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November 17, 2008

Comments

I think this ship sailed in early 2007.

I don't believe stories sourced to "advisors."

Charley: normally, neither do I -- thus, my failure to comment on most of the "X is going to get this or that cabinet position!!!" stories. But in this case, I thought: an independent counsel is just so clearly the way to go that I should throw it out there.

This prosecutor should be someone with an unimpeachable reputation for wisdom, rectitude, and non-partisanship.

But could you get a leave from Johns Hopkins?

"This prosecutor should be someone with an unimpeachable reputation for wisdom, rectitude, and non-partisanship. "

If there's anything that 8 years of Republican governance and its media backing should have taught us, it's that no one has such a reputation anymore. Anyone can be slimed, usually successfully.

And frankly, as much as I'd like to see the scumbags responsible for this dealt with, the inevitable media firestorm which would accompany the efforts to tear down whomever that prosecutor might be would be virtually guaranteed to destroy any political momentum for dealing with every other disaster and crisis on the menu at the moment. It would be nice if I were wrong, but I imagine that's part of the calculation here.

How about Patricia Wald for the job?

Broke my link.

I think it is also possible (not, mind you, likely) that both in public and behind the scenes there are some serious mind games being played between the outgoing and incoming administrations with respect to how broad a set of pardons Bush will issue before departing from office.

It is in the interests of Bush and company to game the system by issuing a set of pardons which are maximal with respect to providing legal immunity while being minimal with regard to the public outcry they create. If they just go hog wild pardoning everybody for everything that could have both legal and public relations ramifications which are negative with respect to the ICC and/or possible war crimes prosecutions in other countries which decide to give Bush, et. al. the Pinochet treatment.

The worst case scenario for them would be that they are so blatantly crooked and guilty looking about it that they damage the political consensus here in the US against us handing them over to somebody else for trial outside the USA, a consensus that IMHO is currently very strong but which could be shaken if the pardons end up looking like a perp-walk out the back door of the White House.

With this in mind I think it is possible that Obama and his legal advisors may be angling to provide Bush with an incentive to keep his pardons minimal, hoping to preserve some shreds of non-immunity on which to hang later legal action. If they press too hard on this issue too soon, that chance will be lost. The worst possible time to let Bush know that they are serious about investigating possible war crimes is right now, while the pardon option is still open.

The worst case scenario for them would be that they are so blatantly crooked and guilty looking about it that they damage the political consensus here in the US against us handing them over to somebody else for trial outside the USA, a consensus that IMHO is currently very strong

ThatLeftTurn, are you serious? Do you really see a consensus among the public for turning over Bush admin officials to non-American courts for prosecution?

I don't see any such consensus. Conservatives have gotten some good political mileage out of the image of American soldiers being prosecuted by the various international bodies, and they've done so because that image pushes powerful buttons. Many Americans believe that the US is the greatest country in the world, that it has been blessed by God and appointed as His nation, that Americans are uniquely good and just people sent to lead the dark heathens into the light of civilization. Americans already suffer from anxiety about failing to meet the standards of our national mythos and falling behind to competition from other nations. The people that believe this are not just semi-literate country bumpkins; indeed, I fear that these ideas are most widely accepted by elites.

A trial where foreigners stood in judgment of members from the pinnacle of our governing elite would unleash a political firestorm. It would be presented to Americans as a case where the weak sissified Democrats handed over real Americans, brave manly Americans who made tough choices that were necessary for our freedom, over to be judged by weak effete Europeans. It would cement the notion that Democrats are traitors to real Americans and conspiring to serve the European masters whose approval they yearn for. The whole thing would be recast as the Pharisees handing over Jesus to the Romans. The humiliation of watching foreigners administer justice that we were to weak to accept would not mix well with our violent nationalism.

I'd love to see these people prosecuted, but if we can't do it, I just can't imagine any administration being able to weather the political consequences of watching the ICC do it.

Nope, the opposite in fact. I wrote "..the political consensus here in the US against us handing them over.."

In other words, the consensus is that Americans should not, cannot, will not be handed over.

If the coming pardons look really, really bad in the eyes of the public (i.e., they make the recipients look guilty as sin), then I think that consensus could be damaged - as in caused to be weaker than it is now. If I were a legal advisor to Bush/Cheney, et. al. then I would cast that as a worst case scenario and advise them to avoid it if possible.

Also, let me clarify, the term "handed over" was badly chosen on my part. A far more likely scenario IMHO would be that somebody from the Bush 43 administration carelessly takes a Pinochet-esque vacation outside the US to the wrong place at the wrong time and ends up being detained by the authorities there, and then the question back here in the US becomes, what do we do, up to and including going to war, to get them back?

A question that flies along with this, and another one that has to be looked at if the rule of law is to be ensured, is what it means when people in the White House wrote invalid legal opinions saying that there were no legal problems with doing certain things, with so little worth that they might as well have been written on toilet paper. What would it mean if a situation is simply let sit where having relied on such a concoction as assurance that something was okay means no prosecution? And what is the legal status of people in the executive branch writing such toilet-tissue artifacts in a specific and transparent effort to enable and command breakage of laws - is that criminal conspiracy? We must not leave this blurred. It involves the whole line of illegal vs. legal behavior as it applies to those in power.

I agree completely with the idea of a special prosecutor.

Can one of you lawyers here (you know who you are) please tell us what immunities a presidential pardon does and does not involve? If President Obama pardons David Addington, say, can Addington still plead the 5th on questions which might incriminate him in crimes he is already pardonned for?

I understand, though I abhor, the idea that we must avoid appearing partisan by trying to throw into jail the partisans who broke the law. But what if criminal penalties are taken off the table? Would it be too partisan to merely expose their crimes?

We probably have treaty obligations requiring us to punish war crimes, not merely expose them. But exposing them would be at least a good start.

--TP

ThatLeftTurn, are you serious? Do you really see a consensus among the public for turning over Bush admin officials to non-American courts for prosecution?
Since TLTIQ just wrote about "the political consensus here in the US against us handing them over to somebody else for trial outside the USA," asking if TLTIQ sees the opposite seems peculiar.

"If President Obama pardons David Addington, say, can Addington still plead the 5th on questions which might incriminate him in crimes he is already pardonned for?"

