« Peculiar Dreams | Main | "I Think Media Should Be Abolished From, Uh, You Know, Reporting." »

January 11, 2009

Comments

I wrote a post which included a bunch of quotes from Lithwick's piece back around three hours ago, as it happens. :-)

And also relevantly, this, this, and particularly this, discussing David Cole's NYRB piece on what to do about the torturers.

It's remarkable how strange clear thinking can sound. Thanks for this one Hilzoy.

I agree with Hilzoy and Gary Farber. I also take issue with this from Fried:

"And what about Nuremberg and the trial of the Japanese war criminals? Were those a mistake, too? Not at all. Those were crimes against whole populations in wars of aggression. An analogous point holds for the criminal leaders of Rwanda, Serbia and Sudan." Then, in an attempt to contrast he goes on:"[O}ur leaders were defending their country and people — albeit with an insufficient sense of moral restraint — against a terrifying threat by ruthless attackers with no sense of moral restraint at all."

The Iraq war can also be seen as nothing other than a war of aggression - it was not at all a reaction to the "ruthless attackers" of September 11. And as for Fried's assertion tbat "Administration officials were not thieves lining their own pockets", the jury is still out on that - it's pretty clear that they lined the pockets of their friends.

The only thing that is at all persuasive about Fried's argument is that "our leaders, ultimately, were chosen by us; their actions were often ratified by our representatives; we chose them again in 2004." Unfortunately, this is what will be their strongest defense if they are brought to trial. I don't believe that it exonerates them given the secrecy of many of their actions, but it sickens me that they had so much support in the face of what was apparent to many of us.

The only sensible argument I can see against war crimes investigations for Bush, Cheney et al. is the purely practical one that it would guarantee war crimes investigations for Obama, Biden et al. as soon as the GOP regains the White House, just as revenge was taken for the Iran-Contra special prosecutor in the form of Whitewater, the multiple Vince Foster investigations, etc, etc.

I'm not saying this a compelling argument, but it should be taken into account, because that level of cynicism really does prevail. Any investigations of Bush Administration war crimes will be decried by the GOP leadership and the Right Wing Noise Machine as partisan/treasonous, and it won't be without success.

our leaders were defending their country and people — albeit with an insufficient sense of moral restraint — against a terrifying threat by ruthless attackers with no sense of moral restraint at all

Huh. Well, since the leaders of Germany, Japan, Rwanda, Serbia and Sudan all seemed to have believed they were defending their countries against a "terrifying threat by ruthless attackers with no sense of moral restraint at all," I guess all the stuff they did was okay too.

It's amazing to me that a law professor can put these sentences into one article:

Think too of the succession of Roman emperors, of the Soviet Union of Lenin and Stalin, or of the night of the long knives when Hitler eliminated his closest associates and rivals. It is only an exaggeration to see the urge to criminalize our soon-to-be-former leaders, to make into courtroom drama the tragedy of the last eight years, as an extension of this same practice.

[...]

If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales, there may be no point in our talking.

So it's outrageous to compare people to Hitler, Stalin, or Mao when the people in question are Cheney, Rumsfeld, or Gonzales, but it's fine and dandy as long as you're talking about real scum, like the people who dare to suggest that members of the Bush administration be subject to the rule of law.

Hilzoy:

I agree with Dahlia Lithwick that "Americans fundamentally understand that nobody should be above the law." The trouble with her argument is that we've typically taken this to mean that high office is no shield to ordinary misconduct. If the president is sued, for example, he has to submit to depositions. But that's hardly the same thing as asserting that the conduct of public policy ought to be subject to criminal investigation.

And that matters. Because in our constitutional system, we actually have a process dedicated to policing executive excesses: impeachment. The Constitution is crystal-clear on this point. "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." It's right there. If the Congress believes that a high officer has, in the execution of his office, committed serious violations of the law, then he ought to be impeached and removed from office. It's not a matter for the courts at all. Our constitutional system vests this authority in the legislature - that is, in the representatives of the people.

But, of course, the Congress has been passive. And, it goes without saying, we don't know exactly what the executive has been up to these past eight years.

But those are insufficient objections. If Congress is overly passive, it's up to the people to replace it. I don't recall a groundswell of support for impeachment over the past eight years. And, so far as I can tell, most of those pushing for a criminal inquiry want to focus on activities already in the public domain. It's not as if Congress is unaware of wiretapping, torture, or the other offenses of the Bush administration. It's just chosen to ignore them. And since it has, it's inappropriate to simply change venues. That's not how our system works.

It's not that I think Bush and Cheney deserve a free pass. I am, frankly, disappointed that these apparent crimes weren't aggressively investigated by Congress. But one of the flaws in our system is that, in our respect for the fairness of process, the guilty sometimes escape judgment. We don't subsequently change the rules and have another go at them.

There's a third op-ed, in addition to the Lithwick piece you quote approvingly and the Fried piece you pick apart. And I think Jack Belkin gets it just about right. Criminal prosecutions are clumsy things. They focus on just those elements that can be proven beyond a reasonable doubt to have violated statutory language. Questions of intent and evidence tend to become paramount. As a general rule, criminal justice is a lousy means of discovering truth.

So if we've missed our chance to hold Bush or Cheney accountable for what crimes they may have committed, the answer isn't launching new inquiries. It's setting up a process to document and publicize their failings and excesses. In the end, that will better achieve everything that critics of the administration are looking for - save exacting revenge. It will open the public record. Set down for posterity the process by which these decisions were made and executed. Allow for people to come forward and offer information without fear of retribution or prosecution. And bring the conduct of the administration out of the shadows and into the light.

If the overarching priority is ensuring that nothing like this happens again, then a public commission of some kind is indispensable. And it has the virtue of respecting the document that the present administration did not.

I don't think that the fact that impeachment is available as a remedy means that it is the only remedy allowed.

frank,
I think you're right. The framers of your constitution specifically curtailed the use of impeachment. The Congress cannot give any other punishment than dismissal and ineligibility to serve the United States again. Then, if the case merits further action, it's up to the courts to do that, independent of the Legislative branch.

This stands in stark contrast to the English practice of the 17th and 18th centuries, where the Parliament could not only dismiss Crown's officers but also fine them, jail them or even have them executed.

The argument that we should not hold Chain-Eye & Accomplices accountable because the Republicans would take revenge at the first opportunity is imo extremly poisonous. That should never ever be an excuse*. On the other hand they would be correct to cry 'double standard' should BushCo go to jail for torture renditions while Bill Clinton would not be held accountable for the same (or Obama, should he not put an end to the practice).
A new Nuremberg is overdue quite some time now (accompanied by a Cadaver Synod for St.Ronny please**).
One point has to be considered though. Any actions taken against crimes by high officials must be conducted in a way that would prevent a reversal once the WH changes party. That means the condemned must be moved beyond the reach of (other than symbolic) presidential pardons by either jailing them abroad or having them executed***.

