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March 30, 2009 11:27 AM   Subscribe

A high-level Spanish court has taken the first steps toward opening a criminal investigation against six former Bush administration officials, on whether they violated international law. The officials named in this present case include the most senior legal minds in the Bush administration. They are: Alberto Gonzales, a former White House counsel and attorney general; David Addington, former vice-president Dick Cheney’s chief of staff; Douglas Feith, who was under-secretary of defence; William Haynes, formerly the Pentagon’s general counsel; and John Yoo and Jay Bybee, who were both senior justice department legal advisers. If America won’t have a Truth Commission maybe someone else will have to kick start it for them.
posted by adamvasco (196 comments total) 5 users marked this as a favorite

 
Back in 1999 after trying to get the Brits to prosecute Pinochet; Garzon got an inditement against 98 Argentinian officers.
“…the lawyers, and the victims they represent, argue that every step Garzon takes is at the very least a warning to rulers that they are accountable for their human rights abuses”.
posted by adamvasco at 11:30 AM on March 30, 2009 [1 favorite]


Scott Horton also wrote a little bit about this.
posted by chunking express at 11:37 AM on March 30, 2009


man, and I bet those guys are totally gonna go to Spain to stand trial, being so respectful of international law and all.
posted by shmegegge at 11:40 AM on March 30, 2009 [1 favorite]


Surely now? Or soon?
posted by DU at 11:40 AM on March 30, 2009 [3 favorites]


Before anyone gets too excited, consider what any sort of success in this case (assuming anyone would actually extradite these guys) would bring to the current administration. Prosecution by a foreign entity would be very appropriate, I think, but there would be hell to pay back home in terms of political backlash. There would be screams about "acts of war" and other nonsense. Obama would be caught between letting U.S. officials be tried by other countries or breaking his word and deciding to try and eek out some justice on the matter himself. The Truth Commission - hell, anything homegrown - is looking like a much better option if things actually roll in this direction.
posted by cimbrog at 11:43 AM on March 30, 2009 [1 favorite]


They may not go to Spain, but they'll have to be careful about where they do travel to. Some countries might be willing to arrest them and extradite them to Spain.

Maybe?
posted by oddman at 11:43 AM on March 30, 2009


I wish we had "crusading investigative judges". If only for the business cards.

Obviously this move is political to a degree; but I'm ok with that. A passive judge sitting and only dealing with what comes up on his docket runs the risk of giving up too much power to those who bring forth the cases.
posted by Lemurrhea at 11:47 AM on March 30, 2009


Best we can hope for is a Kissinger-style "Can't ever step foot in THAT country again!" situation
posted by Damn That Television at 11:47 AM on March 30, 2009 [1 favorite]


I'm about as far as it's possible to get from an expert on international law, but I don't think "success" is really required by this court. At the very least, the discovery process can bring things up in the media which could trigger a different case elsewhere. Plus having all the evidence in one big pile is convenient for others (courts, newspapers, historians, etc).
posted by DU at 11:48 AM on March 30, 2009 [2 favorites]


Kudos to Garzon for finally sticking it to human rights abusers in China Iran Sudan Saudi Arabia Russia... oh wait.
posted by Krrrlson at 11:50 AM on March 30, 2009 [4 favorites]


Any indictments mean they can't travel to any of the 24 members of the European extraditions convention. Spain can still attempt extradition from other countries, but chances are slim.

In practical terms, any indictments will give the democrats leverage to block reappointment under future Republican administrations. So go for it Spain!
posted by jeffburdges at 11:52 AM on March 30, 2009 [4 favorites]


At the very least, the discovery process can bring things up in the media which could trigger a different case elsewhere

Nobody's going to agree to jurisdiction, so there will be zero discovery in this case.

The only person who should be on the hook for this is Bush. Advice, however bad, is not illegal. Addington and Yoo, as wrong as their advice was, should not be held responsible. They are lawyers. The last thing we need to do is to criminalize legal advice, no matter how wrong. Because the people who will pay for that are not going to be the John Yoo's of the world, I can assure you.
posted by Ironmouth at 11:56 AM on March 30, 2009 [6 favorites]


In practical terms, any indictments will give the democrats leverage to block reappointment under future Republican administrations. So go for it Spain!

No, there will be no leverage from something like this. A foreign court doesn't like you so therefore you cannot be reappointed? In America, this will be worn like a badge of honor.
posted by Ironmouth at 11:58 AM on March 30, 2009


Kudos to Garzon for finally sticking it to human rights abusers in China Iran Sudan Saudi Arabia Russia... oh wait.

Also, those scientists working on global "warming" should get back to working on cancer, amirite?
posted by DU at 11:59 AM on March 30, 2009 [8 favorites]


Good luck with that, guys. I mean it.

And here's hoping they don't get a Spain-specific "Freedom Fries" ordeal out of it.
posted by adipocere at 12:01 PM on March 30, 2009


That's the way to go, Krrrlson. Argument by distraction always works. That's why all the cool kids are doing it.
posted by steambadger at 12:03 PM on March 30, 2009 [4 favorites]


Freedom Flan?
posted by Kadin2048 at 12:06 PM on March 30, 2009 [4 favorites]


A roundup for a flat world?
posted by Postroad at 12:08 PM on March 30, 2009


In practical terms, any indictments will give the democrats leverage to block reappointment under future Republican administrations.

Iran-Contra Felons Get Good Jobs from Bush
posted by kirkaracha at 12:11 PM on March 30, 2009


Before anyone gets too excited, consider what any sort of success in this case (assuming anyone would actually extradite these guys) would bring to the current administration. Prosecution by a foreign entity would be very appropriate, I think, but there would be hell to pay back home in terms of political backlash.

Oh no! Surely we can't prosecute war criminals! People might write sternly worded letters! Perhaps even in the Washington post!

I wish people who are always warning about "political backlash" or that you can't do X because it might make people angry think would actually result from that political backlash or why we should care if random war-crimes defenders do get mad. So what?

The only person who should be on the hook for this is Bush. Advice, however bad, is not illegal. Addington and Yoo, as wrong as their advice was, should not be held responsible. They are lawyers. The last thing we need to do is to criminalize legal advice, no matter how wrong. Because the people who will pay for that are not going to be the John Yoo's of the world, I can assure you.

Bad legal advice is illegal. It's called legal malpractice. I'm not sure if it's a crime or not (as opposed to a tort). But think about it: If you have a lawyer telling you that something is legal when in fact it's not legal, and you do it, you don't think the lawyer who said it was legal should be at fault? Not at all?

Yoo and Addington were not defense lawyers trying to defend past actions in court, they were in the Office of Legal counsel and their job was to determine what was and was not illegal before it happened. Their memos enabled the torture that took place (although there is some evidence that they wrote the memos after the fact)

There is a huge difference between "advice" that says "I think you should do X" and legal advice that says "You can do X because X is legal" when in fact, X is illegal. The lawyers absolutely need to be held responsible. Knowing the law is their job.

Furthermore, the other people in the administration didn't just "give advice" they also implemented the policies and had a hand in crafting them (Dick Cheney for example)
posted by delmoi at 12:14 PM on March 30, 2009 [6 favorites]


No, there will be no leverage from something like this. A foreign court doesn't like you so therefore you cannot be reappointed? In America, this will be worn like a badge of honor.

Do you really think people convicted abroad for war crimes would be confirmed in the senate?
posted by delmoi at 12:14 PM on March 30, 2009 [1 favorite]


The complaint was prepared by Spanish lawyers, with help from experts in the United States and Europe and is based on Geneva Conventions and the 1984 Convention Against Torture. Gonzalo Boye, the Madrid lawyer who filed the complaint, said that the six Americans cited had had well-documented roles in approving illegal interrogation techniques, redefining torture and abandoning the definition set by the 1984 Torture Convention.
Ironmouth I would just like to remind you that the lies of the Bush administration encouraged the Spanish goverment of Sr. Aznar to join in the illegal invasion of Iraq. This directly resulted in the Atocha station bombings of March 2004. Spain will not forget.
posted by adamvasco at 12:15 PM on March 30, 2009 [6 favorites]


human rights abusers in China Iran Sudan Saudi Arabia Russia

I was all ready to side with the activist Spanish judge, but Krrlson's eloquent rebuttal has changed my mind. If authoritarian communist regimes, theocracies, military dictatorships, hereditary semi-feudal monarchies and post-communist corporate kleptocracies (respectively) aren't held to such high standards, why should anyone expect anything better from the administration of the birthplace of constitutional democracy? Why the double standard?
posted by gompa at 12:17 PM on March 30, 2009 [18 favorites]


'Get a good lawyer,' lawyer tells former Bush official (Feith)
posted by Kirth Gerson at 12:17 PM on March 30, 2009


Freedom Rice
Freedom Fly
Freedom Rose
Freedom Heel
Freedom Armada
Freedom Inquisition
Freedom-American War
posted by notyou at 12:20 PM on March 30, 2009 [8 favorites]


This is the perfect example of people's politics getting in the way of sense. The Spanish Court has no jurisdiction to prosecute Yoo, nor should it.

This will unquestionably be shut down, and rightfully so. The United States will pressure Spain to stop the investigations, which are nothing more than a political witch hunt, and they will. It establishes an extremely dangerous and unacceptable precedent to have countries attempting to prosecute the leaders of those they are diplomatically allied with over political disputes. Garzon will allow the case to be presented, but he will not accept it or issue warrants. He can't. He will destroy relations with the US, and no other country is going to risk ruining their relations with the US to follow Garzon's subpoenas.

There is no basis to go after Yoo or Addington because they did not commit any crime or inact any policy.

Disagreements with their advice is not sufficient basis to destroy international relations and create an unprecedented expansion in scope of judicial power.
posted by dios at 12:20 PM on March 30, 2009 [3 favorites]


Here, eat some Patriot Paella -- no rice, no saffron, just hormone beef and high fructose syrup.
posted by AwkwardPause at 12:24 PM on March 30, 2009 [4 favorites]


While I agree with dios' take for its practicality, I also believe that the issue here is not merely "political disputes" - as was pointed out upthread, it's about infractions against the Geneva Convention and anti-torture laws. I ain't holding my breath for prosecutions, but I certainly do consider the effort to be just.
posted by fingers_of_fire at 12:26 PM on March 30, 2009


This directly resulted in the Atocha station bombings of March 2004. Spain will not forget.

Are you really saying that the United States bears more than zero responsibility for the Madrid bombings? What an utterly preposterous claim.
posted by oaf at 12:30 PM on March 30, 2009 [1 favorite]


Of all the industrialized nations, it is right and proper that Spain, a country that only relatively recently threw off the shackles of the fascist dictator Franco (who issued death warrants for political prisoners and had hundreds of thousands of Spaniards murdered until his death in the mid-1970s) shine judicial light on right-wing criminals like Yoo and Addington, when America's President and elected official does not himself yet have the courage of conviction to do the right thing.
posted by Blazecock Pileon at 12:33 PM on March 30, 2009 [4 favorites]


I also believe that the issue here is not merely "political disputes" - as was pointed out upthread, it's about infractions against the Geneva Convention and anti-torture laws.
posted by fingers_of_fire at 2:26 PM on March 30


That's kind of like a tautology. The underlying issue is whether the US was complying with those statutes. Those advising the president believe they were. In fact, that was the point of all this "advice." So the issue is going to come down to what is considered torture (again, the point behind all this advice). That is a political question because at its essence is a question of a political treaty. There is no such thing as international law as such. This is all based on treaties, and treaties that are not explicit and do not partake of the prolixity of a legal code.

So the question is a political one. To what extent can a signatory to a treaty be liable for violation of same based on a disagreement as to what the treaty covers.

Two nations of the size and relationship of the US and Spain are not going to destroy their relationship over a perceived disagreement about the contours of a treaty. If anything, they need to politically revise the treaty to resolve the issue in the future.
posted by dios at 12:37 PM on March 30, 2009 [4 favorites]


That should be "treaties" instead of "statutes". Sorry.
posted by dios at 12:38 PM on March 30, 2009


Best we can hope for is a Kissinger-style "Can't ever step foot in THAT country again!" situation

You mean a Kissenger-style "Can't ever step into that country again without that country ending up apologizing profusely for an international incident" situation?
posted by Pollomacho at 12:39 PM on March 30, 2009


Yes, I'm sure they can wear any indictments as a "badge of honor", and write best selling books, but I doubt they'd ever get confirmed by the senate again.

Afaik, Garzon's court answers only one question : Is there enough evidence for an indictment that these men aided & abetted torture? So we're only talking about possible indictments, but they'll never be convicted since they'll never stand trial. I suppose the victims of torture might use the same evidence for a civil case in the U.S. or abroad too.

Fyi, Obama has an one clear constructive retort to any Spanish indictments. Just explore & indite old Spanish men who committed murder & torture under Franco's regime. So more bad press for right wing loons all around.
posted by jeffburdges at 12:39 PM on March 30, 2009


Why would it destroy us relations? Last I checked, the entire government was in the hands of democrats who would seem to have a vested interest in members of the opposing party being prosecuted for war crimes. In fact, it's probably better that it's being initiated over seas so they can appear to be forced by events to launch an investigation themselves to get to the bottom of these allegations. I would not be surprised to find out that the judge got some form of signal from the us that it was ok to proceed.

Why wait until now? There was plenty of evidence before. The reason is probably that the new administration doesn't object to it.
posted by empath at 12:41 PM on March 30, 2009 [1 favorite]


Jonathan Turley makes an impassioned case for prosecuting alleged torturers.
posted by homunculus at 12:41 PM on March 30, 2009


Let's not forget that these were not actions of the "US Government". These were the actions of a corrupt criminal conspiracy which happened to be headquartered in the white house.
posted by empath at 12:48 PM on March 30, 2009


dios:
The doctrine of universal jurisdiction says that when someone commits an international crime, like war crimes or crimes against humanity, and the state that would normally have jurisdiction over the crime fails to take action to prosecute him, any state may take jurisdiction over the matter in its internal courts. Usually this applies only where the prosecuting state finds the accused in its borders as specified in, for instance, Convention Against Torture Art. 6, but I suppose the Spanish courts are getting ready for the eventuality.

In this case, John Yoo gave legal advice that allowed his employer to commit a war crime - torture of prisoners of war. This is itself a war crime. John Yoo was a co-perpetrator; he knowingly made an essential material contribution to a criminal enterprise that actually resulted in the commission of a crime. Even in the United States, lawyers are not exempted from criminal sanction when they knowingly use their knowledge of the law to advance the perpetration of a crime. That's why lawyers for the mafia can find themselves charged with crimes. What Yoo did is no different from a mob lawyer helping his employer find creative ways to commit crimes. This can result in disbarment under the ethics canons as well. We're not talking about malpractice here, which is a civil concept.
posted by 1adam12 at 12:50 PM on March 30, 2009 [9 favorites]


I disagree, dios.

These opinions deal with torture, not contract law. US law is clear that you're not allowed, as an attorney, to give shaky legal advice that leads to torture. As Scott Horton put it, "one Nuremberg case forms the key precedent: United States v. Altstoetter, also called the Reich Justice Ministry case. That case stands for some simple propositions. One of them is that lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong."

Yoo managed not to cite Youngstown, even though that's the leading case on this issue (and he knows it).
posted by ibmcginty at 12:50 PM on March 30, 2009 [4 favorites]


Spain moves to begin trial against Bush-era officials.
posted by adamvasco at 12:59 PM on March 30, 2009


As a non-lawyer can I ask what maybe a silly question? Why would Yoo's citations of US case law (or in this case a lack of citation) matter when answering the question of "Did these parties violate the terms of international agreements on torture"

Wasn't the Yoo argument not "this isn't torture" but rather "you can approve torture because you are the c-in-c and you think the US is under threat"

I.e if Yoo gave bad legal advice in the context of US law - why is that neccessarily a violation of international law? Aren't the real criminals (to use a loaded term when I don't mean to) the people who actually approved the torture?

(trying to imply I have no view on any of this other then to say I wish it were someone other then Garzon who were doing this only given his track record as a bit of a crusader (which is not to say Pinochet et al shouldn't have been prosecuted)- wouldn't it be better if it were Sweden or someplace like that who did this)
posted by JPD at 1:00 PM on March 30, 2009


Last I checked, the entire government was in the hands of democrats who would seem to have a vested interest in members of the opposing party being prosecuted for war crimes.

Because presumably those in charge are capable of thinking above a sub-idiot level of thought evident in the blogorrhea that is promoting this as a good thing. I assume they can put the national interest in front of their narrow partisan ones. I presume they are self-aware enough to beware of whom the bell tolls. And I hope they are clever enough to realize that Obama has not completely abandoned the policies of the Bush administration at issue here.

The doctrine of universal jurisdiction says that when someone commits an international crime, like war crimes or crimes against humanity, and the state that would normally have jurisdiction over the crime fails to take action to prosecute him, any state may take jurisdiction over the matter in its internal courts.


Couple of points: there is no such thing as international law as such. "The doctrine of universal jurisdiction" to the extent it exists, is something that is only agreed to by way of political treaty.

