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July 28, 2006

Comments

The question, as usual, is what Republican members of Congress will stand up to the administration? I'm afraid the answer, as usual, will be no one.

It's time they reaped the whirlwind.

it's long past time.

but, history tells me that they won't reap anything but more votes. the American public is apparently too afraid or uninsterested to stand up for the things that make this country worth living in. we take it all for granted.

Um...isn't there something in the Constitution that prevents this sort of thing? Lemmee see a second...something about bills of attainder...

Or, sort of an inverse bill of attainder, which might not be unconstitutional after all.

Unless someone is left standing after the music stops, in which case it is.

I have no desire to see U.S. personnel prosecuted for actions they took that they were told were legal.

Agreed, but not much of a problem with the proper use of prosecutorial discretion -- they plea to a slap on the wrist in exchange for testimony against the evildoing superiors who put them up to it. Right?

Glad to see your sense of honor correctly adjudges this latest legal outrage from the Bush administration. Amnesty for torture -- what will Republican Congresscritters say in support of this? The usual sycophantic mutterings, which will be echoed as brave and appropriate talk by Fox or NRO minions.

From a very quick reading of not very much, it appears that repealing earlier laws may sidestep the Bills of Attainder language in the constitution. In the current admin's view, I am sure there is more than enough to take this all the way thru congress.

Keep in mind the US public has a long history of being on the side of the perps in this kind of thing. Calley was treated as a hero by large numbers of people. Since there is an already existing understanding, to a large extent unvoiced, that the particular perps in this current issue were acting under the direction of their superiors - that worked out well for the Nazi's, didn't it? - they should be given cover. I expect this proposal to pass nearly unanimously, as there is no way to reach the real culprits - the admin.

Jake

PS - maybe we can hope for a Bush war crimes trial at the Hague? Or wherever those kinds of things are held.

history tells me that they won't reap anything but more votes. the American public is apparently too afraid or uninsterested to stand up for the things that make this country worth living in. we take it all for granted.

Actually, I think a large minority of Americans (i.e., neo-cons in particular) believe that a fundamental American value is the use of violence as an alleged moral force. They are everywhere on display cheerleading the Israeli overkill in Lebanon. They publish op-eds about how our biggest failing is the lack of will to really fight to victory -- code words advocating a greater level of violence as an alleged proper moral response.

This is not a circumstance created by passivitiy, but by a streak of warmongering that grips the current leadership and so many of their supporters. There is passivity in response to this trend, but have faith that its just simply taking time for people to realize how dangerously wrong this warmongering stuff is, and how much they have been lied to by those advocating violence under the false flag of patriotism. One of the biggest sins of the Bush administration was coopting American outrage about 911 to redirect it into a warmongering agenda under the guise of a patriotic response to the outrage. People have been fooled, though many seem to have wised up to it now.

People have been fooled, though many seem to have wised up to it now

i don't think 'many' is enough. and i doubt the wisdom these 'many' have acquired is very deep.

no, i have no faith.

I don't think there's any real risk that people who followed orders and/or legal advice are going to pay any serious price. And any truly egregious cases that come out of the military justice system will be met with pardons anyway. This request for legislation is domestic politics: anything that emphasizes the 'alliance' between the Democratic Party and the terrorists is fair game -- and you, Andrew, have fallen down on the Al Qaeda side.

This is the natural result of the Bush administration's attempts to skirt the very edge of the law in order to prosecute this war.

Breaking the law, Andrew. I can't see any evidence that the Bush administration were interested in "skirting" the law: they simply ignored the plain fact that they were breaking the law and argued in defense of their decisions that the law was whatever the President said it was.

I have no desire to see U.S. personnel prosecuted for actions they took that they were told were legal.

You think "I was only following orders" is a justifiable defense? I don't. I would like to see every single US soldier, lowest rank to highest, prosecuted for the actions they took that were illegal. I would like it to be clear that there is such a thing as an illegal order, and that soldiers who obey illegal orders face consequences. As it stands at the moment, soldiers who obeyed illegal orders who were caught identifiably on camera have been prosecuted according to law: soldiers who obeyed illegal orders who did not have their crimes exposed by publicity get away with, as you say, a slap on the wrist.

If you like, we could imagine a situation where all soldiers below a given rank were granted pardon on the grounds that they were lied to by their superiors and had no means of knowing that they were lied to. But there has to be a point at which rank means responsibility, and responsibility means taking the consequences. Of course, I would also like to see the "private contractors" and the CIA employees prosecuted, too, for their participation in these crimes.

