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Obama administration's blackmail diplomacy over torture evidence
May 12, 2009 11:58 AM   Subscribe

The Obama administration has repeatedly threatened to conceal future information of terrorist threats from the British government, unless the British government disobeys the High Court ruling requiring them to release information about the US government's acknowledged torture program. This may be a breach of the Convention Against Torture. Glenn Greenwald has new evidence. Previously.
posted by East Manitoba Regional Junior Kabaddi Champion '94 (282 comments total) 5 users marked this as a favorite

 
Change we can believe in?
posted by chunking express at 12:06 PM on May 12, 2009


I think Obama has been a great president, pragmatically speaking. But even in the face of acknowledged war crimes he has a total dedication to minimizing drama. He wants the world to forget what the previous administration did and only look forward. He probably regrets acknowledging the torture in the first place. In making these threats to a close ally, his administration is going way over the line. Their attitude needs to change, and that will only happen if pressure is applied.

Admittedly, I'm sure the British government would also rather not reveal the information. There may be some collaboration on the content and release of this letter. Either way it's unacceptable.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 12:08 PM on May 12, 2009


The Obama Admin also isn't pushing single-payer very hard. As I've said before, I'd really, really love Obama to be the rightwing loon I'm voting against, rather than the (by far) lesser of two evils.
posted by DU at 12:10 PM on May 12, 2009 [5 favorites]


Perhaps this would be a great way to disassemble ECHELON, or at least its reporting component. That would seem to be a good thing for civil rights of citizens of both countries, no?
posted by Blazecock Pileon at 12:19 PM on May 12, 2009


You guys are so totally right. Obama is no different than Bush. We should have all thrown our votes away on Nader.
posted by msalt at 12:21 PM on May 12, 2009 [3 favorites]


These foriegn prosecutions will go nowhere. They make it harder for Obama to get into this area because of the us v. them angle of all this. Plus they run up against the government's deep practical desire to avoid precedent-setting disclosures of classified information to a foreign body. To say that the Justice Department wouldn't go for this under any administration is an understatement.

Where the traction is going to be is in the question of the legitimacy of the authorization of the use of the techniques and, more importantly, their use to obtain information to be used to justify the invasion of Iraq.

That last bit is the key to all of this. An FBI interrogator has already stated that some of the techniques were used to get information regarding any contacts between Al Qaeda and Iraq. Significant revelations of torture being used in the futile attempt to justify the invasion of Iraq will utterly undermine the 'ticking time bomb' rationale currently being pushed by the GOP. Instead, such revelations highlight the corrupting nature of torture.

Further complicating the GOP's position is the fact that there is a low incentive for Obama to shield them from these revelations.

Greenwald's focus on the litigation end forces him to advocate for methods which are ultimately counter-productive. While Bush was in power it made sense to highlight these collateral attacks stemming from foreign courts. Now that Obama is in charge, the focus must be on revelations in the press getting every day Americans angry about the issue.
posted by Ironmouth at 12:23 PM on May 12, 2009 [3 favorites]


I'd really, really love Obama to be the rightwing loon I'm voting against, rather than the (by far) lesser of two evils.

I'm having trouble parsing this, did you mean 'leftwing equivalent of the rightwing loon I'm voting against?' Also, Did you mean public option when you said single payer? I'm pretty sure single payer was never even on the table.

Anyway, Obama never campaigned on the public option, in fact he wasn't even calling for mandates or a public option during the campaign. Edwards, IIRC was the only major candidate calling for the public option, and I'm glad that it's getting the kind of serious consideration it is. People seem to be imagining campaign promises they'd wished he'd made, rather then the ones he actually did.

That's kind of a sidetrack to this post though.
posted by delmoi at 12:23 PM on May 12, 2009 [1 favorite]


You guys are so totally right. Obama is no different than Bush. We should have all thrown our votes away on Nader.

