A Few Bad Apples up on the Very Top

by publius

I'm not sure it tells anything we don't already know (read, e.g., The Dark Side). But the Levin-run Senate Armed Services Committee report on detainee abuse is now out (pdf exec summary). And it deserves some press attention.

It confirms that senior administration officials authorized torture. Specifically, they authorized the "SERE" techniques -- which had been originally used decades ago to train American troops to withstand Communist torture -- to be used on detainees. In other words, they used illegal medieval methods designed to obtain false confessions, and made them the centerpiece of our intelligence-gathering. In this respect, Abu Ghraib was the sick poisoned fruit of a very rotten tree.

I'm running to a meeting, but here's an excerpt from the press release (I received via email):

A major focus of the Committee’s investigation was the influence of Survival Evasion Resistance and Escape (SERE) training techniques on the interrogation of detainees in U.S. custody. SERE training is designed to teach our soldiers how to resist interrogation by enemies that refuse to follow the Geneva Conventions and international law. During SERE training, U.S. troops --- in a controlled environment with great protections and caution --- are exposed to harsh techniques such as stress positions, forced nudity, use of fear, sleep deprivation, and until recently, the waterboard. The SERE techniques were never intended to be used against detainees in U.S. custody. The Committee’s investigation found, however, that senior officials in the U.S. government decided to use some of these harsh techniques against detainees based on deeply flawed interpretations of U.S. and international law.

The Committee concluded that the authorization of aggressive interrogation techniques by senior officials was both a direct cause of detainee abuse and conveyed the message that it was okay to mistreat and degrade detainees in U.S. custody.

In short, war crimes.

Comments

[Davebo]

It's not illegal if the vice president does it.

[cleek]

oh how i hope i'm wrong about Obama's disinterest in prosecuting these villains.

[Catsy]

I've heard murmurs that Obama's team has been asking some very pointed and probing questions about how such investigations and prosecutions would proceed, but I'm going to sit tight on my hope until I see one of these jagoffs frog-marched.

[Brett]

This really is the most amazing part of the whole affair for me, and it's been known for some time (in broad outline). It is an incredible example of corrupted organizational rationality: we have a pressure from the top to interrogate and to look tough, we have an internal procedure of interrogations that are tough, and, well, let's just repurpose or "reverse engineer" them for our current purposes and then make up the legal justication. What could possibly go wrong? And if things turn out bad, just blame the street-level guys.

If we were talking about, say, nuclear energy, nobody would have been this stupid. But because people thought that they could get away with it, and because people hold themselves out as experts, and because there is pressure to get internally validated results (note the qualifier), people cut corners and approve things that should never have been approved.

[Eric Martin]

oh how i hope i'm wrong about Obama's disinterest in prosecuting these villains.

Oh how I hope I'm wrong about cleek not being as wrong as I'd hoped cleek was...

[Sapient]

I really do hope that Obama initiates prosecution of the people who orchestrated and approved this. This is the only way to discourage such abuses from ever happening again, since it's obvious that there's a large number of people in this country (probably a majority) who would support, or at least tolerate, these things happening in the future. Almost worse than the evil regime itself is the ineffective response from Congress, and the general passivity of the American people. Certainly there was outrage, but it wasn't well organized enough to be effective. Obama has so much to do, but redressing this insult to American ideals has to be yet another priority.

[Unfrozen Caveman]

These acts are war crimes only if they occurred prior to the detainees being designated unlawful combatants. Ill-treatment of unlawful combatants is not a war crime.

[Peter]

The designation of the combatants as unlawful combatants is wrong. These people should've been treated as POWs from the beginning, if we're fighting them in the war paradigm. Article 5 of the Geneva Convention states, if there is any doubt over whether someone is a POW or not, they
"shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal"

Rumsfeld and Cheney don't count as competent anythings, much less a tribunal.