Clarification: This is not the usual "Clinton did it too, so it must be OK" thread derail attempt. The Bush administration is significantly worse but that should not let earlier culprits off the hook.

*apart from my belief that they would try to in any case. My bet is that there will be at least an impeachment attempt before 2012 (right after regaining the majority in Congress in 2010, I guess)
**OK, that would really backfire, as did the original
***I am not a fan of capital punishment but the likes of Chain-Eye are tempting me to abandon my objectons there and to think about less than pleasant or quick methods of removing them from the mortal plane (plain?).

The impeachment clause specifically states that it does not protect officials from prosecution in the courts!

Shorter Charles Fried: We're not much good at justice, so let's just forget it.

I think you're right. The framers of your constitution specifically curtailed the use of impeachment.

They curtailed its use because they felt that only serious offenses ought to result in the removal of the incumbent from office. But that's precisely because they didn't want the sitting chief executive to be excessively encumbered by lawsuits and investigations.

The President has "absolute immunity from damages liability predicated on his official acts," during or after his term, the courts found in Nixon v. Fitzgerald and affirmed in Clinton v. Jones. In other words, when the President does something in office, he can't be sued for it in civil court. Moreover, it's generally been agreed that the President is immune from criminal indictment or criminal prosecution while in office. So a sitting President can't be sued for what he does while in office, nor indicted until he leaves office. (It's worth noting, however, that the latter protection is confined to the President alone.)

It's also clear, as SqueakyRat notes, that you can indict an ex-President for something he did while serving - after he's been removed from office, or his term expires. The question is when it is appropriate to do so.

Most prosecutions of elected or appointed officials center on personal enrichment - bribery, graft, embezzlement and the like. Some stem from crimes wholly unrelated to the office they hold, like soliciting prostitution. But reviewing American history, you'd be hard-pressed to find a President or other executive-branch official indicted because his own interpretation of the law failed to accord with that of the Courts. And that, at the end of the day, is what we're talking about with Bush and Cheney. I think that the procedures they authorized constitute torture. I think their surveillance procedures constituted a grave breach of the Fourth Amendment. I think their detention centers violated due process and the habeas clause. But they don't. They've made it very clear that they don't. And they've had legal advice and formal opinions written to justify those views.

That's a meaningful distinction (though not an absolute shield). In general, it's healthy to avoid criminalizing disputes over statutory and constitutional interpretation. So the best response to a President declaring his ability to use coercive methods on detainees is legislation specifying that no, he can't. And if the President than declares himself beyond the reach of such legislative direction, the proper venue is the courts, but to force compliance. Failure to comply might also reasonably result in impeachment, the constitutional mechanism for dealing with a recalcitrant chief executive, or one who arrogates to himself excessive power. But waiting until he leaves office and pursuing criminal sanctions - that raises serious questions about the separation of powers.

Perhaps the best precedent is the impeachment of Johnson. That case centered on a dispute over the relative authority of Congress and the Executive - specifically, the Tenure of Office Act. When Congress felt that Johnson had overstepped his bounds, it impeached and tried him. But despite his being just one vote short of conviction, Johnson was not subjected to criminal prosecution upon leaving office.

The obvious objection is bad faith: that a President could commit any crime, and claim to have acted in accord with his interpretation of the law. Nixon provides the relevant precedent here; had he not been pardoned, his impeachment and removal would almost certainly have been followed by indictment and trial. But that, I would suggest, was because his claims of immunity were clearly mendacious. He mingled his execution of his official duties with the advancement of his personal political fortunes.

There are constraints on a President's ability to cloak an action in the guise of law. He needs someone to issue him a legal opinion justifying the act. His interpretation is subject to review by the courts, and by congress. And, ultimately, if Congress decides that he is acting in bad faith, it can remove him from office.

So I support the prosecution of former Presidents, and other executive branch officials, for acts that were in knowing defiance of the law. But those which claim the shield of legality are necessarily different. Let's investigate what happened over the past eight years. Let's throw open the books, and have a public accounting. But criminal prosecution? It's just the wrong way to go.

Following on what Hartmut said: the key to making any investigation of the crimes of the last eight years not look like a partisan witch hunt is to not make it a partisan witch hunt.

The Bush administration could not have committed all its crimes without some assistance from Congress, especially the intelligence committees. Any investigation should look into the culpability of members of Congress as well as the executive branch. Let the chips fall where they may.

Observer: I think that the procedures they authorized constitute torture. I think their surveillance procedures constituted a grave breach of the Fourth Amendment. I think their detention centers violated due process and the habeas clause. But they don't. They've made it very clear that they don't. And they've had legal advice and formal opinions written to justify those views.

We don't normally allow criminals to find themselves not guilty by consulting their own lawyers and declaring that, in the opinion of their lawyers, what they did was perfectly legal.

Why allow Bush, Cheney, et al, to do so?

How on earth does it damage the separation of powers if the judicial branch has the authority to pursue crimes committed by the executive and legislative branches of government?

Of all the acts committed against our system in the US, I place the use of the justice departement against political opponents in a class of its own. It seems that at least two innocent people served time in jail becasue of this.

These are the acts of a police state. They cannot be endured. I say that those responsible must be prosecuted.

I am a bit confused here with the discussion placing the onus on Congress to investigate, and this administration having refused to submit to testify, even under subpoena.

Jes:

With Bush, we're not talking about private counsel retained to defend him from criminal culpability; we're talking about government officials, rendering controlling legal opinions in the execution of their office. That's a fairly fundamental distinction.

If Bush had failed to go to OIC or other relevant authorities for opinions on these issues, that would be one thing. If he had, and OIC had told him these acts were illegal, and he'd persisted in spite of that, that would be grounds for prosecution. But we actually have evidence that when Justice decided not to reauthorize the surveillance program in its original form because of its legal defects, the response of the administration wasn't to ignore the decision - it was to attempt to reverse it. And when it failed to do so, the aspects of the program at issue were apparently dropped. In other words, as far as we know, the Bush administration has always been scrupulous not to contravene the formal interpretations offered by its lawyers.

Does that mean that the Bush lawyers were always correct? Certainly not. The role of OIC is to provide opinions in advance of actions; that's because the Judicial branch has determined that it cannot determine in advance the constitutionality of prospective acts of the Executive. If parties with standing feel that those interpretations are flawed, they may then challenge the acts in the courts. And indeed, acts apparently authorized by such advisory opinions have been repeatedly challenged in the courts, and the acts have been held to be illegal.

The Judicial branch has every right to hold the Executive to account for ignoring or violating established law. But trying the President for acting in accordance with legal advice he had received is a perilous thing. If the courts won't rule in advance, and formal opinions of counsel offer no shield, how is a President to act in a matter of unsettled law without risking later prosecution?