Since the initial news about torture and atrocities committed by the US military began to leak out, I've seen literally no evidence (feel free to link me to any) that US officers in the army are willing to take responsibility for the crimes carried out by NCOs and private soldiers under their command, at their orders. If the officers escape because they didn't get their hands dirty and therefore don't have to take responsibility, that says to me that the US army is permanently corrupt.

That tradition seems to have gone the way of the dodo, as to the best of my knowledge the highest ranking person to be convicted for any misconduct in the war to date has been a Captain, while senior officers like COL Karpinsky escaped almost scot-free. (Not to mention the civilian leadership, but let's face it, who's going to go after them?)

This concluding paragraph is why you should take this as a rant at the situation, not at you, Andrew.

Of course, prosecuting the officers all the way up the chain of command would lead to prosecuting the individuals in the Bush administration who were ultimately responsible for devising the construct of lies that it's legal to commit torture, and - if the Bush administration believed in personal responsibility and chain of command - in impeaching the President.

So, that'll never happen. The US army commits torture and murder, and the defense is "they were only following orders" - but there's no way to prosecute the people who gave the orders.

I wish I could buy you a pony.

Andrew--
Peter Gabriel once pointed out that the Milgram experiment can be thought of as showing something positive as well--37% of the subjects were independent enough to refuse to carry on. So you wouldn't have to be markedly superior--perhaps only a little.

JakeB,

wiki:
"When two additional teachers refused to comply (Experiment 17), only four participants of 40 continued the experiment. In another version (Experiment 18), the participant performed a subsidiary task with another "teacher" who complied fully. In this variation, only three of 40 defied the experimenter.
...
"We Do What We're Told (Milgram's 37)" is a Peter Gabriel song found on his 1986 album So. The title refers to the 37 out of 40 participants who showed complete obedience in Experiment 18."

Am I missing a joke here?

You think "I was only following orders" is a justifiable defense?

Er...no. If you continue through that paragraph, you will note the following:

If that means (as it almost certainly will) that people who made an honest mistake face criminal sanction, that's unfortunate but not unfortunate enough to relieve them of responsibility for those actions.

I am of the belief that those who committed illegal acts should be prosecuted. My reluctance stems from the fact at least some of those people were told by JAG officers that the techniques they were instructed were legal. While 'just following orders' does not excuse illegal or immoral acts, the whole reason we have a JAG Corps is to provide sound legal advice. As I said, while I hope I'd have the strength of character to say no when faced with such an option, I'm not going to pretend it would be remotely easy to tell one's superiors that an order is illegal when a JAG officer is telling you otherwise.

Not to mention the civilian leadership, but let's face it, who's going to go after them?

Hmph. Instead of asking who is going to go after the civilian leadership and/or the JAG officers and/or the OWHC and DoD lawyers who offered bad legal advice, let's start out with an almost identical but much easier question: whose job is it to go after them?

Well?

Are you saying that neither the Constitution nor the US Code provide for this situation? Or are you saying that the mechanisms which are provided are not being used by the entities entrusted with implementing them? Since the first option would just result in a string of citations from here to Tripoli, I assume you're gonna go with the latter.

So let's hear it, Andrew. Who, "generally speaking," is responsible for enforcing the law? And when the law is not enforced, who is responsible for replacing the officers whose mandate is to enforce the law? Who holds the power to do that?

Re: Milgram IIRC one of the distinguishing characteristics of the peer-shock experiment was that the participants did not get to discuss their decisions with anyone other than the "authority" figures who were telling them to continue.

Again just IIRC, but I believe that when people are allowed to discuss things the conformity rate goes down, and when there is *ahem* dissent, the conformity rate goes way down. Also I vaguely remember that there were some experiments in the 80s regarding the purely factual accuracy of group judgments, which found that the most effective strategy is anonymous revoting until consensus is reached.

Suppose some American military guy tortured and killed a detainee while following the orders.

Suppose neither SOD Rumsfeld nor AG Gonzales will prosecute the guy.

Suppose the congress later passes the law that makes torture and murder legal under the circumstances.

Suppose later a Democrat is elected president and Dennis Kucinich becomes the AG.

Considering that it was a crime at the time it was committed - can the new AG prosecute the guy?

Mithi--
I'm afraid the joke must be my memory. I apologize. I thought I remembered that quote correctly, but clearly I did not, and I was too careless to check on it. Thank you for checking.

IANAL, but a plain reading of the bill of attainder language in the Constitution would seem to unequivocally prohibit this legislation from having any effect on the legality of past conduct.