[Peter]

The designation of the combatants as unlawful combatants is wrong. These people should've been treated as POWs from the beginning, if we're fighting them in the war paradigm. Article 5 of the Geneva Convention states, if there is any doubt over whether someone is a POW or not, they
"shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal"

Rumsfeld and Cheney don't count as competent anythings, much less a tribunal.

[Unfrozen Caveman]

Pete-
Read article 4. There is no doubt that they are unlawful combatants.

[Brett]

Note: No point in letting caveman hijack the thread with the Bush admin's arguments about Geneva. Basic point: the US authorized torture, and the authorization came from the top, not because a few enlisted guys got rowdy. And the civilized world calls torture of detainees a crime. So do we, actually.

[Unfrozen Caveman]

Right Brett, let's glaze over the details you find inconvenient and send bush to prison without a trial.

Dems had their chance to prosecute Bush for blatant and repeated violations of FISA, but leadership ignored these violations b/c they thought doing so would give them a better chance to win the presidency. You have your president. if that doesn't make you feel better, blame Pelosi and Reid.

"War crime" is a term of art, and it's actually quite a hard thing to prove in this context.

The law is not always what you wish it to be.

*The more you know*

[Sapient]

Speaking for myself, I would be quite satisfied to send Bush to prison after a trial.

[someotherdude]

Where are the anti-statists when you need them?

[Personal Failure]

"These acts are war crimes only if they occurred prior to the detainees being designated unlawful combatants. Ill-treatment of unlawful combatants is not a war crime."

I hate living in a world where it's ok to torture- TORTURE!- people as long as they are "unlawful combatants". Does torture hurt any less, is it any less humane, is it any less horrifying based on the name we give the victim?

In all honesty, the mere concept of torture makes me nauseated.

[Ari Nieh]

The ICRC Commentary on Article 4 says:

In short, all the particular cases we have just been considering confirm a general principle which is embodied in all four Geneva Conventions of 1949. Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. ' There is no ' intermediate status; nobody in enemy hands can be outside the law.

Unfrozen Caveman, do you have an argument as to why this interpretation is incorrect?

It might also be worth mentioning that the ICC very clearly defines systematic torture as a crime against humanity. Not the same as a war crime, but I wouldn't shed tears to see certain people prosecuted under that charge instead.

[Peter]

If they're unlawful combatants than they have a right to a trial. Not to be indefinitely held in Guantanamo Bay or tortured. Designate them hostis humanis generis (enemies against mankind) and deal with them accordingly.

There are things which are required of a prisoner of war (right to smoke) which someone who is arrested is not granted, however nowhere does it allow prisoners to be tortured.

War crime or crime against humanity, they still should be investigated.

[Ari Nieh]

Also, what about Article 75 of Protocol 1? Doesn't that make it extremely clear that torture is forbidden, no matter what the victim's legal status?

[russell]

Ill-treatment of unlawful combatants is not a war crime.

How do you figure that?

By my reading, people held hors de combat who do not qualify as prisoners of war are basically civilians, albeit potentially criminal civilians, and are therefore still protected by Geneva IV.

Even if you consider them francs-tireurs, you can execute them upon capture, but I don't think you can hold and torture them.

Perhaps you can show some modern precedent where this was seen as acceptable.

Thanks -

[Ari Nieh]

Oh wait. We never ratified Protocol 1.

...

U-S-A! U-S-A!

[Unfrozen Caveman]

Ari-

first of all, comments are not binding on the parties who ratified the treaty.

second, let's assume your reading of the ICRC is correct and Bush violated the ICRC by authorizing certain acts that qualify as torture. Violating the ICRC is not a war crime. Moreover, it might not even be a violation of us law if the treaty wasn't incorporated into US law, and treaties rarely are. No violation of US law, no trial.

Russell the love muscle-
i'm not sure what your reading is based on. but if you can tell me where it says non-POWs are treated as "civilians" and not "combatants" under international law, you would be right.

[Jim]

"Ill-treatment of unlawful combatants is not a war crime. "

It's just a crime crime.

