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February 15, 2009

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bybee should also be impeached

Awwww.....

Yusei Wako got nine years, and had a much better claim than the lawyers here under investigation.

publius: I'm hoping that this will be a prelude to bar association sanctions, which in turn could mean Bybee being impeached, or Yoo losing tenure ...

Basically: they get a lot of mileage out of the idea that they are just lawyers offering their opinions on legal issues. Fine. Let them be evaluated in those terms. And let any professional consequences that the bar, Berkeley, etc., deem appropriate follow.

I'm eagerly looking forward to a defense of memos on the President's right to violate statutes that don't mention Youngstown. And to so many other things. ;)

OT but not by much:

I defy anyone who does justice and loves mercy to read this account of Binyam Mohamed's military lawyer and not come close to tears.

I'm sobbing, but then, that's me.

The Obama Justice Department needs to publish the memos produced by Bush's Office of Legal Counsel, period.

Please feel free to post justifications of why such publication should be delayed. If you do, please answer the question whether these opinions have ever been kept secret in previous administrations, and document that.

As far as I'm concerned, if a government is unwilling to make public the basis for the supposed legality of an action, that action loses the presumption of legality.

All recent indications point to the Obama administration being willing to do whatever it takes to avoid the undeniable placing on the record of evidence of U.S. torture as policy, which would heighten pressure for investigation and prosecution. Release of the OLC memos would go a long way toward convincing me of good faith.

McClatchy's Marisa Taylor examines the failure so far to fulfil expectations crated by the new administration's pledge of transparency.

Why are we paying for the defense of John Yoo and Jay Bybee, men who produced and approved legal opinions to order to cover crimes already committed?

Thank you, Hilzoy. Let's hope the lawyers' disciplinary committees do the right thing. The Bush lawyers were so unethical that it's hard for me to believe that state ethics committees didn't immediately seize upon these cases.

This is the thing: these administration officials were the real culprits in this horror. They need to be taken down.

At worst (or I should say best), Bybee and Yoo may be facing disciplinary action that could range from reprimands to suspension to disbarment. The only impact on Yoo, as a member of the Berkeley faculty, would be further damage to his tattered reputation. Bybee may be untouchable, since it's very difficult to discipline or impeach a sitting federal judge.

But disciplinary proceedings are better than nothing.

Under the Nuremberg principles, there's ample ground to launch a criminal investigation of Gonzales, Bybee and Yoo. The true purpose of their "advice" was to give legal cover to practices that were blatantly in violation of U.S. and international law. Relying on that advice is no excuse whatsoever. This hasn't been a gray area of the law for 63 years.

Nazi lawyers and judges were successfully prosecuted at Nuremberg -- by U.S. prosecutors -- for making the kinds of technical, bureaucratic arguments that Bybee, Yoo and Gonzales devised.

Obama is simply wrong when he suggests that Bush officials who relied on those legal opinions shouldn't be prosecuted. There's no "good faith" defense to torture.

Disciplinary proceedings would send a signal, but not a very strong one -- unless they provide a political foundation for actual prosecutions of Bybee, Yoo and the rest of the Bush/Cheney cabal.

Rune: Under the Nuremberg principles, there's ample ground to launch a criminal investigation of Gonzales, Bybee and Yoo. The true purpose of their "advice" was to give legal cover to practices that were blatantly in violation of U.S. and international law. Relying on that advice is no excuse whatsoever. This hasn't been a gray area of the law for 63 years.

Yeah. But the problem with actually following the law and having that criminal investigation, is that Obama knows damn well - as does anyone who's been following this - is that the criminal investigation would lead directly to Dick Cheney and George W. Bush.

Unless Obama was prepared to clean house from top to bottom, he can't clean house at all: he might be able to get low-level grunts who did the hands on work of torture, but he can't move against the upper echelons without risking his own Secretary of Defense, not to mention becoming famous as the President who launched a criminal investigation of his predecessor. And it was clear from his choice to retain Gates that he was not about to do that.

We could hope that Obama hadn't mentioned criminal investigations of his predecessor because he didn't want to scare Bush into a last round of pardons. But that hope was too optimistic: his choice of Gates was much more indicative.

And so now we know that Obama won't prosecute for torture: I'm disappointed, but I can't say I'm surprised. Whoever thought that the US could cease to be a nation that tortures prisoners when two Presidents in a row decline to regard the legalization of torture as a thing deserving of criminal investigation and prosecution?

Jes, i don't know...
I'm not a lawyer, I don't even play one on TV, but my knowledge of the torture-bushies and of Gates is that he didn't come on board until the nastiness pretty well ceased.