No Bill of Attainder or ex post facto Law shall be passed.

Is this in any way ambiguous? Is there some nuance that a layman like me fails to grasp?

radish,

I'm certain you know the answers to those questions. Therefore I'm at a loss to understand why you're asking them of me. Please elaborate.

abb1,

I would think so, unless the statue of limitations had expired.

IAAL, but retroactivity is extremely complex.

The ex post facto clause prevents the criminalization of prior legal conduct; last I checked (about a decade ago) it does not usually work in the other direction.

A judge generally applies the law existing at the time the case is brought. So, to answer abb1's question, if the law states, at the time that Kucinich would want to charge the individual, that the conduct was lawful, I think that a court would likely dismiss the case.

(Note: I'm a civil lawyer and criminal law is different from civil law in this area [and the bar exam is rapidly vanishing in the mists of time]. I could be entirely wrong. If Katherine is still around, she would be a much better source.)

Here is an interesting question.

Can those who are trying to prevent the prosecution of previously committed crimes be charged with obstruction of justice for thier action?

Is conspiring to misuse the legislative prosess and change laws in order to avoid criminal prosecution even legal?

I believe that, assuming it doesn't violate the Constitution, what Congress says is law is law, regardless of the appropriateness of that decision.

Therefore, one thing that might be useful in putting the brakes on this kind of thing would be contacting one's Senators and Representative.

Andrew, I know we both know the answers, but as a rhetorical matter I was hoping that you would type them into the little box all the same. The rhetorical benefit (to me) would be that if you were to answer those questions out loud, I could use your words to demonstrate the ways in which your answers are incompatible with the "parity in powers and purposes" which you took for granted in your earlier Generally Speaking post. Basically I thought using your words might be more persuasive than just using mine.

Clarifying further, I was trying to reiterate that most "Moonbat" anger (aka "BDS") is not about ideological disagreement or the consequences of social tension. It's about incompetence and the abuse of power. Unlike "Wingnut" anger, which does indeed tend to be about ideological and social tension. Ideological and social tension are perfectly legitimate reasons to be angry, but they are not the same as incompetence and abuse of power.

I mention this because when you, as a Wingnut, express some concern about the rule of law, it seems reasonable for me, as a Moonbat, to remind you that not only is the country is run by Wingnuts, but that the Wingnuts in power have gone to some lengths to disenfranchise the Moonbats (such as they are) with whom power is currently shared. As such, it does not seem to me that enforcing the rule of law should be incumbent upon Moonbats and Wingnuts equally. Whether within the halls of power or in a blog comment thread.

Ultimately, to the extent that you're concerned about this issue, it's your responsibility to either help enforce the law, or help replace the enforcer, or help replace the people who are supposed to replace the enforcer but are not doing so, or at very least get the hell out of the way of the people who are trying to do those things. We (Moonbats) are already contacting our Congresscritters and it is not helping.

I'm not suggesting that rule of law should be your #1 issue if you don't feel that it deserves the top spot on the agenda. But I am suggesting that partisanship is not the issue at hand unless you make it so.

radish,

As I noted at the time, I wrote that post very poorly based on the number of people who misunderstood it. I did not intend to suggest (nor did I, in so many words, although that appears to be the message many saw in what I wrote) that criticism of either side should be out-of-bounds, nor that one side might not be worse than another at any given time. My objection was, and remains, to the use of generalizations and stereotypes (like, say, BDS, wingnuts, and moonbats) that do nothing to further the discussion and serve only to further polarize the debate, making it that much less likely that any compromise can be reached.

Be that as it may, I am not, in fact, a Wingnut, and therefore my ability to control what is occurring in regards to this problem is roughly equivalent to your own. I will be casting my vote for the Democratic candidate in the November election, although I suspect my district is gerrymandered to such a degree that it will do little good.

Further, I am curious where you got partisanship from in this essay. I didn't exhort Democrats to fix this. I advocated the prosecution of the guilty and expressed frustration over the fact those at the top are unlikely to face any discipline over their actions. If anyone is making partisanship the issue here, it is you.

Andrew, sorry, I have a short fuse nowadays. It wasn't that this post (or even the other) struck me as partisan, it was that the other post struck me as a little bit "shape of the earth: views differ," which is in my view most definitely a form of partisanship. Apologies if that is a misinterpretation. The thing that gets my goat about "who will go after the civilan leadership" is that people are going after the civilian leadership, and for quite patriotic reasons, and that for our trouble we are labeled as traitors.

