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Saturday, July 11, 2009

Immunization Program

by digby

Needless to say, Greenwald has the definitive overview of the DOJ IG report and Emptywheel has begun the examination of the deep weeds. Ackerman is breaking it all down into choice tasty bits for easy consumption. No need to reiterate any of that here. Just click those links for the full catastrophe.

I would just like to highlight one paragraph of Glenn's post simply because, to me, it is at the very heart of the issue:

These were not legal opinions in any sense of the word. What happened, instead, is clear: Cheney and Addington knew that Yoo was a hardened ideologue who would authorize anything they wanted. So they purposely chose only him -- a low-level Assistant Attorney General -- to be "read into" the program, and then used his memos to give themselves legal cover. The same thing happened in the realm of torture. This is what reveals how corrupt is the claim that Bush officials cannot be held accountable for the laws they broke because they had DOJ lawyers telling them it was legal. These legal opinions were anything but exercises in good faith. They were nothing more than bureaucratic cover to commit crimes, and -- as the IG Report makes clear -- ones that were as factually inaccurate as they were legally flawed (yet John Yoo remains on the faculty of Berkeley Law).

To accept the central premise of our political class -- it's unfair to prosecute Bush officials for things that DOJ lawyers told them was legal -- is to destroy the rule of law in the United States. Presidents will always be able to find subservient John Yoos in the bowels of the DOJ willing to authorize anything they want to do. There is no such thing as a permission slip from an underling to commit felonies. Yet our political class -- obviously motivated by their own self-interest -- has decided in unison to endorse the principle that the existence of such documents should bar accountability even for clear crimes.

I've been struck by this since the beginning. If it is the case that the president can designate an Office of Legal Counsel functionary to immunize government officials and employees against criminal behavior, then it is true, to all intents and purposes that "if the president does it it's not illegal."

One could make the argument that the political fallout would be so huge if it were ever revealed that no president would ever attempt it, but we are proving right now that this is a very remote possibility. Ever since Nixon, the political class has reaffirmed the idea that anything the president does as a political leader or in his official capacity is unpunishable. And more recently we've seen that anyone who carries out his orders is also immune, which wasn't always the case. Nixon's people did do time.

If that was the intention of the revolutionaries who broke away from despotic monarchical rule, they could have saved themselves a lot of trouble. At this point, both political parties agree that if the president has a low level lawyer in the Justice Department write a secret memo authorizing him to break the law then all those who broke those laws are legally immunized from any punishment, including firing evidently.

There is no political risk in a president breaking the law --- a Republican president anyway. It remains to be seen if the Republicans are so consistent when their next turn at power comes around. But as of today, they are the picture of bipartisan comity --- the only thing presidents cannot legally do is lie about fellatio. And if the recent cavalcade of lying, adulterers in the GOP are any example, that one may no longer be applicable either. After all, all they have to do is get some clerk in the Justice Department to write them a note legalizing it and it's all good.