If the courts won't rule in advance, and formal opinions of counsel offer no shield, how is a President to act in a matter of unsettled law without risking later prosecution?

Exercise his judgement?

There's a reason the president gets paid the better than average bucks.

It's pretty clear that Bush, Cheney et. al. went forum-shopping. Lawyers that did not give them the desired green light got axed.

It would be one thing if they had consulted lawyers and were told that what they wanted to do was legal. But Bush, Cheney and Addington searched out people who would rubber-stamp and provide 'legal' cover for their illegal acts.

That implies that they knew the acts were illegal. They should go on trial.

With Bush, we're not talking about private counsel retained to defend him from criminal culpability; we're talking about government officials, rendering controlling legal opinions in the execution of their office.

Actually, it seems clear that Gonzales at least regarded himself not as an independent government official whose job it was to discover the facts of the law and inform the President, but as the President's lawyer whose job it was to find legal cover for the President doing what he wanted to do.

Throughout the Bush administration, certainly from the creation of Guantanamo Bay prison camp onwards, it has appeared overwhelmingly from the publicly-available evidence, that the government officials consulted by Bush, Cheney, et al, did not "provide opinions in advance of actions": they were invited to provide corroboratory legal opinions in order to justify the actions that the Bush administration either firmly intended to carry out, or were already carrying out.

To allow Bush, Cheney, et al, to escape prosecution because they had taken care to get a legal opinion justifying their actions, when the only example we have of their ceasing to carry out criminal actions because of a legal opinion is the early domestic wiretapping program that, we discovered in 2007, had only been discontinued in 2004 after John Ashcroft, his deputy James Comey, and the FBI head Robert S. Mueller had all said they were prepared to resign if the wiretapping program was continued. It seems unlikely that Ashcroft, Comey, and Mueller would have leaped directly into offering their resignation - one would realistically imagine that for these three DoJ officials to resign was a final sticking point not a first step in informing the President that what he was doing was illegal.

Further, we know from the Downing Street Memo that, in July 2002, at a time when Bush claimed not to have finally decided to attack Iraq, he had in fact made up his mind to do so and was merely looking for a justification.

We have, therefore, two instances where Bush was clearly aware that what he was doing - or firmly intended to do - was illegal. Domestic wiretapping without a warrant was continuing at a time when his DoJ officials were telling him this was criminal enough to make them resign if it didn't cease. An aggressive attack on Iraq was being definitely planned while the US - and the UK government - looked round for legal excuses to do so.

So, no. You can't allow a criminal to escape prosecution just because he is well-funded and well-resourced enough to have got legal counsel to put together an opinion claiming it was legal. (The same applies to Tony Blair, by the way.)

Also, what TDaulnay said.

Observer -

I generally agree with your points upthread. In particular, I agree that using criminal proceedings to resolve arguable differences in the interpretation of the Constitution and/or standing law would be a really scary precedent to set.

But then there is this:

He mingled his execution of his official duties with the advancement of his personal political fortunes.

If that is the bar that must be met, IMO criminal proceedings against Bush, Cheney, and any number of folks in their administration should be a no-brainer.

Thanks -

"But trying the President for acting in accordance with legal advice he had received is a perilous thing. If the courts won't rule in advance, and formal opinions of counsel offer no shield, how is a President to act in a matter of unsettled law without risking later prosecution?"

First of all, acting on the advice of someone whom you order to give advice of a certain character or else STFU should be no defense at all. We know how this process went-- it's not as if Bush et al. acted upon carefully researched and independent legal analysis. They sought self-serving legal advice for the very purpose of shielding themselves from liability for acts they knew to be illegal under generally accepted interpretations of US and international law. Now you seek to reward their cleverness in that regard by calling it a day.

As for "risking later prosecution," that is just a fact of life. All of us, from high to low, in business and in our personal life, risk future prosecution in every action we take. This should be more so, not less, for people in high places, both because any ignorance they have of the law is less excusable than for a common citizen and because the consequences of illegal acts by the powerful are so much more severe. The venue for justifying questionable actions is in court, and should not be addressed through pre-emptive pardon or prosecutorial neglect.

If Bush gets convicted, maybe he can then sue Gonzo, Yoo, etc. for malpractice.

"In other words, as far as we know, the Bush administration has always been scrupulous not to contravene the formal interpretations offered by its lawyers."

When the president didn't like what his lawyers said, he fired them and got new ones who would tell him what he wanted to hear. When his lawyers began inquiries into possible violations of law, he had his subordinates quash the inquiries. I fail to see how that's consistent with the scrupulosity you describe.

I strongly suggest reading this, and this.

See also links here.

Tell me how this is following the law:

4. You spend more time showing how the torture process compromised lawyers than how it compromised health care professionals. One of the more revealing cases involves Jessica Radack, a young career attorney in the Justice Department’s Honors Program, who dispensed ethics advice concerning plans for the interrogation of John Walker Lindh. It seems that her advice was contrary to the ethical views of senior Bush Administration lawyers, and you note that when a federal judge demanded to see the internal Department of Justice records relating to the matter, all of Radack’s emails, including the advice actually dispensed, had been deleted and the hard copies removed, and none of this was furnished to the court. Did the Justice Department ever undertake an internal probe into the obstruction?

Radack was in some ways an early guinea pig showing how high the costs were for anyone—including administration lawyers—who dissented from the Bush Administration’s determination to rewrite the rules for the treatment of terrorists. Her job in the department was to give ethical advice. She was asked whether an FBI officer in Afghanistan could interrogate John Walker Lindh and use his statements against him in any future trial. By the time she was asked this, however, as she knew, Lindh’s father had already hired a lawyer to represent him. So she concluded that it would not be proper for the FBI to question him outside the presence of his counsel.

To her amazement, the FBI agent went ahead and did so anyway, and then the prosecutors in the Justice Department proceeded to use Lindh’s statements against him in their criminal prosecution. She told me, “It was like ethics were out the window. After 9/11, it was, like, ‘anything goes’ in the name of terrorism. It felt like they’d made up their minds to get him, regardless of the process.” Radack believed that the role of the ethics office was to “rein in the cowboys” whose zeal to stop criminals sometimes led them to overstep legal boundaries. “But after 9/11 we were bending ethics to fit our needs,” she said. “Something wrong was going on. It wasn’t just fishy—it stank.”

What happened next was truly scary. She tried to ensure that a judge overseeing the case, who asked for all information regarding the Department’s handling of Lindh, was given the full record, including her own contrary advice. But instead, she said she found that her superiors at Justice sent the judge only selective portions of the record, excluding her contrary opinion. Her case files, she said, were tampered with, and documents missing. Among the senior Justice Department officials who were sent her files, she said was Alice Fisher, a deputy to Michael Chertoff who followed him as head of the Department’s Criminal Division.

