Secret Indemnity

by digby

Greenwald thoroughly deconstructs the DOJ emails that were published in the NY Times this week-end and shows that they actually say the opposite of what the NY Times characterized them as saying. Nothing new there, I’m sorry to say.

But there is as aspect of this story that continues to astonish me and which seems to be fully accepted by just about everyone except the DFHs. Greenwald writes:

Most revealingly, Comey described exactly what was happening with this process: that the White House was demanding and pressuring the issuance of these memos, but that once the torture regime became public — as Comey warned that it would — White House officials would defend themselves by heaping the blame on Gonzales and other DOJ lawyers, deceitfully pretending that they were merely following in good faith DOJ advice about what was and was not legal.

Alluding to the extreme pressure that had previously been exerted by the White House on then-AG John Aschroft to legally authorize the illegal NSA spying program (the Ashcroft Hospital Drama), Comey lamented that even the minimal willingness of Ashcroft to defy White House pressure was completely lacking in the Gonzales-led DOJ and OLC — meaning the White House was able to get legal authorization from the DOJ for whatever it wanted, regardless of whether it was actually legal:

Is it really the case that political hacks in the Department of Justice can indemnify the executive branch with a secret memo? It seems that it is. The Obama administration has already agreed that if members of the administration and the rest of the government acted in “good faith” on the basis of those memos then they would not be liable for violating crimes.

This has struck me from the beginning as a massive loophole. It means that the rule of law depends on the integrity of obscure lawyers buried in the Justice Department requiring them to stand up and tell the most powerful people in the world that they cannot do the things they want to do. If that’s the case then the Ashcroft Hospital drama is the official process on which we depend.

It may be that that will happen on occasion, but we know for a fact that in the torture cases it didn’t. Even though James Comey and others raised some objections around the edges and warned that history was not going to look kindly upon the decisions, the memos were written and signed and the White House used them as a fig leaf for their torture regime.

In what sense is the government bound by the rule of law if all it takes to indemnify any of them is a secret memo? It what sense is it even a modern democracy?

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