John Yoo gave legal advice that allowed his employer to commit a war crime - torture of prisoners of war. This is itself a war crime.

No, he gave leval advice that what his employer was doing was NOT a war crime.

Lawyers are not exempted from criminal sanction when they knowingly use their knowledge of the law to advance the perpetration of a crime.

Again, you are assuming your conclusion: that they thought that what they were doing was illegal. The entire point of the advice was "This is legal."

These opinions deal with torture, not contract law.


Torture is a meaningless term outside of the treaty at issue.

US law is clear that you're not allowed, as an attorney, to give shaky legal advice that leads to torture.

That sentence is just made up.

United States v. Altstoetter

Has no application here.

The same logical error is being committed over and over and over in the analysis here. Many of you are assuming the conclusion: that they knew what they were doing was torture and illegal and that the advice they were giving permitted actions in violation of the Geneva Convention. Rather the advice that consistently given was that certain actions were either allowed or not prohibited by the Geneva Convention. There is no advice which says, "This shit here is totally against the Geneva Convention, but I say you can do it anyhow." If that is the case, then the arguments being made have merit. But that's not the facts. We have a political disagreement about the meaning of the treaties at issue.
posted by dios at 1:07 PM on March 30, 2009 [5 favorites]


> Are you really saying that the United States bears more than zero responsibility for the Madrid bombings? What an utterly preposterous claim.

Utterly preposterous? Well argued, sir! Case closed.

But seriously, what part of this chain of events:are you attempting to refute?
posted by Brak at 1:09 PM on March 30, 2009 [3 favorites]


Oh no! Surely we can't prosecute war criminals! People might write sternly worded letters! Perhaps even in the Washington post!

My point wasn't that they shouldn't be prosecuted at all, it was that the fallout of prosecuting them ourselves wouldn't be as bad as the fallout of allowing them to be prosecuted overseas. The last line of this post:

If America won’t have a Truth Commission maybe someone else will have to kick start it for them.

is very true. Up until now, the current administration going after the former might be interpreted as revenge or whatever. But if faced with the choice of trying them here or letting them get tried there, the former suddenly becomes much or palatable. People will still be angry about not taking the third option - letting everyone walk - but the only argument they'll have left is that they "did nothing wrong."

And I'm also not saying its all a bunch of cowardly bullshit. I'm just talking some inside baseball.
posted by cimbrog at 1:13 PM on March 30, 2009


Bad legal advice is illegal. It's called legal malpractice. . . . But think about it: If you have a lawyer telling you that something is legal when in fact it's not legal, and you do it, you don't think the lawyer who said it was legal should be at fault? Not at all?

Nice strawman. Obviously the reciever of the advice has a remedy but never a third party. It is the difference between a civil wrong and a crime. Ever. Garzon is not a party to any legal advice given, so he lacks standing.

Cheney did not legally implement anything. He has no right. As our current Administration has pointed out, the VP has one constitutional duty, to break ties in the Senate.

Bush should be the target here. He richly deserves it.
posted by Ironmouth at 1:14 PM on March 30, 2009 [2 favorites]


You forgot Poland.
posted by Pollomacho at 1:15 PM on March 30, 2009


Here's a shocker: delmoi running his mouth and making claims about things he doesn't know about.

Legal malpractice is not "illegal." You don't go to jail for it. Seeing as how you admit you don't know about it, it would probably be wise to not correct Ironmouth who does.


Since you don't go to jail for copyright violation, it's not illegal? And not only that, you don't go to jail for speeding either so it must be legal! That will really cut down my commute! Thanks for your stunning legal analysis, Dios!

Also, I don't know if you realize this but different countries have different standards for what their jurisdiction is. Many countries claim universal jurisdiction. It's intresting how you often seem to try to apply U.S. law to cases in other countries, I noticed you doing that in a copyright thread. I suspect this is because you're dumb. But either way U.S. courts have no problem prosecuting people for torture that took place in other countries.

Furthermore, some of the prisoners in Gitmo were Spanish citizens, which is why this particular court feels it has jurisdiction.

Anyway, the idea that anyone would take you seriously on legal matters is kind of hilarious, you're wrong quite a bit and usually back down or try to retroactively change your arguments.
posted by delmoi at 1:18 PM on March 30, 2009 [4 favorites]


But seriously, what part of this chain of events:
Bush administration requests Spanish goverment involvement in (illegal) Iraq war.
Sapnish government complies with its ally by lending troops/resources to the Iraq war.
Atocha station bombings of March 2004 carried out in retaliation for Spain's involvement in Iraq war


Much as I hate Bush, I hate terrible argumentation even more. The fact that the Iraq war was illegal and that Spain helped us does not make the US responsible for the terrorist acts of others. I am certain you are not arguing it was a legitimate response to Spain's assistance to the US to bomb innocent civillians on a train.

The US is not responsible for those bombings. A terrorist cell was responsible. You are not helping the good guys with illogical claims like this.
posted by Ironmouth at 1:18 PM on March 30, 2009 [1 favorite]


Torture is a meaningless term outside of the treaty at issue.

The War Crimes Act specifically links to the Geneva Convention.
(c) Definition.— As used in this section the term “war crime” means any conduct—
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
posted by Kirth Gerson at 1:18 PM on March 30, 2009


But seriously, what part of this chain of events...are you attempting to refute?

Your Honor, you should have seen how short her skirt was! And it's her friend's fault, too, for going out drinking all night with her!
posted by oaf at 1:20 PM on March 30, 2009 [1 favorite]


Anyway, the idea that anyone would take you seriously on legal matters is kind of hilarious, you're wrong quite a bit and usually back down or try to retroactively change your arguments.
posted by delmoi at 3:18 PM on March 30


That's cute. Accuse me of backing down. Usually I just quit responding to you because I realize that you do not understand what you are talking about and are only commenting out of your compulsive need to comment ad nauseum on every single post on this website. That's not backing down. It's just getting sick of correcting your gross misstatements of anything that has to do with the law. Just like I'm not going to waste my time pointing out the silliness of the rest of your last comment.

But I do have one question: how does HIPAA apply to this one, wise one?
posted by dios at 1:24 PM on March 30, 2009 [3 favorites]


Cheney did not legally implement anything. He has no right. As our current Administration has pointed out, the VP has one constitutional duty, to break ties in the Senate.

What Cheney's constitutional role was is kind of irrelevant here, the president delegated this stuff to him. Your argument makes as much sense as saying none of the Nazis except Hitler should have been responsible for their crimes, since he was the only one with ultimate legal authority.

There are three separate issues "giving advice", "carrying out orders" and "giving legal cover". I can see how giving advice shouldn't be a problem, but if you are instrumental in actually implementing those ideas, then you should be liable. If you say that a certain action is legal, and provide legal cover, then you should be liable.
posted by delmoi at 1:25 PM on March 30, 2009


Also, I don't know if you realize this but different countries have different standards for what their jurisdiction is. Many countries claim universal jurisdiction.

OK, we've got a lot of problems. First, criminal discovery is nothing like the civil discovery that people are thinking of when they talk about these things. So there's not going to be a whole bunch of depositions or the like.

Second, a Spanish Court cannot enforce criminal jurisdiction in the US. How would it do so? Send over Spanish Police to seize classifed documents? Seize the defendants? These would be acts of war, literally. Garzon can ask for the cooperation of US authorities, he can ask for extradition, but the US Supreme Court would, IMHLO, rule this a political question, which is an uncognizable claim under US law. So there would be zero discovery in this case.
posted by Ironmouth at 1:27 PM on March 30, 2009 [2 favorites]


That's cute. Accuse me of backing down. Usually I just quit responding to you because bla bla bla...

It's not just me. There are entire threads full of arguments where you make some unsupportable claim and then when it's pointed out that that claim is bullshit you just end up arguing some other claim. Often it's tangential to the actual thread, and it's a huge waste of everyone's time.

I mean, do you hold the Bar in Spain? No? Then what the hell do you know about Spanish law and why do you feel qualified to opine about what kind of jurisdiction the courts have there? On this topic you certainly can't claim any more knowledge then any other random internet poster.
posted by delmoi at 1:28 PM on March 30, 2009


So -- Yoo is in the clear because he only gave bad advice?

That's cool. I can live with that. Given that it clearly means Bush, Cheney, Rice, Rumsfeld, Powell, and a whole bunch of Agents, Soldiers and Contractors who listened to that advice and then CHOSE to violate 18 USC 2340 are wholly responsible for their actions.

Getting bad legal advice isn't a defense, is it? Remember that whole "Ignorance of the Law is no excuse" thing?
posted by mikelieman at 1:29 PM on March 30, 2009


> Much as I hate Bush, I hate terrible argumentation even more.

I wasn't attempting to argue for US responsibility in the Madrid bombings; I don't believe adamvasco was either, in his original comment. I read it more as a rationale for Spain's vested interest in the prosecution of the people responsible.

I guess it would have been more appropriate to dismiss oaf's entire statement, as in, No, I don't think he was saying that the United States bears more than zero responsibility for the Madrid bombings.
posted by Brak at 1:30 PM on March 30, 2009 [1 favorite]


Nobody's going to agree to jurisdiction, so there will be zero discovery in this case.

JARRING CHORD

NOBODY expects the Spanish jurisidiction.
posted by hal9k at 1:30 PM on March 30, 2009 [13 favorites]


“So the issue is going to come down to what is considered torture (again, the point behind all this advice). That is a political question because at its essence is a question of a political treaty.”

This is true. Looking at the mechanics of the situation it is a political question. But politics is a human convention. Torture – and we can settle on some things that are definitely torture, and I will say waterboarding most certainly is – is an inhuman act.
The origin of the terms ‘beyond the pale’ or ‘outlaw’ are based in a given individuals acts that are so extreme they warrant being placed outside the law.
I would say that those who gave the orders to torture – whether they adhered to some statute or other or not – have placed themselves outside the protection of the law and the embrace of humanity.
They should be prosecuted whether they violated treaties or not. This is a political question, and it is of the gravest type – it asks – how are we to proceed?
Let’s clarify what were ultimately asking here, and that is – given the overwhelming economic and military force of the United States – will we bend to expediency when we question whether something is or whether someone has tortured?
That’s what were asking as humanity at this point in time. Politically – can a powerful enough group torture? That is if they’re powerful enough that we must so bend to what is expedient we actually rethink what has already been codified? Rethink what constitutes ‘torture’?
Now most of you are saying the more practical elements of this, that it’s not going to accomplish much, that this is the way the ball lay and the best play is thus and so, that this may be rocking the boat too much, causing too much trouble over something that’s not going to come to pass anyway. And maybe I’m not going to contest those points.
But I don’t have to fucking like it.

I’m glad someone brought up Nuremberg. Now, let’s face facts, if the Nazis won, if they occupied Europe and say took out Britain, we’d likely have fomented a guerilla war in the U.K. and depending on the intensity and tempo over the last 50-odd years and a wide number of other variables (and whether Captain America got unfrozen) they would have collapsed sooner or later – but the trials would never have happened simply because of the enormity of the task and the resistance involved.
I find the situation with the U.S. basically the same. We’re not addressing the torture question, we’re quailing at the enormity of the task.
Got something better to do than resist torture do we? A more noble cause comes to mind than preventing future torture and coverup and perhaps even genocide?
Because that’s the task at hand. It’s the same animal. And the mechanisms – secrecy, coverup, opaque power and distorted language – are the same. These are the tools of the enemy. Not some vague enemy in some foreign land. The bad guys aren’t the bad guys because they wear different colored uniforms – they’re the bad guys because they kill in shadows, torture, cover it up and bully people into lies and distortions. That’s why they’re the enemy. And they’re not simply the enemies of the U.S. or some vague ideals or economic system. They’re the enemies of humanity. Reason enough to try isn’t it? Damnit, it’s reason enough to do that.
posted by Smedleyman at 1:30 PM on March 30, 2009 [8 favorites]


OK, we've got a lot of problems. First, criminal discovery is nothing like the civil discovery that people are thinking of when they talk about these things. So there's not going to be a whole bunch of depositions or the like.

Who said there would be? Presumably, the victims of torture may testify in court.

Second, a Spanish Court cannot enforce criminal jurisdiction in the US. How would it do so? Send over Spanish Police to seize classifed documents? Seize the defendants?

Why would they need to? A lot of this stuff is out there in public records. Yoo's memos, for example, have largely been declassified. As far as enforcement goes, Yoo wouldn't be able to travel to Spain.
posted by delmoi at 1:31 PM on March 30, 2009


What Cheney's constitutional role was is kind of irrelevant here, the president delegated this stuff to him. Your argument makes as much sense as saying none of the Nazis except Hitler should have been responsible for their crimes, since he was the only one with ultimate legal authority.

Actually, no. It is totally relevant. Cheney has no power to order anything. Anything. People did what he said in terms of handing him information, or leaking information to the press, but he does not have the power to order agents of the executive branch to do anything to citizens or non-citizens. Cheney cannot give a legal order to anyone to torture anyone. Only Bush can. Now Cheney can be the power behind the throne and push Bush to do dumb shit, but he is not the responsible official in the eyes of US law. And for this case to go forward, the US courts are going to have to do the heavy lifting. Bush gave every order and signed off on every one of them. This is really basic fourth amendment law.
posted by Ironmouth at 1:31 PM on March 30, 2009 [1 favorite]


They should be prosecuted whether they violated treaties or not. This is a political question, and it is of the gravest type – it asks – how are we to proceed?

A political question is outside the jurisdiction of US courts. This is 1st year con law stuff. As basic as you get. The US courts will have to go along for this to work. They will not.
posted by Ironmouth at 1:33 PM on March 30, 2009 [2 favorites]


Kirth Gerson: when I said "torture is meaningless outside" the Geneva Convention, my point was that if this Spanish Court is going to say "You violated the Geneva Convention because you committed torture" one has to answer the question of "what actions constitute torture under the Geneva Convention?" This requires you to look at the Geneva Convention, which is a treaty signed by the United States, among others. The United States has to answer the questions of whether it applies in a particular instance and whether it prohibits certain conduct. So the inquiry is when the treaty applies and what it prohibits.

The dispute here is whether a particular set of facts falls under the treaty and whether certain conduct is prohibited. So its purely a question of the application of the treaty.

The charge cannot be "you committed torture." It has to be "you violated this treaty."
posted by dios at 1:34 PM on March 30, 2009 [1 favorite]


violate 18 USC 2340 are wholly responsible for their actions.

Yes. That would be the proper mechanism to prosecute someone. If anyone committed an act in violation of 18 U.S.C. s 2340, then prosecute away in a United States federal court.

But the rest of this is just politics gone mad.
posted by dios at 1:38 PM on March 30, 2009 [1 favorite]


That's cool. I can live with that. Given that it clearly means Bush, Cheney, Rice, Rumsfeld, Powell, and a whole bunch of Agents, Soldiers and Contractors who listened to that advice and then CHOSE to violate 18 USC 2340 are wholly responsible for their actions.

This is exactly what I'm trying to say, except Cheney is out of that loop. Rice and Powell as well. But the people who actually committed the acts are on the hook. The advisors are not. Nor should they be. They should be hated, shunned, ostracized, but they are not responsible. But those who gave direct orders and those who followed those illegal orders are responsible.

Getting bad legal advice isn't a defense, is it? Remember that whole "Ignorance of the Law is no excuse" thing?

First, "ignorance of the law" refers to published code. Yoo was writing on constitutional issues where there is a lot of uncertainty. I disagree with his analysis, but I don't see how what he said Bush could do was "illegal." You'll have to back that one up a lot more.
posted by Ironmouth at 1:39 PM on March 30, 2009 [2 favorites]


Yes. That would be the proper mechanism to prosecute someone. If anyone committed an act in violation of 18 U.S.C. s 2340, then prosecute away in a United States federal court.

But the rest of this is just politics gone mad.


When the United States Attorney's are violating their oaths, and can be seen to be aiding and abetting the alleged felons by not presenting the case for indictment to a federal grand jury, isn't international oversight appropriate?

The US Attorneys HAD THEIR CHANCE, and chose to drop the ball.

I'm glad *someone* appears to care about the Rule of Law. If it's the Spanish Inquisition, that's even more crazy -- but here we are.
posted by mikelieman at 1:41 PM on March 30, 2009


Gonzalo Boye, the Madrid lawyer who filed the complaint, said that the six Americans cited had had a well-documented role in approving illegal interrogation techniques, redefining torture and abandoning the definition set by the 1984 Torture Convention.

Yoo had no authority to "approve" anything. He was asked to provide a legal opinion. He did. He did not approve, nor order anything.
posted by Ironmouth at 1:42 PM on March 30, 2009 [1 favorite]


This is exactly what I'm trying to say, except Cheney is out of that loop. Rice and Powell as well. But the people who actually committed the acts are on the hook.

MAYBE for violations of 18 USC 2340, however the liability for choosing to violation 18 USC 1001 and 18 USC 371 *certainly* still exists.

What we have here is a situation where the United States Attorneys are aiding and abetting these alleged felons by violating their own oaths.

When the people RESPONSIBLE for holding alleged felons accountable -- don't -- what other remedies exist?