Radack complained about what she thought were serious omissions of the record being withheld from the judge. Within weeks of disagreeing with the top Justice Department officials, Radack went from having been singled out for praise, to being hounded out of the department. Radack got a job in private practice, but after her story appeared in Newsweek, with copies of some of her emails, the Justice Department opened a leak investigation. The U.S. Attorney then opened a criminal investigation. Radack has since become an advocate for whistle-blowers’ rights. But the episode served as a warning to anyone in the government who stood in the way of the so-called, “New Paradigm.” It is unclear to me what sort of investigation, if any, there has been of this case, including of the potential obstruction.

Look into it.

Then read this, and tell me again how this president followed the law scrupulously. Read the full version here, actually.

Thanks.

Here's a single page link to the Jane Mayer article I last cited.

"If he had, and OIC had told him these acts were illegal, and he'd persisted in spite of that, that would be grounds for prosecution."

Bing-bing-bing. We have a winner.

Oh, bite me, my long quote with quotes and links said it posted, and vanished instead. Mother-ffff.

Gary asked me to post the following, which is his comment:

I can't recreate my whole very long post. @#@$^%#!!!

Anyway, investigations have been quashed.

Investigations and warnings were ignored or eliminated:

[...] 4. You spend more time showing how the torture process compromised lawyers than how it compromised health care professionals. One of the more revealing cases involves Jessica Radack, a young career attorney in the Justice Department’s Honors Program, who dispensed ethics advice concerning plans for the interrogation of John Walker Lindh. It seems that her advice was contrary to the ethical views of senior Bush Administration lawyers, and you note that when a federal judge demanded to see the internal Department of Justice records relating to the matter, all of Radack’s emails, including the advice actually dispensed, had been deleted and the hard copies removed, and none of this was furnished to the court. Did the Justice Department ever undertake an internal
probe into the obstruction?

Radack was in some ways an early guinea pig showing how high the costs were for anyone—including administration lawyers—who dissented from the Bush Administration’s determination to rewrite the rules for the treatment of terrorists. Her job in the department was to give ethical advice. She was asked whether an FBI officer in Afghanistan could interrogate John Walker Lindh and use his statements against him in any future trial. By the time she was asked this, however, as she knew, Lindh’s father had already hired a lawyer to represent him. So she concluded that it would not be proper for the FBI to question him outside the presence of his counsel.

To her amazement, the FBI agent went ahead and did so anyway, and then the prosecutors in the Justice Department proceeded to use Lindh’s statements against him in their criminal prosecution. She told me, “It was like ethics were out the window. After 9/11, it was, like, ‘anything goes’ in the name of terrorism. It felt like they’d made up their minds to get him, regardless of the process.” Radack believed that the role of the ethics office was to “rein in the cowboys” whose zeal to stop criminals sometimes led them to overstep legal boundaries. “But after 9/11 we were bending ethics to fit our needs,” she said. “Something wrong was going on. It wasn’t just fishy—it stank.”

What happened next was truly scary. She tried to ensure that a judge overseeing the case, who asked for all information regarding the Department’s handling of Lindh, was given the full record, including her own contrary advice. But instead, she said she found that her superiors at Justice sent the judge only selective portions of the record, excluding her contrary opinion. Her case files, she said, were tampered with, and documents missing. Among the senior Justice Department officials who were sent her files, she said was Alice Fisher, a deputy to Michael Chertoff who followed him as head of the Department’s Criminal Division.

Radack complained about what she thought were serious omissions of the record being withheld from the judge. Within weeks of disagreeing with the top Justice Department officials, Radack went from having been singled out for praise, to being hounded out of the department. Radack got a job in private practice, but after her story appeared in Newsweek, with copies of some of her emails, the Justice Department opened a leak investigation. The U.S. Attorney then opened a criminal investigation. Radack has since become an advocate for whistle-blowers’ rights. But the episode served as a warning to anyone in the government who stood in the way of the so-called, “New Paradigm.” It is unclear to me what sort of investigation, if any, there has been of this case, including of the potential obstruction.

And read Jane Mayer.

Gary also wants me to post this:

***

Please also post this:
---------------
Please read this and this and particularly this whole Jane Mayer article.

Thanks.

Note: the above comment is not my comment which vanished, but part of an attempted shorter version. Thanks, Hilzoy.

Gary & Hilzoy:

I take the point. The Bush Administration brutally repressed internal dissent, and cavalierly ignored the legal advice of consummate professionals who bravely offered it. In Jane Mayer's words, the administration, "intent upon having greater flexibility, charted a legally questionable course despite sustained objections from some of its own lawyers."To call this scandalous is entirely too mild. The approach of the Administration to the rule of law was utterly repugnant; the damage it has done to the norms and structures of our society is lasting.

What these reports establish is that the Bush Administration cannot plead ignorance. It cannot claim that there were no dissenting voices. It cannot pretend that people it had chosen, attorneys on whom it relied, did not speak up. I am proud as an American that there were those who respected their duties to the nation enough to sacrifice their careers in this manner; I am ashamed that there were not more.

But does that establish criminal culpability?

Not, at least, by itself. The opinions issued by the officials in question were not, as a legal matter, binding. Even Mayer is clear on that point. What was ignored was reasonable advice, not binding legal decisions. It's not unusual for multiple government attorneys to disagree on a given issue. Choosing the wrong legal advice is foolish, even destructive; ignoring binding legal decisions is criminal. The Bush administration ignored Mora's advice, but abided by Yoo's legal opinion.That's an important distinction.

I have no interest in sanctioning the worst excesses of the Bush Administration, and I strongly support an open inquiry aimed at making public those abuses. I'd also like to see a number of structural reforms aimed at ensuring that these sorts of abuses do not recur, including strengthening the independence and institutional prerogatives of the Office of Legal Counsel. It'd be nice to see Congress put a little more thought into just whom it confirms as AAG for OLC. And we need more public disclosure of OLC opinions as they are issued. That's just the tip of the iceberg - there are a host of changes that might productively be made.

But criminally prosecuting decision makers for steps they took which fell within the limits of OLC's opinions, however tendentious their reasoning? That's a path I don't want to head down. Every President acts in accordance with some number of OLC decisions which must subsequently be revised in accordance with judicial rulings. Do we really want to prosecute every President? Sure, these offenses are grave, and most are trivial, but "I know it when I see it" has a troubled history as a legal standard.

If the charge is that the Bush Administration ignored binding legal advice, again, I'm all for prosecution. But I haven't seen that documented.

Well, Observer, I guess the fig leaf of getting a legal opinion approving what the administration was doing works for you, even when that advice in many cases disregarded the plain reading of statutes (as in the case of FISA and warrantless domestic spying). Folks with your view of the law must have been the target audience for that transparent ass-covering.