I Am Not A Lawyer, but my understanding is that no, you cannot claim an answer might incriminate you for a crime for which you have been pardoned, and for which you therefore cannot incriminate yourself. It's my understanding that the person has to affirmatively accept the pardon, however.

Actual lawyers can confirm or deny.

Same old, same old. All or most of them will simply get away with it, maybe a couple of secondary players will get light sentences.

I would love prosecutions, but do not foresee them. Some real openness about a thorough housecleaning even without criminal penalties, would be a good start, ideally in a very public Truth And Reconciliation fashion - but I do not honestly expect even the thorough investigation, let alone the rest. After all, as Yoyo pointed out, the 2007 Dem congress did squat to expose malfeasance, and we live in a world where, last time I checked, if you want to study Constitutional Law at UC Berkeley, you have to learn it from Yoo.

@Gary 1:21am:
The wording in my phrase was a bit awkward. I certainly did not take offence at being misread. Let he who is without sin cast the first stone...

@Alex Russell 1:05am and @Tony P. 1:14am:
I suspect the answers to your legal questions may be found somewhere on the blog Balkinization, or at least that is the first place I would start looking for them. Not tonight though, por moi. It is time for me to retire for the evening.

Good night all.

The bigger point is, if there was a time for investigation, it would have been in the last two years. Obviously nothing was getting done, so impeachment might have flown. Doing stuff now, when it looks like you are spending more time hatcheting your already-vanqueshed enemies than fixing all the problems the country now has looks petty.

And i really don't see how anyone is going to give a sh*t about bush giving out some pardons, if they didn't already hate him already for the last 8 years.

I think for future historians the fact that Clinton was impeached, and Bush not will be one of the most head-scratching things of this quarter century.

In other words, the consensus is that Americans should not, cannot, will not be handed over.

Ah, thanks for clarifying. I got turned around in the phrasing -- my mistake. As always, I appreciate your graciousness.

If the coming pardons look really, really bad in the eyes of the public (i.e., they make the recipients look guilty as sin), then I think that consensus could be damaged - as in caused to be weaker than it is now.

This seems fishy to me. Let's say Bush pardons everybody for everything. When you and I look at those pardons we think "Blech...he must be guilty as sin", but when others look at the same pardons they'll conclude "Boy, that Obama guy must really be an insane partisan -- the President was just trying to protect himself". All those people purchasing extra guns because of Obama's victory? They're not going to look with great skepticism on Bush's future pardons. When it happens, it will be discussed in the context of the Clinton pardons and the whole thing will be normalized. The act of pardoning is, after all, ambiguous: what you see depends a great deal on what you know, and a lot of Americans don't know nearly enough about this administration's crimes.

At the end of the day, the political problem associated with trying American soldiers or government officials in foreign courts is based on an emotional reaction. I'm not sure that the addition of mere facts can alter that.

A far more likely scenario IMHO would be that somebody from the Bush 43 administration carelessly takes a Pinochet-esque vacation outside the US to the wrong place at the wrong time and ends up being detained by the authorities there, and then the question back here in the US becomes, what do we do, up to and including going to war, to get them back?

Unfortunately, I don't see this as plausible. Pinochet got caught in 1998 in part because he hadn't seen Pinochet get arrested in 1998. Bush et al have seen it. Moreover, I'm not sure how comfortable the international legal community is with Garzón's theories of universal jurisdiction. This area of law has, to say the least, not been well litigated. And Spain could afford to piss off Chile in a way that most countries simply cannot afford to piss off the US. My hunch is that no high ranking official in the US government will get prosecuted abroad for their crimes in the coming years. I don't think we'll ever have to sully our hands with the use of force to assure that outcome; the mere mention of freezing the prosecuting country's assets or perhaps some trade barriers will be enough to assure compliance. While lots of European countries would love to prosecute them some Bush admin officials, I don't think any of them are willing to pay the high financial price that the American public would compel our government to exact. Especially not amidst a global recession.

ok i'm not too convinced that if don rumsfelt gets picked up off the beach in Ibiza that americans are going to be up in arms about it. The whole anti-ICC is based on GI Joe, not some washington insider.

I am attempting to retain a certain amount of agnosticism on this subject, on the grounds that if I were Obama, and knew that the moment I took office I could set in motion a criminal inquiry wich would inevitably result in Bush, Cheney, and Rumsfeld arrested for their clear legal responsibility for having prisoners tortured while in office, which I presume Obama can, then I would under no circumstances let them know that I definitely planned to do that. If, that is, I wanted them to be prosecuted.

OTOH, mostly, I'm extremely skeptical that there will be any change in the tradition that winners are not prosecuted for committing war crimes, nor in the American tradition that Americans are not seriously penalized for what they do to gooks, nor in the firm US tradition for at least 30 years that whatever crimes a President and his administration have committed in office, they can't be punished for them - they are above the law.


yoyo: I think for future historians the fact that Clinton was impeached, and Bush not will be one of the most head-scratching things of this quarter century.

Not really. I mean, the main and obvious reason why Clinton was impeached was that the Republican Party is deeply, vastly corrupt. That's pretty well documented.

The main and obvious reasons why Bush et all were never impeached are the reasons I gave above plus the deep corruption of the Republican party.

I presume we're talking of historians able to discuss the facts clearly - I can see that American historians in 30 years time are going to have to do a good deal of very careful "we have no idea what happened" if they want to retain their jobs. Questioning the party line is never good in a fascist state, and I'll wait for electoral reform before I believe Obama represents more than a blip in the US slide towards fascism.

Obama could call up Minos, Rhadamanthys and Aiakos as special prosecutors and Jessica H. Christ as judge (with the apostles as jury) and there would still be cries of partisan witch hunt.
My personal opinion about what to do would get me banned instantly, so I will abstain from posting it.
What can and should be done by the Obama administration is to pull the veil back and make everything public, starting with ALL pictures and videos from Gitmo and Guantanamo (ok, those that have not been preemptively destroyed). This should be combined with the proof that this was not just the doing of some "bad apples" but personally authorized and supervised by Bush&Accomplices (and reminding everyone that those responsible pardoned themselves for it because they knew that it was wrong).
It will of course not work for the Limbaughtomized part of the country but there should still be enough decent people around to be worth the effort.
Make them so loathsome to every human being that they will be afraid to leave their houses because they would have to expect to get one between the eyes!