I'm still disgusted that a foreign court is more interested in enforcing the Laws of the United States than United States Attorneys...
posted by mikelieman at 1:45 PM on March 30, 2009 [1 favorite]


First, "ignorance of the law" refers to published code. Yoo was writing on constitutional issues where there is a lot of uncertainty.

I'm not talking about Yoo. I'm talking about Bush -- who listened to bad advice, and then chose to violate US Law anyway.

BUSH has not pass on this. Bush's ignorance of the Law is no excuse.
Bush's receipt of bad legal advice doesn't relieve Bush of personal responsibility for acts -- even though based on that advice.
posted by mikelieman at 1:47 PM on March 30, 2009


When the United States Attorney's are violating their oaths, and can be seen to be aiding and abetting the alleged felons by not presenting the case for indictment to a federal grand jury, isn't international oversight appropriate?

Aiding and abetting? Prosecutorial discretion is unfettered. Aiding and abetting generally requires three elements: 1) an underlying violation by a principal; 2) knowledge of that violation and/or the intent to facilitate the violation; and 3) assistance to the principal in the violation.

Here, we have no assistance to the principal in the violation. Post-violation, we have a decision you don't like. That doesn't mean that the US Attorney is an "aider and abbettor."

A lot of people on the blue want the law to say what will faciliate a particular outcome. That is inherently a non-legal point of view. The law must be orderly and applicable universally.
posted by Ironmouth at 1:48 PM on March 30, 2009 [3 favorites]


isn't international oversight appropriate?

No. The United States is sovereign and its laws is the Supreme Law of the Land. No international authority has claim to a citizen of this country.

What we have here is a situation where the United States Attorneys are aiding and abetting these alleged felons by violating their own oaths.

You keep saying this. Do you have any evidence of this? Or are you taking your assumption that "torture was done" and then imputing this conspiracy based on your assumption?
posted by dios at 1:48 PM on March 30, 2009 [2 favorites]


When the people RESPONSIBLE for holding alleged felons accountable -- don't -- what other remedies exist?

None. This is the law of the United States. We don't get to retroactively go back and change that, whether we'd like to or not.
posted by Ironmouth at 1:49 PM on March 30, 2009 [1 favorite]


The charge cannot be "you committed torture." It has to be "you violated this treaty."

It absolutely can be the former. Spain (apparently) claims jurisdiction over torture cases occurring outside its borders where the victim is a Spanish citizen. That's what occurred here.

U.S. law can't deny a Spanish court jurisdiction under Spanish law.
posted by oaf at 1:51 PM on March 30, 2009


You keep saying this. Do you have any evidence of this?

Please keep in mind, that I'm not just talking about 18 USC 2340s prohibition against torture.

They're *also* allegedly guilty of violating 18 USC 1001, and 18 USC 371 -- and of that -- there are perhaps 60 contributing acts and over a dozen Overt Acts I can name.

But pick up a copy of Elizabeth de la Vega's book instead. She lays out the case for indicment on 18 USC 371 quite clearly, and although she limits her discussion to 371, the same acts apply to 1001, too.

Now, what do we call a United States Attorney who has sufficient evidence for indictment but chooses not to present the case to a Grand Jury?
posted by mikelieman at 1:52 PM on March 30, 2009


1) an underlying violation by a principal; 2) knowledge of that violation and/or the intent to facilitate the violation; and 3) assistance to the principal in the violation.

Obstruction of Justice seems appropriate in this context, doesn't it?
posted by mikelieman at 1:56 PM on March 30, 2009


In this case, John Yoo gave legal advice that allowed his employer to commit a war crime - torture of prisoners of war. This is itself a war crime. John Yoo was a co-perpetrator; he knowingly made an essential material contribution to a criminal enterprise that actually resulted in the commission of a crime. Even in the United States, lawyers are not exempted from criminal sanction when they knowingly use their knowledge of the law to advance the perpetration of a crime. That's why lawyers for the mafia can find themselves charged with crimes. What Yoo did is no different from a mob lawyer helping his employer find creative ways to commit crimes.

Respectfully, I must disagree. Mob lawyers commit crimes when they assist their clients in evading the law via legal advice. They know the law and they advise others to take actions which might escape the letter of the law.

Here, we have a government lawyer giving advice on what the law is. Bush did not need this advice to engage in the course of conduct that he took. Yoo did not say "do X, Y and Z to commit an illegal act in a way which will evade the law." Yoo said "these are legal acts." Such advice, while wrong in my opinion, is not giving advice on how to break the law, it is advice as to what the law is. Nor is Yoo's advice binding on the courts. Therefore it did not assist in any crimes.

Put another way, Bush's ability to order these actions stems from his constitutional duties as president, not from John Yoo's statement that Bush could, in Yoo's opinion, legally take the actions Bush did.

If you could cite the ethics rule (Prob. DC Bar rules) which Yoo could be disbarred under, I'd like to see it.

Second, these were not prisoners of war. They are common criminals. They are not covered by the Geneva convention. They were covered, in my opinion, by US law and should have been afforded the rights of criminal defendants in the US. Any torture claim is under US criminal and civil law, not international law. They are going to have a hell of a time saying that these persons are prisoners of war. For what state were they fighting? They are criminals and should be treated as such.
posted by Ironmouth at 2:04 PM on March 30, 2009 [3 favorites]


Now, what do we call a United States Attorney who has sufficient evidence for indictment but chooses not to present the case to a Grand Jury?

You do understand that this happens in the US hundreds of times per day, right?
posted by Ironmouth at 2:06 PM on March 30, 2009 [2 favorites]


MAYBE for violations of 18 USC 2340, however the liability for choosing to violation 18 USC 1001 and 18 USC 371 *certainly* still exists.

18 U.S.C. s 1001? Really? Having personally defended individuals for alleged violations of this statute, I have to say your interpretation is wrong.

Let's look at the text of the statute:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.
(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.
(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to—
(1) administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or
(2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.


On the part of John Yoo, where is the falsifcation or material misrepresentation? Yoo believed that what he was saying about US law was true. Of that there is no doubt.

Second, where is the matter? "Matter" in this case means case or hearing or other issue before a legislative, executive or other agency investigating or prosecuting a crime. Matter does not mean general legal advice given in a case.
posted by Ironmouth at 2:13 PM on March 30, 2009 [1 favorite]


Dios, assume that as a lawyer a client came to you and asked, "How can I legally kill my neighbor, who annoys me?", and you took the question seriously, did research, and provided your client with a scenario such that he could kill his neighbor, and avoid prosecution (or if prosecuted, not be found guilty) due to some relevant technicality. Perhaps under the law the killing could be made to have the appearance of an accident. Perhaps sufficient provocation could be manufactured to justify an assault, and that assault could be of a nature such that the body of precedent cases indicate that your client should not be found guilty for it.

And then your client went ahead and murdered his neighbor, and because you were such a great lawyer, your plan worked. Are you a good lawyer or a bad one? Should you be prosecuted? You haven't "conspired to commit" the murder, you've merely provided advice as to how the murder can legally be committed.

Let's take it a step further, where you're not actually just a lawyer, but have a position of significant influence over the future course of the law. Where your opinions aren't just arguments that a court might or might not accept, but statements of the policy that the executive branch wishes the courts to follow. Despite the ideal of separation of powers in the US, the idea of a Republican judge, who might be strongly inclined to give effect to Republican policy, or a Democrat judge, is not unheard of. Since you don't just report on the law, but partially create it, should you be held to a higher level of responsibility for the effect of your creations?
posted by aeschenkarnos at 2:13 PM on March 30, 2009


Kudos to Garzon for finally sticking it to human rights abusers in China Iran Sudan Saudi Arabia Russia... oh wait.
posted by Krrrlson at 11:50 AM on March 30


yay we are marginally better than saudi arabia and the sudan

gold stars for everyone
posted by Optimus Chyme at 2:15 PM on March 30, 2009 [1 favorite]


Your Honor, you should have seen how short her skirt was! And it's her friend's fault, too, for going out drinking all night with her!

An argument by analogy is inapropriate here. The actual controlling laws, constitutions and treaties are the appropriate way to argue this matter.
posted by Ironmouth at 2:17 PM on March 30, 2009 [1 favorite]


Dios, assume that as a lawyer a client came to you and asked, "How can I legally kill my neighbor, who annoys me?", and you took the question seriously, did research, and provided your client with a scenario such that he could kill his neighbor, and avoid prosecution (or if prosecuted, not be found guilty) due to some relevant technicality.

There are no relevant technicalities which would justify a murder. Indeed, were such a technicality to exist, the advice would not be aiding and abbetting a crime at all, it would be advice which legally allows a person to kill another without punishment. Since no such legal exceptions actually exist in American law, your example is inapposite.
posted by Ironmouth at 2:19 PM on March 30, 2009 [2 favorites]


Despite the ideal of separation of powers in the US, the idea of a Republican judge, who might be strongly inclined to give effect to Republican policy, or a Democrat judge, is not unheard of. Since you don't just report on the law, but partially create it, should you be held to a higher level of responsibility for the effect of your creations

If judges were to be held criminally responsible for their decisions, the legal system would be destroyed.
posted by Ironmouth at 2:21 PM on March 30, 2009 [3 favorites]


Actually, no. It is totally relevant. Cheney has no power to order anything. Anything. People did what he said in terms of handing him information, or leaking information to the press, but he does not have the power to order agents of the executive branch to do anything to citizens or non-citizens.
He may not have had the formal authority, but it's pretty obvious that he had informal authority. I just don't understand why you think someone should get off the hook for telling someone "torture this person!" just because they may not have had the legal authority to demand that the person do it. Mafia dons don't have any legal authority to order anyone what to do, but they're still responsible for the crimes they request people to do. If you want to call it a "request" that's fine, but obviously there could be career consequences for people who refused the requests, or it may be that those people really wanted to torture and Cheney just gave them the excuse. Either way, the fact that he didn't have a formal constitutional ability to order people around means that he should escape punishment for being involved in a criminal conspiracy.

When he told people to do things, he said he was acting on behalf of the presidency, not the vice presidency, but he was still involved.
Now Cheney can be the power behind the throne and push Bush to do dumb shit, but he is not the responsible official in the eyes of US law.
And this is happening in Spain.
I disagree with his analysis, but I don't see how what he said Bush could do was "illegal." You'll have to back that one up a lot more.
You don't see how it could be 'illegal' for a president to order the crushing of a person's testicles? Really?
No. The United States is sovereign and its laws is the Supreme Law of the Land. No international authority has claim to a citizen of this country.
International authorities can claim whatever they want. Their rulings may have no meaning here in the U.S. but they will apply in the areas that they govern.

Spain has jurisdiction under Spanish law because some of the victims were spanish.
posted by delmoi at 2:21 PM on March 30, 2009 [1 favorite]


An argument by analogy is inapropriate here.

Not at all. Perhaps you should reread what my comment was responding to; you appear confused.
posted by oaf at 2:24 PM on March 30, 2009


If judges were to be held criminally responsible for their decisions, the legal system would be destroyed.

Really? Then how come two Pennsylvania judges were put in prison last month? yeah, yeah they were taking bribes (quite horrifcally, they were bribed to send as many teenagers to private prisons as they could)

But anyway, judges are often criminally liable internationally when they are involved in war crimes. But, I don't think anyone is talking about judges in this specific case.
posted by delmoi at 2:25 PM on March 30, 2009


PRINT IT OUT AND HANG IT PROUDLY - YOU EARNED IT!!
posted by Optimus Chyme at 2:33 PM on March 30, 2009 [4 favorites]


On the part of John Yoo, where is the falsifcation or material misrepresentation?

Nowhere. I'm not talking about Yoo exclusively.
posted by mikelieman at 2:36 PM on March 30, 2009


Ironmouth There are no relevant technicalities which would justify a murder.

Hmm, I seem to vaguely recall the existence of something called "self-defense" or "defense of another", on which people have been known to be acquitted of murder charges from time to time. But perhaps I'm wrong about that.

If it makes you happier, replace "technicalities" with circumstances which cause outcomes exceptional to the ordinary course of the law to be taken".
posted by aeschenkarnos at 2:37 PM on March 30, 2009


“A political question is outside the jurisdiction of US courts. This is 1st year con law stuff. As basic as you get. The US courts will have to go along for this to work. They will not.”

Not relevant to my argument. The Spanish are looking into investigating. They should investigate. Enough countries get on board with this, there would be enough power to perhaps influence U.S. officials to work on this as well. Political will should be generated from the grassroots up. I’m no fucking lawyer, but I’m pretty sure the law is there to serve us as a tool, not cut our legs out from under us if we want to seek justice. I’m not arguing ‘how.’
We’re getting into matters of sovereignty here. If the U.S. tortures some guy from Afghanistan, can Spain take an interest on behalf of humanity? I think they should. As it so happens one of the guys was from Spain. Will it bust balls politically speaking? Yeah, probably. And Spain might not want to risk that. But they should. In fact, every country in the world interested in justice and liberty – hell the whole U.N. given the declaration of human rights – should condemn the members of the Bush administration who engaged in and/or ordered torture. Ok, it won’t have much legal bearing – so the fuck what? The objective is not, this early in the process, to have the prosecution’s case laid out for them whole, the objective is to get the ball rolling to start with. Public sentiment. Political will. All that. Hell, we don’t even have a snowball yet much less the avalanche of support necessary and all I’m hearing is “Oh, you can’t do that because RU9125 says blah blah blah.”
Screw that noise. And screw ‘can’t.’ So what, we just let torturers walk because they said “hey, maybe this isn’t torture”?
Sure, one can argue whether torture in the abstract is political or where jurisdiction lies. But once someone in the chain of command starts putting someone to the screws, the policy has been executed and the act is a reality.
The law as it stands, no, I’m not qualified to argue that, but I’m not arguing that.
Someone’s human rights have been violated – recognize that and everything else becomes an exercise in how best to remedy it, that’s all.
posted by Smedleyman at 2:57 PM on March 30, 2009 [2 favorites]


After reading this thread, and hearing all the lawyers arguments and explanations as to why this will not work, I am left to wonder: What good is a legal system that refuses to recognize and punish evil on this scale? And how can anyone defend this system with a straight face?
posted by theroadahead at 3:24 PM on March 30, 2009 [7 favorites]


theroadahead: A better question is, what good is a legal system that turns on questions of politics, which are inherently populist? Such a legal system, by its nature, cannot protect the rights of minorities. Examples of such "legal" systems include medieval witch-hunts and ultra-fundamentalist Taliban Sharia courts.

It is the strength of a democracy that it changes regimes without throwing the former regime in jail. You can have the people as a check on power, or you can have fear of how the next Commander in Chief will treat you as your check on power, but you can't have both. And only one, throughout all of history, has worked to promote peace and liberal pluralism.
posted by jock@law at 3:35 PM on March 30, 2009 [1 favorite]


What good is a legal system that refuses to recognize and punish evil on this scale?

Well, in relative terms, this is fairly small potatoes.
posted by electroboy at 3:40 PM on March 30, 2009


It is the strength of a democracy that it changes regimes without throwing the former regime in jail.

But what about circumstances where the former regime is blatantly criminal, and the new one doesn't even deign to investigate? Where is the strength there?
posted by theroadahead at 3:41 PM on March 30, 2009 [1 favorite]


And if you would be so good as to point me to the place they're keeping all this peace and liberal pluralism . . . .
posted by theroadahead at 3:43 PM on March 30, 2009


Hey look, it's a thread where people who have no problems with finding legal loopholes for torturers argue with people who still have souls.
posted by mullingitover at 4:03 PM on March 30, 2009 [1 favorite]


It is the strength of a democracy that it changes regimes without throwing the former regime in jail.

If the former regime has committed crimes, then shouldn't they be thrown in jail?

We're talking accusations of murder and torture here, not unpaid parking tickets.
posted by empath at 4:03 PM on March 30, 2009 [1 favorite]


Scared Cheney puts his head in the noose
posted by homunculus at 4:13 PM on March 30, 2009


> Not at all. Perhaps you should reread what my comment was responding to; you appear confused.

Well I certainly am. Your first comment was a straw man, and your second comment (in response to mine) was some sort of tortured, faulty analogy or red herring, or both. I'm honestly not sure what your point is.
posted by Brak at 4:31 PM on March 30, 2009


Second, these were not prisoners of war. They are common criminals. They are not covered by the Geneva convention.

You're wrong.
Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
posted by Kirth Gerson at 4:57 PM on March 30, 2009


This reminds me of one of my favorite Metafilter comments.
posted by Flunkie at 5:36 PM on March 30, 2009


Ironmouth: "Second, these were not prisoners of war. They are common criminals."

That is one assertion. I assert that they are all 100% innocent, and without a trial you don't have a shred of evidence contradicting this. None of us do. What we are faced with is a government which shredded the constitution right in front of us and dared us to do anything about it. Our response to this was to do nothing, and some of us become indignant when the world at large tries to take action on behalf of humanity itself. You can offer rationalizations like the one above, but they're hollow and you know it. What would you actually do if the government simply suspended the constitution and enacted a campaign of Chile-style murder and torture? My guess is you'd keep rationalizing ("They were common traitors"), as you are now.
posted by mullingitover at 5:36 PM on March 30, 2009 [2 favorites]


Hey look, it's a thread where people who have no problems with finding legal loopholes for torturers argue with people who still have souls.