Out of curiosity, and having no expertise in any subject at all, I would like to see the actual written request for legal opinion. Of course, that is assuming that any request for a legal opinion must be submitted in a written form.

IOW, what triggered the opinions of Yoo and others? How was the request phrased?

To me, personally, that would make a difference. But I doubt we will ever see that. I would also like to know what verbal conversations there were that led up to the request and after, prior to the opinions being written. again, we will never know, because even if the principal actors in this melodrama gave testimony under oath, I woukldn't trust them to tell the truth.

fixed?

In what sense are the opinions produced by the Office of Legal Counsel binding?

From the US DOJ web site, Re: Best Practices for OLC Opinions.

By delegation, the Office of Legal Counsel exercises the Attorney General's authority under the Judiciary Act of 1789 to advise the President and executive agencies on questions of law. OLC is authorized to provide legal advice only to the Executive Branch; we do not advise Congress, the Judiciary, foreign governments, private parties, or any other person or entity outside the Executive Branch. OLC's primary function is to provide formal advice through written opinions signed by the Assistant Attorney General or (with the approval of the AAG) a Deputy Assistant Attorney General.

The OLC's output is advice and only to the Executive Branch. In what way does it have the force of law?

BTW, This 4 page memo makes an interesting read. One wonders whether the process outlined was dutifully followed in the case of the torture memos.

But does that establish criminal culpability?

No. Or at least, probably not.

But how do you establish criminal culpability without a criminal investigation?

You seem to be arguing that we cannot pursue criminal charges against anyone in the executive if their crime is committed as part of their official capacity, unless they received explicit legal advice that the action was illegal.

That seems to leave and *extremely* large loophole for them.

I appreciate your concern for not making any political decisions subject to criminal prosecution. But what if those decisions are, in fact, criminal?

Thanks -

ral:

From the same source: "OLC opinions are controlling on questions of law within the Executive Branch." In other words, when OLC offers its advice on questions of law, it is indeed binding. It's not the same thing as a judicial opinion - OLC's authority extends only to the executive branch, and its decisions need to comply with all relevant laws and rulings. But functionally, it's the law.

russell:

Not excusing them unless they received specific legal advice that an action would be illegal; excusing them if they received specific legal advice that an action was, in fact, legal.

Look at it this way. You're working for the government, and involved in a tricky, morally complex question. You don't want to break the law, but there's a chance that whatever you decide, you'll be wrong. You can't ask a judge; they can't tell you until after you've acted. But if, after you've acted, the judge decides you got it wrong, you could go to jail. So you go to OLC. They issue a memorandum. If you comply with that memorandum, you know you'll be alright. If you violate it, you're in legal jeopardy.

It's a means of ending institutional paralysis. It works pretty well, most of the time. The system breaks down, of course, when the opinions aren't issued in good faith. When they're kept secret, so that neither Congress nor the Courts are given the chance to challenge the rulings. That's what happened under Bush. And it's profoundly troubling. Those who committed repugnant acts, using OLC opinions as a shield, are morally culpable. They ought to have known right from wrong; being told you can do something is a far cry from being in a position where you should do it. But are they criminally liable? That would be an extremely disturbing precedent. Before going down that road, I'd like someone to explain to me how we're going to discriminate between the OLC decisions that you should follow, and the ones that you should ignore.

You're working for the government, and involved in a tricky, morally complex question....

How does the same reasoning not apply if you're working for a corporation, or just doing something on your own? If having gotten legal advice has to be an absolute defense for government officials in order to allow them to do their jobs, then why doesn't the same logic apply to people outside government?

Observer, I tend to agree with you that an open inquiry into these abuses is important, more important than any criminal prosecution. Absent some kind of formal investigation, though, I doubt that such public disclosure will occur.

"But are they criminally liable?"

Yes, they are, because the statutes control and provide the substantive and relevant standard of behavior, regardless of what the OLC says. When FISA says that it is a felony to conduct electronic interception not in accord with FISA's procedure, it is a felony even if some self-serving drivel from a pet OLC says otherwise. You are positing a system whereby the only way a high official can commit a crime is if he goes directly against an OLC opinion, but that makes no sense at all for any number of reasons, all of which are illustrated by this administration's many illegal acts, most all of which were blessed by some legal opinion or another.

Observer sez: From the same source: "OLC opinions are controlling on questions of law within the Executive Branch." In other words, when OLC offers its advice on questions of law, it is indeed binding.

I think the phrase you're not parsing correctly is "within the Executive Branch." This, to me, means that OLC opinions are controlling on questions like, say, what questions you can ask a prospective State Department employee. It does not seem to mean that they are controlling on actions by members of the Executive branch which implicate other laws. Or else there would not be a distinction on the website between controlling/advisory.

But should the high and mighty get off when ordinary people committing the same crimes would go to prison? The answer is that they are not the same crimes. Administration officials were not thieves lining their own pockets. Theirs were political crimes committed by persons whose jobs were to exercise the powers of government on our behalf.

Damn straight their jobs were to exercise the powers of government on our behalf. You know what that makes them? Fiduciaries. That word, and the concept it represents, are important. Look it up if you need to, Mr. Fried. You know what that makes their actions? A betrayal of the trust placed in them by the American people.

They are not the same crimes when committed by representatives of the people. They are *worse* crimes when committed by the representatives of the people, because they abuse the public trust and damage the reputation and credibility of the institutions of government that belong to the people, not the present holders of political offices.

As a peripheral matter, some of them probably *were* lining their own pockets, but without a full investigation we'll never know whether they were or which ones, will we?

"But criminally prosecuting decision makers for steps they took which fell within the limits of OLC's opinions, however tendentious their reasoning? "

Following this reasoning, what basis is there for prosecuting anyone who follows orders arising from those decisions, as when they commit atrocities or conduct torture based on instructions form these decision-makers, who BTW are making decisions that carry the power of law to command their execution? Why is it acceptable to prosecute soldiers but not their civilian masters?

This is an interesting take on the authority of the Office of Legal Counsel to insulate the executive department from criminal liability. I have a feeling that the courts will have to determine the extent to which the OLC's opinions were "controlling". Normally, a court will consider whether a defendant reasonably relied in good faith on legal advice, but that reliance is raised as an affirmative defense that might excuse or mitigate culpability under some circumstances.

Look at it this way. You're working for the government, and involved in a tricky, morally complex question. You don't want to break the law, but there's a chance that whatever you decide, you'll be wrong. You can't ask a judge; they can't tell you until after you've acted. But if, after you've acted, the judge decides you got it wrong, you could go to jail.

OK; so far your situation is in no way whatsoever different from someone who is not working for the government. All those people are routinely expected to obey the actual law - not what their lawyer said - anyway.

