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April 20, 2009

Comments

Is Cheney nervous ?

I say release everything. There are video tapes no?

I didn't have a problem with President Obama's announcement that he wasn't going to prosecute CIA officers who relied on the guidance they got from the OLC. I'm uneasy about prosecuting people who rely on the OLC, which they ought to be able to rely on. (I think that relying on legal interpretations offered by the people charged with interpreting the law for the executive branch is very different from "just following orders.")

I've heard this argument made a lot and I'd like to know where you draw the bright line. If the OLC wrote a memo saying that it was perfectly legal for CIA officers to shoot random civilians in the head in order to relieve stress so they could better focus on their work, and some officers did so, would you have a problem with that? If so, what is the principle by which you decide that torturing someone is legal if the OLC says so but shooting random people in the head is not, even when the OLC says so?

Is it just a matter of the sheer absurdity? Because I have to say, waterboarding someone 183 times in a month or dropping them in a tiny box for hours at a time seems pretty freaking absurd to me; I'm not sure that shooting people in the head is significantly more bizarre or pointless.

It just seems bizarre to me that we've so normalized the national security state that people are so accepting of government agents torturing people provided the proper functionary has filed the proper paperwork in triplicate.

Of course, my first priority would be prosecuting the higher level folks who authorized torture.

Turb: two things. First, I really do think that, in general, people ought to be able to rely on the OLC. I mean: I don't think it's fair to ask them not just to be aware of laws, but to interpret them, and to be criminally liable for the correctness of their interpretation. (I feel the same way about soldiers' obligations when faced with the question whether some war is lawful: there are clear cases, like the President killing all members of Congress right after they vote not to declare war and then ordering the troops into battle, but when e.g. people would argue that the Iraq war was illegal, and so soldiers should be prosecuted, I'd think: no. Even granting the assumption that it was, no.)

Second, though: I'm also making a tactical choice. I could go to the mat for all prosecutions, or I could accept (what I take to be) the fact that it will be hard to get anyone prosecuted, and keep my focus on the important prosecutions, which I take to be Cheney, Addington, Bush, et al, and also on things like: impeaching Bybee, disbarring the lawyers, etc. I choose the latter.

Hilz.: I didn't have a problem with President Obama's announcement that he wasn't going to prosecute CIA officers who relied on the guidance they got from the OLC....

Turb: I've heard this argument made a lot and I'd like to know where you draw the bright line.

It's not a bright line. But Hilzoy's distinction makes sense, odious as what the CIA guys did is.

I'm glad to see someone I respect hold the line on this. There just isn't room for compromise in this case. Obama has been a major disappointment on nat'l security stuff and he's probably not going to change, but it's important to at least be clear in one's own mind.

I also disagree with the principle of not prosecuting CIA torturers just because the OLC memos told them what they were doing was legal. To continue with your "ordinary criminal" analogies, what would happen if I told a judge that my lawyer friend, who I trust implicitly on all these matters, told me that growing marijuana is totally legal as long as I smoke it in private ?

I can see the OLC memos being attenuating circumstances, and possibly the CIA being acquitted because of this, but why not prosecute ?

That said, I agree with you and Turbulence that the higher levels are definitely the priority.

First, I really do think that, in general, people ought to be able to rely on the OLC.

I'm very sorry, but I don't understand how this is relevant to anything at all. It would be wonderful if people could rely on the OLC and it would be wonderful if no one was homeless or hungry. But that's clearly not the world we live in. This became obvious with regards to the OLC at least once they filed a memo suggesting that there was no legal bar to torturing people. So, in the real world, the one where the OLC authorizes torture I still don't see what principle you use to decide when the government officers should be immune for committing horrific crimes because someone at OLC wrote a ridiculous memo. What exactly is the principle?

I mean: I don't think it's fair to ask them not just to be aware of laws, but to interpret them, and to be criminally liable for the correctness of their interpretation.

Isn't it fair to ask all citizens to do that though? I mean, we're all expected to follow the law, even if we can pay off a lawyer to tell us that murdering our enemies is actually OK. And even if our bosses pay off a lawyer to tell us that murder is OK. I don't understand what the problem is with holding CIA officers to the same standard that I am held to.

In practice, no judge is ever going to put a non-lawyer government official in prison for failure to correctly decide some incredibly fine legal point. That's just not going to happen. So talking about holding government officials criminally liable for legal interpretations seems to gloss over the distinction between complex legal questions about the tax code and the question of whether the government is authorized to drown people repeatedly. These issues are not really comparable.

I mean: I don't think it's fair to ask them not just to be aware of laws, but to interpret them, and to be criminally liable for the correctness of their interpretation.

I could go to the mat for all prosecutions, or I could accept (what I take to be) the fact that it will be hard to get anyone prosecuted, and keep my focus on the important prosecutions, which I take to be Cheney, Addington, Bush, et al, and also on things like: impeaching Bybee, disbarring the lawyers, etc. I choose the latter.

Wouldn't it be easier to prosecute the higher level folks if the lower level CIA officers testified in exchange for immunity? I mean, as it is, the CIA officers don't have much reason to testify truthfully (as opposed to taking the fifth) regarding their higher-ups' behavior and they have several reasons to not testify truthfully. If you have a general belief that prosecutors should not compel testimony by threatening prosecution, that would be one thing, but I don't think you do....

I do not understand why so many people who insist on their desire to see high level administration officials prosecuted are so willing to take steps that make prosecution much harder.

@hilzoy : what do you think of this ?
Sure, it's wikipedia, and it specifies that there are exceptions to the principle that ignorance of the law is no excuse, but it doesn't say anything of government wrongdoing under cover of the OLC. In fact, the cases it does give as exceptions involve sections of the law that can be pretty complicated and obscure (city ordinances and tax law), and I really don't think the fact that torture is illegal is complicated or obscure. I'd expect a CIA officer in particular to have run across the concept at one time or another.

*Defining* torture can be complex, but come on, anyone who was actually torturing those guys day in and day out had to know what it was, just from seeing the effects. Or they were deep in active denial, but again I don't see why that should stop prosecutions.

Second, though: I'm also making a tactical choice. I could go to the mat for all prosecutions, or I could accept (what I take to be) the fact that it will be hard to get anyone prosecuted, and keep my focus on the important prosecutions, which I take to be Cheney, Addington, Bush, et al, and also on things like: impeaching Bybee, disbarring the lawyers, etc. I choose the latter.

I agree with this. I have no problem with not prosecuting CIA officers for pragmatic reasons; it's the principled ones I don't understand.

Sorry, I should have been clearer. I think the following:

In both the 'President kills Congress, declares war' case and some cases involving the OLC (maybe the 'OLC declares that homicide statutes only apply to corporate persons, orders CIA to kill everyone' case), I think things are totally obvious and prosecution makes sense.

In some cases, including the 'Bush declares war on Iraq in some way that is, as it happens, illegal, but that's hard to be sure of if you aren't a lawyer' case, and some cases involving the OLC asking people to do things that are in fact illegal but not flamingly obviously so, I would not favor prosecution.

I take this to be an intermediate case, for non-lawyers. (And assuming that we're talking only about people who followed the rules laid down in the memos.) If there were no one else to be prosecuted, I might push for this. But I'm sticking with Cheney et al.

I know you have consistently opposed torture so at least on the American spectrum you're on the less wrong side, but come on. What's so special about CIA agents and OLC advice, except that they're American?

There's (rightly) no sympathy for, say, a Serbian army officer who was just following orders. This double standard when suddenly the torturer is an American is appalling.

The worst part is the important factor doesn't even seem to be that they're American, so blind nationalism can't be the excuse. I don't remember such sympathy for Lynndie England and other in her position. But who is in a better position to refuse their orders: a young, uneducated, and low ranking army soldier deployed in Iraq or an elite CIA officer based in the United States?

I agree that the people who ordered and directed torture are more blameworthy than people who followed orders, and the people at the top deserve more serious sanctions than the people who followed their orders. But if CIA officers who torture when ordered to are not prosecuted then no one following orders ever should be.

Nathan: as I said, I think this is different from following orders. When someone gives you an order you know to be unlawful, the fact that it's an order is no excuse. When the JAG officer you consult tells you that in his opinion, as a lawyer, it is, that is, I think, a different thing.

As I said, there are cases in which I would not lean on this. This case is near my limits. But there are people I would much, much rather see prosecuted.

Even in the case of Abu Ghraib, I would have been a lot happier had they prosecuted Rumsfeld.