"This prosecutor should be someone with an unimpeachable reputation for wisdom, rectitude, and non-partisanship."

Larry Klaymann's available. And he DOES go after members of both parties, as became evident after the 2000 election. Of course, you probably don't want anybody that enthusiastic.

"I think for future historians the fact that Clinton was impeached, and Bush not will be one of the most head-scratching things of this quarter century."

No, not really; Bush's corruption tends to be in the policy area, and we don't have much history of criminalizing that. Maybe we should, but we don't.

Clinton's corruption was usually of a more personal, venial sort, the kind of thing we DO have a history of going after. And the obvious joy he took in bating opponents didn't help; You'd never see the Bush administration turn up subpoena'd documents a couple days after the statute of limitations ran out, just to prove that they DID have 'em and were hiding them deliberately. Bush just isn't into that sort of thing, the Clintons really got off on it.

I disagree with Hilzoy and believe the Obama administration should look forward not backward. That being said, I hope someone in the administration quietly but firmly tells Bush, Cheney, and Rumsfeld, not to travel abroad. I would be more worried about an international incident if any of them were arrested for war crimes abroad, a la, Pinochet. What does President Obama do then?

Brett: You'd never see the Bush administration turn up subpoena'd documents a couple days after the statute of limitations ran out

*laughs* Thanks, that was genuinely funny... No, you would certainly never see the Bush administration ever doing that!

Martin: I disagree with Hilzoy and believe the Obama administration should look forward not backward.

"Apart from that, Mrs Lincoln, how was the play?"

"What does President Obama do then?"

Call Chuck Norris.

My modest proposal over at IIRTZ is that Obama solve two problems with one stone and force Bush II to pardon and release all the secret and not so secret prisoners in all the prisons as a quid pro quo for allowing bush to pardon his henchmen and cronies. Bush is going to do so anyway so creating a novel solution to the problem of Obama's ownership of the prisoners seems to me to be a good solution to a different problem.

On the question of the pardons of our own criminals if they can't be prevented they must be made use of. All applications for government jobs should include a line "have you or haven't you received a pardon for crimes committed while in office, under color of office, or at the behest of a superior which you did not refuse to carry out?" And a new line "Applicants accepting government positions must waive all rights to future pardon for illegal acts committed in office. Acceptance of a job in the US administration means accepting no pardons."

I don't have much faith in special prosecutors. They are utterly unconstrained by logic and good faith--just imagine if, for whatever reason, they start with a list of complicit democratic senators and congresspeople just for convenience's sake and simply never get through to the republican end of things?

aimai

hilzoy, are you *still* trying to get into patrick fitzgerald's pants?

other than that, total agreement.

I think for future historians the fact that Clinton was impeached, and Bush not will be one of the most head-scratching things of this quarter century.

Actually the reason there was a Clinton impeachment is more or less the same as the reason there was no Bush impeachment: in both cases, the leadership of the House put its (perceived) partisan interests ahead of the good of the nation and the intent of the Constitution.

Gingrich and the House Republicans in 1998 thought they could take down the Clinton administration and gain partisan advantage by impeaching Clinton for lying about a blowjob.

Pelosi and the House Democrats feared that the rancor of an impeachment proceeding would interrupt the orderly fashion in which the Bush administration was committing PR suicide.

In a sense yoyo won this thread with the first comment:

I think this ship sailed in early 2007.

I'd add that Democratic behavior in 2007 should have been no surprise to anyone paying attention to the previous six years.

The Democrats have been fairly active junior partners in the crimes of the Bush administration. From the nearly unanimous vote for the USA PATRIOT Act to majority Senate Democratic endorsement of the AUMF on Iraq, from FISA to the Military Commissions Act (for which one-quarter of the Senate Democratic caucus voted), Democrats not only refused to filibuster against authorizations of the administration's illegal actions, they often provided the key votes that allowed their passage. Leading Democrats in both the House and the Senate were told of the illegal wiretap program and sat on the information. I'm sure that a full accounting of what the House and Senate knew and when they knew it would reveal even more blood on their hands.

Sizable minorities of the American public have favored a much fuller accounting of this administration's crimes (the few polls on impeachment showed around forty percent of the public favoring it); no doubt those numbers would have increased had political leaders aroused public sentiment and made more people aware of what had been done in our name.

But the Democrats were gambling on the hope that, when the public voted this year, holding the Bush administration accountable for its crimes would be a fairly low priority, even among that forty percent. Two elections held in particularly liberal constituencies earlier this month suggest that they were making a sensible wager.

Both Cindy Sheehan's challenge to Nancy Pelosi in California's 8th CD and Charlotte Dennett's Vermont Progressive Party candidacy for State Attorney General centered on the need to prosecute Bush's crimes. Both candidacies failed miserably. Sheehan received only 16% of the vote. Dennett (whose party has won statewide office in the past, including of course the US Senate seat which is held by party founder Bernie Sanders) got less than 6% of the vote.

As an ex-Democrat deeply disaffected from my former party, even I felt that this was a year in which I had to not only vote, but work for, the lesser evil. I'm glad I did. I'm glad it won. On the margin, it will make a difference.

But lesser evilism has its price. And this year part of that price is assisting our bipartisan political class in its attempt to slip the crimes of the last eight years down the memory hole.

Yes, absolutely. Let's insist on the rule of law and prosecution of offenders. Let's bring high officials to justice... And breakers of campaign finance laws ... and immigration violaters ... and [oh wait, that's not politically correct].

Thank you for defending the quaint and simple notion that no one is - or at least ought to be - above the law in the US, Hilzoy.

Contra some of the comments above, I would note that Kissinger is not utterly free to travel. He's been out of office for a while, so maybe that has something to do with it.

Thanks, d'd'd'dave, for providing this thread with the first (rather lame, it must be said) variation of "everybody does it." Bonus points for false equivalency (high officials and illegal immigrants are kind of apples and oranges) and groundless accusations (that Democrats are, presumably, more egregious violators of campaign finance laws than Republicans).