I would also note that in this case, as in most such cases, there was only one side that *could* have been illegal; refraining from conduct that might have been legal if you had done it is not itself a crime. The resulting potential bias toward the safe side - toward avoiding anything that even *might* be a crime - is a feature, not a bug. *Especially* in a government official.

Holding public officials to a higher standard is sometimes actually done and sometimes only self-servingly bragged about. Holding them to a *lower* standard is not something that many people are willing to openly defend, for fairly obvious reasons. (See also my above post about the public trust and the institutions of government belonging to the people.)

Before going down that road, I'd like someone to explain to me how we're going to discriminate between the OLC decisions that you should follow, and the ones that you should ignore.

The same way anyone outside government does: you are not entitled to rely on your lawyer's advice if it turns out to be wrong, so you'd better pick a good lawyer. If this uncertainty bothers you, get a second legal opinion. Lawyers that aren't being pressured to declare your potential conduct legal will tend to advise caution if the issue is murky anyway, because it's part of their training and professional obligations.

Allowing someone to first order his lawyer to declare his conduct legal, then rely on that declaration to protect him from prosecution when the conduct is actually, by law, not legal, would essentially eviscerate the legal system. (Granted, lawyers that go along with such a scheme when there is no reasonable argument for the legality of the conduct should be disbarred, but your ability to find a sufficiently corrupt lawyer should still not entitle you to commit crimes.)

As a peripheral matter, some of them probably *were* lining their own pockets

We know they planned to. George H.W. Bush has a net worth of $25M (according to WikiAnswers). Presuming he plans to leave the bulk of it divided evenly among his six children, under the usual estate tax law - which takes 40% of $23 million - George W. Bish inherits £2.633M. But, if George H.W. Bush had happened to die during Bush's tenure while the estate tax laws had been completely abolished, George W. Bish inherits £4.166M. That's just over $1.5M dollars difference.

Quite a heft of spare change, however it's divided up. Anyone prepared to argue that George W. Bush is so rich he'd never notice the difference, and that therefore couldn't have motivated him *at all* in his efforts to see that when Dad kicks off, there isn't any pesky IRS standing between Dubya and Daddy's millions?

Of course, it's perfectly legal. But just the same, it was one hell of a scam to go so uncommented on...

Quoted without comment:

“The Central Committee of the VKP(b) explains that the application of methods of physical pressure in NKVD practice was made permissible in 1937 … It is known that all bourgeois intelligence services use methods of physical influence against the representatives of the socialist proletariat and they use them in the most scandalous forms. The question arises as to why the socialist intelligence service should be more humane against the fanatical agents of the bourgeoisie, against the deadly enemies of the working class and the kolholz peasants.
The Central Committee considers that physical pressure should still be used unconditionally, as an appropriate and justifiable method, in exceptional cases against known and obstinate enemies of the people.”
-Secret telegram sent by the Central Committee to all party and NKVD units from district level up, 10 January 1939 (Khlevnuik 2003, 31).

"... our leaders were defending their country and people — albeit with an insufficient sense of moral restraint — against a terrifying threat by ruthless attackers with no sense of moral restraint at all."
-Charles Fried


They ought to have known right from wrong; being told you can do something is a far cry from being in a position where you should do it. But are they criminally liable? That would be an extremely disturbing precedent.

I think it's clear that it has set in train disturbing actions to have a President who will decide he wants to do something, be told in confidence that it is against the law - as we can be all but certain Ashcroft *did* tell Bush, and as we *know* Blair's government told Bush's administration - and then just go look for legal counsel who will work up a legal opinion that says the President can do it anyway.

We've seen over the last eight years what the presumption that this defense will work has led to. But you want to allow this defense because without it, future Presidents might get sued?

I think there are actually more important values to determine a course of action than worry that a President might at some future time get sued: the clear and present danger that future Presidents will use the precedent set by not prosecuting Bush to do what the hell they like.

"The only thing that is at all persuasive about Fried's argument is that 'our leaders, ultimately, were chosen by us; their actions were often ratified by our representatives; we chose them again in 2004.' Unfortunately, this is what will be their strongest defense if they are brought to trial."

I don't doubt that would be part of the defense argument.

But persuasive?

I/We were elected twice, so we continued to break the law because We Were Above the Law.

Weak.

---

"It's amazing to me that a law professor can put these sentences into one article . . ."

It's amazing to me that a law professor said, and believes, any of the sh!t that hilzoy quoted.

Maybe I am not high-brow or educated enough, but it all sounded like poppycock to me.

---

Saw a clip of Cheney on the news the other day, where the Vice President corrected the interviewer and said waterboarding was NOT torture.

"John McCain says it is," said the interviewer.

"John McCain is wrong," the Dick declared.

Cheney went on to say the Bush Administration never violated any treaties or the rule of law.

All of which sounded like a dare to me.

I mean, the more I listen to Cheney pontificate -- or the Charles Frieds of the world rationalize whatever high crimes and misdemeanors he may or may not have committed -- the more I see the need to join Jes' daily drumbeat to prosecute his sorry, sneering, smug ass.


Charles Fried and Observer are observing political realities. Fried notes that trying a former leader has not generally worked out well, especially for crimes that were 'well-meaning' rather than self-enriching. This would likely be true with Bush. Half of this country had no problem with a bit of torture here and there. They will not react well to a prosecution of Bush officials for actions they saw as patriotic.

Observer notes "In general, it's healthy to avoid criminalizing disputes over statutory and constitutional interpretation. So the best response to a President declaring his ability to use coercive methods on detainees is legislation specifying that no, he can't."

This leads us to the ugly truth. We did not impeach Bush for torture or warrantless wiretapping because something around half of the nation approved his actions. An impeachment didn't have the votes, however richly deserved.

We live in a democracy where a plurality of the people do not take the rule of law seriously and require only a nudge to approve torture. How can a conviction of high officials be politically sustained in such a nation? This is why Republican revenge would be certain and viscious.

Lithwick and Fried are both right. Prosecution of the highest officials is required if we are to take the rule of law seriously. Prosecution of the highest officials will not work because the prosecution would not be respected by about half of the people.

In other words, we're screwed. Thanks, Bush. You're a really special guy.

There is the little problem of the mercenaries, aka "private contractors." The Bush administration and DoD may well have used them to block accountability.

We may not know all that was done in Iraq till years or decades later, when forensic anthropologists go through the rubble.

"An impeachment didn't have the votes, however richly deserved."

No jury votes for conviction before the evidence is laid before them.

Some handjob calling himself "Observer" said, "Failure to comply might also reasonably result in impeachment, the constitutional mechanism for dealing with a recalcitrant chief executive, or one who arrogates to himself excessive power. But waiting until he leaves office and pursuing criminal sanctions - that raises serious questions about the separation of powers."

