Turley: Obama 'accessory' to war crimes if no prosecution
David Edwards and Ron Brynaert
Published: Tuesday January 27, 2009

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A few weeks ago, George Washington University Constitutional Law professor Jonathan Turley, while appearing on MSNBC's Countdown with Keith Olbermann, essentially said that the Obama administration would "own" any war crimes -- such as the reported waterboarding of 9/11 suspect Khalid Sheikh Mohammed -- if it chose to look the other way. On Monday's show Turley went a little further and suggested that if Obama impedes investigations or prosecution that he wouldn't just be an "apologist," but also an "accessory."

Olbermann started the segment by reading a statement released by the Obama administration in response to last week's allegations from a former NSA analyst that President Bush's national security agency targeted news organizations for surveillance and even pried into personal records like finance and travel."

The response stated, "As the president made clear [last week] his administration is ensuring that all programs are conducted in accordance with our values and the rule of law. There will be no exceptions."

Olbermann noted that that was similar to claims made by Bush the last few years, insisting that "all programs were conducted consistent with our values and rule of law," even though most experts have pointed out that methods such as waterboarding are considered torture, inhumane and against the law.

"How much daylight might there be between that and any of the analogs from the Bush White House?" Olbermann asked Turley, who immediately responded, "Not much."

Turley pointed out that the Obama administration response was written "in the future tense. You weren't asking whether he would do these things. Nobody thinks that Obama is George Bush. I think we believe that he's better than these past programs. But people are not asking about the future. We are asking about the past."

"It takes a lot to avoid a very simple truism," Turley argued. "That, if true, these would be crimes and we prosecute crimes. We call people criminals who commit them. It is very easy to say. All you need is the principals and the courage to say it."

Turley said that he had "very little sympathy for the people that committed this torture. I've heard President Obama say we don't want talented people at the CIA looking over their shoulders. Well those talented people in this circumstance would be torturers."

"But in reality nobody thinks that they're going to be prosecuted," Turley continued. "They have something called the estoppel defense where they can say that they were told by people like John Yoo and others that what they did was legal. That does not protect the president and the vice president, and they're the ones and the people just below them who deserve to be investigated and they must be prosecuted if they've committed war crimes or we will shred four treaties and at least four statutes."

[Turley has more background about the estoppel arguments at his blog.]

"And the problem here is it wouldn't make Obama an apologist it would make him an accessory," Turley argued. "He would be preventing the investigation of war crimes. How could he go from that and say that he's all about the rule of law?"

Referring to the fresh Rove subpoena, Turley said that "we could have an interesting fight where George Bush comes in and says 'I'm still claiming executive privilege' when the current president is saying we don't recognize it. Indeed. Obama's people could prosecute Rove and others and I think that the federal courts would give much greater rate to the man currently in the Oval Office than the man who just left it."

Olbermann agreed that "the current executive is the one who gets to decide what executive privilege is."

This video is from MSNBC's Countdown, broadcast Jan. 26, 2009.

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