Note that, as awful as it is, holding people indefinitely without charge or trial at Gitmo is not the same as torture and murder.

My guess is that the bar referrals and even prosecutions would generally leave Gates out.

Jesurgislac writes: "...he didn't want to scare Bush into a last round of pardons."

Your analysis of the politics is rock-solid, but I have to quibble about this one point. Given Obama's general reluctance to proceed, he might've preferred to have Bush issue blanket pardons for members of the cabal, from Cheney to Rumsfeld to Addington and beyond (obviously including Bybee and Yoo).

That way, Obama could've claimed that his hands were tied and no prosecutions were possible. His argument for moving on would be a whole lot stronger.

What irks me is how much the legal and political calculations have been commingled, even on the left. There may be no "stomach" for action right now, but I think it's important to emphasize the legal (= moral) grounds for investigations and prosecutions. Once the facts can be demonstrated, the legal grounds for prosecutions will become more compelling and the political support will (I hope) follow.

Rune, I think people are afraid of what happens (and what it means about the country) if the facts are demonstrated and the political support doesn't follow.

efgoldman: but my knowledge of the torture-bushies and of Gates is that he didn't come on board until the nastiness pretty well ceased.

Since the torture of prisoners by US soldiers has not yet stopped, I really don't know what you mean by this.

It's possible that a thorough criminal investigation could clear Gates. It's possible - indeed, one hopes it's likely - that a thorough criminal investigation could clear many people.

Since no criminal investigation has been carried out to discover who is implicated in the ongoing issue of US soldiers torturing prisoners, I really don't know who is in the clear and who isn't.

Far be it for Jes to ever substantiate her claim that Robert Gates is guilty.

Right, the ultimate concern in all this, as KCinDC nicely puts it, is "what it means about the country."

Also, what Jesurgislac just said.

I'm surprised nobody has linked to Former Gitmo Guard Tells All in Harper's.

I may not always agree with Jes, but why, oh why, do people believe torture stopped?

I may not always agree with Jes, but why, oh why, do people believe torture stopped?

ral, the Harper's article you refer to describes the experiences of someone at Guantanamo during the Rumsfeld era. People believe torture stopped with Gates because they would like not to assume that everyone supports the use of torture. Given the Bush administration experience, I certainly support investigation of Guantanamo under Gates, but I'm not prepared to assume him "guilty until proven innocent" as Jes seems to do.

Thanks, Sapient, for expressing my idea much more clearly than I did - efg

I don't mean to accuse. I just feel, based on what we know now, "we don't torture" is not convincing without proof.

Note that, as awful as it is, holding people indefinitely without charge or trial at Gitmo is not the same as torture

Oh? What would change in your life if you were snatched up for no reason and held without charge for two years?

Would your spouse still be there? How about your job? What grade would your kids be in?

I understand not everyone will agree with me on this, but that'd sure be torture to me.

Do not forget Addington. Cheney may well be protected by his former VP status (we just don't prosecute high elected officials) but Addington ought to be fair game.

And be thankful Marty Lederman is in OLC. I have every bit of confidence that he will recommend justice.

Andrew - I think, for purposes of this thread and the OPR investigation, "torture" has a specific legal meaning, inflicting physical harm. But as I said, I'm neither a lawyer nor do I play one...

We are, of course, splitting semantic hairs.

The best (meaning "most extensive and farthest reaching") outcome I can see from this, BTW, is that professional harm comes to the attorneys involved, especially Yoo and Bybee. I don't see any realistic scenario under which we'd see war-crimes prosecutions of Bush, Cheney, etc. I'd love to see it, as clearly Jes, Ral and others would, but I don't see any realistic chance that it happens.

I think, for purposes of this thread and the OPR investigation, "torture" has a specific legal meaning, inflicting physical harm. But as I said, I'm neither a lawyer nor do I play one...

We are, of course, splitting semantic hairs.

You are certainly correct. Sorry for being pedantic, but the thought of such a thing horrifies me.

KC:

Rune, I think people are afraid of what happens (and what it means about the country) if the facts are demonstrated and the political support doesn't follow.

I can't parse this. Which "people"? What do you mean by "political support"?

Glenn Greenwald has IMHO convincingly demonstrated that reluctance to prosecute torture is almost entirely driven by factors inside the Beltway -- that the majority of the politicians, bureaucrats, *and* the media don't think it's wrong if someone they know did it -- and they *all* know someone who did.

Dr. Science: "Glenn Greenwald has IMHO convincingly demonstrated that reluctance to prosecute torture is almost entirely driven by factors inside the Beltway..."