"It might also be worth mentioning that the ICC very clearly defines systematic torture as a crime against humanity."

It's worth mentioning, in an anthopologivcal kind of way, but it doesn't have any bearing legally. And it doesn't have to; torture is a breach of US laws.

Cheney and Rumsfled can be prosecuted or not; what matters is to ensure this never happens agiain, and the key to that is ruthless punishment of UNIFORMED sneior peole who pushed, authorized or even just tolerated this. As for the civilians, we can posit they have a sense of honor, that they can act according to a sense of honor, that they are moral agents who can be held to account - that's all moot and besides, it's irrelevant if the miltary refuses to engage in torture regardless of what ever permission their masters-of-the-moment give them. And that is the objective.

[Sapient]

Thanks, Jim.

28 U.S.C. 2340A. See the preceding section for definitions.

[russell]

i'm not sure what your reading is based on.

The same ICRC commentary that Ari Nieh quotes upthread, which you failed to reply to. That commentary was cited in the International Criminal Tribunal for the Former Yugoslavia in it's Celebici judgement.

Per the ICRC, there is no category other than POW or civilian. Civilians who take up arms outside of the protections of POW status are subject to the domestic law of the nation that captures them.

In other words, an "unlawful combatant" is a plain old criminal under Geneva III.

As I read it.

What's your opinion based on?

And as an aside, don't f' with my name and I won't f' with yours.

Thanks -

[Jim]

"28 U.S.C. 2340A. See the preceding section for definitions."

Why would you send me to a donation site for Cornell Law School?

Was that an attempt at being snide? Because the jesuitical intricacies of exactly does or does not constitute torture are not the issue in any practical sense - both military and law enforcement personnel are not expected to master all the case law on torture; they are taught broad, general principles designed to keep them miles away from any violation. The basic principle in the miltary is the Golden Rule - "Y'all really do know without having to think that much whether it's torture or not." I don't know if LE people get the same training exactly, but it's probably about the same.

[Hob]

Jim - Sapient's link actually does go to a U.S. Code database with the relevant text on torture. It's just that the website is owned by Cornell and they put up a "please donate to us" page first; just click through it to get to the law.

The text in question, I wouldn't call "jesuitical intricacies"; it's a pretty straightforward definition of torture which shouldn't be beyond the understanding of any military or civilian person.

[Sapient]

Sorry - yes, Hob is correct. I didn't realize there was a click-through. That said, it's a tremendously tedious effort to keep statutes online, so for people who use the site regularly, donating would be a wonderful thing to do.

[Hob]

To this door-keeper there comes a man from the country and prays for admittance to the Law. But the doorkeeper says that he cannot grant admittance at the moment. The man thinks it over and then asks if he will be allowed in later. "It is possible," says the doorkeeper, "but not at the moment."

[unfrozen caveman]

big russ (gives noogies)-

i did respond. commentaries are non-binding. if the signatories wanted to make the commentaries binding, they would have put the commentaries in the treaty. also non-binding are opinions of ad hoc tribunals. hell, even ICC decisions have no bearing, as there no jurisdiction over us citizens.

as for the definition of torture, bear in mind that the statute you folks cite provides that the act of torture must be committed outside the united states.

look, no one can defend waterboarding or abu ghraib. my point in all this is when people argue "WAR CRIME, WAR CRIME" it sounds shrill and unserious, and it detracts from your argument. addington/yoo/cheney are smart m'fers. they thought about this stuff. if they're on the wrong side of the law, it's not by much.

[Anthony Damiani]

Clearly, the solution to this argument is to designate George Bush an unlawful combatant.

[Jesurgislac]

Sapient: I really do hope that Obama initiates prosecution of the people who orchestrated and approved this.

I haven't had any hope of that since Obama decided to accept Bush's choice for Secretary of Defense. (And, illogical though it may be, I also guessed there will be no pressure from Obama's mainstream supporters for him to do so, after Hilzoy and Publius both wrote approving posts here of Obama's decision to go with Bush's choice of SecDef - and didn't consider the issue of torture worth mentioning.)