Hilzoy, I still would like to know how you apply the principle that ignorance is no excuse in this case, and if you don't why not. As Turbulence pointed out, that reasoning doesn't apply to civilians talking to any old lawyer.
Is it that government lawyers are involved ? Is it that defining torture is such a difficult subject ? (in theory I agree, but those people were doing it in practice, to deny it was torture they'd have to be deep in denial and rationalizations, and when did a criminal rationalizing their behavior ever stop a prosecution ?). Is it that the CIA is army-like ?

I'm asking purely on the principle here, nothing else.

Why are we so sure that the CIA people, either officers in the field or higher-ups at Langley, were "just following orders"?

I mean, I can believe the OLC lawyers were instructed by Cheney and Addington to write memos approving tortures that Cheney and Addington dreamed up all by themselves. But it seems equally plausible that somebody at the CIA proposed the tortures, and sought legal cover for them, and found Cheney, Addington, Yoo, Bybee, Bradbury et al (not to mention Dubya and Gonzo) happy to oblige.

Incidentally, if Cheney really wants the world to know the valuable intelligence torture produced, I'm sure the ACLU would happily support any FOIA request he cares to file. Quite possibly, however, he would end up in the delicious position of having to sue himself to get the relevant documents released.

--TP

It's probably partly just that, as I said, if I have to pick something to get exercised about, this isn't it. That said:

People in the CIA, the Army, etc., have to do their jobs, and their jobs are such that they might, in principle, end up on the wrong side of the law. Thus we have people whose job it is to tell them what the law is. I think it's much better, in general, if these people do a good job, and people in the CIA can count on them. The more we insist that they get it right all the time, the more we force them to do legal work that they are not trained to do, and that they might or might not be any good it. So in making any decision like whether to prosecute them, I'd want to balance our interest in enforcing the laws against our interest in having people generally able to rely on the OLC.

I don't think this is just about government lawyers. There are a number of areas in which, as I understand it, relying on someone's representation of a claim they ought to know about is some sort of defense. Sometimes we decide it shouldn't be, as in the case of making CEOs sign their company's financial statements and attest that they stand behind it. They might otherwise rely on the representations of their accountants; we don't think that allowing this as a defense in cases of fraud is a good idea, we weigh the added burden on them of actually going through their statements vs. being able to hold them accountable, and decide that, no, 'my accountant said it was OK' won't cut it.

It's about weighing the costs and benefits, I think. I would also feel quite differently if I didn't think that the prospect of doing time would concentrate the minds of future John Yoos wonderfully.

Hilzoy, with respect, you are speculating about what CIA officers may or may not have believed. For all you know, some of them didn't read the memos at all and just relied on what their superiors said. Or maybe some of them did read the memos, realized how unpersuasive the memos were, but though they'd never be prosecuted. Or maybe some of them thought their actions were unlawful but justified by the necessity of the situation. Or maybe some were just sadistic people who hated terrorists and wanted payback.

But doesn't seem to matter. Yes, I agree if someone honestly believed and reasonably relied on the memos she might have a defence (I believe those would be the key elements to establish for the defence of official induced error in these cases). But the fact that some people might not be guilty does not justify a blanket amnesty (or at least non-prosecution) for an entire class of people.

Government agents torturing people is one of the worst crimes I can imagine. I cannot understand how these people can be excused with absolutely inquiry into whether or not they are guilty.

And I stand by my criticism that if they were not among the elites in American society we would not be having this debate. I cannot remember anyone ever suggesting that we should look into the advice Yugoslavian lawyers may or may not have given before punishing war criminals there.

Incidentally, if Cheney really wants the world to know the valuable intelligence torture produced, I'm sure the ACLU would happily support any FOIA request he cares to file.

It is, perhaps, unfair to speculate, but my general impression is that sometime after 9/11 it was made clear to Cheney that there was a greater than 1% chance that his personal ass was on schedule to be grass, and at that point all bets were off.

Constitution, schmonstitution. Waterboard away!

But the bottom line is that the CIA did not comply with the memos: the chances that the letter of the "law" described in the memos is zero (ie, 183 times).

And prosecution is not conviction. Prosecute, and let the law work. If nothing else, it is always good to have government officials get a chance to test the ability to find truth in the American justice system.


Bravo, Hilzoy, for a splendid post. Simply splendid.

That said, I also agree with Turbulence, Caravelle, and Nathan. Even CIA operatives need to exercise some individual responsibility, and the very minimum of that is: no torturing, and no obeying orders to torture.

The tactical argument, yes. If we can only prosecute some of them, they should be Bush, Cheney, Addington, Yoo, Bybee, Bradbury, Rumsfeld, Cambone, Haynes, and Tenet. And Rizzo. And Rice. (Gonzales? Chertoff? Ashcroft?) Still looking like a Nuremberg-sized dock.

But I can't support a principled argument against prosecution of CIA torturers. Maybe considerations of what was understood and the good faith with which "authorizing" legal memos were followed might play a role at the sentencing phase. As to actual guilt or innocence, no. The post-1945 prosecutions of war criminals did go much lower and were far more numerous than commonly thought. (Yes, the crimes were also far more numerous and on a different scale than the recent/current epidemic of U.S. torture.)

To restore the Office of Legal Counsel to its previous role, what Sen. Whitehouse called "a temple of legal scholarship", it's all the more important to prosecute those who desecrated it.

Shorter Hilzoy: Torturers are exempt from prosecution because they were only following orders.

I disagree, needless to say, while strongly believing that while it's wrong for someone to obey an order to torture a prisoner merely because they've been told it is legal to torture, the people who gave the orders to torture are doing worse; as are the people who tried to invent some kind of legalistic rationale to make it so it looked sort of legally okay if you squinted to torture people.

And as I gaze into my crystal ball, I see a world in which members of the executive branch take it for granted that they can do whatever they want with impunity. Why not break the law? Why not eavesdrop on Americans? Why not torture people? Why not detain citizens indefinitely without charges? Heck, why not impose martial law and make yourself dictator for life? There is nothing to stop the people who make these decisions. They have nothing to fear. Because once they've made them, their actions are back there, in the past that no one ever wants to look at.

Yes, and that's no news: if Obama were planning to have members of the executive who were responsible for torture investigated and prosecuted, he would not have wanted Bob Gates as his secretary of defense. So back in November, it was beginning to come clear that Obama did not intend to stir up any of that mud. No good manager would hire someone for a complex job when they might well be implicated in a wide-ranging criminal investigation and prosecution. Obama's a good manager.

And yet, somehow, the obvious question never arises, namely: what on earth are we doing repeatedly slamming this naked and sleep-deprived guy into a wall and then dousing him with cold water? How can this possibly be OK?

You do realise you have just answered your own earlier question? The people who did it - who repeatedly slammed a naked and sleep-deprived man into a wall and doused him with cold water - knew it was "OK" to do it because they'd had their orders. Not theirs to question, not to analyze, not even to pay attention to their own moral qualms. And if you support not prosecuting them - you are affirming that it is okay to do these things - so long as you are following orders.

(Yes, I noticed you're trying to make a distinction between just being told to do something and being told to do something with a whole bureaucracy of memos, but, either way: it works out as - it's OK to slam a naked man face-first into a wall and then douse him with cold water.)

I'm not merely being petty and vindictive about this, though I will grant that I do have a tooth-grinding sense of wanting to see everyone involved in court trying to justify to a jury why they thought it was OK to "wall" a prisoner, why they thought it was OK to throw cold water over him. I would like to see prosecution from the ground up for other reasons:

One, I'm pretty certain that some people refused. Either after the first time or even before. We know some soldiers did refuse to take part in the brutalising of prisoners. I'm guessing that there are people up and down the military and the CIA who did say no to torture. Because some people always do. And I don't suppose it's done their careers any good. I think the ones who didn't torture deserve to be recognised - and the ones who did, deserve to get a wake-up call that they shouldn't have.

Two. Because the torture began in late 2001 and continued to 2009. It began before the memos started getting written, and it continued after Obama took office. (Had Obama been serious about wanting to end torture, he'd have sent teams of investigators to Guantanamo Bay and Bagram Airbase for January 21st, with news that a new regime had arrived that was taking a very different attitude. But then... we knew.)

Three: Because nobody is going to get prosecuted. Obama wants to move on. He doesn't want to add cleaning up the US military to his list of things to do. So why not ask for everything - demand prosecutions for everybody who committed, authorised, or overlooked torture? You won't get it, but if you're going to ask at all, ask for it all.

And I stand by my criticism that if they were not among the elites in American society we would not be having this debate.