No doubt many Democrats would also be implicated by a thorough investigation, if only because so many of them failed to clearly speak out and demand an end to torture and all the other Bush/Cheney "abuses" (= war crimes).

A new ABC/WaPo poll (Jan. 16th) asked this question: "Do you think the Obama administration should or should not investigate whether any laws were broken in the way terrorism suspects were treated under the Bush administration?"

Should: 50%
Should not: 47
No opinion: 2

Given lack of interest expressed so far on Capitol Hill and in the White House, I'd speculate that the percentage of "should not" responses would be quite a bit higher in D.C.

With a divided public and limited interest within the political classes, it's going to take someone with a real commitment to carry this issue forward.

Sen. Leahy has taken the lead lately, but even he was "only offering the idea to see how much support it had."

Andrew - I think, for purposes of this thread and the OPR investigation, "torture" has a specific legal meaning, inflicting physical harm.

By what I've read, they're still unabashedly forcefeeding hunger strikers. I suppose you can refuse to accept that as falling under the definition of torture, though I and e.g. the ICRC would disagree.

Rune --

Yes, Greenwald is convinced that many Democratic members of congress are at minimum accessories after the fact to torture.

efgoldman: I certainly support investigation of Guantanamo under Gates, but I'm not prepared to assume him "guilty until proven innocent" as Jes seems to do.

If Robert Gates is ever charged and brought before a court of law, I will absolutely support his right to be regarded, by that court, as innocent unless proven guilty.

Indeed, as I believe I already said: it's possible that a criminal investigation could clear him.

But we are not a court of law. It is quite right - and one of the many things that makes the US detention of so many extra-judicial prisoners so appalling - that anyone accused of a crime shall be presumed innocent by the official process until proven guilty.

The muddled notion that the general public has some moral obligation to presume political appointees are innocent until they are proven guilty is pretty much what the Republicans have been trading on in defense of the actions of former President Bush, former Vice President Cheney, and all the rest of the crooked crew. They serve at the pleasure of the US public, and you are, if you didn't know it, fully entitled to presume that anyone Bush appointed/approved of is guilty as hell until cleared by a thorough investigation.

You can't kidnap them, sentence them to life imprisonment without trial, beat them up, forcefeed them, do anything to them but publicly disapprove - so why so shy about doing what you absolutely have a right to do?

Torture has not stopped.

What Jesurgislac said.

In the "court" of public opinion, the only adverse consequence for the accused is the risk of a tarnished reputation. And they have the ability to fight back though the media, often with the support of powerful allies.

In the criminal courts, the burden of proof (beyond a reasonable doubt) and the consequences of a conviction (up to 20 years or even the death penalty for torture) are far different, as they must be.

Those two kinds of judgments shouldn't be confused.

Two months ago:

If no investigation and prosecution of torture is carried out under Obama, it will have been established definitely that torture by the US military is legal and okay if the sitting President approves torture.

So torture may cease during the period Obama is in office. (I suspect it won't cease, once it is clear that Obama does not intend to prosecute, but you're right that this is speculation.)

Not speculation any more: President Obama established that he wasn't going to prosecute, and the US military continued to torture prisoners.

It may be hard to believe, but I really wish all those optimistic folks arguing with me then that Obama really did intend to stop torture when he took office had been right, and I'd been wrong. Because, as I said two months ago, while it's hard to bill just stopping torture as a positive good, it would have been good for the prisoners who are being tortured by the US.

Who may even - if they know there's been a change of administration - have hoped for change...

There seems to be a lot of confusion about legality and morality in these discussions. It is obvious on many levels that there is no legal restriction on torture for what we have classified as 'enemy combatants'. You can argue the morality and whether the ideals of the country prohibit such action, but a combatant captured on a battlefield who is not fighting as part of a national army is by definition illegal and has no rights per any international law. The fact that these persons where never brought onto US soil makes US law irrelevant. Let us have a debate about morality, but there is no issue with legality. Anything in pursuit of wrongdoing on that grounds in nothing more then a political witchhunt. We can do better.

there is no issue with legality.

Nonsense.

Mike; but a combatant captured on a battlefield who is not fighting as part of a national army is by definition illegal

Actually, international law is silent about whether it's illegal for a person to take up arms to defend their country if invaded by a foreign force. Americans may feel that they ought not to do so, but I suspect that's because the US hasn't been invaded by a foreign army for nearly two centuries...

International law is not at all silent about how military forces are required to behave towards people captured by the military - whether those people are ultimately determined to be prisoners of war or civilians. Either way, they're covered by international law.

and has no rights per any international law.