Brett: Basic point: the US authorized torture, and the authorization came from the top, not because a few enlisted guys got rowdy. And the civilized world calls torture of detainees a crime. So do we, actually.

...which is the point to focus on, not the repeated misinterpretation of the Geneva Conventions. The US under Bush became a nation that kidnaps and tortures people: Obama, it seems, has no intention of changing that definition: and it does not appear there will be any widespread public pressure from his supporters to try to get him to do so.

unfrozen caveman:my point in all this is when people argue "WAR CRIME, WAR CRIME" it sounds shrill and unserious

Maybe to you, but who cares what you think?

[unfrozen caveman]

jesurgislac-

superficial analysis followed by indignant commentary... what is this? andrew sullivan's blog?

[russell]

my point in all this is when people argue "WAR CRIME, WAR CRIME" it sounds shrill and unserious, and it detracts from your argument.

Hey caveman, fair enough.

Your actual, original point, however, was this:

Ill-treatment of unlawful combatants is not a war crime.

Since "unlawful combatant" is not a category that even exists in Geneva, and as applied by Bush & co is more or less a novelty and an invention of their own, I'd say it's unclear at this point whether ill-treatment of "unlawful combatants" is a war crime or not.

Maybe we'll find out.

And really, to be honest, after the crap we've all had to swallow over the last eight years, I do not give a single, solitary rat's @ss whether I sound shrill to you or not.

Nothing personal, that's just the way it is.

These guys are creeps and criminals. If we can find a way to put their sorry behinds in jail, I'm all for it.

If we can't get 'em all, I'll take what we can get.

They sat around in a room and talked through exactly what level of f'ing they were prepared to deliver to folks they held hors de combat.

The law meant nothing to them. It was an inconvenience which they attempted to finesse by getting their pukes in the White House Counsel's office to write opinions in which the plain meaning of the law was perverted for their convenience.

What seems "unserious" to me are people, perhaps including you, who don't seem to see that as a problem demanding a response.

Thanks -

[Sapient]

Jesurgislac, I'm not prepared to give up on Obama before he even takes office. If he feels that Gates can effectively implement policy because of the way he works with military people and Congress, then let's see what comes of it. The Senate Armed Services Committee Report that came out today blames Rumsfeld, not Gates, and I think Gates's role in it is not yet established. As to public pressure, I hope Obama doesn't need to be pressured because, unfortunately, I agree that the American public as a whole (although there are many dissenters) accepts these atrocities very passively. It's difficult to hold down a job and write enough letters and exert enough pressure on lawmakers to do the right thing on so many issues, although I've certainly written lots of anti-torture letters.

[Turbulence]

my point in all this is when people argue "WAR CRIME, WAR CRIME" it sounds shrill and unserious, and it detracts from your argument.

Lately, the "shrill" and "unserious" people have amassed a pretty spectacular track record. Paul Krugman was the original "shrill" one, and his warnings about the housing crisis seemed spot on. Many "unserious" people who insisted that invading Iraq was a bad idea also turned out to be correct. Perhaps you should focus less on how things sound and look and more on correctness.

[unfrozen caveman]

russell- actually dude, my beef was with the original post, not the comments. comments are supposed to be shrill.

and for the record, i would love to see bush brought to justice, but it's going to be damn hard.

again, i think pelosi/reid sold out by not pursuing impeachment when bush admitted to violating FISA. obviously, FISA violations are not as sserious as torture, but they would have been much easier to prove... he admitted it for crying out loud.

[russell]

i would love to see bush brought to justice, but it's going to be damn hard.

I agree. He'll throw a lot of other folks under the bus before he'll let it touch him.

i think pelosi/reid sold out by not pursuing impeachment when bush admitted to violating FISA.

Again, no argument there.

My guess is that basically nobody at a high level -- Cabinet level, White House Counsel staff -- will pay for any of this in any way. The main reason for that, IMO, is that folks will prefer to just move on.