Do vice principals count?

Did you bat an eye when Bush took office, and Clinton benefited from Bush "moving on"? One thing you may be sure of, Obama means to benefit from the next President "moving on", and will do nothing which might discouraging him from that. If there's one thing office holders are united on, it's the desire not to be prosecuted by the next guy.

Did you bat an eye when [Clinton] took office, and [Bush] benefited from [Clinton] "moving on"?

Fixed that for you.

It is precisely because "moving on" from the criminal actions of Nixon and Reagan/Bush did President Carter and President Clinton no good at all, that I would prefer Obama not to emulate their example.

Hilzoy: You say you are making a tactical choice. For a moment, it seemed Obama had made an even less ambitious tactical choice, but from the NYT update (which is backpedaling from Emanuel, not clarification), I gather they may be at least no more tactical than you.

I agree with jesurgislac, Caravelle, Nell etc. (Nell, I particularly like your blog and your writing in general) that people must be expected to interpret the law themselves when it comes to not infringing the most fundamental human rights. They can't rely on lawyers to cover their behinds.

You wouldn't have accepted the excuse from, say, a Serbian torturer, that his lawyer told him it was OK. You should not accept it of an American either.

Ok, Jes, that was just stupid. I mean, usually this business of 'fixing' what somebody actually said at least turns it into something that advances your viewpoint, but that? Just stupid.

"Did you bat an eye when Bush took office, and Clinton benefited from Bush "moving on"?"

Wha - oh, you mean when the federal gov't declined to prosecute Clinton for having an affair, etc.? (Especially given that he hasn't been subject to trial and/or disciplinary action by the U.S. Senate and the Arkansas Supreme Court - oh wait, he was? Silly me.

Now, I'm not especially disagreeing on the larger point, mind you, and am not even completely opposed to the practice - but there are cases that don't just cross the line but takes the line and loops it around someone's neck to repeatedly slam them into a wall, and that's somewhat of a different story. There needs to be a hefty disincentive here, according to responsibility.

I agree totally that the highest priority should be getting Cheney, Rumsfeld, et al, behind bars, and I also understand that state actors can under certain circumstances do things I can't (monopoly on the legitimate use of force and all that), but we've created a situation in which employees at all levels of the state can do pretty much whatever they want and face no consequences whatsoever.

Cops are almost never prosecuted for the bad results of a mistaken raid, and even if the victim is able to sue or to settle with the jurisdiction involved there are no financial consequences for the cops (pick any day of Radley Balko's blog at random). They are able to use excuses that would be laughed out of court for a civilian ("it was dark and I was stressed and I thought he had a gun").

Would a lower-level employee of a corporation be able to rely on bogus legal reasoning from the company's Office of General Counsel to excuse an illegal act? Call me skeptical.

Ordinary people are assumed to be moral actors capable of taking responsibility for their actions. Why are employees of the state consistently held to a lower standard?

Brett: I mean, usually this business of 'fixing' what somebody actually said at least turns it into something that advances your viewpoint, but that?

What, you mean you really didn't get the names mixed up? After all, when a relatively-lawabiding President's predecessor and successor are both called George Bush, and both involved in scummy and criminal scandals, it's easy to get confused. George Bush is the one who did the December 1992 pardons of everyone who might have implicated him in the arms-to-Iran/cash-for-terrorists scandal, and Bill Clinton is the one who generously "moved on", ignoring his predecessors crooked past - to find that Republicans just couldn't forgive his winning elections.

I'm seeing parallels here, yes. George W. Bush's crimes are more outrageous than those his father may have been implicated in, just as the Iran-contra scandal was more outrageous than Watergate.

While Obama is "looking forward", he should consider that if he lets his predecessor get away with kidnapping and torture, just what will Obama's successor expect to be able to get away with?

From what I can tell this is not the President's decision to make. What he *can* do however, is pardon those why have been found guilty. Seems like a good question for the press corps to ask.

Somebody here (not mentioning any names) seems to associate bad, or even criminal, behavior with political party affiliation. Nixon, Reagan, Bushes bad, Carter, Clinton, Obama good. If that's how the analysis and conclusion process works, then the rabid opinions are understandable.

In a way, isn't the situation with the torturers worse than the classic "following orders" scenario? OLC didn't order the CIA and its officers to do anything. It just said that based on its (specious) reading of relevant law, torture was probably OK, and the memos themselves had tons of lawyerly caveats about lack of precedent, not knowing how courts would react, etc. So, with the "probably OK" memos in their pockets, they went and tortured people. OLC wasn't the SS or the Stasi or the President-for-Life's authoritarian right-hand man - it didn't order the CIA to do anything on pain of violent retribution or anything else. In legal terms, having an OLC memo on a subject is helpful and will get you some degree of careful and respectful attention from the courts, but they don't roll over like it's holy writ and they won't let you off the hook just because you have one. Pretending that an OLC memo is some magical talisman or get-out-of-jail-free-cars is stupid.

"when a relatively-lawabiding President's "

I wasn't talking about Carter.

"having an affair, etc.?"

Having an affair was not illegal, some of the etc most assuredly was.

Obama has two reasons for not prosecuting, either of which is sufficient:

1. The desire not to face prosecution himself in 4-8 years.

2. The fact that the Democratic Congressional leadership are complicit, and could be proven so in any prosecution. I doubt Obama particularly likes Reid or Pelosi, but he still needs them.

GoodOleBoy: Somebody here (not mentioning any names) seems to associate bad, or even criminal, behavior with political party affiliation.

Are we supposed to pretend that Carter was just as big a crook at Nixon, or that the Iran-contra scandal was a bipartisan affair, or that lying about a blowjob is anywhere in the same field as authorising torture?

Because if that's how your analysis and conclusion process works - sure, the last three Republican Presidents were guilty as hell so claim that people who point this out are "rabid" for not likewise accusing the Democratic Presidents just because they don't happen to be guilty* - well, GOB, I think you have no business accusing other people of being rabid.

*Yeah, yeah, no one gets to be President and is lilywhite. But, come on. Get real.

If we applied your modern day standards, would we prosecute Wilson, FDR, and Truman?

Of what, exactly, are Pelosi and Reid supposed to be guilty? Just wondering. Obviously, the deep-felt need Good Ole Boy and Brett both exhibit to want to believe that if Republicans are guilty, they must be able to find Democrats who are just as guilty. (Also, Brett seems to be thinking about the Clenis a lot. Go to Howland Island, Brett, the Clenis hasn't been in the Oval Office for over 8 years.)

Beyond that: Did Reid or Pelosi authorise torture? Were they present at high-level Bush administration meetings where torture techniques were authorised? Did they commit torture themselves? Did they have significant influence at OLC? Did they ask OLC to write memos giving a legal authority to orders to torture? Did they give orders to have people kidnapped, taken to Bagram Airbase or Guantanamo Bay, and tortured?

Like Obama, Reid and Pelosi certainly didn't do everything they could to stop the torture or have the torture investigated. And that's bad enough: Bob Gates is certainly guilty of this, and the US military was and is directly within his field of responsibility. And obviously, the US's right-wing pro-Republican media will make a big deal of whatever dirt they can find that might cling to a Democrat.

But beyond that; Brett's clinging to the Clenis, and the Clenis is not going to save him...

Somebody here (not mentioning any names) seems to associate bad, or even criminal, behavior with political party affiliation.

Somebody here - more than one, actually - doesn't have a sense of proportionality. Not every possible violation of the letter of the law is prosecuted, for obvious reasons; the law is itself tactical.

It is not chauvinistic to note that the US legal system, even now, is not the same as the Serbian one. That the Bush 'administration' tried pretty hard to corrupt the US's is all the more reason to cheer the update/walkback mentioned above. There have to be legal ramifications for the lawyers in the OLC who wrote those opinions.

We would all like to see both the CIA torturers and the political leaders who promulgated the torture policy prosecuted, but in the real world, that is not going to happen. I think Hilzoy's choice is the better one.

Just one more question. If there were a prosecution, would we get a conviction?

Are we to pretend that Clinton couldn't have been prosecuted after leaving office, if Bush had so chosen? It may be perfectly understandable that somebody whose career depends on their reputation would go to illegal lengths to hide an indiscretion, but that doesn't make witness tampering and perjury before a grand jury legal.

Clinton was protected by a norm among politicians that you don't prosecute your predicessor, even if they're guilty. This is not a norm Obama wants to overturn. Be sure of this, Obama WILL commit acts which a future administration could find some basis for prosecuting. They might be acts you consider defensible, but he could still be prosecuted.

