Why We Can't Afford to Let Obama Give Bush's War Criminals a Free Pass

In a week when one-year report cards on the Obama administration were piling up and not all the grades were good, Americans searching for the real change we heard so much about on Obama's campaign trail were hit with some news that would send his grades plummeting. Late last Friday, we learned that Obama's Department of Justice plans to go easy on John Yoo and Jay Bybee -- the two assistant attorney generals under Bush who penned the infamous torture memos. For those who have been working long and hard in the accountability movement to make sure no one -- not even presidents or their top advisors -- is above the law, this was a serious setback.

As part of that movement, I was appalled. Not just because I want to see those who committed crimes in office punished rather than excused. Not just because I want to see the Obama White House restore accountability to government rather than cover up crimes committed by the former administration. And not just because Yoo and Bybee memo'd-up legal opinions stating that torture techniques as egregious and illegal as waterboarding were acceptable. No, there is a deeper question in play here: Why were they really asked to render these opinions in the first place?

That's a question I had to grapple with while writing The People v. Bush, a book that shows how U.S. citizens might prosecute George W. Bush and his advisors for crimes committed in office. When President Obama ordered the release of more "torture memos" by Yoo and Bybee to the public in April 2009, I watched--with a mixture of horror and fascination--the repercussions unfold. First, came words of outrage from the CIA and leaders of the Republican Party about Obama "endangering America's national security." This was followed by indecision and capitulation to the right on the part of the Democratic Party leadership. And through it all, in what I call "the week from holy hell,' came brave calls for the lawyers' prosecution by bloggers, journalists, and even, tentatively, the New York Times. But no one was putting Yoo and Bybee's memos in their proper context, a context that would explain their actions and leave no doubt as to their culpability.

At work on my book, I started assembling a chronology of torture-related events. Then I put that chronology in the overarching context of what Bush's prime objective was when he came into office: gaining control of Iraq and its super-huge reserves of oil. After doing that, everything seemed to fall into place.

We all know that Bush and Cheney, both oilmen with mighty ambitions, wanted Iraq's oil. Deputy Director of Defense Paul Wolfowitz practically boasted, three months after the invasion of Iraq, that "economically, we just had no choice in Iraq. The country swims on a sea of oil." Four years later, Alan Greenspan, federal reserve chairman, admitted in his own book that the Iraq war was "largely about oil."

The game plan took shape shortly after George W. Bush came to power in 2000. At his first National Security Meeting, President Bush made Iraq "Topic A" on his foreign policy agenda. Bush Treasury Secretary, Paul O'Neill, would later reveal that Bush told his advisors to effectively "find me a way" to get into Iraq. But finding a way was complicated business. Not only was a pretext for going to war with Iraq needed, but also needed was the legal rationale for enhanced presidential powers during a time of war so that a preemptive attack on Iraq would not only seem plausible, but even acceptable.

Enter John Yoo. Long before he crafted his "torture memos" of 2002, Yoo was valued for his expertise on executive power during wartime. It was Yoo at the Office of Legal Counsel inside the Department of Justice who came up with formulations -- crafted in secret -- that enhanced the powers of a wartime president while weakening the oversight powers of Congress.