Why is it that people mistake an understanding of the actual law and legal system and a willingness to try to explain it for condoning misbehavior/deplorable acts? Guess what, one can understand the actual law that applies in these situations and discuss it while at the same time believing it is insufficient for the case in point and should be changed. Law is mutable. Understanding the way law works is not necessarily condoning what is allowable under law, for chrissakes. It is possible to have a legal discussion about these issues and how they relate to the current law while at the same time feeling the acts in question are despicable without actually frothing at the mouth and getting the pitchforks ready. In other words it is possible to have strong emotion while at the same time maintaining one's reason.
posted by spicynuts at 6:11 PM on March 30, 2009 [3 favorites]


Actually, no. It is totally relevant. Cheney has no power to order anything. Anything.

Outside of the VP's constitutionally granted powers, as a member of the executive branch the VP can have more authority granted by the president. If the president says the VP can engage in X, then the VP is liable for X if X violates the law.

Cheney cannot give a legal order to anyone to torture anyone. Only Bush can.

Unless the president gave Cheney and his office the authority to do so. The president is allowed to delegate powers to subordinates. Ultimately the responsibility rolls uphill, but if the president gave the VP the power to issue orders, the VP and the president are both accountable.
posted by ryoshu at 6:20 PM on March 30, 2009


Props to Garzón, he made Pinochet's last years a lot more unpleasant than they could have been, and made him afraid to set foot outside of Chile to go collect and spend his ill gotten moneys.
Here's hoping Bushie is sweating a little bit right now.
posted by signal at 6:30 PM on March 30, 2009


Sometimes efficacy and morality are not congruent.

Pick your side and be done with it for fuck's sake and quit pretending it's anything else.
posted by digitalprimate at 6:31 PM on March 30, 2009


Ironmouth There are no relevant technicalities which would justify a murder.

Hmm, I seem to vaguely recall the existence of something called "self-defense" or "defense of another", on which people have been known to be acquitted of murder charges from time to time. But perhaps I'm wrong about that.

If it makes you happier, replace "technicalities" with circumstances which cause outcomes exceptional to the ordinary course of the law to be taken".


There comes a point where stretching the bounds of reality to create a hypothetical damages your argument more than supports it. A hypothetical which relies on a lawyer advising a client to get into a confrontation where they allow themselves to be threatened to the point of needing to kill for self-defense in order to commit a murder is one which doesn't prove anything.
posted by Ironmouth at 6:33 PM on March 30, 2009


Cheney cannot give a legal order to anyone to torture anyone. Only Bush can.

Unless the president gave Cheney and his office the authority to do so. The president is allowed to delegate powers to subordinates. Ultimately the responsibility rolls uphill, but if the president gave the VP the power to issue orders, the VP and the president are both accountable.


You can bet that the one person in the Bush Administration farthest from giving a direct order to torture a person is Dick Cheney.
posted by Ironmouth at 6:36 PM on March 30, 2009


Second, these were not prisoners of war. They are common criminals. They are not covered by the Geneva convention.

You're wrong.


You have cited incorrect authority from the Geneva Convention:

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

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.

B. The following shall likewise be treated as prisoners of war under the present Convention:

1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

2. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

Article 5

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

posted by Ironmouth at 6:41 PM on March 30, 2009


You can bet that the one person in the Bush Administration farthest from giving a direct order to torture a person is Dick Cheney.

But that's not your original contention. If the president gives the VP authority to make a decision on an issue, the VP can be held responsible for that decision even if the president ultimately has to sign off on it (accepting the unitary executive theory or not). Otherwise we are stuck in a situation where only the president is responsible for the actions of subordinates, not the subordinates themselves.
posted by ryoshu at 6:46 PM on March 30, 2009


Your first comment was a straw man

False. adamvasco claimed that U.S. actions directly resulted in the Madrid bombings; given that the bombers weren't American or hired by the U.S., this is provably false; the U.S. (and any other country, for that matter) is not responsible for the actions of unaffiliated terrorists.

your second comment (in response to mine) was some sort of tortured, faulty analogy or red herring, or both

Or, as the case is, neither. You're trying to shift the blame from where it justifiably lies, with the terrorists who actually carried out the Madrid bombings, and shift it to the U.S. through Spain's involvement in the Iraq invasion. This is not legitimate.

(Furthermore, it's not really a great tactic to throw out random, inapplicable characterizations of other people's arguments as some sort of attempt to debunk them right out of the gate.)
posted by oaf at 6:56 PM on March 30, 2009 [1 favorite]


But that's not your original contention. If the president gives the VP authority to make a decision on an issue, the VP can be held responsible for that decision even if the president ultimately has to sign off on it (accepting the unitary executive theory or not). Otherwise we are stuck in a situation where only the president is responsible for the actions of subordinates, not the subordinates themselves.

My original point was that Addington, Cheney and Woo gave advice only. There isn't a scrap of evidence in any public record that any of them were granted the authority to directly order torture. If they did so, they are as culpable as anyone else. They explored options, and gave justifications. This is not criminal behavior, it is political behavior. Reprehensible political behavior, but not criminal behavior.

The same might not be said for Bush.
posted by Ironmouth at 7:15 PM on March 30, 2009


That is one assertion. I assert that they are all 100% innocent, and without a trial you don't have a shred of evidence contradicting this. None of us do. What we are faced with is a government which shredded the constitution right in front of us and dared us to do anything about it. Our response to this was to do nothing, and some of us become indignant when the world at large tries to take action on behalf of humanity itself. You can offer rationalizations like the one above, but they're hollow and you know it. What would you actually do if the government simply suspended the constitution and enacted a campaign of Chile-style murder and torture? My guess is you'd keep rationalizing ("They were common traitors"), as you are now.

My response was to vote against the motherfucker. Twice.

Seriously, personally attacking me and telling me how you think I would react to hypothetical future suspensions of the constitution isn't helping your case.

I'm a lawyer and I'm trying to tell you what the criminal law of the United States says and what the impact of this investigation is likely to be, based on my personal experience and legal training, given the ability of Spanish courts to enforce their jurisdictional claims. The fact that my legal analysis doesn't comport with your personal desires does not make it wrong. I'm making zero moral arguments here, I'm telling you what will happen from a legal standpoint. If you don't like it, I'm sorry, but this is just my legal opinion.
posted by Ironmouth at 7:25 PM on March 30, 2009 [3 favorites]


America's President and elected official does not himself yet have the courage of conviction to do the right thing...

This is all just a hunch on my part, but I think that if we weren't in the middle of our banking system crash-landing like one of the test cars in a Mythbusters episode and spewing flaming rubble everywhere, America's president may be doing something different.

And I'm not entirely being flip. Part of what drove Clinton's term into the toilet was that he was tied up in this endless pointless stupid legal wrangling about what did or did not happen in the Oval Office and whether it did or did not have anything to do with Whitewater and etc. etc. etc., and because so much of his attention was focused on that, he couldn't get anywhere near as much done as he wanted to do, but them's the breaks.

Thing is, we were on relatively secure and stable enough footing that we could afford to have the breaks shake down that way. Our economy was fairly okay, there was no more Cold War, so we could waste time dicking around with all of that.

Today is different. My hunch is that Obama realized that if he did try to do anything about Bush right now, it'd take way too much energy away from resolving the financial crisis, and no one knew how long resolving it could take so who knew whether he ever would have a chance to take care of Bush, so...he prioritized. So it strikes me that accusing our president of having no courage of conviction because of this, given the current state of the nation, is kind of like accusing the firemen of being artistic philistines because they got water on your Picasso while they were trying to put out your house fire.

Also, maybe he knew that this kind of thing was on the horizon, so he figured letting someone else handle it would let him concentrate on the more pressing matter at hand. Or he thought an international censure would be more damning.

I'll grant you I don't know any of this for certain, but I'd certainly buy those theories for a dollar...
posted by EmpressCallipygos at 7:47 PM on March 30, 2009 [2 favorites]


Someone’s human rights have been violated – recognize that and everything else becomes an exercise in how best to remedy it, that’s all.

The law's chief handicap is its strength--it must itself follow the rules. It means that we should not act only on what we would like, but in ways which follow pre-established rules. We harm what we intend to serve when we use it to punish legal advice or political conduct we dislike. Certainly the current administration is going to find out who did what. But it is the US legal system's job to take and our laws say that political and legal advice is not prosecutable by law. Indeed, there is no statute that specifically forbids the giving of illegal legal advice. Instead, such advice is criminalized only when taken and only as conspiracy. Codes of ethics rightly forbid the giving of illegal advice, but the criminalization of legal and political advice strikes at the very heart of our system and even if wielded righteously in this one instance, presents grave opportunities for future abuses.
posted by Ironmouth at 8:48 PM on March 30, 2009


It is the strength of a democracy that it changes regimes without throwing the former regime in jail
But you can have radical shifts in policy without violations of law or human rights. In our case we still we had civil war. And political assassinations. Like any other empire.
I always thought the strength of our democracy was in its treatment of the minority and adherence to principle, or at least its ability to return to principle and the foundation institutions which protect civil liberties against the tyranny of the masses and the machinations of the powerful.
If the former regime is not thrown in jail, those principles will have been violated and those protections will have been stripped. And they will remain stripped. Until either another regime comes along to take advantage of that or until they are redressed in another manner not quite so civil.
I don't relish either case. But I can assure you if there's blood to be let, it will be on my hands doing the latter in preventing the former.
And that too, is the strength of a democracy.

Guess what, one can understand the actual law that applies in these situations and discuss it while at the same time believing it is insufficient for the case in point and should be changed. Law is mutable.
I think it's that last sentence that's been contested in some quarters. It's not really relevant - to some discussions - whether the law says one thing or another or is on the books a certain way. Whether it is or it isn't - if torture is done, it's wrong and should be prosecuted. You can't let such a grievous injustice stand just because were unclear what the law says or should say or who should or shouldn't prosecute it or what not. Hey, there's no law on the books for detonating the moon. Huh. I guess Dr. Von Sinister and his Doomsday machine walk...this time. 'Cos boy, we're gonna rectify the law covering destruction of extra-planetary bodies. If, y'know, we survive the massive seismic upheavals and constant bombardment by meteors.
(Hey, nothing in the rules say a dog can't play basketball!)

You can bet that the one person in the Bush Administration farthest from giving a direct order to torture a person is Dick Cheney.
*spittake*
Look, I get the difference between what you're saying is "political" and "criminal." I do. But you (et.al.) are mistaking policy making for policy execution. One need not give direct orders to influence policy. We all know that. Want to cast this as political - so be it. But policy makers must be held accountable in small part for punishment for the crime but mostly to prevent leadership from taking a similar course again.
So many genocidal bastards skate, because the defense argues, hey, he didn't pull the trigger on every single person. He didn't give direct and explicit orders to rape and murder everyone in that village.
Well, that's the whole key - no one does. The evidence is always hidden. Covered. Orders are always oblique. The Nazis covered it up so well there are still a few shitheads who think they didn't do it.

So, I present - Dr. Wilhelm Stuckart. Did not kill one Jew. In fact, he actively campaigned (in private) against genocide (granted, based on bureaucratic problems, but still...).
The only real evidence we have Hitler was involved in the Final Solution came from witnesses, like Stuckart, who said Hitler gave "secret" and "unwritten" orders.
So how did the Jews get on the trains if Hitler didn't give open orders? If there's no evidence? One could say the same - mechanically speaking - about Cheney.
Well, we all know the reality of the political situation.
And so did the folks at Nuremberg who were empowered to prosecute 'inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.'

So Stuckart, who was just a lawyer really (although he held rank in the SS), just a representative for the interior minister, only giving legal advice really, was prosecuted at Nuremberg for war crimes. More or less a light slap on the wrist really, but still - he was prosecuted. In crimes against humanity it isn't relevant what the laws are domestically.
And it shouldn't (IMHO).

Additional Protocol one to the Geneva Conventions recognizes high ranking government officials (like Dick Cheney) as having policy command and so having command responsibility.
That includes failure to prevent the commission of crimes by subordinates.
But if Cheney did do an end run around the White House, that's even more damning.
Hell, I count his defense of the use of torture as abetting the crime after the fact. That's not a legal term, but we all damn sure know what he means and he's still a formidably powerful man with a great deal of influence. Granted he's not a member of the government anymore, but I'd hold him accountable - 13 of the directors of IG Farben were convicted of war crimes at the Nuremberg trials.
But did they order the torture?
We think so, we may even have very strong suspicions, and they may well be accurate, but the simple fact is we don't really *know*.
And we don't really know quite a bit. In my estimation, that's the most serious crime. Especially in a democracy.
Even if it's fruitless to pursue as a matter of law, the investigation will do a world of good.
posted by Smedleyman at 9:16 PM on March 30, 2009


Indeed, there is no statute that specifically forbids the giving of illegal legal advice.
Tangential to what I'm arguing, but still - see Dr. Stuckart. Operating at a certain level, you're making policy. Wielding that level of influence does not come without a price tag. I'll certainly grant your point however that Joe Lawyer gives 'x' advice, even to the president, he has to know he's not going to be prosecuted simply for being wrong about his take on the law.
But do we know where their involvement in policy making and political influence begins and ends?
As I said, just a matter of inquiry. If Yoo's involvement was no more than legal advice I'd cede to your point.
posted by Smedleyman at 9:23 PM on March 30, 2009 [1 favorite]


[comments removed - quit it with the scumbag namecalling, thanks]
posted by jessamyn at 9:56 PM on March 30, 2009


Let's be very clear. Bush did not blow up the moon. Nor did he kill six million jews. Bush ordered several people to be treated in a way which I would describe as torture. Some of his advisors believed that such policies did not amount to torture. The conduct in no way compares to the conduct of anyone in the Holocaust. Thus, the situation is not one where the very laws which we are saying Bush violated should be thrown aside to go after people who did not give orders.
posted by Ironmouth at 10:08 PM on March 30, 2009


theroadahead: A better question is, what good is a legal system that turns on questions of politics, which are inherently populist? Such a legal system, by its nature, cannot protect the rights of minorities. Examples of such "legal" systems include medieval witch-hunts and ultra-fundamentalist Taliban Sharia courts.
Oh, those poor beleaguered tortures. The most oppressed minority!
It is the strength of a democracy that it changes regimes without throwing the former regime in jail.
Not if the former regime committed a bunch of war crimes.

Also I don't get why so many of our fine legal minds in this thread keep bringing up U.S. law when they're talking about a court case in Spain.
My original point was that Addington, Cheney and Woo gave advice only. There isn't a scrap of evidence in any public record that any of them were granted the authority to directly order torture.
Again, for like the millionth time, they gave legal advice that was used to justify torture. I don't see why they shouldn't be liable for it, in fact I think they should be. Everyone involved in the planning and execution should be liable, not just the person at the top with ultimate 'authority' The memos that Yoo wrote are enough to convict him in my mind.
The law's chief handicap is its strength--it must itself follow the rules.
Yeah, and in Spain they follow Spanish law. Don't know why that's so hard to comprehend.
posted by delmoi at 10:37 PM on March 30, 2009


Yeah, and in Spain they follow Spanish law. Don't know why that's so hard to comprehend.

Because the Spanish court is never going to get discovery in the case as you asserted above.

Not to mention that the court isn't trying to enforce Spanish law. It is trying to enforce international law and claiming it has jurisdiction everywhere to do so.


Plus 5 bucks says that if Cheney is tried in absentia and convicted or is indicted, he shows up there for a visit hoping to get arrested. This would not help Obama at all.
posted by Ironmouth at 11:16 PM on March 30, 2009


Good to read all the lawyers weasling away upthread. Interesting stuff. However this as they say is an hecho. A done thing. There will be an investigation by Spanish Judicary. No one expects for a moment that their will be any extradictions to Spain ex USA. However Spain has many friends and the Court of International Law has 164 signatories.
Scenario: Hey John want to pop down to Costa Rica for some fishing this weekend - ugh sorry they might arrest me. - Oh, well how about Cabo then - No . Sorry. same shit. Or as our highly paid consultant we want you to go talk with our partners in Europe. Oh can't travel? Why are we employing you? etc. Also this will further open the cans of worms on the late criminal US administration.
Oaf ( well named, obviously from your nordic heritage) The Spanish people do not blame the american people for anything except perhaps misjudgement in voting in that pack of crooks in the first place. However they remember oppression and human rights abuses in their recent history. No Iraq war, No Spanish Involvement. No Atocha bombing.
But this is more about officially sanctioned torture of Spanish citizens by a foreign power. Spain can claim jurisdiction in the case because five citizens or residents of Spain who were prisoners at Guantánamo Bay have said they were tortured there. The five had been indicted in Spain, but their cases were dismissed after the Spanish Supreme Court ruled that evidence obtained under torture was not admissible. There will also probably be further investigation about how they got to Guantanamo and what other "transit" prisons they passed through together with the legalities of all this.
posted by adamvasco at 12:48 AM on March 31, 2009


Second, these were not prisoners of war. They are common criminals. They are not covered by the Geneva convention.

