Turley Says Democratic Leaders Oppose War Crimes Investigations

GWU Law Professor Jonathan Turley told Rachel Maddow Democratic leaders oppose prosecuting Bush's war crimes. Is he right?

At least one Democratic leader - Constitution subcommittee chair Jerrold Nadler (D-NY) - wants to stop Bush's pardons, launch a thorough Congressional investigation of Bush's crimes, and have President Obama's next Attorney General appoint a Special Prosecutor. Please urge your Representative to support Nadler's H.Res. 1531.

MADDOW: The question here is has the administration effectively gotten itself off the legal hook by asserting that because the president has done it, it is not illegal? Joining us now is Jonathan Turley, who is a professor of Constitutional Law at George Washington University. Professor Turley, thanks for joining us again. Nice to see you.

JONATHAN TURLEY, PROFESSOR OF CONSTITUTIONAL LAW, GEORGE WASHINGTON

UNIVERSITY: Hi, Rachel.

MADDOW: So the White House says now, at least to the "Wall Street Journal," that they are not likely to pardon anyone who might have implemented or taken part in these torture policies because they believe that their Justice Department memos excuse them, so there's no need to pardon anyone. Are you buying their reasoning?

TURLEY: No. I don't believe that anyone seriously believes in the administration that what they did was legal. This is not a close legal question. Waterboarding is torture. It has been defined as a war crime by U.S. courts and foreign courts. There's no ambiguity in it. That's exactly why they have repeatedly tried to stop any court from reviewing any of this. And so what's really happening here is a rather clever move at this intersection of law and politics, that what the administration is doing is they know that the people that want him to pardon our torture program is primarily the Democrats, not the Republicans. Democratic leadership would love to have a pardon so they could go to their supporters and say, "Look, there's really nothing we could do. We're just going to have this truth commission. We'll get the truth out but there really can't be indictments now." Well, the Bush administration is calling their bluff. They know that the Democratic leadership will not allow criminal investigations or indictments. And in that way the Democrats will actually repair Bush's legacy because he'll be able to say there's nothing stopping indictments or prosecutions but a Democratic Congress and a Democratic White House didn't think there was any basis for it.

MADDOW: If the Democrats - if we could wave a magic wand and say that the Democrats would decide to indict officials for the torture policies, is there any reason to believe that the John Yoo memos, the torture memos, the Bybee memos - all of these legal reasoning that the Justice Department produced under Bush in order to sort of paper their way to these policies. Is there any reason to believe that would afford them any reasonable defense?

TURLEY: Not in my view. I think those memos are really devoid of any meaningful arguments that would carry weight in a court of law. What Bush did is he went and got fairly extreme individuals from the academy and from the bar that would ratify his absolute view of executive authority. There is a very small number of people, I believe, on the courts or in the bar that would support that view. And so there's not a question, at least in my view, whether there could be an indictable and a prosecutable here. There's no question about that. The question is the intestinal fortitude of the Democrats to stand with the rule of law. And unfortunately, we have many people who campaign on principle but they govern on politics. And I think we're seeing that with the Democratic balloon they're floating by saying, "Let's have a commission, another commission, like the 9/11 commission. And maybe if we find something that can be prosecuted in four or five years, we might do it." Well, everyone in Washington knows that that commission is being proposed so that there would be no serious criminal investigation or prosecution. And now, the White House is calling their bluff.

MADDOW: Draw some bright lines for us here. If - just thinking about this as Americans, not even as people who are concerned with the political ramifications, but just thinking about the safety of our Constitution and our national moral legacy, what are the bright lines that need to be drawn? What would need to be done, and soon, in order to ensure that torture is clearly illegal in the United States, that there's no ambiguity in our law or in our policy around that issue, and that we can once again say we are a nation that does not torture and we can say it without lying? What would have to be done?

TURLEY: You know, Rachel, there has never been a brighter line. This has always been a crime. It's always been a war crime. It's always been immoral. The question is not whether the act is immoral, but whether moral people will stand forward and say, "We're not going to act like politicians for once. We're going to act like statesmen and we're going to stand by principle and we're going to say, 'Yes, let's investigate.' And if there are crimes here, let's prosecute." And I think it's so very, very simple. You know, we have third world countries that when they have found that their leaders committed torture war crimes, they prosecuted them. But the most successful democracy in history is just, I think, about to see war crimes, do nothing about it. And that's an indictment not just of George Bush and his administration. It's the indictment of all of us if we walk away from a clear war crime and say it's time for another commission.

MADDOW: Jonathan Turley, professor of Constitutional Law at George Washington University. Thank you very much.

TURLEY: Thanks, Rachel.

Update 1: Turley isn't the only skeptic. ThinkProgress reports:

Richard Sanders, a justice on the Washington State Supreme Court, confirmed yesterday that he called Attorney General Michael Mukasey a “tyrant” at a Federalist Society dinner last week.