And doesn't want to be.

As angry as you are lately Brett, I think your head would explode into a million pieces if you were put into a perjury trap the way Clinton was. I would bet a lot of money that you would suddenly become a lot less literalist about the law.

Good Ole Boy: If there were a prosecution, would we get a conviction?

Prosecution of the people involved in the torture of prisoners?

Who knows, GOB?

I agree with Jrudkis upthread: what is important is not "getting convictions" - certainly, in court, any indvidual concerned should get the benefit of reasonable doubt - but the clear establishment of principle that torture isn't just wrong and pointless: it's illegal. It's a crime.

Brett: Are clenis clenis clenis CLENIS clenis clenis CLENIS clenis be.

Sorry, did you say something? Howland Island, Brett. Where you can be free!

I can - though not by much - stomach this practical business of foregoing pursuing CIA torturers who did trust the memos and did actually follow the memos, for only one reason: a defense of "just following orders" is different than a defense of "I thought my actions were legal."

Though really I'd want to see that tested.

Especially if we don't go after the CIA officers (who can claim to have actually followed those bogus guidelines), though, we absolutely need to nail the writers of the memos. Discussion of how "they should be prosecuted" isn't specific enough, though - and talk I've seen about how disbarment and disgrace is the route because prosecution would be hard is lazy. Let's be specific. Is United States v. Altstoetter from Nuremberg the way to get them? Or are there other specific ways that writing those memos as they did can put them in prison?

A link on the Altstoetter trial, or the Reich Justice Ministry trial: http://beggarsblog-ctuttle.blogspot.com/2007/12/little-history.html

Funny thing about a "perjury trap"; All you've got to do to avoid springing one is to tell the truth.

Yes, Clinton has been out of office over 8 years. That means you can stop defending him.

Obama has two reasons for not prosecuting

1) he's not a prosecutor.
2) he has other things to do.

Eric Holder, on the other hand... i wouldn't mind seeing him do his job.

(Yes, I noticed you're trying to make a distinction between just being told to do something and being told to do something with a whole bureaucracy of memos, but, either way: it works out as - it's OK to slam a naked man face-first into a wall and then douse him with cold water.)

I'm not merely being petty and vindictive about this, though I will grant that I do have a tooth-grinding sense of wanting to see everyone involved in court trying to justify to a jury why they thought it was OK to "wall" a prisoner, why they thought it was OK to throw cold water over him. I would like to see prosecution from the ground up for other reasons:

There are all sorts of dimensions to this problem. Your sargeant tells you to shoot these two civilians in the back of the head on the grounds that they are spies, even though they're both over 80 and are obviously hill people, even by the benighted standards of the country you have invaded. This one isn't too tough.

But let's dial it up a bit. Now they're a pair of young men in their late teens caught out after curfew with papers you can't read. The sargeant gives you the same order, and he's backed up by the base commander. You know that other soldiers who have refused are in the stockade serving five-year sentences after which they will be dishonorably discharged. What then? Take it still further - you know that other soldiers who have refused these orders have been shot for treason.

Six years later, a new administration is in, and you're being tried for war crimes.

Are you seriously going to tell me that those soldiers should have known better than to obey an unlawful order?

Funny thing about a "perjury trap"; All you've got to do to avoid springing one is to tell the truth.

Yes, Clinton has been out of office over 8 years. That means you can stop defending him.

Posted by: Brett Bellmore

Brett? Sorry to break it to you, but (a) Clinton didn't lie in the instance I think you're referring to, and (b) Clinton never committed perjury. Is this a case of Clinton Derangement Syndrome?

This comment by DTM over on Matthew Yglesias' blog was what gave me a tremendous wave of relief - I had been looking for a specific way to prosecute and nail these rogue dishonest construers, as opposed to thinking on moral grounds they should be prosecuted, and had been worrying that there might not be a good way to do it - and explains pretty well. The bolding is mine:

"The most relevant precedent is United States v. Altstoetter, one of the Nuremberg trials (sometimes known as The Justice Trial, it was also the basis for the movie Judgment at Nuremberg).

"To briefly summarize the relevant facts, in 1941 Hitler was concerned about the casualties German troops were taking in the occupied territories, so he ordered one of his Field Marshalls to start covertly seizing (aka “disappearing”), summarily trying, and executing political suspects. A group of lawyers drafted a decree to that effect (known as the “Night and Fog” decree), and laid out all the various procedures that should be followed in the course of carrying out this plan. The lawyers argued that the Hague and Geneva Conventions did not apply in the occupied territories, constructing various technical arguments to that effect. Many people were subsequently detained and executed pursuant to this decree.

"In relevant part, the prosecutors for the U.S. charged the lawyers with crimes against humanity and war crimes for their role in issuing and implementing the Night and Fog decree. They argued that the lawyers must have recognized that their technical arguments around the Hague and Geneva Conventions lacked merit, and that they must have foreseen the violations of international law (up to unlawful executions) that would occur because of their actions.

"The most culpable officials were already dead, but the prosecutors obtained ten convictions (four defendants were acquitted). Four of the convicted were given life sentences, and the other six sentences ranging from five to ten years.

"The basic takeaway is that when government officials are committing war crimes through official acts, the lawyers who actively participate in creating the legal regime in which those acts are being committed can be prosecuted as war criminals themselves. Under U.S. law, this would likely be brought as a conspiracy charge, although in Altstoetter they were actually directly charged (there was originally also a conspiracy charge, but it was dismissed for complex and inapplicable jurisdictional reasons)."

What do you think? Can this fit?

Scent of Violets: Are you seriously going to tell me that those soldiers should have known better than to obey an unlawful order?

With all sympathy for the position they are in - yes.

And, if they obey an unlawful order because they are afraid they will end up in the stockade if they do not, they ought to testify to that effect in court, with examples of buddies who they know did refuse and did end up in the stockade, because it is precisely that evidence which will ensure that the more-responsible senior officers end up on trial, too.

But we are not, as it happens, discussing soldiers who shoot prisoners in the back of the head because they fall into the category of "Male, between 14 and 40, can't speak English, let's just assume they're guilty of whatever we want". Sure, soldiers should know better than to murder prisoners even under orders to do so.

We're discussing people who, in the privacy and safety of a US-controlled prison camp, committed torture.

I just read an AP article from 2005 stating that 108 "detainees" had died in U.S. custody; I don't know what the current total is. Most of them must have been tortured to death. Did the OLC opinions justify that? Even where torture did not result in death, the CIA agents should have known that the torture techniques that the OLC opinions attempted to justify were illegal.

Scent of Violets: In the case of CIA officers, who are civilians, military discipline and the imperative to follow orders are not involved in the same way.

(I'm curious; that's a fairly wild hypothetical you've got going there. Are there any cases with Americans in Iraq involving orders in the field to shoot unarmed people with illegible papers, soldiers in prison or facing firing squads for not shooting such people in the street, etc.? If there aren't, I'd like to suggest saving calculations based on such circumstances until such circumstances are actually what's involved. I understand your general intent to suggest that "circumstances count", but these aren't them.)

And, if they obey an unlawful order because they are afraid they will end up in the stockade if they do not, they ought to testify to that effect in court, with examples of buddies who they know did refuse and did end up in the stockade, because it is precisely that evidence which will ensure that the more-responsible senior officers end up on trial, too.

Two points: you're granting these grunts some sort of prescience. How do they know this will end up in a court of law? What are the odds that in fact they've seen this exact scenario played out dozens of times with no repercussions for the higher-ups? What are the odds that they will think this is evidence of an unlawful order?

Nor did you address the still more extreme scenario: what should they do if they know that a refusal to obey this order will get them shot for treason?

These are by no means easy decisions to make.

ScentofViolets : "Are you seriously going to tell me that those soldiers should have known better than to obey an unlawful order?"

For one thing, your argument is relevant only if the constraints the CIA agents (or US soldiers) worked under justify their actions. I've got no idea which one of your three scenarios actually occured, and which ones you feel justify the shooting, so unless we have that information I don't think it's relevant to anything.

Still, to answer your question in the most extreme example : prosecute them. Let the judge and jury deal with the person's circumstances as they see fit, but at least let there be a trial !

(I'm curious; that's a fairly wild hypothetical you've got going there. Are there any cases with Americans in Iraq involving orders in the field to shoot unarmed people with illegible papers, soldiers in prison or facing firing squads for not shooting such people in the street, etc.? If there aren't, I'd like to suggest saving calculations based on such circumstances until such circumstances are actually what's involved. I understand your general intent to suggest that "circumstances count", but these aren't them.)