BTW I use Moonbat and Wingnut precisely because they are content-free. Left, right, conservative, and liberal aren't very useful at the moment. Republican and Democrat seem a lot more susceptible to the broad-brush problem you (absolutely legitimately) are talking about. Pro-Bush and Anti-Bush were useful for a while, but now Bush isn't such a hot property any more, yet the larger problem remains and the polarization persists. Wingnut and Moonbat have only the loosest connotations and it's usually pretty clear (though I see that it wasn't in this last rant) that I use them ironically rather than literally.

Just an idle comment, directed to no one in particular:

Andrew does not strike me as much of a stereotypical anything, and thus I have decided to adopt it as a personal rule that I will not even try to anticipate his views on any topic on which he has not already pronounced, since the odds of my being right seem to be no better than flipping a coin.

Also, Andrew, did you see that Lizardbreath has a blog crush on you? High praise.

radish,

No harm done. I am just often confused by the reaction I get to things I say here, and I believe that part of the reason is that people assume that because I'm right of center, that what I say actually may mean something else. On the other hand, I hope that this exposure will help me to be more precise in my writing, so that's probably a good thing in the long run, if somewhat frustrating at times.

I see your point with Wingnut/Moonbat. Trying to describe the divisions is a challenging thing. I'm looking forward to the day the war in Iraq is over and all of Jim Henley's liberal readers realize that Jim's a pretty hard libertarian, for example.

hilzoy,

That's an interesting observation. I do attempt to keep my positions consistent with my personal philosophy, but I suppose that may not be much help. As a pure amateur philosopher, I'm sure my philosophy would be a source of amusement to a professional.

I hate to confess my ignorance, but what is a blog crush? I hadn't seen that; thank you for pointing it out. I saw some amusing commentary about me over there in the comments shortly after I joined ObWings.

Thorny times we live in. I believe I'll adopt hilzoy's policy from now on, and thank you for gracefully helping me notice a bad habit.

...Jim Henley's liberal readers realize that Jim's a pretty hard libertarian

Heh, yeah. Though I suspect that a lot of nominal liberals are going to be a lot more libertarian in practice before this is all over. All the War/Schiavo/NSA/DHS/MedicareD stuff, that's gonna leave some scars...

All the War/Schiavo/NSA/DHS/MedicareD stuff, that's gonna leave some scars...

If so, I'll view that as the silver lining of these events.

"You think "I was only following orders" is a justifiable defense? I don't. I would like to see every single US soldier, lowest rank to highest, prosecuted for the actions they took that were illegal."

I am outraged by a lot of the atrocities of the WOT and in Iraq. However, I'd like to shift this blanket statement (above) to situations outside Abu Ghraib and Guantanamo. I can imagine numerous scenarios where something totally horrific, tradegic, [insert depressing adjective here], etc happens in war. I can also imagine situations where soldiers may have committed acts, that in retrospect, would make people gasp. I would also imagine that there are many soldiers who "are not 100% on the legality, etc. of actions during war time." Furthermore, for me personally, I honestly don't know if I would be able to make a morally/legally sound decision while under enemy attack and supposed to be fulfilling my duties. I haven't been in that position and I don't think you can imagine it until you are there.

And how do you face an illegal order in War? I can imagine some situations where maybe you are able to appeal to a higher up in the chain of command... but at the same rate I can imagine a lot of situations where in all practicality that may be impossible. And in the military there is this thing called chain-of-command where you MUST listen to your command.

War is a horrible thing. I guess I am uneasy on Jesurgislac's position here. Yes, responsibility for actions is important...it is critical. But it might be really dangerous to make this universal law of war applicable to every scenario possible. I guess I am really rambling here because I know a lot of amazingly great people now serving in Iraq and I just said goodbye to a friend who is serving his second mission over there as a Navy Seal. One of the things I personally have a lot of trouble with is sending troops over to potentially the darkest scenes of death and destruction, then through them into the mix, and expect them to function as completely rationale moral agents. I'm going to stop since I have rambled enough. I'll I'm saying is I don't think this is a black and white issue.

Andrew: I am of the belief that those who committed illegal acts should be prosecuted. My reluctance stems from the fact at least some of those people were told by JAG officers that the techniques they were instructed were legal. While 'just following orders' does not excuse illegal or immoral acts, the whole reason we have a JAG Corps is to provide sound legal advice. As I said, while I hope I'd have the strength of character to say no when faced with such an option, I'm not going to pretend it would be remotely easy to tell one's superiors that an order is illegal when a JAG officer is telling you otherwise.