Ben Alpers
Lame: As if elegantly presented lies are better than lamely presented truth.
False equivalence: Law is blind, right? It shouldn't notice that some lawbreakers are apples and some are oranges.
Groundless Accusations: First I didn't gesture in any direction; neither democrat nor republican. Second, are you suggesting that campaign finance laws should only be enforced if one side is more 'egregious'? Law is law. Enforce it or get rid of it.

Why would anyone even remotely associated with Obama have anything to say about this either way given the history of the Bush Administration? There are times that folks just have to keep their mouths shut -- the journalists will understand.

d'd'd'dave -- thanks for letting us know that it's okay to break all the laws if they aren't all enforced with the same prosecutorial zeal. Presumably you haven't tried that argument as a defendant or as a defense attorney.

Obama's formulation "America does not torture" is perilously close to "America did not torture." Has Obama publicly committed himself to the international standards, say on stress positions? If Obama were to say "stress positions are torture" then it would follow that Bush, having authorized stress positions, authorized torture. Obama, I suspect for both legal and political reasons, does not want to go there. So Obama will committ to the military code while remaining uncommitted to Int'l standards & definitions, leaving the Torture Convention permanently weakened & vulnerable.

In addition, what is or is not torture, illegal interrogation, illegally obtained evidence, and outrageous treatment of detainees has important implications for the forthcoming trials of the Gitmo prisoners. Does Obama want evidence obtained through torture to be allowed in court?

Ambiguous statements such as "We will follow the International standards and UCMJ" will not cut it. What those standards are and mean in detail was always what was in dispute.

This isn't a mistake of Obama's. I consider his failure to prosecute the torturers, and his unwillingness to strongly reassert the Int'l standards, might be very close itself to a war crime. I see only a small distance between Obama's actions here and John Yoo's. Both enable torture.

Despicable & contemptible. 5% less evil than Dick Cheney is still evil.

A couple of twists:

1. Lieberman appears to be keeping his gavel. That closes the door on one forum for holding hearings on misconduct.

2. A pardon does not relieve you of the obligation to comply with subsequent subpoenas. If someone in the House, or Maher Arar in a rejuvenated lawsuit, wants to take the deposition of people pardoned by Bush, the 5th Amendment privilege no longer applies. If they refuse to comply with the subpoena, they can be jailed for contempt. If they lie, they can be prosecuted for perjury.

Note that House hearings and Bivens lawsuits are independent of the Presidency.

If Obama were to say:"Stress positions are torture, and the Bush administration authorized and practiced torture but we will not seek prosecutions." I would feel a lot better.

But it feels like Obama wants to keep all the options available.

NaGaHappn.
Didn't happen after the Palmer raids.
Didn't happen after WWII internments.
Not going to happen now because there is no way the Establishment is going to punish itself. How can it? Where would it stop?

Moral: a legal fig leaf is a pretty big tent.

Me
//Yes, absolutely. Let's insist on the rule of law and prosecution of offenders.//

Freelunch:
//thanks for letting us know that it's okay to break all the laws if they aren't all enforced with the same prosecutorial zeal.//

Huh? I think you're arguing with the voice in your head.

the (original) francis
//A pardon does not relieve you of the obligation to comply with subsequent subpoenas. If someone in the House, or Maher Arar in a rejuvenated lawsuit, wants to take the deposition of people pardoned by Bush, the 5th Amendment privilege no longer applies. If they refuse to comply with the subpoena, they can be jailed for contempt. If they lie, they can be prosecuted for perjury.//

Isn't the law a beautiful thing? It is so adaptable to our needs.

First I didn't gesture in any direction; neither democrat nor republican. Second, are you suggesting that campaign finance laws should only be enforced if one side is more 'egregious'? Law is law. Enforce it or get rid of it.

OK...let me try this another way: who is suggesting, on this thread or elsewhere, that campaign finance laws should not be enforced?

You'd never see the Bush administration turn up subpoena'd documents a couple days after the statute of limitations ran out, just to prove that they DID have 'em and were hiding them deliberately.

Say, remember the time that the Bush administration said that hundreds and hundreds of emails, which might be the targets of subpoenas, had accidentally been destroyed? Because Brett doesn't.

Ben Alpers
//who is suggesting, on this thread or elsewhere, that campaign finance laws should not be enforced?//

No one. In fact, I'm explicitly suggesting that all laws be enforced. What's the problem?

For example, if someone is pardoned or found not guilty of any crime, the right thing to do would be to subpoena them for some tangential thing and try to catch them in a lie. Then we can jail them for perjury. There is a law that says we can, so we must.

It is all about the law. The law is the highest of all things.

D'd'd'dave, you're just trolling with the 11:48 comment. If you have a good argument for why Bush Administration officials should not be prosecuted for war crimes, then give it. If you don't, then I'd suggest everyone not feed the troll.

My own views have been given by ben alpers so I'll just go back into lurk mode.

Obama should appoint a special prosecutor. (If current laws do not allow for this, they should be changed.) This prosecutor should be someone with an unimpeachable reputation for wisdom, rectitude, and non-partisanship. (Think Archibald Cox.) He or she should be given complete independence,

I agree with everything in the post arguing for the utility of prosecution and the great importance of a precedent that high government officials can be punished for their criminal misdeeds. I quote the section above which I did because, while it doesn't specifically say so, it seems that you might want an independent prosecutor to do this, and Morrison v. Olson is a pet peeve of mine. In short, Silberman at the appellate level and Scalia at the Supreme Court were actually correct in this case, and independent prosecutors really are a fundamental violation of structural checks and balances.

The problem is that with Congress's unwillingness to use the powers it does have and provoke a confrontation by calling absolutely blatant contempt by its name, executive branch prosecution is the only option. Nevertheless, it has to be done by someone other than an independent prosecutor.

"Say, remember the time that the Bush administration said that hundreds and hundreds of emails, which might be the targets of subpoenas, had accidentally been destroyed? Because Brett doesn't."

You having trouble with what I was pointing out? Not that the Bush administration wouldn't refuse to respond to a subpoena, but that they wouldn't wait for the statute of limitations to run out, and THEN respond.