Posted by: Alex Russell

I suspect this sort of thing happens a lot more often than you would like to think, and with absolutely no repercussions to the really bad guys.

But assume for the sake of argument that these sorts of events really are unlikely. What I am pointing out is that hilzoy is being chivvied for some sort of principle or set of principles that can be consistently and reliably applied. I don't think there tend to be many of those in these sorts of situations. Nor do I think that those who are at the wrong end of the dominance scale are really given all that much information to work with.

For one thing, your argument is relevant only if the constraints the CIA agents (or US soldiers) worked under justify their actions. I've got no idea which one of your three scenarios actually occured, and which ones you feel justify the shooting, so unless we have that information I don't think it's relevant to anything.

BINGO!

@ScentOfViolets : care to explain ?
I hope you aren't arguing that we shouldn't prosecute CIA agents because they may or may have not been under some kind of duress when they tortured, we don't really know which ?

"Most of them must have been tortured to death."

I'm not sure that's actually a safe assumption, if they were detained on the battlefield, as a result of combat. A fair number of them might have been picked up already severely wounded.

I understand Hilzoy is trying to make a fine distinction. But I agree with Turbulence's original point in this thread.

I'd go so far as to say that the CIA professionals know what torture is more so than those who wrote the memos. (If I were conducting such interrogations, I'd ask myself: If this was being done to me, would I consider it torture?)

---

I'm surprised this story isn't getting much play: Newsweek's Michael Isikoff came on Rachel Maddow's program last night under a "breaking news" banner reporting that DoJ head Eric Holder is considering pushing through with torture prosecutions against President Obama's wishes.

Among other things, this would be great proof that we have an Attorney General who won't do the President's bidding after years of the Gonzo-Bush Show.

I could not provide links from the Newsweek or MSNBC websites, perhaps because we do not have Adobe capability at work.

Henry : "Most of them must have been tortured to death."

Brett : "I'm not sure that's actually a safe assumption, if they were detained on the battlefield, as a result of combat. A fair number of them might have been picked up already severely wounded."

Another possible cause of death other than torture or pre-existing wounds that I wouldn't ignore is suicide.

The intent of hilzoy's post was to say that the people who devised this policy should be held accountable, meaning the policymakers and the enabling lawyers. Does anyone disagree with that, or have comment on how that can or can't be approached?

The question of the torturers is a huge and engaging one, and will remain. The question of the general status of OLC opinions, and of executive immunities, is interesting. But the question of how to, as mckinneytexas (whom I disagreed with) put it a few posts ago, effectively criminally punish lawyers for how they construed... let's not lose that in the weeds. It's not nearly guaranteed enough, and it's vital.

Back when the figure of 108 prisoners dying in U.S. custody came out (in an AP report, IIRC), I did a lot of reading and analysis. I don't have time to go find my links now, but I do remember that the Defense Dept. itself considered at the time that 37 of those should be investigated as homicides.

This made me look at the others with a suspicious gaze (sadly, my worst fears had been realized in other aspects of the detention and torture debacle).

Some twenty or so were heart attacks, and IMO most of those are probably worth close investigation. Another similar number were shot during two or three different attacks on the prison/escape/riot events (one at Abu Ghraib, two at other Iraqi military prisones). My eyebrows remained raised.

Two, I think, were killed by incoming mortar fire at Abu Ghraib; that's sad but quite plausible. It was under constant attack, and prisoners had no protective gear or ability to move quickly to another section of the prison.

Some small number died of wounds that they came into detention with. Grey area, given that the wounds were usually inflicted by the colleagues of the jailers.

And so on. I would not leap to assume that all of them were dead because of U.S. military or "Other Government Agency" treatment, but if the military itself viewed more than a third of them as potential homicides...

Finally, it needs to be said that the U.S. government has not yet fully accounted for the full population of prisoners at Bagram to this day, nor, given the Hassan Ghul example, can we have any confidence without a lot more information being provided to the Red Cross that we have plumbed the depths of the kidnaping and secret prison network. The CIA and military special forces also operated a secret prison network in Iraq; there is good reason to believe the ICRC was not given access or accounting of all the prisoners who were taken there. (NYT story on the fourth anniversary of the invasion.)

The intent of hilzoy's post was to say that the people who devised this policy should be held accountable, meaning the policymakers and the enabling lawyers. Does anyone disagree with that, or have comment on how that can or can't be approached?

Two comments:

First, no one has addressed the point I raised earlier regarding the importance of offering immunity to low level offenders in order to secure their testimony against high level offenders. Until I see some arguments on this point, I'm not sure I really believe that people who support the President's blanket prohibition on prosecuting low level CIA officers really care about prosecuting the higher level guys.

Second, I've heard this "prosecute the decision makers and leave the grunts alone" approach before and a funny thing happens: the decision makers never get prosecuted. Our consistent unwillingness to hold our own high level decision makers to the same standards that we held Japanese and German elites to makes Nuremberg look a lot more like victor's justice than any real set of principles. My point here is that, no matter what happens, I don't think we're going to prosecute the high level offenders. If that's the case, I think we'd be better off prosecuting the low level offenders because that will deter other low level offenders from torturing people in the future. Is that fair? No. But the law isn't about what is fair. We endure countless injustices from our justice system every day, and at least this injustice helps prevent people from getting tortured in the future.

In other words, talking about the importance of prosecuting Bush/Cheney/Yoo/etc. is just a distraction. There is no way that those people are going to ever be punished for their actions. So let's focus on what we can do: deter other CIA officers from torturing people in the future. The worst case outcome is that some CIA officers in the future will be a little bit gun-shy about torturing suspects...this outcome does not trouble me.

Can anyone here provide any evidence at all that the US government has the institutional will to prosecute high level offenders? Did any high level government officials get prosecuted for all that torture we exported to Latin America in the 80s? Or that small genocide we supported in Indonesia? Or any of the other horrific illegal things our government has done? Of course not.

@Harold K.: Thanks very much.

@J. Michael Neal if you're reading: Elizabeth de Vega, a prosecutor who worked hard to promote impeachment of Bush, Cheney and others for these crimes while they were in office, makes the case against the appointment of a special counsel anytime soon, out of concern that it would result in fewer convictions than waiting.

I'm open to her arguments, which have much more to do with the structure of the DoJ in the absence of a new independent prosecutor law than with bleak assessments of the jury pool. She is someone who's made and continues to make the case that the previous regime's actions are crimes, and she's not concerned with the political impact on the Obama administration.

@Alex Russell:

Scott Horton's post is a direct response to your question on the basis on which OLC lawyers can be prosecuted:

the backdrop of the Rizzo-Bybee pas de deux is simple and increasingly obvious. Operatives in the field were saying “no.” Competent lawyers were pointing to the obvious criminal culpability in light of the anti-torture statute. CIA personnel were demanding assurances from the Justice Department that they would not be prosecuted for things which any serious study would reveal to be crimes. That pushback puts the lie to the Administration’s oft-mouthed claims that the demand for use of torture techniques was coming from ground-level operatives. But it also underscores the instrumental role played by these memos. The memo-writer and the person soliciting the memo both understood perfectly that their role was to get interrogators out in the field to go ahead and use the techniques against which reservations were being expressed. They understood that, if the memos were issued, individuals would in fact be subjected to the torture techniques they were approving. They also fully understood that it was likely that individuals would be killed or would suffer lasting impairment as a result of their decision to give the greenlight. This satisfies the prerequisites for a criminal charge against the memo writer under section 2340A, conspiracy to torture. The preparation and issuance of these memoranda were criminal acts, and the relevant level of mens rea likely emerges from the dialogue surrounding their issuance.

What about the limits given in the Bybee memorandum? Did Bybee and Rizzo really believe these limits would be carefully observed? There is good reason to be skeptical of this claim.

Echoing what many others have said upthread (Caravelle, Jesurgislac, and others): while I agree with hilzoy that it's more important to prosecute the higher ups and am even willing to accept pragmatic reasons for not prosecuting CIA agents, the idea that in principle the OLC opinions should constitute a get-out-of-jail-free card for torturers seems utterly wrong to me.

I think this is different from following orders. When someone gives you an order you know to be unlawful, the fact that it's an order is no excuse. When the JAG officer you consult tells you that in his opinion, as a lawyer, it is, that is, I think, a different thing.