I concede that point, yes. It wouldn't be easy. Fine, give those soldiers lighter penalties - and give their superiors correspondingly heavier penalties.

But US soldiers have committed murder. I've linked before to one specific example, the Iraqi general who was tortured to death and whose murderer got a slap on the wrist so that he wouldn't lose his pension just for torturing a PoW to death.

That the soldiers may have been told it was legal for them to torture these prisoners to death does not exempt them from the responsibility of refusing illegal orders. Yes, it would evidently have been difficult to do so. Yes, their superiors need to get correspondingly heavier sentences.

But some soldiers did refuse their illegal orders. Some soldiers were brave and decent enough to stand on their right to refuse a patently ilegal order.

It does not appear to me that an army can clean itself so long as it's taken for granted that lower-ranking soldiers can't be expected to be brave or decent, and therefore shouldn't be penalized when, lacking courage or decency, they carry out their orders to torture prisoners, sometimes to death.

IntricateHelix: War is a horrible thing. I guess I am uneasy on Jesurgislac's position here. Yes, responsibility for actions is important...it is critical. But it might be really dangerous to make this universal law of war applicable to every scenario possible.

But we're arguing, are we not, about a specific scenario: military personnel in charge of prisoners who committed torture and sometimes murder. (And rape, and threats of rape, and kidnapping of children in order to threaten a father into compliance, and other such horrors.)

I'm willing to keep this argument to that scenario if you are. (Fred at Slacktivist has a couple of threads going on wider scenarios.)

Jes,

I have never argued that those soldiers shouldn't face penalties for their actions. I said so in the post, and I said so in my first response to you.

There are many things in life that I don't desire, but are still necessary. I'd rather not get up before five every day and go running, but I continue to do it nonetheless. My statement regarding prosecuting these soldiers falls into the same vein.

I've never been through basic training in any branch of the Armed Forces, so I'd be curious, from Andrew or another vet: How much time, either in basic or when training more completely in one's MOS, is spent on the distinction between legal and illegal orders? Any at all? Or is it alluded to much in the way the Seven Duffs on The Simpsons advocate against drunk driving: "DRINK DUFF!! responsibly . . . DRINK DUFF!! responsibly?"

I don't recall how much time is spent on it during basic training, however all soldiers are required to receive training on the laws of war annually. It is usually a one-to-two hour briefing. With the recent events in Iraq, however, there has been greater emphasis on proper behavior and we are expecting to see more training added to the regimen. As yet no new training has been added, but we have received a plethora of notes/posters/etc. extolling the importance of adhering to the law of war.

Andrew: I agree with you, especially on the responsibility of superiors -- and, I would add, of the civilian leadership at the Pentagon and in the White House. -- It has always seemed to me that if you send people off to war, you are absolutely honor-bound to do whatever you can to keep them from unnecessary harm, and that that must include not just physical harm, but moral harm as well. Or: it's not just your responsibility to keep them from needlessly losing a leg, but also from doing something that will haunt them for the rest of their lives, insofar as you can.

(I suspect this comes from thinking about Vietnam. I was a kid during the war in Vietnam, and understood it in eight year old terms, and to this day I think that there are parts of the war for which those terms are absolutely the right ones. One was: of course it's not the soldiers' fault. They are doing their job. It's the people who sent them to do the wrong job in the first place who should be blamed. Being a kid who sometimes got in trouble for what other people told me to do, I understood this vividly. Likewise, the absurdity of being beaten up until you were pacified: I was beaten up periodically, and it never produced that effect in me.)

And one of the things that really enrages me about this administration is that they never seemed to recognize that their interrogation policies were not only horrendous to detainees, counterproductive, destructive of American interests, and so on, but that they also constituted a complete failure to protect our soldiers in the way I just described. I think we owe the people who serve in the military much better leadership than that.

Andrew: There are many things in life that I don't desire, but are still necessary. I'd rather not get up before five every day and go running, but I continue to do it nonetheless. My statement regarding prosecuting these soldiers falls into the same vein.

*goes back and re-reads*

Sorry. I misunderstood you.

trivia:

the same Congressman (Walter Jones, Republican of North Carolina) was the leading sponsor of the War Crimes Act in 1996 and the Freedom Fries resolution in 2003.

Jes,

No worries. I was attempting to express my frustration that the people who pay for these decisions inevitably tend to be at the lower end of the totem pole, and I could have made that point more clearly.

Katherine,

Interesting. So...is Jones an example of the maxim that even a blind squirrel finds a nut now and then, or does he illustrate the truism that we all do dumb things from time to time? (Or both?)

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