The New York Times mulls the possibility of prosecutions for Bush lawyers who authorized illegal behavior from the Office of Legal Counsel, in particular John Yoo:
But Mr. Richman, of Columbia, said any punishment against Bush lawyers is unlikely unless e-mail messages or early drafts turn up proving that they blatantly altered their legal conclusions to fit a policy agenda. Mr. Richman said that would be unlikely for Mr. Yoo, who had pushed an aggressive theory of presidential power long before the administration recruited him.
It's possible, but Scott Horton suggests that the incoming ethics report on Yoo and other might contain information that would lead to that very conclusion.
Sources at the department who have examined this report state that it echoes some of the harshest criticisms that have appeared in the academic literature, but the report's real bombshell, they say, will be its detailed disclosure of Yoo's dealings with the White House in connection with the preparation of the memos. It is widely suspected that the Yoo memos were requested as after-the-fact legal cover for draconian policies that were already in place (“CYA memos”). 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 crucial question, it seems, is whether Yoo authored those memos because the White House needed to justify illegal policies that were already in place. If it's the latter, the Obama administration's resistance to prosecuting those responsible for enabling illegal behavior should be difficult to sustain.
-- A. Serwer