At the danger of Godwin-ing this thread, wouldn't that distinction have let most Nazi war criminals off the hook? Most of the warcrimes committed in Nazi Germany had the cover of Nazi law, either under the principle of a Führererlass/Führerbefehl, which had the force of law, or through explicit quasi-legal rulings (as in the Night and Fog example cited above).

If finding a lawyer who'll say what you want is not enough to actually make something legal (and I take it hilzoy agrees that it is not), then those down the chain of command cannot simply assume that a lawyer's word has the force of law.

This is, ultimately, the just-following-orders defense.

People in the CIA, the Army, etc., have to do their jobs, and their jobs are such that they might, in principle, end up on the wrong side of the law. Thus we have people whose job it is to tell them what the law is.

In fact we can, and should, ask the members of our military and our CIA agents in extreme situations--and torture is one such situations--to arrive at independent assessments of what constitutes a lawful order. Is that a difficult burden? You bet. But it comes with the territory.

Finally as someone noted upthread, these memos weren't orders; the decision to torture or not torture particular prisoners was presumably made freely by CIA officers. All the more reason that we shouldn't give blanket approval to their actions even if, at the end of the day, we don't prosecute them for pragmatic reasons.

"Is Dick Cheney nervous?"

Is Dick Cheney auditioning for his own Fox news show?

sorry for the OT, but the Clinton saga, which people on the right or crypto right never tire of bringing up, is actually a little pertinent.

Funny thing about a "perjury trap"; All you've got to do to avoid springing one is to tell the truth.

Yes, Clinton has been out of office over 8 years. That means you can stop defending him.

I don't care that much about Clinton, which is why I don't bring him up every time the Bush administration is accused of gross malfeasance. But, self-serving as it was or insincere as it might have been, Clinton happened to be right when he said that fighting that impeachment was important to the country, not just to himself. That episode was akin to a legal coup attempt, and it's bizarre to me that a libertarian would be blind to it. Most regular citizens knew exactly what was going on.

The law is not a machine. It was developed to serve a purpose. The whole question here is about attempts by legislators and policy makers (who are almost always lawyers) and lawyers per se, to make behavior the law tries to inhibit, legal - whether it's bribery, torture, or whatever. Bribery is called 'lobbying' or campaign contributions; a political coup attempt is called 'impeachment'; rules are not broken, just not enforced; and torture is called 'enhanced interrogation'. These lawyers and officials are not acting in good faith. They are not respecting the law, but rather are specifically trying to subvert it. You see this as a routine matter of policy in the W Bush administration (another e.g. the political firings of USAs, justified by the fact that it was not illegal for Bush to fire them).

Change the scale of a phenomenon (like this one), and it often becomes a different phenomenon. The law will never be perfect; does that mean that it must be an ass?


Jesurgislac, I think there is strong evidence that Dem leaders (including Pelosi) were informed about at least parts of Bush's illegal programs. That makes them at least complicit. I remember lame excuses that they could do nothing because that information was classified.

Personally, I would say that the CIA tortures should not be prosecuted...before Yoo, Bybee and accomplices haven't been prosecuted and convicted.
This must go from top to bottom or it will end before it even reaches the top level of the CIA.

Btw, any conviction (at least of high level convicts. Grunts may be allowed to rot) will not last beyond the day that another GOPster enters the White House (and the case of the Nazi judges is not promising there either). So extradition or execution (preferably with the most incompetent medics that can be found doing the lethal injection) might be the only ways.

Personally I'd say: grab them all and forecefully interrogate them until they confess to a number of crimes that they are not told about before (like having raped the Virgin Mary, replaced the Eiffel Tower with a wooden replica, infected FDR with poliomyelitis...), then let them dance the sisal twostep.

Cynical prediction: Obama will not be prosecuted by his successor because he will be killed by a RW nutjob long before that (and I doubt that even the GOP will try a Cadaver Synod)

Nell: I completely agree. That's why I think United States v. Altstoetter is the precedent to refer to. Blatantly dishonest presentation of the state of the law, with deliberate central omissions, and knowing intent to enable crimes is illegal under that rule.

I don't think that specific reference is just a talking point. I think that the right side has the best chance of winning this if we take it as a matter of upholding an existing rule enunciated at Nuremberg. (By a court convened then by us.) It's a lot better than if it sounds to the sceptical as if it's just the outcome of a lot of people having a conversation and reaching a moral opinion now and "making it law" or trying to. (And by "win", I don't merely mean in court. I mean in America, about whether these charges are trivial or are "made up", and from there about what America is.)

Hartmut: Jesurgislac, I think there is strong evidence that Dem leaders (including Pelosi) were informed about at least parts of Bush's illegal programs. That makes them at least complicit. I remember lame excuses that they could do nothing because that information was classified.

Yeah, that stinks. But their prosecution for complicity could only happen after Bush et al had been prosecuted. Which would take quite some time. Brett's faux-concern that Obama might lose them before 2010 is ...well, misplaced is the kindest way to put it.

jonny: That episode was akin to a legal coup attempt, and it's bizarre to me that a libertarian would be blind to it.

Yeah, but Brett is rather more a loyal Republican than he is a libertarian. He has not moved to Howland Island.

If there is any U.S. law that constrains the OLC in how dishonestly/etc. it may construe the law (I'm fighting the impulse to get into a rant-list of the number of ways the memos seek to mislead; I've been doing a lot of that), then that U.S. law should accompany the Nuremberg rule. But the Altstoetter rule applies whether or not it is echoed or paralleled by a law in a particular nation. Obviously, given its original application.

(Odd pause; did the site almost go down? Maybe it's on my end...)

Or, shorter answer about the Scott Horton post: I completely agree, but demonstrating the dishonesty and witting knowledge of consequences then has to mean that it's illegal for some reason in law, which then becomes the important part. We're not planning on voting against the memos for their dishonesty. Do you think this Altstoetter route is the right one?

Without wanting to take this too off-topic: ScentofViolet's post about the hypothetical orders to shoot prisoners reminded me of the vivid refutation presented by the recent convictions for non-hypothetical shooting of Iraqi prisoners as a result of orders given by a sergeant.

Sgt. Hatley was convicted of murder and has been sentenced to 40 years (might be paroled at 20). Two of the three men who carried out his orders were also convicted.

(These same men, and several others in the company who knew about the murders, sat around and said nothing while Sgt. Hatley outed Scott Beauchamp and called him a liar for writing in The New Republic that members of the unit had run over dogs with their Bradley vehicles. It might have been a good moment to speak up, but they let it go. It took almost another year for the crimes to be investigated.)

@hilzoy:
Didn't want to leave the thread without telling you how much I enjoyed this:

[Gibbs:] "The President is focused on looking forward."

You know what? I'm focused on looking forward too. And as I gaze into my crystal ball, I see a world in which members of the executive branch take it for granted that they can do whatever they want with impunity.

Thanks.

@Alex Russell: IANAL, but there are many around. They're in a much better position to respond.

"Yeah, that stinks. But their prosecution for complicity could only happen after Bush et al had been prosecuted."

But exposure of their complicity would occur as the opening move of the defense, and the fear of that happening is one of the reasons for no prosecutions.

"And as I gaze into my crystal ball, I see a world in which members of the executive branch take it for granted that they can do whatever they want with impunity."

Funny, I've seen that just looking around, no crystal ball, for two, three decades. Heck, even ex-members of administrations can loot the National Security Archives with essentially no consequences.

Not only are the pigs more equal than the other animals, they've been that way for a long while. Why would the current head pig want that to change?

"I'm surprised this story isn't getting much play: Newsweek's Michael Isikoff came on Rachel Maddow's program last night under a "breaking news" banner reporting that DoJ head Eric Holder is considering pushing through with torture prosecutions against President Obama's wishes."

What, like being the lead story in The New York Times?

"I could not provide links from the Newsweek or MSNBC websites, perhaps because we do not have Adobe capability at work."

What's Adobe got to do with anything?

I'm assuming you mean Isikoff and Thomas' article here.

"In other words, talking about the importance of prosecuting Bush/Cheney/Yoo/etc. is just a distraction. There is no way that those people are going to ever be punished for their actions."

Lots of significant actors were either convicted, or accepted sentences as part of a plea bargain, as a result of the Iran-Contra prosecutions, and more investigation and prosecutions were on the way; the problem wasn't the lack of will to investigate, but as Jesurgislac noted earlier, that President George H. W. Bush handed out pardons like potato chips.

Brett: But exposure of their complicity would occur as the opening move of the defense, and the fear of that happening is one of the reasons for no prosecutions.

*shrug* It's an interesting kind of "defense": "Yeah, we're guilty all right, and here's the details of our crimes that we confessed to these important Democrats."

