D'Amato [Northwestern]: Protecting the President from prosecution

Anthony D'Amato, Northwestern University Law School:

"Although the N.Y. Times and Washington Post have been admirably accurate in reporting the standard legal issues, they have overlooked the single most telling point in the debate about Gonzales, perhaps because of its subtlety.

We start by observing that whenever the Department of Justice gives any legal advice to a president about a policy that might violate US law, the DOJ attorneys are placed in a difficult position. What they tell the president, if he continues the policy, might be quoted in a future U.S. criminal proceeding against the president personally.

Suppose the president wants to know whether what we are doing to detainees in Guantanamo or Abu Ghraib violates the criminal laws of the United States. If the DOJ were to write in a memo that those actions violate US law, some enterprising prosecutor and grand jury might return a criminal indictment against the President and/or his advisers for condoning those acts.

Thus a DOJ's memo can itself change the legal landscape. It could place the United States, through the prestige of the DOJ, on record as saying that what the Executive Branch has been doing is a crime. Although a future court might not necessarily give great deference to that DOJ memo, we never know for sure what a court might do. Indeed, such a DOJ memo would not only speak to the DOJ's interpretation of the law, but it would also constitute notice to the president and his advisers that what they have been doing is illegal.

Placing the President and his advisers in personal jeopardy would clearly be one of the most important things that Albert Gonzales, as counsel to the White House, would do his utmost to prevent. We know that Mr. Gonzales by-passed the normal channels of the DOJ for obtaining legal advice relating to the Executive Branch, he talked directly with the lawyers who were drafting the memos, he asked them questions and pointed out problems to them. Did he urge them to change their interpretive inclination about the law relating to the POW and torture issues so that their revised legal conclusion would help shield and immunize the President and his advisers from criminal prosecution in U.S. courts?

John Yoo, now a Professor at Berkeley Law School in California, is in a position to know. He has admitted that, as a DOJ lawyer, he "worked on and signed the department's memo on the Geneva Conventions and helped draft the main memo defining torture." Yoo's essay of January 2, 2005, is available here.

In the middle of Professor Yoo's essay, in legalistic language that most readers might not bother to parse, he reveals that "Gonzales also observed that denying POW status would limit the prosecution of U.S. officials under a federal law criminalizing a grave breach of the Geneva Conventions." What does this convoluted sentence mean? It means that Mr. Gonzales may have made it clear to the DOJ attorneys drafting the various memos that if they were to conclude that the Taliban and Al Quaeda come within the protection of the Geneva Conventions, or that the policies or practices at Guantanamo and Al Ghraib amount to criminal torture prohibited by U.S. law, they would be placing the President of the United States and his top advisers personally at risk of criminal indictment. Indeed any indictment, irrespective of final outcome, would probably have a huge negative political impact politically and could even result in a change of administrations and a change of legal staff at the DOJ. In other words, if a zealous prosecutor, including one within the DOJ, were to seek indictments against the President and his advisers, Mr. Gonzales' position, as now revealed by Professor Yoo, was that the DOJ's legal conclusion in its memos should be modified or changed and rationalized, if necessary, not on legal grounds, but just in order to protect Mr. Gonzales's clients from prosecution." [January 6, 2005]

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