Look, pretending you don't have something is obstruction of justice. Pretending you don't have it until the statute of limitations expires, and then having it mysteriously turn up, is obstruction of justice AND baiting your enemies. Bush is into obstructing justice, he doesn't bother to bait his enemies.

That's one big difference between the two Presidents, and it's one of the reasons Clinton got impeached, and Bush didn't: It made it politically impossible for the Republicans to refuse to act when Clinton finally screwed up and got caught at something, however trivial.

Oh, and Clinton wasn't impeached for lying about a blow job. Go ahead, look up the charges: He was impeached for lying to a grand jury about his obstruction of the investigation into his lie about the blowjob.

There has to be a price paid for criminal behavior that takes place on a such a grand scale. It is not retribution. It is not even rectification for past wrongs. It is deterrence for future crimes. And it is for "educational" purposes: it is crucial that more Americans be made aware of what happened. And this is only likely with prosecutions.

It may not be in the Obama administration to have valuable headline space taken up with prosecutions for actions taken by the prior administration. But there are few things more wrong that what the Bush Administration did in prosecuting the war on terror outside the normal rule of law. It is important that this becomes known. Then it becomes less likely in the future. In balancing these two concerns, (1) the diversion of attention from other pressing matters, and (2) the education of the populace, I would argue that (2) ought to carry greater weight than (1). It does for me.

I really hope everybody makes their opinions on this known to the Obama people.

Aside from using the contact options from Obama's own websites, I'd reccommend signing the letters found at following two websites:
(1) http://amnesty.org/en/appeals-for-action/show-real-leadership-in-human-rights
(2) http://closegitmo.com/

Bush is into obstructing justice, he doesn't bother to bait his enemies.

No, he, or his second in command, tells them to go f*ck themselves.

Thanks -

Bush is into obstructing justice, he doesn't bother to bait his enemies.

Hey, does everyone remember "Bring 'em on!" and "Smoke 'em out!" and "Dead or alive" and "major league asshole" etc. etc.? Because Brett doesn't.

Oh, and Clinton wasn't impeached for lying about a blow job. Go ahead, look up the charges: He was impeached for lying to a grand jury about his obstruction of the investigation into his lie about the blowjob.

Yes, you've ridden this hobbyhorse for quite some time without ever bothering to take that final step of wondering why our money was being spent on a blowjob investigation at all, Paula Jones or no Paula Jones.

I should just remember my previous dictum that Brett essentially never says anything correct, and act accordingly.

If I were an incoming president determined to prosecute officials in the previous admin, I would not say so, and I'd have my people say it's not likely but leave open the possibility. (That sounds like what Im hearing.) Then when I took office I'd go whole hog.

Bait and switch 101.

In a discussion of Cheney and the rule of law over on Culture 11, I asked what is so scary about prosecuting law-breaking. To spare you the link, the possibilities I can think of that might scare conservatives are:

1. Frankly authoritarian rhetoric from the right? From my lefty POV, we’ve had that for years anyway.

2. Frankly anti-authoritarian rhetoric from the left? Strikes me as implausible but happy-making.

3. Conservatives having to make a public stand either for or against might-makes-right authoritarianism? And the downside of this would be ….?

4. More right-wing terrorists (on the McVeigh model) foaming out of the woodwork? That’s a worry, all right, but doesn’t seem worth giving up the rule of law for — and reigning in the right-wing demagogues would do a lot to keep the lid on these people. But the right-wing demagogues can only be reigned in by other (rich powerful) people on the right — we lefties aren’t going to get Rush to ratchet back.

5. Full-fledged insurrection? On behalf of *Cheney?!?*

On the Democratic side, the other scary possibility might be the revelation that many members of Congress are accessories to law-breaking. But I don't see why this would scare conservatives.

"I could set in motion a criminal inquiry wich would inevitably result in Bush, Cheney, and Rumsfeld arrested for their clear legal responsibility for having prisoners tortured while in office, which I presume Obama can,"

There would be nothing inevtiable about those arrests. teh Justice department clearly blongs to the President, and Obama could have them round up the whole whorehouse and see them all die in prison, but for his own reasons decline to prosecute Bush at least. There political fallout of prosecuting his predecessor, however much the vile POS requires it, would be a more than a little too Third World to pass the smell test.

The issue is the futrue; how to ensure this never happens again. The answer is to not just prosecute but persecute every person down to PVT who engaged in actions sanctioned by these odious internal memoranda, when they knew from Basic Training that that shit was illegal and would always be. That way no president will ever be able to make anyone trust another batch of these odious internal memoranda, ever again....

"1. Lieberman appears to be keeping his gavel. That closes the door on one forum for holding hearings on misconduct."

Not so fast. Who knows what he sold to keep his chairmanship? And he can be sent to the animal shelter if he peas on the carpet, anyway, or forgets his deal.

It's a ways back, but about the answer that ThatLeftTurnInAbq gave about my questions:

"@Alex Russell 1:05am and @Tony P. 1:14am:
I suspect the answers to your legal questions may be found somewhere on the blog Balkinization, or at least that is the first place I would start looking for them."

My point wasn't really about the "right answers" that we could research and agree on - and this extends to hilzoy's focus on laws that we can say were actually broken. What's in question here is operational lines - lines that are established for the future by fear, because, when certain routes were used, those people were prosecuted.

(I occasionally wish for a wave of enthusiasm about the old anarchist perspective that law is force and fear of force. Not in service to anarchist recommendations, but it can be a remedy to a kind of holding pattern we get into where we think of law as a set of right answers in or derived from a rulebook. "Looking for" the right legal answer isn't it.)

If this business of writing ersatz legal opinions (and of keeping some of them secret and unread) in order to open doors through solid legal walls does not prove disastrous to the people involved, disastrous enough for people to be afraid of those consequences, it will be used again by people who have reason to do it. It isn't even out of the way; the White House and Justice Department always have their own view of the law and its significance. For both it and for outright lawbreaking for the top of the executive branch, in the absence of being demonstratively treated as crime, it remains substantively... merely a policy difference (we hope) between the last administration and the present one. Yes, no matter how head-hurting that might seem to us. And with many administrations to come, each of which will choose their own policies. We wish to have a future America in which certain things have been inoculated against, do we not? To do that, we're going to have to take actual action for it.