The big lie that the previous American administration kept telling. Mike, they're no longer in power, you don't have to repeat their lies any more.

Force feeding at Guantanamo involves strapping prisoners in at 14 points to a 'restraint chair' and forcing a tube (thicker than necessary) through the nose and into the stomach. The chair was introduced in response to the largest hunger strike at the prison, in 2006.

It was intended to break the hunger strike by making the force feeding process even more of a torture than it intrinsically is.

If your stomach is not particularly strong, please skip the next paragraph.

The prison authorities, with the active cooperation of psychologists and doctors, deepened the degradation and abuse. They denied medical care unless hunger strikers abandoned the strike -- and in several cases denied it even when they did so. They kept the prisoners strapped into the chair for hours before and after feeding. They fed extreme amounts of water and food so that prisoners would shit and wet themselves in the chair. They did not clean the tube from prisoner to prisoner.

The big hunger strike was broken, but on the 7th anniversary of the prison's opening this past January 11, 40 to 50 of the prisoners re-launched it. Most if not all of them are men who have had no charges placed against them, or charges dismissed. The have been cleared for release for a long time. But nothing is changing, and the prisoners are desperate.

The new administration could have appointed a new base commander and gotten him to Guantanamo on January 21st. The one appointed at the end of January has not yet arrived and there is no announcement on when he will. (The Navy no. 2 admiral did arrive last week to assess compliance with humane treatment standards, in what appears to be advance work.)

The new administration could have met with the defense lawyers during the transition and heard their proposals. Sure, there'd have been an outcry from the rightists and torture enablers in the media, military, and populace. But whether through disinclination or because they are intimidated by the torture lobby, they denied themselves much valuable grasp of what has gone on in Guantanamo, and denied themselves the only remotely clear channel of communication with the prisoners.

The new administration could have immediately gotten rid of the insane level of "security" measures and made visits with lawyers normal for the vast majority of prisoners who are not charged with anything.
They could, through very simple humane gestures like decreasing the isolation, increasing exercise and outdoor time, and expanded dialogue through the laywers, have communicated the new administration's intentions and timeline. In other words, they could have treated them like human beings from the get-go, heard their concerns, and negotiated improvements that would have suspended the hunger strike.

Instead, possibly out of fear of right-wing shrieking and disgruntled Bush-Cheneyites in the military, they're treating them, just as before, as "the worst of the worst" until proven otherwise by the "review" that's going to take a lot more than the 30 days allotted because, on purpose, there are no assembled files on the prisoners.

Bush-appointed officials are still in crucial jobs, working to maintain conditions for the prisoners at the harsh levels they've been at for years.

Two Yemeni prisoners on hunger strike sued to be able to be force fed without being strapped into the restraint chairs, and were turned down by Judge Gladys Kessler, on multiple grounds: 1- the Military Commissions Act denied U.S. judges authority to make changes in prisoner's conditions, 2 -agreeing with the military/government contention that the chair was being used to protect the personnel doing the force feeding, 3 - dismissing the prisoner's contentions that they were left strapped in the chair long before and after the feeding, even though there was evidence in the medical records that this did happen, and, most chillingly 4- that she wouldn't have stopped the use of the feeding chair even if she had the authority because the government's actions "do not violate a legal standard." In this she is wrong, as Nombrilisme Vide pointed out in a comment above.

So now the new administration owns what is being done to the prisoners, every day, twice a day. If there are not immediate improvements in conditions, as the reviews drag on, then every day Obama's complicity in this crime is compounded.

I have links to support everything above; several are in this post. If you'd like more documentation of a specific point, please let me know in the comments there.

Shorter Nell: Torture continues for at least 40-50 prisoners.

A harsh, coercive, punitive environment continues for the majority of prisoners, the bulk of whom have done nothing to justify even being imprisoned, much less imprisoned indefinitely with no process, no communication, no hope.

Every day this goes on, Obama and his government own the harsh, illegal regime. Yoo and Bybee and their bosses are not the only people who should be feeling some anxiety.

But some former Bush officials are furious about the OPR's initial findings and question the premise of the probe. "OPR is not competent to judge [the opinions by Justice attorneys]. They're not constitutional scholars," said the former Bush lawyer."

Hey, Mr. Addington? Is that you?!?!?

Cheers,

but there is no issue with legality.

The posting rules limit the ways in which I can call you out, but this assertion is more obviously wrong than a claim that the sun revolves around the earth.