Contrary to this disingenuous attempt to apologize for evil (while pretending to abhor it), the Constitution specifically foresees criminal prosecutions under the law in addition to the impeachment process, not as mutually exclusive options. The idea that the Constitution reserves impeachment as the sole means for holding government officials accountable is a crock of shit.

The Constitution says, "Judgment in cases of Impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to the Law."

How in the world does this present a seperation of powers problem? The president is not separated from the power of the law!

The idea that Bush should be able to hide behind his mob lawyers (Gonzales and Yoo) and avoid prosecution simply because the Congress failed to do its job is not motivated by any sense of justice or propriety. Its nothing but another slick, tendentious defense of the indefensible.

Observer: The Judicial branch has every right to hold the Executive to account for ignoring or violating established law. But trying the President for acting in accordance with legal advice he had received is a perilous thing. If the courts won't rule in advance, and formal opinions of counsel offer no shield, how is a President to act in a matter of unsettled law without risking later prosecution?

The law against torture is established law, not unsettled at all. It is absolute, admitting of no exceptions. Its application is universal. The OLC opinion that purported to "legalize" torture by redefining it as not-torture was sought and produced after the law had already been violated.

That this is so is illustrated vividly by the somewhat different course of events in the Department of Defense, where the military lawyers refused to treat settled law as a debatable policy choice:

Mora attended a meeting in Rumsfeld’s private conference room at the Pentagon, called by Gordon England, the Deputy Defense Secretary, to discuss a proposed new directive defining the military’s detention policy. The civilian Secretaries of the Army, the Air Force, and the Navy were present, along with the highest-ranking officers of each service, and some half-dozen military lawyers. Matthew Waxman, the deputy assistant secretary of defense for detainee affairs, had proposed making it official Pentagon policy to treat detainees in accordance with Common Article Three of the Geneva conventions, which bars cruel, inhumane, and degrading treatment, as well as outrages against human dignity. …

This standard had been in effect for fifty years, and all members of the U.S. armed services were trained to follow it. One by one, the military officers argued for returning the U.S. to what they called the high ground. But two people opposed it. One was Stephen Cambone, the under-secretary of defense for intelligence; the other was Haynes. They argued that the articulated standard would limit America’s "flexibility." It also might expose Administration officials to charges of war crimes: if Common Article Three became the standard for treatment, then it might become a crime to violate it. …

In exasperation, according to another participant, Mora said that whether the Pentagon enshrined it as official policy or not, the Geneva conventions were already written into both U.S. and international law. Any grave breach of them, at home or abroad, was classified as a war crime. To emphasize his position, he took out a copy of the text of U.S. Code 18.2441, the War Crimes Act, which forbids the violation of Common Article Three, and read from it. The point, Mora told me, was that "it’s a statute. It exists—we’re not free to disregard it. We’re bound by it. It’s been adopted by the Congress. And we’re not the only interpreters of it. Other nations could have U.S. officials arrested."

The administration's intent to torture was clear the moment Rumsfeld announced the decision that the Geneva Conventions would not apply to prisoners captured in Afghanistan. Those who said so at the time were dismissed as delusional, paranoid "America-haters".

To tom-tom's point about the political reality versus the law:

My short answer is that's what law is for. It is there to restrain actions that might be taken when a large number of people are driven by very human impulses of fear, revenge, etc.

Pundits and operatives began advocating and entertaining the idea of torture soon after the attacks in the fall of 2001 (September 11 and the anthrax incidents). The first government trial balloon was floated in a Washington Post article by Walter Pincus on Sunday, October 21. Jonathan Alter urged torture in his Newsweek column in the first week of November. Alan Dershowitz, an apologist for Israeli torture since the late 1970s, piped up. Then the Bush administration renounced the Geneva Conventions as a standard of treatment for people captured in Afghanistan or elsewhere in its worldwide "war on terror".

Observer said: it's healthy to avoid criminalizing disputes over statutory and constitutional interpretation. So the best response to a President declaring his ability to use coercive methods on detainees is legislation specifying that no, he can't.

Not when a completely clear and absolute law against torture already exists (because "coercive methods" are torture).

Congress failed utterly in its responsibilities all along the line, but it did not need to pass a new law where one already existed. It needed to demonstrate that the existing one would be enforced.

@The Fool:

Please read the posting rules (upper left sidebar). No slurs against commenters.

@Nell:

Sorry. Didn't know you all were so uptight around here.

Anyway, I have consulted my own lawyers -- of course I had to fire a few before I got the right opinion -- and they tell me that my description of "Observer" as "some handjob" is not in fact a "slur" per se/i>. They tell me -- at least now that I got rid of a few punctilious troublemakers among my former legal counsel -- that some version of the truth defense in libel law is available to me here as well. Basically, if Observer doesn't want me calling him a "handjob," then he should quit trying to jerk me off.

The bottom line, Nell darlin', is you and I have different interpretations of "slur" and rudeness in general. Calling names (accurately) is one thing, disingenuously defending abuse of executive power is another. Personally, I find the latter far ruder than the former.

Anyway, I think even our friend Observer would agree that we should not criminalize these semantical differences merely because I interpret the rules of slurring differently than you do.

Fool, there are plenty of us dealing with Observer's arguments. I don't think your insults, or your condescending attitude toward Nell, are going to persuade anyone. If you don't like the environment here, there are plenty of other blogs where you can spout off to your heart's content.

@KCinDC:

Yes, there are plenty of people dealing with Observer's points but only one other person made the point I made and that only in passing and without actually quoting the Constitutional passage in question. I have added to this debate. Sorry if you don't like my style.

@KCinDC:

Sure there are plenty of people dealing with Observer's comments, but only one other person even tangentially touched on the point I made -- and I documented the point with a quote from the Constitution. I have added to this debate. Sorry if you don't like my style.

@KCinDC:

BTW: I wasn't the one who started it with Nell. She condescended to me first with her schoolmarmish reference to the rules.

OT: sorry for the double posts. There is a delay after you post before your post actually is displayed. In the meantime it displays the comments without the new comment, making it look like the comment didn't register.

Oh, if you don't care for Nell's style, I'm sure hilzoy or another site owner will deal with you in due time.

Banned. He's been banned before, so I may just delete all of his posts, after I delete the duplicates. Any objections?

Last time he was banned it was for inviting Andrew Olmsted to perform some oral act of gratification on him, so I'm inclined to keep him rebanned, automatically, any time he shows up.

@Phil et al:

You know some people are obsessed with form and some people are obsessed with substance. I count myself among the latter.

In all seriousness, a major contributing factor in our culture that makes it possible for the views of those like Observer to prevail is the obsession with politesse to the point that calling a handjob a handjob is considered ruder and more actionable than is disingenuous support for abuse of executive power and torture.