(A fallback would be to rely on future public opinion, in light of the last eight years. One of several objections to this is that that public opinion would be partly shaped, and enabled, by the fact that no one ever was brought to court or went to jail for these things. Even in the near term, that would assist partisan belief that the substance here was all exaggeration, distortion and lies - about people doing necessary things to protect their country against dreadful threats.)

What are we going to actually establish as out of bounds?

Jim - I'm not sure what would be involved in "persecution", but we certainly have the same sense of the need for deterring precedent.

Terragona:

I am one of those who considered the 'war on terror' to be an actual shooting war rather than a matter for the courts.

To clarify further, I see it more like an action against pirates on the high seas (wherein the high seas are any physical place on earth) rather than a war between nations.

How then, has Bush and company prosecuted this 'war on terror' outside the usual legal structure of war?

I see the following:
a. torture
b. it's unlawful to chase a pirate into someone's sovereign territory without permission. But then, if I demand that the sovereign territory disgorge the pirate and they do not...well, that's one of the reasons the US Navy was formed in the first place: barbary states pirates and all... I seem to recall that we bombarded the port.
c. invaded iraq against UN wishes (i've heard this charge but haven't looked at the evidence. It's not like I could do anything about it)

Other than those three things. What is unlawful?

Other than those three things. What is unlawful?

Dude's got a point. If all they did was torture people and violate international treaties, what's the big deal?

it's unlawful to chase a pirate into someone's sovereign territory without permission. But then, if I demand that the sovereign territory disgorge the pirate and they do not...well, that's one of the reasons the US Navy was formed in the first place: barbary states pirates and all

Just so I'm clear, does this mean that if any country in the world declares that someone in America is a terrorist (or pirate), they have the right to bomb parts of America until the US government turns over the alleged terrorist? Is that right? Or is it only the United States that is empowered to act this way?

Hell, dcubed dave, you're more radical than me. I'd like to see Bush tried for the crime of starting a war without just cause, but I'd gladly settle for just seeing him tried and convicted as a torturer. Baby steps, ya know.

Coyote:
Seriously, I'm not making fun here. I'm not trying to say those three things were okay. I'm just trying to see whether I have a grasp on all the major things Bush and Co. is accused of in terms of 'war crimes'. That's why I said, 'other than these three...'

Turbulence:

//Or is it only the United States that is empowered to act this way?//

What I'm saying is, A. that is precisely what the US navy did in it's first major international excursion in the 1700's. B. It was on my list of possible illegal acts, and C. It doesn't sound legal but we did it before Bush and Co so I don't really know where the law lies.

In the Barbary States incident, the declaration was made that if you are harboring pirates than you must be a pirate. After fair warning, and failure to hand over the pirate, with sufficient good faith checking on both sides, an attack was made. This was in the late 1700's.

I'm not saying it was legal in the 1700's or whether it is legal now. I'm just saying it was done. There is precedent. [Clearly there are international legal questions being debated at the moment concerning piracy off Somalia hence the reason various navies are standing by without doing anything.]

Donald Johnson
I personally don't think Bush started his first term planning to start wars and torture. And I think the circumstances of the close election with Gore biased half the voters against him unfairly so he was on his back leg to start with. Plus the 9/11 thing was a disaster that changed many things. With all that said, I don't care if 400 murderers (plus a few innocents) in Guantanamo and other places had a difficult interogation. They are lucky they weren't shot on the battlefield. And there have been plenty of innocents who die on all battlefields in all wars. Including, if you will 3000 in NYC. So get the f%#* over it.

Now, as for whether there was adequate justification for including iraq in the war on terror. No. In hind sight, no. As Hillary says, "If I'd known then what I know now..." It would be appropriate to investigate "What did he know and when did he know it..."

But the torture thing. Get over it.

Seriously, I'm not making fun here. I'm not trying to say those three things were okay.

...

With all that said, I don't care if 400 murderers (plus a few innocents) in Guantanamo and other places had a difficult interogation.

...

the torture thing. Get over it.

Get over it.

I have a question, for those whose memory is clearer than mine.

Back in the 90s, did Democrats use the retort "Get over it!" a lot, to Republicans who were talking about Clinton's sex life, etc.? Or did this start 8 years ago, and if so, why?!?

At least in the past 8 years, I seem to be being told "Get over it!" an awful lot when the "it" involves things like having a Constitution.

But the torture thing. Get over it.

No.

Thanks -

Jim: There political fallout of prosecuting his predecessor, however much the vile POS requires it, would be a more than a little too Third World to pass the smell test.

So in your view, Third World leaders are not above the law - they can be prosecuted for their crimes after leaving office - but the President of the United States is above the law?

The issue is the futrue; how to ensure this never happens again.

You can't. If you hold to the idea that the President and the Vice President are above the law, and no matter what they do they can't be prosecuted, then you can't possibly ensure that this never happens again, no matter how many low-level grunts you're happy to make an example of.

With all that said, I don't care if 400 murderers (plus a few innocents) in Guantanamo and other places had a difficult interogation. They are lucky they weren't shot on the battlefield.

Especially when you have people like d'd'd'dave who believe Bush when he claims that all of the prisoners in Guantanamo Bay were bad men taken on the battlefield, when we know for a fact that's not so: and when Bush and Cheney, the unprosecutable, assert that torturing prisoners is just "difficult interrogation".

Coyote:
// not trying to say ... three things were okay.//

Only one.

Doctor Science:
Aside from the fact that it is humorous to compare clintons sex life to torture...

//Get over ... the ... Constitution//
1. Where does the constitution limit how I interogate a foreign combatant?
2. Where does the constitution prevent the USA from bombarding a foreign country (congress authorized war).
3. Where does the constitution prevent the USA from going against the UN's wishes (congress authorized it)?

I'm not talking in a vacuum here. I'm following up on my 7:16p comment. Which, if you'll notice, was asking for someone to show me what I'm missing. Can the good Doctor Science point out to me what constitutional point i'm missing?