More likely, this "defense" will be used exactly as you are using it now, Brett: for loyal Republicans to regurgitate on blogs whenever the topic of the crimes of the Bush administration comes up and exposing the Clenis doesn't seem to be working as a diversion.

Btfb actually probably meant this Isikoff piece.

Wait, ignore my 3:47; that's an older piece. Never mind.

Lots of significant actors were either convicted, or accepted sentences as part of a plea bargain, as a result of the Iran-Contra prosecutions, and more investigation and prosecutions were on the way;

Weren't most of those prosecutions for lying to congress or otherwise bypassing mandatory oversight requirements? Yes, the government does punish government officials for committing crimes against the government itself, but that doesn't tell us anything about whether it will punish officials whose victims do not include the government. Presumably, as long as the torturers took care to file the appropriate paperwork and keep congress updated as to the status of the torture, and as long as they don't lie to investigators, they should be fine, right?

Let me ask you Gary: based on your reading and understanding of history, in the next five years, how many high level government officials do you expect will have been prosecuted for offenses directly associated with torture conducted in the last 7 years? 5 officials? 2? 0?

the problem wasn't the lack of will to investigate, but as Jesurgislac noted earlier, that President George H. W. Bush handed out pardons like potato chips.

Question: how many American government officials have ever been prosecuted by the US government in the last 30 years for committing acts that lead to a significant number of non-American deaths? No one batted an eye at our complicity in Suharto's mass killings, and if we can't do anything about that, I'm pretty skeptical that we'll prosecute people for merely torturing a much much smaller number of people.

Gary: I wasn't referencing the news in today's NYT but the Newsweek piece, which I did not find this morning, which I did not find this morning.

It being a magazine story, the fresh news -- that goes further than what was reported in The Times -- was buried in the middle of it:

"Senior Justice Department lawyers and other advisers, who declined to be identified discussing a sensitive subject, say Attorney General Eric Holder Jr. has discussed naming a senior prosecutor or outside counsel to review whether CIA interrogators exceeded legal boundaries -- and whether Bush administration officials broke the law by giving the CIA permission to torture in the first place. Some Justice officials are deeply troubled by reports of detainee treatment and believe they may suggest criminal misconduct, these sources say."

This indicates that Holder is willing to go farther than Obama and is what Isikoff said on Maddow's show last night. And it shows Holder is an independent voice from Obama, as it should be.

The MSNBC website linked the Isikoff clip and that's where needing Adobe to play it came in.

Jes, we seem to have a breakdown of communication here. I am not explaining why I think they should not be prosecuted. I am explaining why I think they will not be prosecuted. And would not be even if the parties were reversed. These are two very different things.

You are, I think, going to be as disappointed at the lack of prosecutions here, as conservatives were at the lack of Clinton administration prosecutions, and for the same reason:

It's the politicians against everybody else, they stick together.

Oh, and while "So and so is guilty, too, and I can prove it!" isn't a very good legal defense, you'll find that if So and So has a lot of pull with the prosecutor's boss, it's a darned good practical defense.

You are, I think, going to be as disappointed at the lack of prosecutions here, as conservatives were at the lack of Clinton administration prosecutions, and for the same reason:

No, Brett. The conservatives were disappointed at the lack of Clinton administration prosecutions because the conservatives very badly wanted them and thought a Democratic President with the temerity to win two elections ought to be prosecuted. Plus, like so many wide-stance conservatives, they were obsessed with the Clenis.

And no, that's not why I'll be disappointed if it turns out no one in the Bush administration is prosecuted.

It should be noted that even though Clinton's alleged sins pale in comparison with Iran/Contra, the Iraq War, and torture, so far he is the only president out of the last four to face any kind of consequences for his actions.

"Weren't most of those prosecutions for lying to congress or otherwise bypassing mandatory oversight requirements?"

One way or another, yes; primarily perjury, or destroying documents, or conspiracy to defraud the United States, or impeding and obstructing investigations, or making false statements, although there were a few other miscellaneous convictions thrown in. (Thomas G. Clines was convicted on tax issues, and served a full sentence.)

"Let me ask you Gary: based on your reading and understanding of history, in the next five years, how many high level government officials do you expect will have been prosecuted for offenses directly associated with torture conducted in the last 7 years? 5 officials? 2? 0?"

I don't know; too many unpredictable variables for now.

I'll agree that the probability of zero or few is certainly a significant one. But I think the probability of half a dozen or dozen convictions is also significant. I wouldn't care to attempt to quantify either probability in the near future. The dynamics of how it will play out depend on too many variables.

The CIA involvement in Indonesia, though well known to thee and me and those well-read in the subject, remains obscure to the general public, even now. The torture issue, however "controversial," and defended by many Republicans and other Americans, is not obscure. This by no means, in my opinion, means any kind of high probability of a full investigation, or particularly a full criminal investigation leading to convictions, but it does, in my view, put it in a different light than far more obscure CIA involvements in foreign deaths, however massive, or coups.

Such public light as is at least presently being extended to the torture issue at least, in my view, for now, makes possible an eventual full investigation leading to convictions. Even if I wouldn't bet significant sums of money or other valuables on it.

btfb: "This indicates that Holder is willing to go farther than Obama"

The Elizabeth de Vega article that Nell linked to makes a good case for why that isn't so. Bottom line is that we don't have any kind of actual independent counsel law any more.

We all need to write. Agitate, Agitate, Agitate. Write your member of Congress. Write your Senator. Write your President.

Sign the petition. Agitate.

Question: how many American government officials have ever been prosecuted by the US government in the last 30 years for committing acts that lead to a significant number of non-American deaths?

Fixed!

We can choose to be a nation of laws in which criminals of any station are held accountable...

What makes you so sure that their political stature is the reason Obama is giving them a pass? It seems to me like the opposite is true. They don't seem important enough to him to be worth his time.

Nietzsche, in On the Genealogy of Morality:

If the power and self-confidence of a community grow, the penal law also always becomes milder; every weakening and deeper endangering of the former brings the latter's harsher forms to life again. The "creditor" has always become more humane to the degree that he has become richer; finally the amount of injury he can bear without suffering from it even becomes the measure of his wealth. It would not be impossible to imagine a consciousness of power in society such that society might allow itself the noblest luxury there is for it—to leave the one who injures it unpunished. "What are my parasites to me?" it might then say. "Let them live and prosper: I am strong enough for that!"

I don't think Obama lacks the cojones to prosecute. I think he hasn't seen enough filiariasis to properly appreciate how quickly cojones can be decimated. But that kind of optimism can work to his advantage just as easily as it can work against him.

Taking the resilience of the Constitution for granted in order to focus on fixing the economy is like letting your 13-year-old drive you to the hospital so you can focus on keeping your mother alive in the backseat. How much does the risk make the ambition irresponsible? How much does the ambition make the risk noble? I don't think the answer is as clear cut as you imply.

For some reason, I was looking around for this quote by Justice Jackson during the Nuremberg tribunal: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.”

Internet being what it is, got sidetracked while searching and came across two tangential things of note. The first was the youtube channel for The Robert H. Jackson Center, which has posted many hours of archival video of the Nuremberg Tribunal, things like courtroom proceedings, Justice Jackson's opening and closing statements, etc.

The second related thing I came across was Scott Horton's thoughts on Nuremberg at 60, late in 2005:

...Nuremberg set some clear principles, and many of them had to do with the mistreatment of those held in prisons in wartime. A concept of ministerial liability for pervasive abuse was established, and this was based on notions of command responsibility. Another case established that those who write legal memoranda which counsel government officials and the military to ignore the Geneva and Hague Conventions can be prosecuted and imprisoned – as in fact a number of German Justice Ministry officials were in the case of United States v. Altstoetter.

Many in the Bush Administration seem to have a very curious understanding of Nuremberg. Rather than leading a new movement to overturn the international legal system that started at Nuremberg, a number of key Bush officials are more likely to be the Pinochets of the next generation – blocked from international travel and forever fending off extradition warrants and prosecutor’s questions...

What has been done cannot stand.

If you prosecute CIA torturers, you have to prosecute soldiers as well, unless you think that, while torture is a horrific crime, killing people is somehow ok just because we call it war.

novakant -- actually, I'm pretty sure that's how it actually works.

I think the moral difference between the actions of a soldier at war and shooting and killing someone who is shooting back, the actions of a soldier at war shooting and killing civilians or helpless captives, and a soldier or CIA officer repeatedly torturing a helpless and captive prisoner are relatively obvious.

