, some worse, some not so bad. Some served life sentences, some were acquitted. But the important thing is, they were brought to trial. The people whose rights they violated had their day in court.

Just as we should never forget the Jews and gentiles who died in the holocaust, we should not forget the people who suffered torture because someone thought it was a good idea and John Yoo was a willing stooge.