Jesurgislac:
//Especially when you have people like d'd'd'dave who believe Bush when he claims that all of the prisoners in Guantanamo Bay were bad men taken on the battlefield, when we know for a fact that's not so: and when Bush and Cheney, the unprosecutable, assert that torturing prisoners is just "difficult interrogation".++

I didn't claim 'all'. I claimed 400 bad and some innocent. I believe the vast majority are bad. Do you claim zero bad and all innocent? I doubt it.

As for difficult interrogation. [You may not accept my initial premise that the 'war on terror' is a shooting war rather than a legal prosecution.] But in shooting wars, worse things happen than torture.

"Especially when you have people like d'd'd'dave who believe Bush when he claims that all of the prisoners in Guantanamo Bay were bad men taken on the battlefield, when we know for a fact that's not so"

I disagree with d'd'd'dave about many things, but you quote him writing "(plus a few innocents)."

I believe the vast majority are bad.

You have absolutely nothing to base that on - except for President Bush's word.

Really. You got nothing.

Now, it may be that some of the people held in the US gulags are in fact (a) guilty of crimes (b) in the gulags because of the crimes they are guilty of.

But the process of rendering people to the US gulags is so corrupt, that we literally have no notion how many of them are guilty of anything, let alone how many of them are guilty of the crimes of which they have been accused. In fact, we don't really have a good idea of how many prisoners are being held in the US gulags in Cuba, Afghanistan, Iraq, and elsewhere in the world.

Thanks to the US system of torturing prisoners to provide evidence against themselves and others, of course, even the prisoners who are guilty of the crimes of which they are accused can probably not be convicted in a court of law, unless Obama accepts complicity with Bush's crimes and sets up a separate justice system to "try" these people.

As for difficult interrogation. [You may not accept my initial premise that the 'war on terror' is a shooting war rather than a legal prosecution.] But in shooting wars, worse things happen than torture.

Then don't be shy: call it torture. When you use the euphemism "difficult interrogation", you don't sound like someone who's realistically considered the distinction between a "shooting war" and "torture": you sound like someone who's accepted the Bush administration's premise that (for example) nothing that happened to John McCain when he was a PoW was torture.

Nor do you appear to be terribly aware that many prisoners kidnapped into the US gulags were not taken on the battlefield of any shooting war...

hilzoy,

hmm. beyond the larger issue you tackle later in your post (the special prosecutor), i suspect there is a more immediate problem. namely, that this ain't your father's associated press, so best to take their otherwise 'just the facts, ma'am' wire story with the requisite grain of salty skepticism. (heck, i might even posit that, given their recent track record, the ap editors are hoping to gin up just the kind of drama you initially led with.)

Torture. Brutalie. Cannibalize. Boil. Flay. Disembowel. Whatever.
There you go.

//Nor do you appear to be terribly aware that many prisoners kidnapped into the US gulags were not taken on the battlefield of any shooting war...// I do not think that most of them were surrounded on a conventional battlefield and then captured. I am absolutely aware that many of the prisoners were pulled out of bed or kidnapped from street corners in peaceful neighborhoods of germany or denmark or wherever. But that is even better! It means that the USA was more humane and avoided harming lots of innocent bystanders as occurs in conventional wars. Are you kidding me? Absolutely it would've been better for mankind if the CIA had snatched Hitler off a street in 1937. And if the CIA had snatched Hitler, Himmler and Mrs Jones, the innocent butchers wife in the bargain it still would've been better than WW2. Innocents are harmed if we act AND if we don't act. Are you saying it is better that we don't act even if a larger quantity of innocents are harmed thereby?

Forget WW2, you can even forget 3000 on 9/11 if you want. Don't you see that there are terror bombings of innocents almost every week somewhere - don't these innocents matter. Don't you count them?

Philosophically speaking, er, what I mean is, in the realm of ideas, you may be right. In the real world, where real people live, it is better to snatch a few people - in my opinion.

Did you ever, as a child, get bullied or harrassed a bit on the schoolyard? There really is a place, like that, where rules of gentility [laws, if you will] don't apply. You can tell mommy or the teacher - but it has no effect. The only way to stop it is to organize a few vigilantes and put a stop to it in an extra-curricular way. If you haven't encountered this ever - I'm not sure what else to liken it to.

I'm guessing that you don't accept my premise that it is a shooting war.

Scott Horton responds to the same AP story somewhat differently than hilzoy.

He thinks it was planted by pro-torture potential appointees. The heart of his post is this:

the bottom line is that there should be no call about prosecutions until there has been an investigation. The question is really how should an investigation be conducted, and who should conduct it?

In the end any prosecution would require a special prosecutor, but who should handle the threshold inquiry into whether enough [evidence] exists to appoint one? Again, the Justice Department has resources for that purpose that cannot properly be put in play.

There is one clear answer, which is for President Obama to follow the example of President Ford in his dealings with allegations of intelligence community misconduct with high-level complicity that rocked the mid-seventies. He should appoint a commission to lay bare the facts, putting what the public needs to know on the record. Only then should the call about a special prosecutor be made by the attorney general. He should have the commission’s advice and findings to draw on in the process, and he should take the decision avoiding the political tug-of-war now going down and the dark interests who are driving it.

I respect Scott Horton greatly, but citing the Rockefeller Commission of 1975 as a praiseworthy precedent is bizarre. It was widely understood at the time as a ploy to try to forestall Congressional investigation and limit disclosures of CIA wrongdoing. That it was so intended has been documented by a now-available memo urging the creation of the commission written by Ford's deputy chief of staff, Dick Cheney.

What is the body that actually did investigate the CIA's crimes? The Church committee, an action taken by Congress.

"The Church committee, an action taken by Congress."

And the Pike Committee, please let us not forget.

Meanwhile, Cheney and Alberto Gonzales have been indicted in Texas on state charges "related to the alleged abuse of prisoners in Willacy County's federal detention centers."

Dcubed--I think you were more substantive when you were a troll. Your playground analogy is silly, though it might give us a glimpse into your psychology as you repeatedly use tough guy rhetoric and in your playground analogy you compare torture opponents to people who run to Mommy instead of forming a vigilante committee. Compelling argument, that.