John Yoo will probably be teaching Con Law at UC freaking Berkeley for as long as it suits him. How sick is that.

The time to move would have been when it was all fresh, but the political will was not there.

The only way I can see it playing out differently is if an independent counsel is allowed to follow the bread crumb trail wherever it leads, without interference.

If it's seen as political, or for that matter if it *is* political, it won't fly.

Thanks -

[Fraud Guy]

Damn, caveman; I thought we finally stopped the nonsense that the GC do not cover the Gitmo prisoners. Even Bart gave up at Balkin.

(All quotes are from the http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68>ICRC site, 3rd convention.)

The favorite claim is that, since the terrorists do not follow the Geneva Conventions, they are not covered by it (and are not considered POWs per Article 4, section A. 6.):

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

Well, they are definitely not following any of the definitions of a POW, or civilians, and are violating the laws and customs of war. Good, so they are inherently war criminals, attacking civilians and themselves violating the GC. Wait, that's covered:

Art 129. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed. or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention.

So we can hunt them down and try them. But apparently these war criminals have minimum treatment standards. Let's look at the cited articles :

Art 105. The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before the trial.

...Failing a choice of an advocate or counsel by the prisoner of war or the Protecting Power, the Detaining Power shall appoint a competent advocate or counsel to conduct the defence.

The advocate or counsel conducting the defence on behalf of the prisoner of war shall have at his disposal a period of two weeks at least before the opening of the trial, as well as the necessary facilities to prepare the defence of the accused. He may, in particular, freely visit the accused and interview him in private. He may also confer with any witnesses for the defence, including prisoners of war. He shall have the benefit of these facilities until the term of appeal or petition has expired.

Particulars of the charge or charges on which the prisoner of war is to be arraigned, as well as the documents which are generally communicated to the accused by virtue of the laws in force in the armed forces of the Detaining Power, shall be communicated to the accused prisoner of war in a language which he understands, and in good time before the opening of the trial. The same communication in the same circumstances shall be made to the advocate or counsel conducting the defence on behalf of the prisoner of war...

Art 106. Every prisoner of war shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the quashing or revising of the sentence or the reopening of the trial. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so.

Art 107. Any judgment and sentence pronounced upon a prisoner of war shall be immediately reported ... to the prisoners' representative concerned. It shall also be sent to the accused prisoner of war in a language he understands, if the sentence was not pronounced in his presence...

Art 108.Sentences pronounced on prisoners of war after a conviction has become duly enforceable, shall be served in the same establishments and under the same conditions as in the case of members of the armed forces of the Detaining Power. These conditions shall in all cases conform to the requirements of health and humanity.

A woman prisoner of war on whom such a sentence has been pronounced shall be confined in separate quarters and shall be under the supervision of women.

In any case, prisoners of war sentenced to a penalty depriving them of their liberty shall retain the benefit of the provisions of Articles 78 and 126 of the present Convention. Furthermore, they shall be entitled to receive and despatch correspondence, to receive at least one relief parcel monthly, to take regular exercise in the open air, to have the medical care required by their state of health, and the spiritual assistance they may desire. Penalties to which they may be subjected shall be in accordance with the provisions of Article 87, third paragraph.

They have to subject to the same type of sentences that we give to our own military? And they are covered by three other Articles!:

Art 78 Prisoners of war shall have the right to make known to the military authorities in whose power they are, their requests regarding the conditions of captivity to which they are subjected.

They shall also have the unrestricted right to apply to the representatives of the Protecting Powers either through their prisoners' representative or, if they consider it necessary, direct, in order to draw their attention to any points on which they may have complaints to make regarding their conditions of captivity.

These requests and complaints shall not be limited nor considered to be a part of the correspondence quota referred to in Article 71. They must be transmitted immediately. Even if they are recognized to be unfounded, they may not give rise to any punishment.