What are you talking about?
posted by delmoi at 12:24 PM on May 12, 2009 [11 favorites]


I don't think anyones said he's no different then Bush. (And voting for Nader isn't throwing away your vote, if his platform is what you believe in. America, your two party system is both embarrassing and lame.) Obama is all kinds of awesome, but that doesn't make shit like this any less disappointing. At the end of the day, he is very much like any other politician, talking a lot of smack, but not really acting on it. I honestly didn't think he'd be pardoning CIA operatives and getting pushy with Britain about an issue like this.
posted by chunking express at 12:24 PM on May 12, 2009 [4 favorites]


Greenwald's focus on the litigation end forces him to advocate for methods which are ultimately counter-productive.

Is it really Greenwald's responsibility to self-censure in order to achieve a more "productive" goal, though? His reporting is scathing because it's often very simple. X is illegal. Here is a document outlining how A performed X.

I appreciate the lack of "oh but how will this be received?!" in his articles.
posted by odinsdream at 12:27 PM on May 12, 2009 [11 favorites]


I'm having trouble parsing this, did you mean 'leftwing equivalent of the rightwing loon I'm voting against?'

There's no definition of "Left" that would include Obama (outside the United States). He's a centrist with right-wing leanings.
posted by blue_beetle at 12:31 PM on May 12, 2009 [19 favorites]


I don't know if this changes much over here, as it's been implicit for some years now that the UK doesn't have complete control over all aspects of foreign relations/defence. Sure, having this document publicly known makes things starker about the nature of the two countries' relationship, but it's not a shocker. It would be interesting to know whether the US government issued off their own back, or whether the UK government requested it for use in the court case. Either way, much more important stuff politically is going on at the moment, and I don't know if this will even register.
posted by Sova at 12:35 PM on May 12, 2009


"Obama is all kinds of awesome, but that doesn't make shit like this any less disappointing. At the end of the day, he is very much like any other politician, talking a lot of smack, but not really acting on it."

It's pretty much our job to put pressure on the system to do something about this. How is it Obama's job? Other than he's supposed to listen to what the people (who, ostensibly are in charge in a Republic) tell him to do?
Of course he's going to seek a self-sustaining position. I agree that he is awesome, but I'm not disappointed. I've never allowed my personal like for the man to create any illusions about the task at hand. Best thing about Obama is his method of organization and the fact that he's not the kind of obstructionist psycho that Bush was.
Other than that, it's always been our work to do.
I think his interest is in holding the country together and seeking a middle path between opposing forces. That's great, really, on a lot of things. Not on this.
posted by Smedleyman at 12:36 PM on May 12, 2009 [8 favorites]


The Obama Admin also isn't pushing single-payer very hard. As I've said before, I'd really, really love Obama to be the rightwing loon I'm voting against, rather than the (by far) lesser of two evils.

Obama ran against single-payer. The guy is opposed to it.
posted by Ironmouth at 12:38 PM on May 12, 2009


delmoi, the way I understood it was that the poster in question wishes that Obama represented the right-most extreme of the (viable) political spectrum in the US, as he isn't anything like left-wing, nevermind left-wing enough.

Also, thanks USA. We really need somebody like Obama leaning on our government to be more shit when it comes to civil liberties.
posted by Dysk at 12:38 PM on May 12, 2009


While the US has experienced regime change since the acknowledged torture occurred, Britain has not. Gordon Brown was in the Labour cabinet that no doubt collaborated with the torture of British residents in Guantanamo Bay. So maybe the British government has a stronger desire to keep this secret than the Americans do, and maybe they requested this letter full of threats. But it shouldn't be the American government's job to help conceal evidence of war crimes.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 12:39 PM on May 12, 2009


delmoi, I think DU is saying he'd like an ideological shift in the US such that Obama would be considered slightly conservative, rather than left-leaning or "socialist"
posted by boo_radley at 12:40 PM on May 12, 2009


The Obama administration has repeatedly threatened to conceal future information of terrorist threats from the British government, unless the British government disobeys the High Court ruling requiring them to release information about the US government's acknowledged torture program.

Why? Everyone already knows that the US government tortures prisoners directly and by hiring offshore thugs.
posted by pracowity at 12:44 PM on May 12, 2009


Everyone already knows that the US government tortures prisoners [...] by hiring offshore thugs.