If you want to make comparisons, several democratic countries have used torture--Great Britain (against the Irish), France against the Algerians, Israel against the Palestinians and probably there are others. No doubt a tough realistic guy like you can give all sorts of reasons why they were right to do so and why their policies were such a huge success, saving lives and spreading peace and happiness and killing fewer people than, say, a policy of carpet bombing.

There's also the false dichotomy ploy--I agree that it's preferable arresting X innocent people as opposed to blowing up 10X innocent people, but it'd be better still to have procedures in place that weed out innocent people either so they don't get arrested at all or so they can be released as soon as possible if they are. Because if you keep them in prison, you increase hatred of the US, aside from the harm you inflict on them (which of course doesn't enter into the tough guy calculus, because you're thinking toughmindedly of the 10x people you didn't blow up.)

Anyway, there are people around here who actually know quite a bit about what the US has been doing with respect to torture, though I'm not one of them, and I don't think you are either. In such circumstances it's often better just to lurk, though when I see my intellectual equal running around the playground causing trouble I am tempted to come out and form a vigilante committee.

Donald Johnson
//it'd be better still to have procedures in place that weed out innocent people either so they don't get arrested at all or so they can be released as soon as possible if they are.//

Sure. I agree. Pray tell what procedures are those which increase the ratio of bad taken to good taken WITHOUT decreasing the absolute number of bad taken. By all means - install such procedures.

Your tough guy schtick. I'm no tough guy. But I do understand that there is a place for such things. And for you to act like there is not is disingenuous.

So, your position is, that childish intellects should be seen and not heard (and perhaps not even seen). 1. The blog is in the public domain for a reason. 2. The comment section is open to anyone for a reason. 3. They can block me if they want. 4. You, or anyone else, can skip over my comments if you want. So who cares if a write something? If you're subtly trying to say "shut up you're stupid and embarrassing yourself." I don't care.

There is a certain crowd who likes to think they are smarter than the rest. It doesn't matter. It just doesn't matter. Their first recourse is to dismiss by saying "you don't know". But it doesn't matter.

@d'd'd'dave

1. Where does the constitution limit how I interogate a foreign combatant?
2. Where does the constitution prevent the USA from bombarding a foreign country (congress authorized war).
3. Where does the constitution prevent the USA from going against the UN's wishes (congress authorized it)?

1. IANACL, but I've always been tempted to say Article I Section 8. Article VI is also worth considering.

2. Well, they didn't authorize war; they "authorized to use the Armed Forces of the United States as [Bush] determine[d] to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq; [and] enforce all relevant United Nations Security Council resolutions regarding Iraq."

3. IASNACL, but this one's easy. Article VI.


Innocents are harmed if we act AND if we don't act. Are you saying it is better that we don't act even if a larger quantity of innocents are harmed thereby?

Mental exercise. Let's assume instead of grabbing Hitler, Himmler, and Mrs. Jones the butcher's wife, it's AQ's third-in-command, AQ's second third-in-command, and d'd'd'dave. The first two get shipped off to Gitmo, and the latter gets a naval brig, where he's subjected to "difficult interrogation" for a few years... or maybe forever, since he's being held without charges. But it's okay if he got swept up, and nowhere near a "battlefield" at that; what's an innocent here or there? This is war, after all! Or are some innocents just maybe possibly more innocent than others?

(I know, I know. DNFTT. But... but... the poor thing looks so feeble and malnourished!)

NV
Mental exercise:
Yes. I hold this opinion even if they snatch d'd'd'dave instead of Mrs. Jones. Absolutely. I've read enough history to realize no system is perfect.

I like how you have to apologize to your peers when you stoop to enlighten one of us poor feeble-minded souls. DNFTT indeed. Bloody boffins. "Oh oh, take their taxes, [they don't know how to spend their own money well] but for god's sake don't talk to them. And can you pull the blinds? D'd'd'dave is looking in the window."

Yes. I hold this opinion even if they snatch d'd'd'dave instead of Mrs. Jones.

Good on you. Hope you'd retain that position should it ever become non-hypothetical.

You are correct, we do much worse things to people in the course of a shooting war than beat them up and waterboard them. For example, we vaporize them.

The difference between torture and shooting in a shooting war is the term "hors de combat". It's against the law -- both US and international law -- to brutalize people who you hold off the battlefield, and who are unable to defend themselves.

So, there's the legal argument. Let's discuss the moral calculus.

One common argument in favor of torture is that the lives saved by torturing somebody justifies the torture. That argument would also justify, frex, decimation. Or, torturing and murdering the child of someone we thought had information we wanted, right in front of their eyes.

Why not? The greater good will be served.

Another common argument in favor of torture is that these people are scum anyway, so who cares what we do to them? Boil them alive if it will achieve our ends.

The problem there is who gets to decide who's scum and who is not.

Like many similar things, torture is a freaking Pandora's box. Open the lid, and the freaky gibbering ghouls fly out. Then they move in.

Waterboard Khalid Sheik Mohammed. Who cares, right? The dude planned 9/11.

Why not waterboard illegal immigrants to make them divulge the names of the coyotes who brought them in? We'd only be saving lives.

Why not hook neighborhood cocaine dealers up to a car battery to make them give up the names of dealers upstream of them? It'd be for the greater good.

Next thing you know, neighborhood cops will be tasering people for running a red light.

Thanks -

At some point, on a thread not devoting to dealing with troll-level arguments about whether and why torture itself is wrong, it would be timely to review and discuss the history of efforts at holding accountable members of the executive branch and the national security apparatus.

Gary's link above on the Pike Committee is instructive. I'd also recommend a book by historian Kathryn Olmsted: Challenging the Secret Government: The Post-Watergate Investigations of the CIA and FBI.

Go for it, Nell. What I'm interested in is how to get beyond the Pike Committee or truth commission level and have actual prosecutions, and what suggestions people might have on which groups to support towards that end.

Though starting out by finding out what happened is important.

d'd'd'dave:
I like how you have to apologize to your peers when you stoop to enlighten one of us poor feeble-minded souls.

And I like how you refuse to address my answering your specific charges that there's no Constitutional limits on the executive behaviors you advocate. You're being called a troll for behaving like that, not for adopting positions not held by the bulk of the commentariat. And prostrating yourself as a noble martyr upon the altar of populist anti-intellectualism isn't going to change it.

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