Prisoners' representatives may send periodic reports on the situation in the camps and the needs of the prisoners of war to the representatives of the Protecting Powers.

Well, they can complain about conditions, which includes to the ICRC (as in Article 79 and 126):

Art 126. Representatives or delegates of the Protecting Powers shall have permission to go to all places where prisoners of war may be, particularly to places of internment, imprisonment and labour, and shall have access to all premises occupied by prisoners of war; they shall also be allowed to go to the places of departure, passage and arrival of prisoners who are being transferred. They shall be able to interview the prisoners, and in particular the prisoners' representatives, without witnesses, either personally or through an interpreter.

Representatives and delegates of the Protecting Powers shall have full liberty to select the places they wish to visit. The duration and frequency of these visits shall not be restricted. Visits may not be prohibited except for reasons of imperative military necessity, and then only as an exceptional and temporary measure.

The Detaining Power and the Power on which the said prisoners of war depend may agree, if necessary, that compatriots of these prisoners of war be permitted to participate in the visits.

The delegates of the International Committee of the Red Cross shall enjoy the same prerogatives. The appointment of such delegates shall be submitted to the approval of the Power detaining the prisoners of war to be visited.

And finally, Article 87, paragraph 3:

Art 87....Collective punishment for individual acts, corporal punishment, imprisonment in premises without daylight and, in general, any form of torture or cruelty, are forbidden.

OOPS! We did it again!

[Nell]

unfrozen caveman: FISA violations are not as serious as torture, but they would have been much easier to prove... he admitted it for crying out loud.

He admitted authorizing torture, too.

[von]

But the Levin-run Senate Armed Services Committee report on detainee abuse is now out (pdf exec summary). And it deserves some press attention.

The report was by Levin and McCain (John ... you know, the former Republican presidential candidate). McCain's involvement in a report that largely criticizes Republicans seems to be the lede, no?

[Josh E.]

The report was by Levin and McCain (John ... you know, the former Republican presidential candidate). McCain's involvement in a report that largely criticizes Republicans seems to be the lede, no?

No. Levin chairs the committee. The lede is that top officials authorized torture, not that John McCain is an awesome maverick.

[publius]

mccain was really out in front getting these facts out there when the gop controlled things too, as i recall. o wait...

[Ari Nieh]

commentaries are non-binding. if the signatories wanted to make the commentaries binding, they would have put the commentaries in the treaty. also non-binding are opinions of ad hoc tribunals. hell, even ICC decisions have no bearing, as there no jurisdiction over us citizens.

I think we are arguing past each other; publius' claim is not that they can or will successfully be prosecuted for war crimes in the US. It is that they committed war crimes, period. When I use the term "war crimes", I accept the ICC's definition, and so I ask: what organization is more qualified to interpret the Geneva Conventions than the ICRC?

[Nell]

McCain is the ranking minority member on the Senate Armed Services Committee, but played no role in the hearings that led to the report; he did not attend either session. In what sense is the report "by" McCain?

[von]

No. Levin chairs the committee. The lede is that top officials authorized torture, not that John McCain is an awesome maverick.

A view, certainly; but perhaps a view unique to ObWi

[Donald Johnson]

"No. Levin chairs the committee. The lede is that top officials authorized torture, not that John McCain is an awesome maverick."

"A view, certainly; but perhaps a view unique to ObWi"

Von, if you're just saying that the American media and/or people inside the beltway have a really warped sense of what matters, you might be right.

[now_what]

In what sense is the report "by" McCain?

McCain is a good person.

Good people take the lead in criticizing torture.

Therefore, McCain took the lead in criticizing torture.

The argument is flawless, no? No? Well I have it on good authority that said argument is accepted everywhere outside of this site.

[Josh E.]

A view, certainly; but perhaps a view unique to ObWi.

Perhaps. Or perhaps the view that the political rehabilitation of John McCain is more important than the fact that the United States had a policy of torture is the unique one.

[Mike Schilling]

Do these senior administration officials have names? Nothing I've seen uses them.

