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Barack Obama's presidency

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Accountability Again Put on Hold

By David Swanson
January 31, 2010

Editor’s Note: Despite the departure of George W. Bush’s administration more than a year ago, the Democratic-controlled Congress and the Democratic-controlled administration have taken no official action to hold any ex-official accountable for war crimes – or to conduct a formal inquiry of what went wrong, as Great Britain is doing.

Now, it’s been disclosed that an internal Justice Department review of legal opinions issued by Bush’s Office of Legal Council, which excused and justified torture, has been watered down to shield OLC lawyers even from possible disciplinary action from state bar associations, as David Swanson notes in this guest essay:

No one disputes that Jay Bybee's name is at the bottom of memos that were, and to some extent still are, treated as laws which legalized aggressive war at the pleasure of a President and a variety of acts of torture.

For many months the House Judiciary Committee has had two excuses for not impeaching Judge Bybee, even while proceeding with the impeachments of a judge for groping and another judge for petty corruption.

The private excuse has been that impeaching Bybee would be opposed by Fox News. The public excuse has been that the Justice Department has not yet released its Office of Professional Responsibility (OPR) report on the crimes of Bybee and his former colleagues.

But the Justice Department does not intend to ever release the more honest version of that report, the one which found that Bybee and John Yoo had engaged in misconduct.

Instead, after taking the unprecedented step of allowing Bybee and Yoo to recommend edits to the report, lo and behold the new version finds that felonious acts of complicity in torture (not to mention aggressive war, which as far as we know really isn't mentioned in the report at all) don't amount to misconduct but rather "poor judgment," sort of like getting into a skiing accident. Here's Newsweek:

"NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors — Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor — violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter.

“But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed 'poor judgment,' say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action — which, in Bybee’s case, could have led to an impeachment inquiry."

Let me get this straight.

Even though the secret memos are no longer secret, even though they constitute the most serious crimes possible, even though complicity in torture is a felony, and even though Bybee lied to the United States Senate in order to be confirmed as a judge, our representatives in the House of Representatives can't impeach him because the Justice Department, the very same institution of organized crime in which he committed his abuses, only deemed Bybee's crimes to be "misconduct" in the first version of its report but not the new and improved version?

Both the Robert Jackson Steering Committee and the American Civil Liberties Union have filed Freedom of Information Act requests for the initial report, but what was in it has been widely reported. And why we need it has not been explained.

This bizarre situation parallels that in England where a commission has been questioning former Prime Minister Tony Blair about his role in lying his nation into our war in Iraq. What Blair did is widely known in detail from numerous leaked and undisputed memos and documents, but the commission won't mention them because they are still "classified."

And yet, how the details of what Blair said on what date could possibly legalize a war of aggression has never been explained at all.

Another parallel is that between what is now being done to the impeachment power and what has been done over the last few years to the subpoena power.

During 2007 and 2008, Congress subpoenaed many top officials in our government who refused to comply. While any congressional committee can instruct the Capitol Police to enforce compliance, they all choose not to, waiting for the Justice Department, the headquarters of the criminal executive branch, to enforce the subpoenas.

In April 2009, when some of the Bybee torture memos were leaked, Sen. Patrick Leahy, D-Vermont,  asked Bybee to come in for questioning, and Bybee, in effect, told him to go to hell. To which Leahy replied "I'm sorry I troubled you, your honor." No subpoena.

Not a single subpoena has been reissued in 2009 of those rejected in the previous two years. This congressional power to hold the executive branch and the various departments of the government accountable has been transferred to the executive branch.

And now the greater power of impeachment is meeting the same fate. If a former employee of the Justice Department cannot be impeached without the approval of the Justice Department, Congress no longer exists.

David Swanson is the author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press.  You can order it and find out when tour will be in your town: [This article previously appeared at]    

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