And that's what really pisses me off. Those jobs should be going to Americans, goddammit.
posted by webmutant at 12:54 PM on May 12, 2009 [9 favorites]


While the US has experienced regime change since the acknowledged torture occurred, Britain has not. Gordon Brown was in the Labour cabinet that no doubt collaborated with the torture of British residents in Guantanamo Bay. So maybe the British government has a stronger desire to keep this secret than the Americans do, and maybe they requested this letter full of threats. But it shouldn't be the American government's job to help conceal evidence of war crimes.

That makes sense, the current cabinet is not free from the last eight years of foreign/intelligence matters, and certainly wouldn't be helped by the revelations of torture. However, the Obama administration has rather shit in its own bed for very little in return. This letter doesn't reflect well on them, and yet the government they've helped out has less than a year left to run - with very little public support remaining. Though the UK is unlikely to get a US-skeptic government any time soon (more fool us), there would have been no lasting damage by continuing the glasnost about the Bush years in the US and letting the Labour government get shafted regardless. Of course, I don't know if US domestic politics is open to more revelations of torture, but if he's going down that route, there's no reason to change tack for the UK government's sake.
posted by Sova at 12:55 PM on May 12, 2009


Would you people just shut up and watch Obama sink some shots?
posted by Burhanistan at 12:58 PM on May 12, 2009


msalt: "You guys are so totally right. Obama is no different than Bush."

With respect to breaking United States law by violating the terms of the Geneva Convention, you're damned right he's no different.

Article 9 of the Convention Against Torture requires that "States Parties shall afford one another the greatest measure of assistance in connection with civil proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings."


The Convention also requires him to prosecute torture. "Looking forward, not backward" is not an option.
posted by Joe Beese at 12:59 PM on May 12, 2009 [18 favorites]


No one is a bigger Obama fan than I am, but I'm watching and waiting for his administration to do the right thing on the torture issue -- prosecute the motherfuckers -- and if he does not I will be sorely, sorely disappointed, and I cannot deny that.
posted by fourcheesemac at 1:06 PM on May 12, 2009 [4 favorites]


Is it really Greenwald's responsibility to self-censure in order to achieve a more "productive" goal, though? His reporting is scathing because it's often very simple. X is illegal. Here is a document outlining how A performed X.

Greenwald can say what he wants. I can also say it is self-serving and unproductive.

He writes like a bad litigator in that he distorts far more than is useful. He is ineffective. He equates the litigation positions of the government with its policy positions--he knows its wrong too. The methods he proposes to use give defenders of other policy goals (secrecy, national soverignty and defense) powerful reasons to fight the disclosure of these facts.

The jedi mind-tricks way to do this is to avoid engaging in battles which involve subsidiary justifications for keeping the information classified. You must get them to defend on the efficacy and negative effects of torture alone.

This case is a classic example. The government rightly keeps some secrets from the world. Now Britain's courts want the UK government to divulge secrets the US shared with it for defense purposes in response to legal action in Britain. This would be a violation of our agreement with them. I am opposed to such disclosure and support the Obama Administration in punishing the UK if this information is divulged.

The key is to get the information in ways which other issues are not tangled up in the question of disclosure.

Frankly, I'm pretty sure this just a slow stealth rollout by the Obama people.
posted by Ironmouth at 1:08 PM on May 12, 2009 [4 favorites]


There's no definition of "Left" that would include Obama (outside the United States). He's a centrist with right-wing leanings.

And in China he'd be a far-right radical, in Scandinavia he'd be a conservative and in medieval France he'd be a witch. But, he's the president of the United States, so while it's fun to play Where On the Scale is Obama? within the contexts of different countries in the world, a more accurate way of viewing his policies is within the spectrum of American politics and attitudes.

I have to say I find it increasingly disappointing, this "let's move forward" policy. If the extension of that is spilling over into coercing other countries to play ball, that's even sadder. I'd love to believe, as many have contended, that he's really just setting up a long game - that there will be indictments and all further down the road - but this doesn't do much to cheer me up. I'll still need to explain to my kids that treating other people cruelly will result in punishment, unless you're important enough to do what you want.
posted by Marisa Stole the Precious Thing at 1:08 PM on May 12, 2009 [16 favorites]


Did the author read the actual document in whole? It doesn't read like a threat to me but rather a statement of fact.