I'm not a lawyer, but I have been an investigator for a state bar association, which is really neither here nor there for now. I just wish all of you who are lawyers would spend as much time cleaning up the practice of criminal law both at the federal level and in your states as you do jawboning about the Bush administration. Plea bargains, fact bargaining, federal sentencing guidelines, forfeiture laws - thanks to all of these and much, much more we might as well abolish the Bill of Rights. How dare you accuse anyone of wrong doing when the whole criminal justice system stinks to its core.


italics off?

"torture" has a specific legal meaning, inflicting physical harm

Or mental, tho in our implementing legislation, we tried hard to limit this aspect out of existence.

2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality

"How dare you accuse anyone of wrong doing when the whole criminal justice system stinks to its core."

I'm not a lawyer, just to get that out of the way. But I suspect that if you're right on what you claim, then some of the lawyers here who are so upset about the torture policy have had things to say about your issues as well. People can be upset about more than one outrage at a time.

Mike: Let us have a debate about morality, but there is no issue with legality.

Not so. Even if you leave aside the question of international law, there's Section 2340A of the United States Code (U.S.C.). This federal law prohibits torture in the strongest possible terms and defines it as:

"(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

"(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

"(C) the threat of imminent death; or

"(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality..."

Hard to read this without thinking of Guantanamo, Abu Ghraib, waterboarding and the whole panoply of what the media likes to call "abuses."

This federal law, by its terms, has "extraterritorial application." A 2004 DoJ opinion repudiates the infamous torture memo and discusses, in some depth, the interpretation of these laws by the courts.

Even if the torture statutes didn't apply, there are other federal statutes prohibiting assault (see 18 U.S.C. Sec. 113) on federal property (think: Guantanamo). Not to mention the long list of other felonies that have been, or are being, committed.

The U.S. has also ratified the 1984 U.N. Convention on Torture. Under the Supremacy Clause of the Constitution, "all Treaties made under the authority of the United States, shall be the supreme Law of the land."

Even if you want to quibble over the application of the Geneva Conventions, there's no ambiguity in the laws noted above. Don't give the Bush/Cheney cabal a way out by suggesting there is.

there is no issue with legality

Really?

Let's find out.

In 2005, the Bush administration basically threw the UN Rapporteur on Human Rights out of Afghanistan. Has a UN human rights representative been allowed to return since then? If not, why not now?

Speaking of the Office of Legal Counsel...

The confirmation process seems downright glacial. No hearing scheduled yet for Dawn Johnsen.

The Republican delaying strategy on Holder pays off not only directly, but for all his subordinates who need confirmation. Thanks for the collegiality, Sen. Leahy! I'm sure the courtesy you extended to Sen. Kyl in December will be repaid Real Soon Now.

Expellitalics!

@CharleyCarp:

Nell: The new administration could have met with the defense lawyers during the transition and heard their proposals.

Is this a complete fantasy? Would there be ethical/procedural obstacles? If so, could something of worth have been accomplished by meetings with lawyers with Guantanamo representation experience who aren't currently litigating?

I'm thinking particularly of the way in which the new admin has taken on the "review", failing to take advantage of the pre-clearance that's already been done.

I'm also thinking of the hunger strike, which started before the inauguration, but which might have been suspended three weeks ago with the right kind of communication.

As always, if you're constrained from answering, I'll understand.

If Hilzoy or someone else could edit it, it's Arne's comment at 1:12 PM that caused the italics leakage. It's this line:

<i>But some former Bush officials are furious about the OPR's initial findings and question the premise of the probe. "OPR is not competent to judge [the opinions by Justice attorneys]. They're not constitutional scholars," said the former Bush lawyer."</b>

Note that the closing tag is a </b> instead of a </i>. Change this and the problem will go away.

Nell, I'm not ignoring you.

Catsy: done. And thanks for telling me: there were no italics in my browser, so I would not have noticed them without your comment.

Mark Levin saw your post and wrote, "The Justice Department’s Office of Professional Responsibility (OPR) has now been politicized. This is institutionalized corruption of the worst kind." I really don't understand how that makes any bit of sense. How did this happen "now" when the inquiry was well under way over a year ago and it was first made public almost exactly a year ago? All by the Bush White House of course.

How dare you accuse anyone of wrong doing when the whole criminal justice system stinks to its core.

Well, I reject the concept that you're not allowed to solve one problem unless you solve them all.

I like this line best of all:

'Mukasey, in speeches before he left, decried the second-guessing of Justice lawyers who, acting under "almost unimaginable pressure" after 9/11, offered "their best judgment of what the law required."'

This is exactly when you are supposed to be most conscious to ensure that our values aren't sacrificed for political or other expediency.

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Whatnot


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