You're wrong.

You have cited incorrect authority from the Geneva Convention:

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons...


Which way do you want it? First, you say "these were not prisoners of war," then you tell me I should have cited the part of the Convention that defines prisoners of war, rather than the broader definition of who is covered.

Obviously, you enjoy arguing contrary points of view, which is probably a good quality for a lawyer, but don't be insulting our intelligence by talking through your hat.
posted by Kirth Gerson at 3:21 AM on March 31, 2009


well named, obviously from your nordic heritage

Nordic heritage?

...anyway, in case there's confusion: I do not object to the Spanish investigation, even though very little is likely to come of it. I do object to the assignment of blame to the United States where unaffiliated persons are actually solely to blame.
posted by oaf at 4:33 AM on March 31, 2009


From OED (concise) oaf - stupid person; awkward lout [orig=elf's child, var of obs. auf f. ON álfr elf]
posted by adamvasco at 5:45 AM on March 31, 2009


That explains nothing, adamvasco.
posted by oaf at 6:14 AM on March 31, 2009


"Bush did not blow up the moon. Nor did he kill six million jews. Bush ordered several people to be treated in a way which I would describe as torture."

Those alleged criminal acts in violation of 18 USC 2340, in addition to his alleged violation of 18 USC 1001 and 18 USC 371 are MORE than enough for a DOJ who sent Tommy Chong away for selling bongs -- and Martha Stewart away for fibbing WHILE NOT UNDER OATH or anything, and Marion Jones for lying to congress ( exactly like Bush, Cheney, Rice, Rumsfeld, Powell et al did... )

See why I hold the DOJ and US Attorneys specifically in such low regard?

Turns out David Iglesias *was* one of the Few, Good Men and *HE'S* back at Gitmo trying to unravel that mess ( which, is either a sign of progress -- or a convenient way to get him out of the way... I'm *still* not sure... )

Or I could be wrong. Perhaps there are 2 sets of "Law" One for all of us ____ , and another for "Our Betters".

America -- Feh.
posted by mikelieman at 6:48 AM on March 31, 2009


Oh, and CHENEY can't dodge by claiming he was giving a LEGAL opinion, can he? Last time I checked he wasn't admitted to the Bar. Could be wrong though -- anyone know for sure?
posted by mikelieman at 6:50 AM on March 31, 2009


"Today is different. My hunch is that Obama realized that if he did try to do anything about Bush right now, it'd take way too much energy away from resolving the financial crisis"

Oh, is that the reason? I hadn't realized all the FBI and DOJ's resources to enforce the Laws of the United States were tied up pursuing those who committed financial fraud.
posted by mikelieman at 6:54 AM on March 31, 2009


There is no such thing as international law as such. This is all based on treaties

That the United States has argued that the prohibition against torture has not yet reached the state of customary international law does not mean that the concept of jus cogens is a figment of law professors' imaginations.

As for universal jurisdiction, you may want to start with an introductory text, dios. I recommend starting with the historical approach to piracy and working forward from there. In the meantime, you might want to stop stating your uninformed opinions here as fact. In exchange, I promise to say not word one about tort reform, about which I know equally little.

Or shall we all go out and get an eye exam from our foot doctors? Good professionals know their limitations.
posted by Durn Bronzefist at 7:00 AM on March 31, 2009


well, certainly several mefites here (looking at dios and ironmouth) make a compelling case for the legally quixotic position of the spanish court. but i'm still going to throw my lot in with the camp that is encouraging them to go ahead and tilt at this windmill.



(btw, yoo advised me that this comment does not constitute torture of a metaphor.)
posted by barrett caulk at 8:01 AM on March 31, 2009 [1 favorite]


Durn, you took my quote entirely out of context and then made some snark about it. Care to refute my statement on its own terms? Treaties are what is at issue. There is no international law outside of that relevant to this inquiry. There are certainly those who argue for substantive international law, but it does not exist, nor could the United States recognize it if it did. If you think there is something wrong with any of those claims, I'd appreciate you making a refutation instead of arguing some point that I'm not making.

"As for universal jurisdiction," I made the claim that to the extent it exists as claimed in this case in order to permit the prosecution of these crimes under the Geneva Convention, it exists only to the extent of the treaty. The court can claim universal jurisdiction, and it can try and prosecute individuals in its court as it sees fit. But to the extent that the effect of the ruling has any effect beyond the actual jurisdiction of the court, the court claiming universal jurisdiction again has to rely on treaties regarding international enforcement of rulings or extradition. Your point with respect to piracy does not any way contradict the point I made here.

I'm at a loss as to what you think you refuted about what I said. Sounds to me like you read some wikipedia article and fired off some ill-formed snark based on terms you saw therein, because they really do not contradict or refute anything I said here.

But then, that is why I so often tire of these threads and leave because of how people who don't know what they are talking about continually making stupid points or patently incorrect characterizations of a legal point of view, as has been done with what I said and what Ironmouth said, despite our efforts of making very straightforward points about the law. And what do we get for making substantive arguments? We get insulted and have ad hominem attacks against us. It really is a disincentive to making a substantive legal point.
posted by dios at 8:13 AM on March 31, 2009


Because presumably those in charge are capable of thinking above a sub-idiot level of thought evident in the blogorrhea that is promoting this as a good thing.

Quoting just as evidence of your own gratuitous ad-hominem attacks and lowering of the dialogue, you obnoxious troll.
posted by empath at 8:23 AM on March 31, 2009


Actually, as someone who works in international law day in and day out, I saw you as someone asserting authority while making sweeping statements to people who don't know enough to question them. Again, your thoughts on whether or not substantive international law "exists" are fascinating, but your point of view is in the minority. That argument is not about whether or not jus cogens exists, but what it contains.

You are quite right, however, that this particular claim is made on the basis of treaty law and that confines the possible outcomes of the claim. The conversation here however is also about the wider topics involved, so when I see a statement that international law does not exist outside of treaty law, you're the one who is left looking like he just came back from a Wikipedia article.

Perhaps you were simplifying for a broad audience, but there is simplification and there is error.
posted by Durn Bronzefist at 8:26 AM on March 31, 2009


Actually, my original post was no doubt somewhat inflammatory, but it's a personal peeve of mine when professionals step outside of their chosen specialty and continue to speak with any authority. I tread lightly on cases like these because my particular sub-specialty deals with some of the same treaties, but not often the same cases. And that is why I generally stay out of these threads.
posted by Durn Bronzefist at 8:36 AM on March 31, 2009


Durn, I'm glad you find my views fascinating and in the minority. I would disagree with you. But disagreement is one thing. Barreling in here and talking to me like I'm an idiot who has never heard of international law is another thing and it was unnecessary. (Incidentally, if you search Metafilter for the Law of Nations, jus gentium, or the law of Conquest, I wonder who you will find discussing those topics in the past).

Again, feel free to explain what you think is incorrect about what I said. But you mis-characterized my argument, bashed the strawman, and then respond by saying "you are right" but then accuse me of simplification to the point of error? If you have contributions to make to the discussion, I'm certain that you can engage in argument and disputation at the substantive level that are better than that.
posted by dios at 8:43 AM on March 31, 2009


(Incidentally, if you search Metafilter for the Law of Nations, jus gentium, or the law of Conquest, I wonder who you will find discussing those topics in the past).

delmoi?
posted by shmegegge at 8:56 AM on March 31, 2009


Actually, my original post was no doubt somewhat inflammatory, but it's a personal peeve of mine when professionals step outside of their chosen specialty and continue to speak with any authority.

And yet, those with absolutely no legal training who fire their mouths off? No peeve? You'd rather fire off at those who are offering an opinion that is at some level based on training and experience (though you clearly discount that level)?

Also, where did I "speak with authority"? I expressed my opinions, and I'm fairly certain I'm correct. But I never claimed authority. I just made a legal argument. I'm certainly no expert on the international enforcement of the Geneva Conventions, but very, very few people are. Maybe a dozen or so in this country. The issue just does not come up often enough to be a specialist. I do know and have experience enough with international law, jurisdiction, and constitutional law to form an opinion on the issue and express it. Its ridiculous to suggest that I am improperly "stepping outside my chose specialty" to offer an opinion, as if I'm offering a formal coverage opinion or something that would constitute practicing law. That's just absurd; these are just comments on a news story. And its even more absurd that you get more upset by that then the people who are stating the opinions without any understanding of law.
posted by dios at 8:59 AM on March 31, 2009


shmegegge, way to play the odds.
posted by dios at 8:59 AM on March 31, 2009


Again, They aren't prisoners of war, which was my point. Perhaps an argument could be made that they are covered by the 1949 Convention. However, I've always thought that the US made a huge mistake in labeling this whole thing a "war" on the terrorism side. On the supporting terrorists side, yes, but on the actual terrorists side, these people are best thought of as criminals, not soldiers. If there is no evidence linking them to a crime, then they should be released.

I think we should have straight up declared actual war on Afghanistan, knocked out the Taliban, and never have gone into Iraq.

But more importantly, how is Garzon helping anyone? Will his investigation lead to any convictions? No. Will it stop Cheney from going to Spain? No. Cheney will walk in there and move around with impunity, making Garzon look like a fool and putting Obama, who needs less trouble, not more, into a bind. Because if I was Cheney, if I was indicted, I would head straight to Madrid and walk around for a while. What are they going to do? Arrest him and set off a gigantic international incident? No. You can bet that they would not.

I will admit, I liked Garzon a lot more before I went to law school. Now that I know a lot more about the law, he's just a grandstander who really does nothing to help the actual victims. Did his Pinochet thing help a single victim get restitution? Was anyone convicted?
posted by Ironmouth at 9:36 AM on March 31, 2009


It is the strength of a democracy that it changes regimes without throwing the former regime in jail.

Democracy without any means of genuine accountability, whether that accountability is for a past administration or a present one, is not a democracy worth preserving--it's not even a democracy in any meaningful sense. I also note the poster's use of the word "regime." Unless it is being used in a pejorative sense, "regime" is a term one does not normally associate with democracy.
posted by ornate insect at 10:01 AM on March 31, 2009


Ironmouth: But more importantly, how is Garzon helping anyone?

Ironmouth (and dios), thanks for your contributions to the thread. There's two different questions here. One, are Bush and his advisors (including his legal advisors) guilty of war crimes? Two, is it prudent for an ally of the United States to pursue an investigation of Bush and his advisors for such crimes?

The first question is legal; the second is political. Hans Morgenthau describes the difference between the two:
The individual may say for himself: "Fiat justitia, pereat mundus (Let justice be done, even if the world perish)," but the state has no right to say so in the name of those who are in its care. Both individual and state must judge political action by universal moral principles, such as that of liberty. Yet while the individual has a moral right to sacrifice himself in defense of such a moral principle, the state has no right to let its moral disapprobation of the infringement of liberty get in the way of successful political action, itself inspired by the moral principle of national survival. There can be no political morality without prudence; that is, without consideration of the political consequences of seemingly moral action.
The need for prudence would apply to a political leader such as Obama or Zapatero. In the case of Garzon, though, I would think that his primary concern would be the first question: did Bush and his advisers commit war crimes, or not?

There's a long article by Philippe Sands--The Green Light, in the May 2008 Vanity Fair--which discusses the decision to use torture ("enhanced interrogation") at Guantanamo. Sands was able to get people like Douglas Feith to describe their role in surprising detail. He concludes:
... I visited a judge and a prosecutor in a major European city, and guided them through all the materials pertaining to the Guantánamo case. The judge and prosecutor were particularly struck by the immunity from prosecution provided by the Military Commissions Act. “That is very stupid,” said the prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country—one of the trip wires enabling foreign courts to intervene. For some of those involved in the Guantánamo decisions, prudence may well dictate a more cautious approach to international travel.
posted by russilwvong at 11:37 AM on March 31, 2009


where did I "speak with authority"? I expressed my opinions, and I'm fairly certain I'm correct.

That's fair. Though I think it is common knowledge that you practice so I think a higher level of caution is required when making apparently factual statements, especially when it comes to something as contentious as international law. I don't research MeFites' previous contributions (that would be creepy), though the frequency with which you wade into these debates lends you no credibility on its own (I expect you to dispute that you suggested anything of the kind, next). I freely admit I presumed ignorance of the subject matter from the statement that came of it. I agree that what constitutes torture will, for the time being, remain the province of legal instruments -- though it may not remain that way -- but as the prohibition itself is, at least, an emerging peremptory norm, the issue as to whether or not a state has committed a breach of international law is not simply a matter of "what article did we contravene?"

And yet, those with absolutely no legal training who fire their mouths off? No peeve?

Seriously? That would be a waste of annoyance. I only rarely step into a thread of this kind, to correct clearly factual errors that fall within my area of practice (note: I am not alleging that here) and am rethinking that policy (as in: why bother?). But everyone is entitled to an opinion, and when it comes to law, everyone has one.

Again, They aren't prisoners of war, which was my point. Perhaps an argument could be made that they are covered by the 1949 Convention.

If so, don't forget Art.5 of GCIII:

Art 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.


And now, if you'll excuse me, that was my lunch.
On preview, that was a great article, russilvwong, though the prosecutor's observation has been made before.
posted by Durn Bronzefist at 11:50 AM on March 31, 2009


"Thus, the situation is not one where the very laws which we are saying Bush violated should be thrown aside to go after people who did not give orders."

I think what's being argued is whether existing law applies, not that the law should be thrown aside. Bush did not kill millions of people no, but I make no distinction between the torture of one man and the torture of millions. Certainly it's a vast difference in magnitude, and certainly widescale torture and genocide is a solid reason to pick up a weapon and overthrow the government and disregard law whereas one may not be (at least to folks outside the friends and family of that one).
But you have had international courts looking at crimes against humanity. Therefore the law exists. Therefore the disagreement is over whether it applies.
Some folks are arguing it does. I tend to lean that direction, but I don't really know for certain. My argument is that it should. The crime is obvious. We shouldn't let matters of jurisdiction or other bureaucratic issues impede us. If the law doesn't exist to suit this situation - make one.
The point about the moon (and perhaps it's a hazard of the profession but you take metaphors entirely too literally Ironmouth) is that I don't believe there are any laws covering such an event. But were something like that to occur nations would react fairly swiftly to react to it and take the mad scientist into custody.
One can perform a similar thought-experiment with the resurrection of the dead for example. I'm not equating any acts by Bush with Dr. Frankenstein or Jesus Christ - I'm pointing to the elementary series of events that would follow from a heretofore unprescedented event.
Someone resurrects FDR, say. Well, there is more than just the spectacle to consider - what is his status as a citizen? How does it affect inheritance law, say?
Just illustrating that unprecedented events can be accounted for by law by making law - they're not simply ignored.
So too - whether what's happened with the Bush administration is unique in history or not. I'd argue not. But it's my point that it doesn't matter either way. One can work through the 'how' given the political will and without disregarding the law because we have so many precedents.

And currently there is no political will - in part I believe - because so many people are throwing up their hands. I can't believe this is not by design. And I strongly doubt this Gordian knot occurred without the benefit of legal counsel as to how to construct it.

"Again, They aren't prisoners of war, which was my point."
Saying that doesn't make it so. Anymore than the Bush administration saying they are. Or saying they're beyond the reach of law because they're at Gitmo. Or any other damned thing.

Look, let's call it what it is, they're kidnapped. The U.S. has made no bones about doing this as a matter of course. They were kidnapped, tortured and held without trial, presumably to be held indefinitely and all sorts of legal machinations were held to confound not only the actual seeking of justice, but any attempt to define the abductees and their legal status.

I reject the entire series of events here from initiation. You cannot go into a country, pull someone out of their house, fly them to one of your military bases and pull their fingernails out and tell the world to go to hell because you're going to keep them forever.

Terrorism is not some new unique thing. Ramzi Yousef who bombed the WTC in 93 was captured in a joint operation with Pakistani officials - with their approval and permission - was legally extradited, was tried in court, found guilty, sentenced and imprisoned.
Nothing about what the U.S. did there was questioned legally by the international community. Indeed, it was aided by world security forces.

It is not relevant to argue this legal bullshit after the fact. The U.S. had no legal authority in the first palce to hold someone indefinitely without trial forever and torture the hell out of them for the rest of their lives.
And if we do, you're damned right I'm going to tear those laws down.

The only argument here is how to go about stopping the torture from occurring in the future and to do that you have to pursue those who perpetrated it. If the law does get bruised it's not going to be the fault of those who pursue justice, it's going to be the fault of those who distorted it and used it as cover to lie and beguile people into somehow thinking torture is ok.

Not a world I'm going to allow to come to pass, let the heavens fall.
posted by Smedleyman at 12:00 PM on March 31, 2009 [1 favorite]


The individual may say for himself: "Fiat justitia, pereat mundus (Let justice be done, even if the world perish),"

I think the gist of my argument is that justice will not be done by Spanish courts because they lack the ability and will to actually put the defendants on trial. So this is all sound and fury, signifying nothing. Garzon will not make anyone pay, so I fail to see the purpose. The costs of such an action are also high, both in terms of practical handicapping of Obama and in the danger of criminalizing political advice.