To paraphrase without the editorial "threat" moniker: The US holds this information as highly sensitive. We gave it to the UK under an extrodinarily close intelligence sharing relationship unseen by virtually any two nations on earth ever. If the UK decides to publicly disclose this information, the US and any other nation that shares info with the UK may have to rethink what they give to the UK and/or how they give it to them. The kinds of things the US and other nations give to the UK help keep UK citizens safe.

It's not a letter to Gordon Brown from Barak Obama threatening to end our unprecedented friendship, it's a legal argument paper submitted to a court to say, "this is why we think its a bad idea." There is a big difference.
posted by Pollomacho at 1:08 PM on May 12, 2009 [2 favorites]


This has quickly become the most mind fucking administration of my life. I cannot understand how they can do so much right and then do stuff like this time and time again. I wasn't one of those people who expected a perfect presidency, but threatening to endanger the citizens of another country in order to prevent information about a previous presidency from coming out?

It's like Dr. Jekyll and Mr. Cheney.
posted by shmegegge at 1:11 PM on May 12, 2009


It's not a letter to Gordon Brown from Barak Obama threatening to end our unprecedented friendship, it's a legal argument paper submitted to a court to say, "this is why we think its a bad idea." There is a big difference.

As I pointed out earlier, Greenwald does this all the time. He basically lies about the import of the document. He doesn't help his case.
posted by Ironmouth at 1:13 PM on May 12, 2009 [1 favorite]


Let's not vote in the Republicans, please.
posted by kldickson at 1:16 PM on May 12, 2009 [2 favorites]


However, the Obama administration has rather shit in its own bed for very little in return.

People are wrongly criticizing Obama. He is acting consistent to this presidential authority and obligations to protect national security. And he is acting consistent with one of the greatest virtues of the American governmental system dating back to the days of Jefferson: administrations do not prosecute the previous administrations. We have peaceful transfers of power. That was one of the great examples set by Jefferson with respect to Adams. So Obama is doing two important things here: he fulfilling his presidential authority and he is rising above partisan passions in the American tradition that distinguishes us from so much of the world.

The underlying issue is straight-forward: the US and UK shared classified information for their mutual national security interests. If one side does not hold up the confidentiality of the information, then neither side can participate in such an agreement. That's so obvious as to be self-evident.

Pushing the Geneva Convention angle is begging the question that it applies. But beyond that, it is forcing the administration into a precarious decision: whether to sacrifice the sovereignty and national security of the United States in the name of shifting technical and possibly arbitrary definition and application of the Geneva Convention or to withdraw from the Geneva Convention because political applications of it threatens national security.
posted by dios at 1:18 PM on May 12, 2009 [6 favorites]


To paraphrase without the editorial "threat" moniker: The US holds this information as highly sensitive.

This is the root problem. This is not a normal circumstance where a country might choose to reveal the legitimately classified information of an ally. The US has acknowledged that it previously committed torture. A war crime happened. So the information is no longer legitimately classified, and its release is not "sensitive", it's "required", under the Convention Against Torture.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 1:22 PM on May 12, 2009 [3 favorites]


These foriegn prosecutions will go nowhere. They make it harder for Obama to get into this area because of the us v. them angle of all this.

Are you even paying attention? The case in the U.K is about the The British Government's Role in the torture of Binyam Mohamed. Where exactly should Binyam Mohamed, a British resident, sue his own government?
posted by delmoi at 1:23 PM on May 12, 2009


As I pointed out earlier, Greenwald does this all the time. He basically lies about the import of the document. He doesn't help his case.

your "pointing out" is unsubstantiated assertion.