In case they're not, the first one is legal and the second two are not. And the first is killing someone in war, while the second is murder and the third is torture. Apples != oranges.

If you are going to commit a crime and want to avoid prosecution, commit a really big crime*. You are able to do this only if you are considered an important person. If you are an unimportant person, more important people will put you away to make themselves look more important. This is one more lesson in How Power Works.

* a la Cheney or Kissinger

I am no fan of bush but I think it is naive to suggest that there is no difference between an ordinary criminal act and potentially unlawful actions taken by the President of the United States. The President is NOT just another citizen, at least not when he acts in his official capacity as President or Commander in Chief. Ordinary citizens do not command armies. Ordinary citizens do not have the power to order a bomb dropped on someone. Ordinary citizens to do not have the power to grant an irreversible pardon to anyone, any time, regardless of what that person might have done. Ordinary citizens have not been elected by the people of the United States to lead their government. Is the President above the law? Of course he is not above the law when it comes to his personal behavior. But is he above the law when he acts in his capacity as commander-in-chief? To some extent, it is obvious that he is, and he must be. Presidents cannot govern effectively when their exercise of presidential authority is subject not just to Congressional oversight but to second-guessing by any future administration. How do we know some future administration will not try to prosecute Obama for something nutty? It's a dangerous road to go down, even when you are convinced that what the president did was wrong. THis is, no doubt, part of the reason that Ford pardoned Nixon - a decision that was unpopular at the time but seems wise in hindsight. Bush could have issued a pre-emptive pardon to everyone in his administration if he wanted to. He might even have issued himself a pardon. Is that what we want future presidents to do?

The founders realized that the president has a great deal of power that could be misused. They designed a system for government that did not look to criminal prosecutors to check the president's misuse of his power. The founders gave Congress - the representatives of the people - the power to exercise oversight and, if necessary to stop an executive gone wild, impeach.

Congress failed in its oversight responsibility. Presidents who torture ought to be impeached - if indeed torturing is considered unacceptable.

We elected the guy. We entrusted him with enormous power that we asked him to exercise on our behalf. We elected Congress. If what they did in our name and on our behalf was wrong, we all share in the guilt of what we allowed our society to do.

Just as the criminal justice system is not the tool you deploy to win a war, it also is not the tool you deploy to review and prosecute actions taken by the commander in chief.

Well, no. The President can't be above the law when performing his Presidential duties, because his duties and powers as President are assigned by law.

As for the horrible potential of someone trying to prosecute over "something nutty", we've been there, done that. And people have been using it as a reason to not prosecute Bush since the 2000 election was stolen, and it's as lame an excuse now as it was then. And "we" did not elect the guy, nor did "we" allow the criminals to torture and start a war.

As for Ford's pardoning of Nixon being wise, that's VERY debatable.

But is he above the law when he acts in his capacity as commander-in-chief? To some extent, it is obvious that he is, and he must be.

Nonsense. The president is not some comic book hero with supernatural endowments. Any power he has comes from the law. The reason soldiers obey his orders is the law. "Above the law" the president is as impotent as a fish above the water -- just an "ordinary citizen" that nobody needs to pay much attention to.

Presidents cannot govern effectively when their exercise of presidential authority is subject not just to Congressional oversight but to second-guessing by any future administration.

More nonsense. Presidents "second-guess" their predecessors all the time. Dubya came in determined to undo, not perpetuate, Clinton's policies. We elected Obama because he "second-guessed" Dubya's policies. Any president who could not "govern effectively" without assurance that his successors would approve of his policies has no business being president.

I will not comment on the willful conflation of "second-guessing" and prosecution for breaking the law, lest I utter intemperate words.

We elected the guy.

Speak for yourself -- unless you're using "we" in the sense that die-hard lunatic-right conservatives might say "we elected Obama". If the likes of Michelle Bachman and Rush Limbaugh are in the same "we" as I am, let them be the first to say so.

--TP

Purge don't prosecute.

"Presidents who torture ought to be impeached - if indeed torturing is considered unacceptable."

You give the game away right there, GESSA.

"If indeed"? There's no 'if' about it.

We signed and ratified and passed implementing statutes for the Convention Against Torture. Alberto Mora read out the relevant statutes in 2002 to William Haynes and Gordon England in Rumsfeld's office, speaking for and in the presence of every other service branch's General Counsel. The CIA Inspector General concluded in 2004 that the agency's operatives had violated the statutes against torture.

I completely agree that Congress failed in its responsibility, and should have made the effort to impeach Bush, Cheney, and others in the torture-promoting clique. But Congress' failure to do so does not magically invalidate statutes and treaties. Had Bush and Cheney been impeached, I would still favor prosecuting them.

Torture is absolutely prohibited. There is no legal defense of 'necessity' or 'authority'. It is illegal in all situations and for all time and by all persons. There is a positive duty to investigate and prosecute.

Torture is not legalizable, which is one of the reasons why Yoo, Bybee, Bradbury, Haynes, Chertoff, and other lawyers are now vulnerable to prosecution. Torture is not a "policy difference"; it is a crime, one of the gravest crimes there is.

As Tony P. and Nate have made clear, the powers of the U.S. President, like those of Congress and the Supreme Court, come from the law. If there is no actual enforcement of the law, then "the law" is a hollow, ritual incantation. The reason people pay attention to obeying the law is that there is a price for not doing so.

This gang of torturers, who explicitly mocked and derided law as a concern only for wusses, are particularly in need of being made keenly aware of the price for flouting the law.

"I think he hasn't seen enough filiariasis to properly appreciate how quickly cojones can be decimated. But that kind of optimism can work to his advantage just as easily as it can work against him."

I'm guessing you haven't read Dreams From My Father.

"If you prosecute CIA torturers, you have to prosecute soldiers as well, unless you think that, while torture is a horrific crime, killing people is somehow ok just because we call it war."

If you mean that "if you prosecute CIA torturers, you have to prosecute soldiers guilty of torture as well, you'r quite correct."

If you mean we have to prosecute soldiers for engaging in war, I'd ask you what legal authority you're citing, or are you just asserting a personal opinion?

"...killing people is somehow ok just because we call it war"

Legally, quite right, if it's lawful conduct, rather than murder.

If you're making a claim that pacifism is the only correct moral belief, that's certainly an argument you can make, but it's not commonly accepted.

Haven't we been round this one before? About a year or so ago?

"But is he above the law when he acts in his capacity as commander-in-chief? To some extent, it is obvious that he is, and he must be."

My goodness, this so has no basis in law or history.

This is the claim of Richard Nixon: that "when the president does it that means that it is not illegal."

The Supreme Court ruled otherwise. See the unanimous United States v. Nixon.

See, also, for instance, Youngstown Sheet & Tube Co. v. Sawyer, or Little v. Barreme or Rasul v. Bush, or any of numerous other decisions ruling illegal various acts of various presidents of the U.S.

"Ordinary citizens have not been elected by the people of the United States to lead their government."

Of course they have; all presidents have been "ordinary citizens." We don't have kings.

"Just as the criminal justice system is not the tool you deploy to win a war, it also is not the tool you deploy to review and prosecute actions taken by the commander in chief."

That depends on the crime. If the crime is sufficient, such as it was in Nixon's case -- and as I believe it to be in G. W. Bush's case -- of course it is.

Yes, not electing such people in the first place would be better, and impeaching them and convicting them and removing them from office, before the criminal prosecution, would be better, but just because the first two swings failed doesn't mean the third is illegitimate. Asserting otherwise is an opinion you're entitled to, but nothing more.

Legally, quite right, if it's lawful conduct, rather than murder.

If you're making a claim that pacifism is the only correct moral belief, that's certainly an argument you can make, but it's not commonly accepted.

I'm not talking about any war, I'm talking about the Iraq war, which in my book was an illegal war of aggression, you can find experts in international law arguing either side. If you want to argue that it was perfectly legal, go ahead. The legal culpability of instigating and taking part in such an enterprise should be determined in a court of law. Simply calling it a war and thereby exonerating everyone who took part in it is not a sufficient argument.

Legal issues aside, I have a adopted a consequentialist view in these matters: hundreds of thousands of people have been needlessly killed, no matter what political or personal reasons those who instigated and performed the killing might bring forward to explain their actions. They are dead and won't come back. Torture is terrible, but in most cases the victims at least get a chance to continue with their lives - death is final. I'm not saying that everybody involved in the actions that lead to these deaths is a moral monster, but the fact remains that it was their actions that lead to these deaths.

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