Furthermore, charging Cheney and Woo and their ilk criminalizes political advice. Where such advice led to actions designed to purposefully evade acknowledged and undisputed law, then a charge would be appropriate. However, asserting that the power to engage in these actions was inherent in the presidency is not a crime. It is a statement of poltical belief, wrongheaded, but a statement of political and legal belief. Such statements, no matter how wrongheaded, should never be prosecuted, and present a danger that criminalization of political belief will be practiced by others when they are put into power.

Let me be clear. I despise the previous administration and worked for both their defeat and the defeat of those of their party who wanted to succeed them. But my personal beliefs about them do not and should not inform my belief about the right course of action in this case.
posted by Ironmouth at 12:14 PM on March 31, 2009


We shouldn't let matters of jurisdiction or other bureaucratic issues impede us. If the law doesn't exist to suit this situation - make one.

A law which proposes to punish persons for conduct actually legal at the time it was engaged in is unconstitutional on its face. They are called Ex Post Facto laws. Tyrants have ever used such laws to punish their enemies. Throwing aside our respect for due process and our traditions and founding laws because a single person did something none of us think was right is, to me, the essence of what the framers were trying to prevent when they wrote the Constitution.

Those who do not share our respect for law and order often throw aside such protections to assist them in thier grabs for power. We cannot let our justifiable anger guide us in deciding to throw aside the very protections that we rely on. If we can charge the highest magistrate in the land with ex post facto crimes, how can we hope to protect the powerless.

I'm not saying prosecutions should not be pursued against those who ordered torture or those who carried out such orders. I'm saying that this publicity-grabbing attempt by Garzon is not the way to go forward because it has no chance of success and will do nothing to rectify the situation. When the only thing a course of action has going for it is that it will partially satisfy our feelings, then we should be very careful in considering what we do.
posted by Ironmouth at 12:22 PM on March 31, 2009


Terrorism is not some new unique thing. Ramzi Yousef who bombed the WTC in 93 was captured in a joint operation with Pakistani officials - with their approval and permission - was legally extradited, was tried in court, found guilty, sentenced and imprisoned.
Nothing about what the U.S. did there was questioned legally by the international community. Indeed, it was aided by world security forces.

It is not relevant to argue this legal bullshit after the fact. The U.S. had no legal authority in the first palce to hold someone indefinitely without trial forever and torture the hell out of them for the rest of their lives.
And if we do, you're damned right I'm going to tear those laws down.


Defining Yousef as a prisoner of war makes him into a warrior. It legitimizes his actions as serving a cause which should be honored. I oppose this.

I have always been in favor of treating persons known to have engaged in terrorism as criminals. And that's who suffered the torture and extreme methods, given the facts we do know. Khalid Shiek Mohammed and his comerades were tortured. Mohammed was legally seized by the Pakistani government and turned over to the U.S. We screwed up when we waterboarded him and fatally poisoned our case against him by doing so. Had we treated him as a criminal rather than a person neither a criminal nor a prisoner-of-war, we would never have tortured him because it is illegal to torture criminals.

What concerns me the most is that in some ways, what you propose is that these people suffer the same extra-legal treatement as those that you propose to avenge. Bush's crime is that he felt that because these persons were so bad, that the regular rules should not apply to them. Cheney and his ilk were definitely felt, as you say, that "jurisdiction and other bureaucratic rules should not impede" them. When we refuse to follow our own laws with respect to Bush and his advisors, we make ourselves no better than them.
posted by Ironmouth at 12:35 PM on March 31, 2009


Calling them criminals is probably a stretch as well, since a crap load of these people were just random ass dudes. America, you done fucked up.
posted by chunking express at 1:23 PM on March 31, 2009


Defining Yousef as a prisoner of war makes him into a warrior.

Who did that? Smedlyman didn't. You keep tossing "prisoner of war" out as if it were required for the Geneva Conventions to apply. It isn't. I already excerpted the relevant part of the Conventions. All that's required is that the prisoner be held in connection with a war or occupation, and that he not be a national of the country holding him.
posted by Kirth Gerson at 1:25 PM on March 31, 2009


Ironmouth: Furthermore, charging Cheney and Yoo and their ilk criminalizes political advice. Where such advice led to actions designed to purposefully evade acknowledged and undisputed law, then a charge would be appropriate.

Isn't that the case here?

A long quote from the Sands article, describing Feith's role in Bush's decision that prisoners held at Guantanamo were not covered by the Geneva Conventions, including Common Article 3:
Cruelty, humiliation, and the use of torture on detainees have long been prohibited by international law, including the Geneva Conventions and their Common Article 3. This total ban was reinforced in 1984 with the adoption of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which criminalizes torture and complicity in torture. ...

[In January or February 2002, Feith] had gone to see Rumsfeld about the issue, accompanied by [JCS Chair Richard] Myers. As they reached Rumsfeld’s office, Myers turned to Feith and said, “We have to support the Geneva Conventions. If Rumsfeld doesn’t go along with this, I’m going to contradict them in front of the president.” Feith was surprised by this uncharacteristically robust statement, and by the way Myers referred to the secretary bluntly as “Rumsfeld.”

Douglas Feith had a long-standing intellectual interest in Geneva, and for many years had opposed legal protections for terrorists under international law. He referred me to an article he had written in 1985, in The National Interest, setting out his basic view. Geneva provided incentives to play by the rules; those who chose not to follow the rules, he argued, shouldn’t be allowed to rely on them, or else the whole Geneva structure would collapse. The only way to protect Geneva, in other words, was sometimes to limit its scope. To uphold Geneva’s protections, you might have to cast them aside.

But that way of thinking didn’t square with the Geneva system itself, which was based on two principles: combatants who behaved according to its standards received P.O.W. status and special protections, and everyone else received the more limited but still significant protections of Common Article 3. Feith described how, as he and Myers spoke with Rumsfeld, he jumped protectively in front of the general. He reprised his “little speech” for me. “There is no country in the world that has a larger interest in promoting respect for the Geneva Conventions as law than the United States,” he told Rumsfeld, according to his own account, “and there is no institution in the U.S. government that has a stronger interest than the Pentagon.” So Geneva had to be followed? “Obeying the Geneva Conventions is not optional,” Feith replied. “The Geneva Convention is a treaty in force. It is as much part of the supreme law of the United States as a statute.” Myers jumped in. “I agree completely with what Doug said and furthermore it is our military culture It’s not even a matter of whether it is reciprocated—it’s a matter of who we are.”

Feith was animated as he relived this moment. I remained puzzled. How had the administration gone from a commitment to Geneva, as suggested by the meeting with Rumsfeld, to the president’s declaration that none of the detainees had any rights under Geneva? It all turns on what you mean by “promoting respect” for Geneva, Feith explained. Geneva didn’t apply at all to al-Qaeda fighters, because they weren’t part of a state and therefore couldn’t claim rights under a treaty that was binding only on states. Geneva did apply to the Taliban, but by Geneva’s own terms Taliban fighters weren’t entitled to P.O.W. status, because they hadn’t worn uniforms or insignia. That would still leave the safety net provided by the rules reflected in Common Article 3— but detainees could not rely on this either, on the theory that its provisions applied only to “armed conflict not of an international character,” which the administration interpreted to mean civil war. This was new. In reaching this conclusion, the Bush administration simply abandoned all legal and customary precedent that regards Common Article 3 as a minimal bill of rights for everyone.

In the administration’s account there was no connection between the decision on Geneva and the new interrogation rules later approved by Rumsfeld for Detainee 063; its position on Geneva was dictated purely by the law itself. I asked Feith, just to be clear: Didn’t the administration’s approach mean that Geneva’s constraints on interrogation couldn’t be invoked by anyone at Guantánamo? “Oh yes, sure,” he shot back. Was that the intended result?, I asked. “Absolutely,” he replied. I asked again: Under the Geneva Conventions, no one at Guantánamo was entitled to any protection? “That’s the point,” Feith reiterated. As he saw it, either you were a detainee to whom Geneva didn’t apply or you were a detainee to whom Geneva applied but whose rights you couldn’t invoke. What was the difference for the purpose of interrogation?, I asked. Feith answered with a certain satisfaction, “It turns out, none. But that’s the point.”

That indeed was the point. The principled legal arguments were a fig leaf. The real reason for the Geneva decision, as Feith now made explicit, was the desire to interrogate these detainees with as few constraints as possible. Feith thought he’d found a clever way to do this, which on the one hand upheld Geneva as a matter of law—the speech he made to Myers and Rumsfeld—and on the other pulled the rug out from under it as a matter of reality. Feith’s argument was so clever that Myers continued to believe Geneva’s protections remained in force—he was “well and truly hoodwinked,” one seasoned observer of military affairs later told me.

Feith’s argument prevailed. On February 7, 2002, President Bush signed a memorandum that turned Guantánamo into a Geneva-free zone.
In short, Feith believed that terrorists shouldn't be protected against torture; he pushed aggressively for the United States to torture them; and he was successful. Is this not a war crime?

As Sands puts it:
The words “security reasons” reminded me of remarks by Jim Haynes at the press conference with Gonzales: “Military necessity can sometimes allow … warfare to be conducted in ways that might infringe on the otherwise applicable articles of the Convention.” Haynes provided no legal authority for that proposition, and none exists. The minimum rights of detainees guaranteed by Geneva and the torture convention can never be overridden by claims of security or other military necessity. That is their whole purpose.
posted by russilwvong at 1:27 PM on March 31, 2009


Calling them criminals is probably a stretch as well, since a crap load of these people were just random ass dudes. America, you done fucked up.

The vast majority of the people at Guantanamo were random ass dudes. They need to be released if there is no evidence of a violation of US law.

Yousef was taken before 9/11 legally. He isn't covered by Geneva. Mohammed was also taken legally in Pakistan by Pakistani ISI agents. Neither were seized as part of a "war." No hostilities were going on in Pakistan which could be considered a "war." They aren't covered by the 1949 convention in any way, shape or form. These are the persons whom we have credible evidence as to waterboarding and enhanced interrogation techniques.
posted by Ironmouth at 1:32 PM on March 31, 2009


Furthermore, charging Cheney and Woo and their ilk criminalizes political advice.

What's wrong with that? Should a Mafia consigliere be exempt from prosecution because all he did was give "advice"?

Anyway, you're arguments aren't even legal arguments anymore. You're just "well, it'll never work, they don't have the will, etc" And your statement that Cheney would just hop on a plane to Madrid and walk around is the dumbest thing I've ever heard. You have no idea what they are or are not willing to do, and for you to pretend otherwise is absurd.
posted by delmoi at 1:33 PM on March 31, 2009


Quick note thanking all who have participated in this thread. I am damn sure not a lawyer, interesting to read about this from the perspective of those of you who are lawyers.

Regardless I practice law or not, I believe that I have a pretty fair sense of right and wrong, of lies and chicanery and shucking and jiving to avoid responsibility for crimes committed. Many of you are lawyers, I'm just a furious citizen, outraged that 'the land of the free and home of the brave' has turned into 'the land of crazed fucking psychos and lying, thieving cowards who hide behind manipulation and big guns and bigger money'. While I am in fact awake, and I do know for a fact that America has never been all that we've pretended that we are -- Viet Nam was not a shining example of our fine love for humanity either -- these affairs are worse by far than any other that I have seen in the 54 years I have walked these streets and witnessed the scene.

And the fact of the matter is that what happened in these wars and in the runup to those wars and the fact of torture during and after those wars and a million Iraqis dead and no one knows or ever will know how many displaced -- all of this is a complete and total nightmare to anyone with a conscience. And lawyers can argue until the cows come home -- and I expect that they will do so -- but I hope and I pray that someday we will see these lying pieces of shit held to account and the countries which they have fucked in the ass in our name to be given back all of their resources and to have free access to ours, to boot.

Until this happens no one will ever trust our government again -- and that damn sure includes us US citizens -- and they are right in holding that position of distrust.

We are in here arguing this point and that point and one million innocents have been killed by our government, and our economy has been destroyed and the many of the proceeds handed over to Haliburton and GE and anyone else with a connection and their hand out. Twelve permanent military bases have been built in Iraq and four in Afghanistan to facilitate our continued plunder of their resources -- this whole thing is about oil and about the transfer of US wealth from the common weal to those with bloody hearts and hands. It's just vile.

The math: A bucket of blood for a barrel of oil.

A horror show.

That said, I do appreciate reading it through your eyes; thank you for taking the time to show us your view, for sharing with us your experience. Carry on!
posted by dancestoblue at 1:36 PM on March 31, 2009 [1 favorite]


Ironmouth: Yousef was taken before 9/11 legally. He isn't covered by Geneva. Mohammed was also taken legally in Pakistan by Pakistani ISI agents. ... These are the persons whom we have credible evidence as to waterboarding and enhanced interrogation techniques.

You don't mean the only persons, do you? The Sands article describes in detail the enhanced interrogation applied to Mohammed al-Qahtani at Guantanamo over 54 days from November 2002 to January 2003.
On the morning of Wednesday, January 15, [general counsel of the navy Alberto] Mora awoke determined to act. He would put his concerns in writing in a draft memorandum for Haynes and Dalton. He made three simple points. One: the majority of the Category II and III techniques violated domestic and international law and constituted, at a minimum, cruel and unusual treatment and, at worst, torture. Two: the legal analysis by Diane Beaver had to be rejected. Three: he “strongly non-concurred” with these interrogation techniques. He delivered the draft memo to Haynes’s office. Two hours later, at about five p.m. on January 15, Haynes called Mora. “I’m pleased to tell you the secretary has rescinded the authorization,” he said.

The abusive interrogation of al-Qahtani lasted a total of 54 days. It ended not on January 12, as the press was told in June 2004, but three days later, on January 15. In those final three days, knowing that the anything-goes legal regime might disappear at any moment, the interrogators made one last desperate push to get something useful out of al-Qahtani. They never did. By the end of the interrogation al-Qahtani, according to an army investigator, had “black coals for eyes.”
posted by russilwvong at 1:44 PM on March 31, 2009


You don't mean the only persons, do you?

Khatani was caught by Pakistani forces in Pakistan in December 2001. At no time during his captivity would Geneva apply, which was the point of my argument.

I think that we should have treated actual al-Qaeda persons captured as criminals, not as persons covered under Geneva. For the flotsam that represented the vast majority of those Bush tried to claim were dangerous, release is the obvious thing to do.
posted by Ironmouth at 2:08 PM on March 31, 2009


“A law which proposes to punish persons for conduct actually legal at the time it was engaged in is unconstitutional on its face.”

Torture was legal where? Kidnapping is legal where? The point being the policy had already been executed. They are advising on policy, yes legal matters regarding it, but policy nevertheless, and so, are making policy. This is what I'm talking about when I link command responsibility to policy making. If I kidnap a guy and I ask my lawyer if it's ok if I chainsaw his legs off and he tells me no, but fails to inform anyone that I've illegally abducted someone, it's going to be his neck. Same thing here. They were advising in situ not as a nebulous sort of thing on something that is manifestly inhuman. You can say "hey, I don't think torture is illegal" all you want. It's still torture and they're still a part of making that policy decision. Which is a crime against humanity. Sure, a political animal. But again - Dr.Stuckart, all that.

“I'm not saying prosecutions should not be pursued against those who ordered torture or those who carried out such orders.”
Then that’s the end of the story. We agree. Only dickering about 'how.' I don't care to discuss how. That's what sergeants are for.

“Defining Yousef as a prisoner of war makes him into a warrior. It legitimizes his actions as serving a cause which should be honored. I oppose this.”

Whether it should have been called as an IFF is SOLELY the judgment of the umpire. So there are two things that could have been true here:

1. The umpire did not judge that it met the criteria of an IFF, and chose not to call it. If so, then the play stands, end of discussion.

2. The umpire realizes after the fact that it should have been called an IFF. That leads to other issues.

“What concerns me the most is that in some ways, what you propose is that these people suffer the same extra-legal treatement as those that you propose to avenge.”

This is where it all breaks down. You can't retroactively remove the force when you called the play as a force. The purpose of the IFF rule is to prevent a cheap DP by the defense, since the runners would have to hold at their bases assuming the ball would be caught.
In this case, there was no cheap DP, the defense got one out. The offense was not put at any disadvantage because of the missed call, if it was a missed call (remember, it's a JUDGMENT call). Since this gave a 10 run margin, game was then called for the mercy rule. Arguments broke out and the umpire left the field as the game being over.

…what, if you’re not going to argue the point, I’m not going to either.
posted by Smedleyman at 2:21 PM on March 31, 2009


What's wrong with that? Should a Mafia consigliere be exempt from prosecution because all he did was give "advice"?