We see the same thing on Capitol Hill with people who are afraid to rock the boat and challenge the pronouncements of the Village elders about what is and is not acceptable discourse or policy.

The liberal left has been far TOO polite in recent decades and the right has walked all over them. What we need is LESS politeness, not more. We need people to stand up for principle and ridicule the unprincipled who have earned their ridicule and deserve it.

@slartibartfast

Self-righteous prig.

It's good we have The Fool to show us the error of our ways and demonstrate a more effective means of changing people's minds. Look at how much his greater concern for "substance" has added to the conversation!

@KCinDC

Look at my comment at 1:48 am. Its a good point.

This is so typical. You all are far more worked up about chastising me for being impolite than you are about people apologizing for torturers. Nothing gets you riled up like someone being impolite!

What a bunch of good little boys and girls. Mommy and daddy are so proud!

@slartibartfast:

I don't even remember the comment to Andrew Olmsted but if I really made it then he must have been asking for it. I didn't know the guy although I just read about him here on this website. I'm sure he was a great guy, but that doesn't mean his every pronouncement was divinely inspired or that I should be banned for blasphemy.

Fool, the topic of torture has been much discussed here. I suggest you consult the archives.

And if you'd left out the insult, people might actually being discussing your point. Far from being obsessed with substance, you're apparently so devoted to insults that you're driven to include them even to the detriment of the substantive argument you claim to be interested in.

The Fool is unconcerned with your pesky facts, ral.

Ah, another part of Typepad that is broken: The Fool's IP will not be banned.

If I report him as spam, he will be, I imagine, but then all of his comments go bye-bye.

KC said, "And if you'd left out the insult, people might actually being discussing your point."

Well that perfectly illustrates one of my points. You're willing to engage a torture apologist but not someone who calls the disingenuous torture apologist a handjob.

Self-righteous prig.

And you, my friend, are an ass. A double-posting, non-italic-tag-closing ass.

Thanks -

I have added to this debate.

Filling a well-needed gap...

Fool, one might or might not like a particular commenter, but there are reasonably clear rules about how you are allowed to express your feelings. That's to keep this place from becoming a playground for self-obsessed people who would rather get in fights with political allies then make legitimate points.

And you can, to be plain, show your contempt for someone's arguments and by implication contempt for the one making them if you wish without violating posting rules. It happens often enough around here. I have mixed feelings about civility on some subjects, but them's the rules.

@russell:

How dare you! I demand that russell be banned!

Actually, I don't. I could care less that he called me an "ass". I do wish, however, that russ would not limit himself to trash talk but also, like me, include some substance.

The Fool: I don't care whether you like our rules, or think we're uptight, or whatever. I paid for this microphone. Goodbye.

Fool, you knew from previous experience that expressing yourself in that way would lead to this outcome, yet you chose to do it anyway. That's clear evidence that you don't have any interest in discussing "substance", despite your protestations, but are interested only in being disruptive. That is why I'm not engaging you further.

Actually russell's comment puts this web site to the test.

Will The Fool be banned for insulting a disingenuous torture apologist, while russell goes unpunished for insulting The Fool? After all, in both cases they were reacting to a commenter whose comment they didn't like.

Is it bad to insult a disinegnuous torture apologist but ok to insult one who insults the disinegnuous torture apologist?

What does that say about your values?

The Fool: I have added to this debate.

liberal japonicus: Filling a well-needed gap...

In Henry Crun's pawn shop

Henry: ... Just stand on these scales, please.

Grams: cables stretching, groaning under immense weight

Henry: Eighteen stone.

Ned: Shall I put the other leg on now?

Henry: As deadweight alone I'll offer you ten pounds, you'll come in useful for filling in holes.

Ned: Done!

Henry: You certainly have been! (Cackles off) Did you hear that joke, did you?

The Fool,

I for one disagree with your characterization of Observer. I don't care to discuss that further.

@hillzoy:

"I paid for this microphone."

Well then, in that Reaganesque case, by all means you should ban me. But realize that all I did was add one little word to an otherwise purely substantive post.

My my your sensibilities sure are delicate aren't they, dear?

@hillzoy:

Well, your sensibilities are delicate except when it comes to disingenuous torture apologists. You're not too squeamish there, are you? Their lies and bullshit are fully acceptable forms of discourse to you.

Given that we won't be losing anything substantive if all The Fool's comments disappear, I vote for reporting them as spam.

Yet another TypePad strangeness: The Fool's IP address was already on our banned list, and yet that doesn't seem to prevent him/her from commenting. I don't know what more I can do to ban The Fool, though I have tried to set in motion a more effective ban.

Until then, I suppose it's up to The Fool: hang around someplace where s/he's not wanted, or not.

Our culture will be ready to get serious about human rights, like the right not to be tortured, when the defense of torture and abuse of political power elicit more outrage and are considered more unacceptable than the use of bad words or failure to be polite.

I did that, hilzoy. I think I noted upthread. Well, there's always the nuclear option.

@hillzoy:

Oh no, hillzoy doesn't want me! Boo-hoo.

Keep clutchin' them pearls for all they're worth.

I defer to hilzoy on the question of spam-bucketing The Fool's work. I don't see that it's all that important of a question, but some folks get bent out of shape when comments are fooled with.

Ah, so you did. Sorry...

I may wait a bit to see what comes of my own nuclear option, but if it hasn't worked by, oh, 4 or so, sp4m it is.

Actually, Fool, I bet that if you'd just left things alone after Nell politely told you you have violated posting rules (which is normal around here, it's not lecturing), that would have been the end of it (well, unless you've been banned before). But you showed absolutely no self-control, insulted Nell, and generally behaved like someone who has just discovered the concept of a flamewar and thinks it's fun. You're acting like a child. I agree with much of what you say but you need to grow up. This isn't your blog.

Your initial post minus the personal insult was substantive, and your last paragraph expressed contempt without (if I understand them correctly) violating posting rules, but you couldn't leave it at that.

There is room within the posting rules for both elaborately polite arguments and very heated debate with a lot of open anger on display and one could have a meta-debate about which is better. But if you think your approach of insulting everyone, even people close to you on the issues, is the right one, then good luck with that.

Though I did think he made substantive points initially, it's not like others haven't made them without all the extra silliness. In fact, the thread has been hijacked and maybe the only thing to do is nuke the thing from---I'm not very original in my humor, nevermind.

S y'r gng t bn rssll t, rght?

ftr ll, h brk th sm rl dd nd, s ws tld, thm's th rls!

As a bonus, I think I fixed one of Gary Farber's sources of ire. No more having to be wary of using the s-word!

"Thgh dd thnk h md sbstntv pnts ntll, t's nt lk thrs hvn't md thm"

h, ctll, t S lk tht.

The comments to this entry are closed.

Blog powered by Typepad