The Canary in the Coalmine

March 11, 2009

As the Justice Department’s Office of Professional Responsibility prepares to release its long awaited report on former Office of Legal Counsel deputy John Yoo’s alleged abuse of his office, there has been a renewed interest amongst political commentators in prosecuting human rights abuses committed as part of the Bush administration’s war on terror.

Writing for The Daily Beast Scott Horton, a law professor and commentator who has consistently led calls for such prosecutions, noted:

“It is widely suspected that the memos were requested as after-the-fact legal cover for draconian policies that were already in place… If the Justice Department internal probe concludes this is the case, that could have clear consequences for the current debate surrounding the Bush administration’s accountability for torture.”

The release last week of previously classified Justice Department memos written by Yoo, including a memo offering guidance on the handling of War on Terror detainee Jose Padilla, has further blackened his reputation and bolstered calls for his prosecution.

In the Huffington Post Monday, the widely respected trial lawyer Martin Garbus contributed a passionate call pushing for prosecutions over truthfinding, noting that senior members of the Bush administration violated some clear specific crimes.

Garbus expressed concern that the political establishment – both left and right – might have vested reasons for not digging too deeply in the course of a commission of inquiry. He particularly questioned House Speaker Nancy Pelosi’s equivocations regarding the extent of her own knowledge of the Bush administration’s use of torture.

“I don’t have a religious faith in the majesty of the law. It is just the far best alternative… At the end of the day, I would rather have American jurors, bound by the Constitution and the law, make the decision rather than politicians or unelected blue ribbon commission members. I would rather have judges, bound by precedent and law, determine what is, and is not legal.”

So watch this space. Prosecutions remain very much in play and John Yoo is likely to be the first target. In Horton’s words:

“For the legacy of the Bush administration, John Yoo is the canary in the coalmine. He is the most public face attached to policies he facilitated but did not originate. Yoo’s problems today may well become their problems tomorrow.”