The government rightly keeps some secrets from the world. Now Britain's courts want the UK government to divulge secrets the US shared with it for defense purposes in response to legal action in Britain.

this is a very specific part of a document that describes torture. clearly the government wants to keep that secret, but not "rightly." it isn't obvious to you that the reason they don't want it disclosed has nothing to do with "defense purposes" whatsoever? that's pure rationalization. one might even say it's an apologia.
posted by Hat Maui at 1:23 PM on May 12, 2009 [2 favorites]


I do not think Obama is awesome. Never did.

You may now throw popcorn at me and call me names. I'll sit and be amused watching his devoted followers defend his every action, including ones like this.
posted by Malice at 1:25 PM on May 12, 2009


Ironmouth: "Tthe 'ticking time bomb' rationale currently being pushed by the GOP"

Tom Tomorrow
posted by Joe Beese at 1:26 PM on May 12, 2009


whether to sacrifice the sovereignty and national security of the United States

so let me get this straight -- a court-ordered disclosure of CIA torture practices against a British national would sacrifice our sovereignity and national security? that is literally hysteria.
posted by Hat Maui at 1:26 PM on May 12, 2009 [4 favorites]


Oh thank god - for a minute I thought this was written by Glen Beck and I was terrified that I was about to agree with something he said.

I don't care so much about the pressure on the British government - I think they probably shouldn't be revealing intelligence shared by the US gov't. The funny thing is, I'm pretty sure these "secrets" shouldn't be secrets - therein lies the problem. Why should the record of the treatment of an innocent man during an interrogation be secret? It defies reason (probably because it's a cover story).

My guess is that most of the Democratic leadership has been playing patsy to Bush's scary war on terror and probably was briefed about most of the torture that went on, which is why Obama might be reluctant to open up an investigation. Hell, maybe he knew about it himself - he was in the Senate at the time.
posted by Salvor Hardin at 1:29 PM on May 12, 2009


And he is acting consistent with one of the greatest virtues of the American governmental system dating back to the days of Jefferson: administrations do not prosecute the previous administrations.

Yeah, if by "virtue" you mean "virtue for criminals" I'm not sure if prosecution would have been a good idea back in the day, but the court system today works well and isn't too corrupt, so why should it be a problem?

Dios, are you saying that the judicial system in the U.S. is too corrupt or otherwise unfair and wouldn't be able to deal with the prosecution of former government officers if the had previously broken the law?
posted by delmoi at 1:31 PM on May 12, 2009 [1 favorite]


I do not think Obama is awesome. Never did.

Do you want a prize?
posted by chunking express at 1:31 PM on May 12, 2009


I do not think Obama is awesome. Never did.

Do you want a prize?
posted by chunking express at 1:31 PM on May 12 [+] [!]


Can I have a Psycho Doughnut?

Bipolar looked scrumptious.
posted by Malice at 1:33 PM on May 12, 2009


And he is acting consistent with one of the greatest virtues of the American governmental system dating back to the days of Jefferson: administrations do not prosecute the previous administrations. We have peaceful transfers of power.

I don't see how this is a virtue - there is a difference between a coup d'etat and holding government officials accountable for torturing people in violation of US and international law. I think you've got a false dichotomy here - we can both have a peaceful electoral process and uphold the rule of law. I'd say Obama is failing to uphold a truly dear virtue of American government - that no one is above the law.
posted by Salvor Hardin at 1:34 PM on May 12, 2009 [4 favorites]


The US has acknowledged that it previously committed torture. A war crime happened.

You realize that the first sentence is not true and the second sentence is an opinion, right?

That's what I meant by begging the question earlier. The US has admitted that it used interrogation techniques that it believes do not run afoul of the Geneva Convention. That's different. To the extent any individual acted outside the authority of the United States, it has prosecuted those individuals.

This is not as black and white as Greenwald suggests. But that's his shtick. He treats claims as irrevocably correct and then builds a case against the exaggerated claim.
posted by dios at 1:35 PM on May 12, 2009 [1 favorite]


I am still desperately clinging to the notion that the Obama Administration knows that some people want these documents, revelations, and disgraces to spill forth across the media with inexcusable detail, and that what we are receiving are appetizers meant to make us force the administration's hand. It's a fantasy, but a not-altogether implausible one.