Please refrain from arguing straw men and analogies that don't fit the situation. A mafia consigliere who gives "advice" is furthering a criminal enterprise designed to violate the law. He is not providing advice as to what the law is. He is neither a lawyer nor a government employee charged with giving advice regarding the government's powers. A mob lawyer who advises his clients to use cut-outs, or advises them on how to give orders in such a way so as to make testimony regarding those orders inadmissable under the rules of evidence is violating the law. He is not trying to provide his clients with his opinion on law which is unclear. He is trying to provide advice regarding how to evade the law.

Yoo and his ilk are doing something different from a legal point of view. They are discussing the unclear aspects of the President's powers in regards to domestic law. Their advice did not help Bush commit illegal acts and evade the law. Bush's commission of illegal acts was not assisted by their opinions. Bush did not need those memoranda to order torture. They were advising Bush that the law allowed him to do those things. Their advice, was, in my opinion, wrong. But it did not facilitate the commission of a crime nor help in its cover up because Bush did not need their advice to physically assist him in acting criminally. If Yoo had written a memo which said "kill the torturers after they get done so that there are no witnesses and then there will be no prosecution under domestic or international law" then he would have been aiding and abetting criminal acts. His advice would have constituted both aiding and abetting and would have subjected him to bar penalties. The advice Yoo gave was wrongm, but does not consist of aiding and abetting because it did not help anyone actually commit a crime.

Put another way, if a mafia lawyer told his client that murder was okay, he would be liable for legal malpractice, but not aiding and abetting. Why? Because the opinion doesn't assist in the crime. For it to be illegal, something about the advice must be actually used in evading the law. Telling someone something is legal which is not does not constitute a crime. Otherwise, half the fools posting "legal advice" on AskMe would be in jail.
posted by Ironmouth at 2:32 PM on March 31, 2009


If I kidnap a guy and I ask my lawyer if it's ok if I chainsaw his legs off and he tells me no, but fails to inform anyone that I've illegally abducted someone, it's going to be his neck.

You are assuming your conclusion.

You are assuming that the conduct of Yoo, etc. was illegal at the time and that their advice was how to do illegal things.

Let me re-draft your analogy:

Suppose I want to surprise my girlfriend by blind-folding my girlfriend and taking her to a romantic dinner at Chez Expensive. If I ask my attorney and the advice is given: "assuming she consents to go along blind-folded, then you can do this because it does not run afoul of the kidnapping statute. Then I get home and just grab my her against her wishes, tie her into my car blindfolded, and in my excitement go flying off to Chez with her screaming all the way. After she calls the cops and I get arrested, her beef is only with me. That my attorney told me I could do it does not criminalize his actions because he did not advise me to do anything criminal.

That's a more accurate analogy. These people were consulted and presented with a question: we live in a world where there are multi-national terrorist organizations that are fighting our soldiers while we are engaged in military action; what can the commander in chief do with respect to the detainment of certain individuals? Don't get caught up on whether the question is perfectly phrased, because that is not the point. The point is that the question was "what can I do within the law and what does the law not cover?" In other words, "can I take my gf to Chez within the law and does the law cover blind-folded surprises?" The advice was given as to what the law is.

You might disagree with their conclusions and think their advice was wrong, but they had a basis for it and the substance was "if you do X, you are not in violation of a law."

We tend to favor the innocent until proven guilty model, and we do not make decisions regarding the application of laws by beginning at the assumption that illegality was done.
posted by dios at 2:40 PM on March 31, 2009


They are advising on policy, yes legal matters regarding it, but policy nevertheless, and so, are making policy.

Advising on policy and making policy are two different things here. The persons who advised Clinton that it would be OK to bomb that Sudanese factory in response to the African Embassy bombings was not making policy. Clinton was making policy by ordering the strikes.

This is what I'm talking about when I link command responsibility to policy making. If I kidnap a guy and I ask my lawyer if it's ok if I chainsaw his legs off and he tells me no, but fails to inform anyone that I've illegally abducted someone, it's going to be his neck. Same thing here.

This hypo is far more complex than you make it out to be. Let's take a look at the rule that would have applied to Yoo. DC Bar Rule 1.4(e)

(e) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the
lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law.


From comment 6 to that Rule:

[6] A lawyer is required to give an honest opinion about the actual consequences that
appear likely to result from a client’s conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action. However, a lawyer may not knowingly assist a client in criminal or fraudulent conduct. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.
[7] When the client’s course of action has already begun and is continuing, the lawyer’s
responsibility is especially delicate. The lawyer is required to avoid assisting the client, for
example, by drafting or delivering documents that the lawyer knows are fraudulent or by
suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a
client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient.


The point I'm making is that this is a far more complex situation than you make it out to be. Frankly, a failure of a lawyer to inform the police that a crime is ongoing is a violation of the Rules of Professional Responsibility, but it is not a crime. An attorney cannot implicate his client in a course of wrong doing unless he or she has actual positive knowledge that actual harm will come to another. If the harm has already occured and the course of conduct is over, the lawyer is specifically forbidden to tell the police what he knows. If you come to me and say you are a serial killer and I believe you, I cannot turn you in unless you tell me that you are going to kill John Doe tomorrow.

You may not like these rules, but there are plenty of good reasons why they exist. In law school and on the bar exam, you get dozens of these hypos. And you learn where the lines are, for the most part. It isn't like what people think though.
posted by Ironmouth at 2:54 PM on March 31, 2009


Ironmouth: Yoo and his ilk are doing something different from a legal point of view. They are discussing the unclear aspects of the President's powers in regards to domestic law. Their advice did not help Bush commit illegal acts and evade the law. Bush's commission of illegal acts was not assisted by their opinions. Bush did not need those memoranda to order torture. They were advising Bush that the law allowed him to do those things. Their advice, was, in my opinion, wrong. But it did not facilitate the commission of a crime nor help in its cover up because Bush did not need their advice to physically assist him in acting criminally.

As described in the Sands article, the role played by the legal advisers was more significant than this. Because officials such as Rumsfeld and Tenet were worried about legal liability, they would only approve torture ("enhanced interrogation") which they had been advised was legal. In other words, it was the lawyers who were defining exactly how prisoners could be interrogated. When Rumsfeld received Mora's draft memo on January 18, 2002, stating that these techniques were illegal, he immediately withdrew his approval.

Sands describes how the CIA waited for the Yoo-Bybee memo before proceeding with "enhanced interrogation":
Meanwhile, unbeknownst to Dunlavey and the others at Guantánamo, interrogation issues had arisen in other quarters. In March 2002 a man named Abu Zubaydah, a high-ranking al-Qaeda official, was captured in Pakistan. C.I.A. director George Tenet wanted to interrogate him aggressively but worried about the risk of criminal prosecution. He had to await the completion of legal opinions by the Justice Department, a task that had been entrusted by Alberto Gonzales to Jay Bybee and John Yoo. “It took until August to get clear guidance on what Agency officers could legally do,” Tenet later wrote. The “clear guidance” came on August 1, 2002, in memos written by Bybee and Yoo, with input from Addington. The first memo was addressed to Gonzales, redefining torture and abandoning the definition set by the 1984 torture convention.
posted by russilwvong at 2:58 PM on March 31, 2009


January 18, 2002

Sorry, that should have been 2003.
posted by russilwvong at 2:59 PM on March 31, 2009


"The point is that the question was "what can I do within the law and what does the law not cover?" In other words, "can I take my gf to Chez within the law and does the law cover blind-folded surprises?" The advice was given as to what the law is."

Or so we believe. Again, my point is that there's more than enough reason to investigate. I'm arguing 'should' not 'how.'
Is Yoo innocent of a crime? Perhaps. My question is focused more on what his responsibilities are in terms of command responsibility. And I'll say - frankly - I don't know. But I'd like to.
So framed in your terms - solid. Beyond that however, was it just legal advice? We see Yoo advocating politically. There is some evidence, or rather, speculation drawn from evidence (but it's from the Office of Professional Responsibility), that Yoo et.al. may have crafted their legal advice to suit the conclusions the White House wanted.
But that's the crux I'm pointing to - the argument as to whether legal advice could/should be criminalized, no, I'll cede that certainly. But I don't know at what level Yoo and other lawyers engaged in policy level decision making. And if they did, that gives them command responsibility for what happened. They are responsible for policy, and so responsible for the outcome.
I can't argue innocence or guilt because I simply don't know, and I agree we don't assume an illegality was done BY someone. But an illegal act most certainly occurred that was a result of policy. And we do need an investigation into who is responsible.
As it sits there's an argument as to whether an investigation can be done, or prosecution because we need to know how to go about it first and determine if the law was broken when part of what has been perpetrated, by policy, is obfuscation of the law.
So on that count I have to disagree. We have to find the facts of the matter and assign responsibility. I'm not advocating ad hoc law.
posted by Smedleyman at 3:00 PM on March 31, 2009


"The point I'm making is that this is a far more complex situation than you make it out to be."

Yes, it's far above my head I'm sure. So let's make it simple - should Dr. Stuckhart have been tried by the Nuremberg Tribunal?
posted by Smedleyman at 3:03 PM on March 31, 2009


As described in the Sands article, the role played by the legal advisers was more significant than this. Because officials such as Rumsfeld and Tenet were worried about legal liability, they would only approve torture ("enhanced interrogation") which they had been advised was legal.

The fact that the client refuses to take an action unless the lawyer tells them that it is legal does not mean that the lawyer has commited an illegal or unethical act. The state of mind of the client is irrelevant to the analysis. I again refer to the comments to the DC Bar rule:

The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action. However, a lawyer may not knowingly assist a client in criminal or fraudulent conduct. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

Telling someone that you believe a course of conduct is legal where you have a good-faith belief in that advice is not assisting in a crime, even if that conduct is later adjudged to have been criminal.
posted by Ironmouth at 3:07 PM on March 31, 2009


Also - how should it be done? How should we pursue the Bush administration legally and successfully?
posted by Smedleyman at 3:07 PM on March 31, 2009


Also - how should it be done? How should we pursue the Bush administration legally and successfully?

Indict the actual torturers. Get them to testify that they committed acts which the state believes are torture. The torturers will then move for dismissal based on qualified immunity. You must win that motion. Then once you win that motion, you offer a plea deal. Someone will implicate the one above. You go up the chain. It is unlikely that Bush can face legal prosecution for his acts, as he may only be impeached, according to our current laws.
posted by Ironmouth at 3:11 PM on March 31, 2009


But I don't know at what level Yoo and other lawyers engaged in policy level decision making. And if they did, that gives them command responsibility for what happened. They are responsible for policy, and so responsible for the outcome.

The President makes policy. Policy advice is not policy. Some subordinates also make policy when they take executive actions within the scope of their offices. It is the ability to make an executive decision which is the key here. Also, anyone who carries out an illegal order is also violating the law. It is the ordering and taking of actions which are the key. Supervisors can also be held responsible if they are supervising. I'm talking about the law of qualified immunity, which I do work with in my practice from time to time.
posted by Ironmouth at 3:17 PM on March 31, 2009


the role played by the legal advisers was more significant than this....they would only approve torture ("enhanced interrogation") which they had been advised was legal.

You say this as if it is nefarious. They would only do what they were advised was acceptable under the law. They would not do what they were told was not acceptable under the law. How are you reading this in a nefarious light?

The advice was given as to what was permissible under the law and what was not. That is not actionable. The ultimate policy was set in reliance upon the advice. That still does not make the advice actionable.

(And again I would point out that people are assuming their conclusion. They would only approve "torture" which was "legal." Well, assuming that the advice was correct, it was not torture. So the better way to draft that sentence would be "they would only approve conduct which they had been advised was legal and did not constitute torture under the applicable laws and treaties.")
posted by dios at 3:20 PM on March 31, 2009


Also - how should it be done?
posted by Smedleyman at 5:07 PM on March 31

Indict the actual torturers.
posted by Ironmouth at 5:11 PM on March 31


Exactly. Like I said yesterday.
posted by dios at 3:23 PM on March 31, 2009


(I should note, there are other criminal indictments beyond the provision referenced above. That was just an example. But the proper route is, as Ironmouth also noted, to indict the people who allegedly committed acts. They may plead qualified immunity--and they may lose it if their actions went too far--but the mechanisms are there under US law to attempt to penalize criminal actions.)
posted by dios at 3:27 PM on March 31, 2009


Furthermore, charging Cheney and Woo and their ilk criminalizes political advice.

What's wrong with that?


Imagine Cheney with that power.

Now do you understand what I'm getting at?
posted by Ironmouth at 3:37 PM on March 31, 2009


Please refrain from arguing straw men and analogies that don't fit the situation. A mafia consigliere who gives "advice" is furthering a criminal enterprise designed to violate the law.

Which is exactly what Addington and Yoo were doing.
posted by delmoi at 3:43 PM on March 31, 2009


Please refrain from arguing straw men and analogies that don't fit the situation. A mafia consigliere who gives "advice" is furthering a criminal enterprise designed to violate the law.

Which is exactly what Addington and Yoo were doing.


Again, I think I refuted that above. If you want to look at the DC rules of professional responsibility and tell me where I'm wrong, I'm OK with that. But when it comes to the legal liability of government employees for their conduct, I'm quite confident that I've got the law down pretty cold. I don't know perl or cobol or anything like that, but I do know my s 1983 and Bivens law pretty well.
posted by Ironmouth at 3:47 PM on March 31, 2009


Ironmouth: The fact that the client refuses to take an action unless the lawyer tells them that it is legal does not mean that the lawyer has commited an illegal or unethical act. ...

Telling someone that you believe a course of conduct is legal where you have a good-faith belief in that advice is not assisting in a crime, even if that conduct is later adjudged to have been criminal.


Thanks for the clarification.

Looking at the rule you quoted, though, I'm wondering how you would assess whether a lawyer's arguments are in good faith or not.
(e) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent....
To me, it seems clear that Bush's legal advisers knew what they were counselling was violating the domestic and international laws against torture, and that their arguments wouldn't hold up to the slightest scrutiny. Hence the secrecy and the lying described by Sands. David Cole, writing in 2005:
Yoo's most famous piece of advice was in an August 2002 memorandum stating that the president cannot constitutionally be barred from ordering torture in wartime—even though the United States has signed and ratified a treaty absolutely forbidding torture under all circumstances, and even though Congress has passed a law pursuant to that treaty, which without any exceptions prohibits torture. Yoo reasoned that because the Constitution makes the president the "Commander-in-Chief," no law can restrict the actions he may take in pursuit of war. On this reasoning, the president would be entitled by the Constitution to resort to genocide if he wished.
Another question would be whether the lawyers' participation rose to the level of "complicity" or "participation" in torture. Sands:
Those responsible for the interrogation of Detainee 063 face a real risk of investigation if they set foot outside the United States. Article 4 of the torture convention criminalizes “complicity” or “participation” in torture, and the same principle governs violations of Common Article 3.
Apparently a number of the lawyers involved visited Guantanamo and witnessed interrogations.
On September 25 [2002], as the process of elaborating new interrogation techniques reached a critical point, a delegation of the administration’s most senior lawyers arrived at Guantánamo. The group included the president’s lawyer, Alberto Gonzales, who had by then received the Yoo-Bybee Memo; Vice President Cheney’s lawyer, David Addington, who had contributed to the writing of that memo; the C.I.A.’s John Rizzo, who had asked for a Justice Department sign-off on individual techniques, including waterboarding, and received the second (and still secret) Yoo-Bybee Memo; and Jim Haynes, Rumsfeld’s counsel. They were all well aware of al-Qahtani. “They wanted to know what we were doing to get to this guy,” Dunlavey told me, “and Addington was interested in how we were managing it.” I asked what they had to say. “They brought ideas with them which had been given from sources in D.C.,” Dunlavey said. “They came down to observe and talk.” Throughout this whole period, Dunlavey went on, Rumsfeld was “directly and regularly involved.”
dios: And again I would point out that people are assuming their conclusion. They would only approve "torture" which was "legal." Well, assuming that the advice was correct, it was not torture.

The Supreme Court ruled in 2006 that the prisoners at Guantanamo were covered by Common Article 3.
Jim Haynes and Donald Rumsfeld may have reversed themselves about al-Qahtani in January 2003, but the death blow to the administration’s outlook did not occur for three more years. It came on June 29, 2006, with the U.S. Supreme Court’s ruling in Hamdan v. Rumsfeld, holding that Guantánamo detainees were entitled to the protections provided under Geneva’s Common Article 3. The Court invoked the legal precedents that had been sidestepped by Douglas Feith and John Yoo, and laid bare the blatant illegality of al-Qahtani’s interrogation. A colleague having lunch with Haynes that day described him as looking “shocked” when the news arrived, adding, “He just went pale.” Justice Anthony Kennedy, joining the majority, pointedly observed that “violations of Common Article 3 are considered ‘war crimes.’ ”
Smedleyman: how should it be done? How should we pursue the Bush administration legally and successfully?

None of the people involved can be prosecuted in the United States.
As the consequences of Hamdan sank in, the instinct for self-preservation asserted itself. The lawyers got busy. Within four months President Bush signed into law the Military Commissions Act. This created a new legal defense against lawsuits for misconduct arising from the “detention and interrogation of aliens” between September 11, 2001, and December 30, 2005. That covered the interrogation of al-Qahtani, and no doubt much else. Signing the bill on October 17, 2006, President Bush explained that it provided “legal protections that ensure our military and intelligence personnel will not have to fear lawsuits filed by terrorists simply for doing their jobs.”