And von, I want to be sure I understand you, so answer me this: which is the lede, that the Governor of Illinois tried to sell a Senate seat to the highest bidder, or that the same guy who prosecuted Scooter Libby says so?

[publius]

addington/yoo/cheney are smart m'fers. they thought about this stuff. if they're on the wrong side of the law, it's not by much.

Read the Dark Side (or anything else). They didn't think about it AT ALL. Not at all. That's just what's so striking. They wanted to torture people and so Yoo went out and found a Medicare statute to justify his preordained Addington-driven conclusions.

David Addington by the way should be in jail. He is one of hte most wretched human beings ever to serve in American government

[hilzoy]

To add to what publius just said: there are people who are very, very smart, but have neither the judgment nor the wisdom God gave a fencepost. As best I can tell, Yoo and Addington are like that. (As is Cheney, but as he's not a lawyer, it's not at all clear to me that he'd get the law right if he thought about it. Not being a lawyer, I know about this. ;) )

Being smart gets you a good grade on the LSATs, and it can get you good grades in school. It (plus some hard work) probably ensures that your legal opinions, if wrong, will at least be clever. But it in no way guarantees that you won't miss a reasonable interpretation by a long, long way.

[Hartmut]

There is the theory that torture was deliberately chosen as the touchstone for the unitary executive and the "no law binds the president" digestive final product. If the president can get away with torture (and even boasting about it) there are indeed no limits.
Since I consider Chain-Eye to also be one to be turned on by cruelty (applied to others), the choice was all the more delightful.
Even if those responsible are held responsible (imo extremly unlikely), their punishment will be at best temporary, if they land in a US prison (because the next GOPtator will free them). For lasting effect there are two choices:
1. Heads off*
2. Extradition (to The Hague preferably).
If there are preemeptive pardons, option #2 should be taken immediately** (it's also the condition for any ICC proceedings)

*I am against the death penalty but it is a legal option nonetheless
**no prior announcement! Arrest them, put them on the plane, issue statement when plane has reached destination!

[LFC]

Caveman, I'd be interested if you could explain to me why when these techniques were used by Nazi Germany, they were prosecuted as war crimes, but when Bush and his people authorized the very same techniques, they weren't war crimes.

It almost sounds like you think clicking your heels 3 times and saying "unlawful enemy combatant" makes everything legal.

[jrcjr]

Mike Schilling: If you want to see names, then look at this April 9 article from abcnews. They're all listed right there.

http://abcnews.go.com/TheLaw/LawPolitics/story?id=4583256&page=1

Seems the story is that the senate cmte is reporting it now and has fleshed out the info a bit. The fact that it was approved by the apples at the top is old news. 8 month old news.

sadly, since this huge story didn't run in the ny times or the wash post, no other news orgs picked it up and it scrolled away. the nytimes did run an editorial about it, but put no reporters on it.

[von]

Responding to my critics: The report was co-authored by McCain and was labeled as bipartisan by pretty much every outlet that reported on it. Did the Washington Post lie? And, at the same time that some at ObWi were pretending this was a Levin (or Democrat) only report, RedState was having a fit over McCain's involvement.

[Anarch]

No offense, von, but if your benchmark is "RedState was having a fit", you're gonna need a new bench.

[Nell]

Every committee report that isn't explicitly from only the majority or minority members is "bipartisan". SASC held two major hearings on the topics of this report, and McCain did not attend either one of them (or send questions to be asked in his absence, which privilege as ranking member chairman Levin would certainly have granted him).

It was the majority staff who did the work on this report. McCain's name is being added as a courtesy -- despite his caving on CIA torture and the positions he espoused on the campaign trail. It's a testament to the collegiality of the Senate (observed by Democrats toward Republicans to a much greater degree than vice versa), not any genuine recognition of authorship by McCain.

Levin is no doubt hoping to resurrect the McCain of October-November 2005. Maybe it will happen, but I think we all know by now just what kind of craven weasel we're dealing with.