In a word, the interrogators and their superiors were granted immunity from prosecution. Some of the lawyers who contributed to this legislation were immunizing themselves. The hitch, and it is a big one, is that the immunity is good only within the borders of the United States.
That isn't to say that any of these officials are likely to be arrested if they travel to the EU. I think the most likely outcome is that it'll be clear what happened and who was responsible, even if they can't be punished.

This has driven a huge wedge between the US and its European allies, as Alberto Mora noted in the 2006 Hans Morgenthau lecture.
I have asserted that our policy of cruelty has harmed our nation's legal, foreign policy, and national security interests. Let's examine how it has done so and what the damage has been. ...

Cruelty created a deep legal fissure between ourselves and our traditional allies, because none of them would follow the United States into the swamp of cruelty. And cruelty has exposed those U.S. policymakers and officials engaged in the practice to potential civil and criminal liability overseas. It has engendered a probability that litigation and prosecution overseas targeting U.S. officials will complicate our international relations for years to come. ...

Our use of the term "war" should not confuse us into thinking that this conflict will be won primarily by military means. The geographic dispersion of our enemies, the difficulty in locating them, and the underlying ideological nature of our adversaries' actions—all point to a conflict in which our military actions must necessarily be subordinated to our political strategy.

This political strategy should be geared to building and maintaining large, unified alliances capable of cooperating across this spectrum of conflict. We will not be able to build this alliance unless we are able to articulate a set of consistent political objectives, and prosecute the war using methods consistent with these objectives. We will not be able to build the alliance either, unless we construct a common legal architecture with our traditional allies. ...

Almost every European politician who sought to ally himself and his country with the United States in the war on terror incurred a political penalty—or experienced political difficulties, as Blair and Aznar demonstrated—as a result of that allegiance. And, because cruel treatment of prisoners constituted a criminal act in every European jurisdiction, there must be few European government officials, including military intelligence or police officials, who do not ask themselves at some point whether cooperating with the United States in the war on terror might not make them accomplices or abettors in criminal activity or expose them to civil liability.

All of these factors contributed to the difficulties our nation has experienced in forging the strongest possible alliance in this war. Because this is so, we consequently weakened our defenses. Whatever intelligence we obtain through the use of harsh interrogation tactics, on the whole these policies and practices greatly damaged our overall effectiveness and impaired our military intelligence capabilities in the war on terror.
posted by russilwvong at 4:40 PM on March 31, 2009


Again, I think I refuted that above. If you want to look at the DC rules of professional responsibility and tell me where I'm wrong, I'm OK with that

Well, the office of professional review has drafts of the memos and supposedly it shows that the memos were changed over time with feedback from the administration, far from being an opinion about what was theoretically possible, it seems like it was a document crafted to justify either things that had already been done or things that the government wanted to do.

An investigation by H. Marshall Jarrett, head of the Justice Department’s Office of Professional Responsibility, reached “damning” conclusions about numerous cases of “misconduct” in the advice from John Yoo and other lawyers in the Office of Legal Counsel during the Bush administration, according to legal sources familiar with the report’s contents.

OPR investigators determined that Yoo blurred the lines between an attorney charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration’s goals, said the sources who spoke on condition of anonymity because the contents of the report are still classified.

There are a couple of blogs from lawyers and legal scholars that I read, including Glenn Greenwald and Marcy Wheeler who don't seem to share your view.

Some democratic senators seem to think the issue is worth investigating as well.
Mr. Jarrett’s letter, dated Monday, came in reply to a Feb. 12 letter from Mr. Durbin and Mr. Whitehouse to him and the Justice Department’s inspector general, Glenn A. Fine, seeking an investigation into the department’s legal approval of waterboarding.

“Despite the virtually unanimous consensus of legal scholars and the overwhelming weight of legal precedent that waterboarding is illegal,” the senators wrote, “certain Justice Department officials, operating behind a veil of secrecy, concluded that the use of waterboarding is lawful. We believe it is appropriate for you to investigate the conduct of these Justice Department officials.”
Whitehouse and Durban both have law degrees. I don't know if they favor criminal indictment or not, but they certainly don't seem to think this was all just hunky-dory run of the mill crap.

Oh and an unclassified version of the OPR report should be released to the public.
posted by delmoi at 4:48 PM on March 31, 2009


It is unlikely that Bush can face legal prosecution for his acts, as he may only be impeached, according to our current laws.

I don't see immunity for committing fraud extended to former Presidents in 18 USC 371, or am I missing something in the text?
posted by mikelieman at 4:50 PM on March 31, 2009


Out of curiosity. If a lawyer had given an opinion to Hitler that gassing Jews was legal under German law, would he have been guilty of a crime against humanity?
posted by empath at 5:22 PM on March 31, 2009


Out of curiosity. If a lawyer had given an opinion to Hitler that gassing Jews was legal under German law, would he have been guilty of a crime against humanity.

Gassing anyone, summary execution, you name it, was legal under German law at the time. Hitler ruled by decree, not by legislative enactment. A lawyer there would have been correct in giving such an assessment.

Having said that, I do think National Socialist Germany does provide an example of where a lawyer's conduct could be illegal under international law. Ironically, I have an MA in German history.

The difference is this: lawyers for the Interior Ministry drafted the actual decrees which became the actual law--in other words, the Fuhrer would sign off on their words--they were not giving a legal opinion as to what was permissible, but actually fully responsible for the actual law itself. Yoo was saying "I think we have a good-faith case for this and a court is likely to rule in our favor." The German lawyers were writing decrees they knew would not be modified but signed off on by the Fuhrer. They were flat-out enabling the crime by drafting the actual law. An excellent overview of this can be found in Ch. 4 of Vol.1 of Raoul Hillberg's The Destruction of the European Jews.

Indeed the examination if this case gives us an excellent contrast. In our system, the separation of powers means that the Legislative Branch must enact laws the president signs and the constitution limits those enactments and renders some invalid. Eventually, the judiciary decides whether a particular law is constitutional. Yoo's memos provide an opinion on whether or not the courts would find the activity legal. In our system, his opinion alone does not constitue the law. In the National Socialist state, the lawyers wrote the laws directly. Their conduct could be considered illegal because they actually draft the laws, not just provide the opinions on laws others have passed (and that courts have ruled on those laws.) A famous example is the "Law for the Protection of German Blood and Honor," which Hitler ordered written in the two days before the 1935 Party rally. Interior Ministry lawyers wrote the decree in a Nurnberg Police Station. The Reich Citizenship law was similarly drafted in the same period, some of it being written on restaurant menus when the lawyers ran out of paper.

Finally, let's be clear: John Yoo believes this crap. He's supported it for years. When he makes these arguments, he genuinely believes it. This is a good-faith position for him. He's utterly wrong, of course.
posted by Ironmouth at 7:32 PM on March 31, 2009


Ironmouth: Finally, let's be clear: John Yoo believes this crap.

Rereading the Cole article, you're right. He really does appear to believe that the US ought to be able to torture prisoners, regardless of domestic and international laws against torture; he appears to have regarded these laws as obstacles to be evaded, through convoluted arguments about "original intent."

Again, I wonder whether his involvement would constitute "complicity" or "participation" in torture, under Common Article 3, and thus grounds for prosecution outside the US.

I'm also genuinely curious whether Yoo believes that other countries should also be able to torture prisoners, or whether he only believes that the US should be able to do so.
posted by russilwvong at 10:14 PM on March 31, 2009


How should we pursue the Bush administration legally and successfully?

Indict the actual torturers.


Bad advice. This is the Lynndie England scenario, and it did not work: Rumsfeld was not held responsible for the actions of England or other soldiers at Abu Ghraib.
posted by ornate insect at 10:17 PM on March 31, 2009


Rumsfeld was not directly criminally responsible for the torture at Abu Ghraib. He was responsible in that it was on his watch, but he did not order the torture, which makes one criminally resposible. He might civilly be hit with a claim of negligent supervision, but he is way, way up the chain and in my experience this won't fly.

The torture we are talking about here was a different animal. We know it was authorized from above. A prosecutor climbs the ladder in situations like this. Otherwise, how are you going to prove the torture actually took place? As soon as you get a torturer on the stand, a little thing called the fifth amendment comes into play. Nobody is going to testify without a plea agreement or immunity deal.
posted by Ironmouth at 6:16 AM on April 1, 2009


Rumsfeld was not directly criminally responsible for the torture at Abu Ghraib. He was responsible in that it was on his watch, but he did not order the torture

That's a pretty broad claim. You're really making a lot of statements about what you think the administration didn't do that are not supported by evidence.
posted by delmoi at 6:57 AM on April 1, 2009


Ironmouth: The torture we are talking about here was a different animal. We know it was authorized from above.

Right. With the torture at Guantanamo, Rumsfeld signed off on it. The bipartisan Senate Armed Services Committee report:
(U) On April 16, 2003, less than two weeks after the Working Group completed its report, the Secretary authorized the use of 24 specific interrogation techniques for use at GTMO. While the authorization included such techniques as dietary manipulation, environmental manipulation, and sleep adjustment, it was silent on many of the techniques in the Working Group report. Secretary Rumsfeld’s memo said, however, that “If, in your view, you require additional interrogation techniques for a particular detainee, you should provide me, via the Chairman of the Joint Chiefs of Staff, a written request describing the proposed technique, recommended safeguards, and the rationale for applying it with an identified detainee.”

(U) Just a few months later, one such request for “additional interrogation techniques” arrived on Secretary Rumsfeld’s desk. The detainee was Mohamedou Ould Slahi. While documents relating to the interrogation plan for Slahi remain classified, a May 2008 report from the Department of Justice Inspector General includes declassified information suggesting the plan included hooding Slahi and subjecting him to sensory deprivation and “sleep adjustment.” The Inspector General’s report says that an FBI agent who saw a draft of the interrogation plan said it was similar to Khatani’s interrogation plan. Secretary Rumsfeld approved the Slahi plan on August 13, 2003.
There's a section titled "Aggressive Techniques Authorized in Afghanistan and Iraq (U)", but it doesn't state that Rumsfeld approved the "enhanced interrogation" at Abu Ghraib.

Note that the Geneva Conventions definitely applied to the prisoners at Abu Ghraib. Bush only declared that they didn't apply at Guantanamo.
posted by russilwvong at 9:50 AM on April 1, 2009


"Well, the office of professional review has drafts of the memos and supposedly it shows that the memos were changed over time with feedback from the administration, far from being an opinion about what was theoretically possible, it seems like it was a document crafted to justify either things that had already been done or things that the government wanted to do"

Ironmouth - I think this is the source of our contention. It was my assumption you (and other folks) knew this as a matter of course. Or at least as a point in the framework of the argument on the other side (I did link to the newsweek article on it).
Of course, your frustration must be that I had ceded your point (although from your perspective I had not appeared to) and was arguing iterations of the above bit - which, I suppose, still appeared to be disagreement.
So - I think the clash here is not one of criminality or not, at least for my part.
I think it's more a question of what the roles of the lawyers actually were. Your and dios' assumption is that they were just being lawyers. From that position, and if that's true, I'd have to agree with both of your takes on it. And indeed, not being informed on law, I'd have to do that anyway. But again, that's given the assumption that they were just being lawyers.

"The difference is this: lawyers for the Interior Ministry drafted the actual decrees which became the actual law--in other words, the Fuhrer would sign off on their words--they were not giving a legal opinion as to what was permissible, but actually fully responsible for the actual law itself. Yoo was saying "I think we have a good-faith case for this and a court is likely to rule in our favor.""

And there's the thing - was he just saying that? Or were the memos, advice, et.al. crafted to support an ideological agenda and a political policy? I am not saying for certain that Yoo & co. had a similar role systemically as lawyers in Nazi Germany, but rather that their roles were quasi-governmental. Or rather, may have been. Much like the Bush administration did in other areas. Perhaps it's my mistake to assume we're all well aware that the administration duplicated within the party certain roles performed by the government.
In any case - they did.
Whether that is the case with Yoo, and whether it is the case that Yoo (et.al.) revised their otherwise innocuous lawyerly advice to be what the administration wanted it to be and therefore held a quasi-governmental position remains to be seen. But there is some evidence for it. What he believes doesn't enter into it.
The point here is - he either actively advanced this policy by participation in its evolution or he was in a purely advisory role as a lawyer. If it's the case that it's the latter, I wouldn't argue for his prosecution and all the criteria you and dios mention I'd have to say holds (although I'm no expert. Sounds fair to me tho).
If it's the former however, then I would hold him responsible. And from there it's just a question of how.
I mean, why would one form a shadow government if not to obfuscate one's hand in actual government affairs?
posted by Smedleyman at 10:10 AM on April 1, 2009


There's a section titled "Aggressive Techniques Authorized in Afghanistan and Iraq (U)", but it doesn't state that Rumsfeld approved the "enhanced interrogation" at Abu Ghraib.

Let me explain. Lynnie England and the like were yahoos not working under orders from Rumsfeld. Those are the persons who were charged at Abu Ghraib.

We don't have much evidence, but we do know some "enhanced interrogation techniques" were used at Abu Ghraib, but not by the idiots that were charged. But not by the yahoos. The reason the Yahoos have been charged and nobody else is that they took pictures of the stupid shit they were doing.

The rest of it hasn't come to light yet. I hope it does. There's no doubt that techniques that Rumsfeld approved for Guantanamo were brought to Iraq. Did he order that? We don't have enought evidence yet to know. But what those fools who have been caught and convicted of did was not authorized by anyone.

However, I think that Garzon's work impedes figuring out because it adds an us v. them dimension to the matter which allows for emotions to get stirred up that have nothing to do with figuring out what we need to do and allows the bad guys to get away.

If Garzon wanted anything but attention and not to find out what happened, he would have charged Bush directly.
posted by Ironmouth at 10:11 AM on April 1, 2009


Ironmouth: Let me explain. Lynnie England and the like were yahoos not working under orders from Rumsfeld. Those are the persons who were charged at Abu Ghraib. ...

But what those fools who have been caught and convicted of did was not authorized by anyone.


Not correct, actually--see the Senate Armed Services report. The paper trail for the authorizations at Abu Ghraib doesn't go all the way up to Rumsfeld's office (as it does for Guantanamo), but there is a paper trail of approvals.

However, I think that Garzon's work impedes figuring out because it adds an us v. them dimension to the matter which allows for emotions to get stirred up that have nothing to do with figuring out what we need to do and allows the bad guys to get away.

I'd disagree with this assessment; I think having an outsider do the investigation makes sense. (One of the big mysteries to me is why Feith talked to Philippe Sands. The fact that Sands is British rather than American may be part of it.)
posted by russilwvong at 12:16 PM on April 1, 2009


The Woman Who Could Nail Bush: Forget nanny issues and unpaid taxes. The GOP is threatening an ugly fight over an Obama Justice Department appointee who wants to disclose more Bush-era torture memos.
posted by homunculus at 9:30 PM on April 1, 2009


A US judge has ruled that foreign suspects held by the US in Afghanistan have the right to challenge their detention in US civilian courts.
posted by homunculus at 4:23 PM on April 2, 2009


Leahy Bails on 'Truth Commission' Plan
posted by homunculus at 6:10 PM on April 2, 2009


Are Republicans Blackmailing Obama? If the president releases the Bush torture memos, Republicans are promising to “go nuclear” and filibuster his legal appointments. Scott Horton reports on a serious threat to Obama’s transparency.
posted by homunculus at 10:21 AM on April 6, 2009


The British barrister behind the possible indictment of Bush Administration officials.
posted by homunculus at 10:25 AM on April 6, 2009


Obama, the ICRC Report and ongoing suppression
posted by homunculus at 9:58 AM on April 7, 2009


Why Spain Can Actually Prosecute Bush and Co. for Their Crimes
posted by Kirth Gerson at 1:13 PM on April 10, 2009


The Bush Six to Be Indicted and garzon to be asked to step aside . Both Washington and Madrid appear determined not to allow the pending criminal investigation to get in the way of improved relations.
posted by adamvasco at 3:03 AM on April 16, 2009


Spain rejects US 'torture' probe. So what was the deal here I wonder.
posted by adamvasco at 6:19 AM on April 16, 2009


Thanks for the update, adamvasco.
Correspondents say that while Mr Conde-Pumpido's recommendation reduces the chances of Judge Garzon launching an investigation, he could still do so anyway.
posted by russilwvong at 8:55 AM on April 16, 2009


Prosecution of Bush Six Back On. Garzón's ruling today marks a decision to begin a formal criminal inquiry into the allegations of torture and inhumane treatment he has been collecting for several years now.
Under applicable Spanish law, the Obama administration has the power to bring the proceedings in Spain against former Bush administration officials to a standstill. “All it has to do is launch its own criminal investigation through the Justice Department,” said one lawyer working on the case, “that would immediately stop the case in Spain.”
posted by adamvasco at 1:07 PM on April 29, 2009


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