The long game would be "if the people want this bad enough, they'll force us *nudge nudge wink wink* to give them the documents; the GOP will be unable to say that we did not try to keep the 'excesses' of the Bush administration a secret." In the meantime, this administration can get stuff done, because war crimes trials for the previous administration means that government slows to a complete halt while it goes on.

Two years from now, when the economy has picked back up, that would be the time to haul Cheney, Bush, whomever out of their comfy little homes, blinking like suddenly exposed rats into the light of a thousand flashbulbs manned by reporters looking for something interesting to do.

"The people have spoken," says President Obama at a press conference in late 2011, "and they want these issues investigated. I can no longer dawdle while American citizens demand that the full truth about Abu Ghirab, the waterboarding memos, Blackwater, and extraordinary rendition finally come to light. We have documents to release to Congress, and Congress has readied an investigation. Thank you, and may justice be served."

Then Obama leaves the podium, hits the corridor, silently pumps his fist once, and lights up a joint, legalized just three months prior.
posted by adipocere at 1:36 PM on May 12, 2009 [8 favorites]


Yeah, sorry, torture isn't one of those things that you can just say, "We're not doing that anymore so everything is fine, go about your business."
posted by greekphilosophy at 1:38 PM on May 12, 2009 [2 favorites]


I think you've got a false dichotomy here - we can both have a peaceful electoral process and uphold the rule of law. I'd say Obama is failing to uphold a truly dear virtue of American government - that no one is above the law.

I don't think you can have a peaceful electoral process *without* the Rule of Law. In that way, failing to prosecute alleged criminals works against the process.
posted by mikelieman at 1:42 PM on May 12, 2009 [1 favorite]


dios, you're not in court now, you can use common sense. When I say that the US acknowledges the torture, I mean that the US acknowledges that it waterboarded detainees, and both President Obama and Eric Holder have acknowledged that waterboarding is torture. And yes, torture is a crime and torture in the name of the War on Terror is a war crime and the sky is blue.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 1:43 PM on May 12, 2009 [11 favorites]


The US has acknowledged that it previously committed torture. A war crime happened. So the information is no longer legitimately classified, and its release is not "sensitive", it's "required", under the Convention Against Torture.

You've skipped a step here. The fact that some classified information is potentially material to a crime does not make it 'unclassified' all of a sudden. The jurisprudence on this issue (see Egan v. VA) holds that the President, pursuant to his Constitutional duties as commander in chief has the absolute right to classify documents. The Courts have found this right to be fully vested in the President only. These documents may be obtained by court process, however, such information may still be limited to in camera review or revealed to attorneys with a security clearance who are bound to maintain their secret nature. These are important safeguards that are there for a reason. Throwing those safeguards aside for the sake of a single case makes no sense and gives torture's defenders a smoke screen issue. Greenwald doesn't help because his emphasis on litigation disclosure impedes the disclosures.
posted by Ironmouth at 1:44 PM on May 12, 2009 [1 favorite]


dios: "in the name of shifting technical and possibly arbitrary definition and application of the Geneva Convention"

There is nothing "shifting" or "arbitrary" about the classification of waterboarding as torture. It is older than the United States itself - which successfully prosecuted several Japanese soldiers in World War II for that very war crime.
posted by Joe Beese at 1:44 PM on May 12, 2009


I don't see how this is a virtue - there is a difference between a coup d'etat and holding government officials accountable for torturing people in violation of US and international law. I think you've got a false dichotomy here - we can both have a peaceful electoral process and uphold the rule of law. I'd say Obama is failing to uphold a truly dear virtue of American government - that no one is above the law.
posted by Salvor Hardin at 3:34 PM on May 12


Again, you are assuming your conclusion.

And that was Jefferson's point. An argument can be made to prosecute every "previous administration" for whatever value you want to be placed on that. Certainly if an action is egregious violation of the rule of law, a president will be prosecuted. If Bush had walked into the Congress and shot Nancy Pelosi in cold blood, he would have been prosecuted.

The issue you are dealing with here is not black and white. Obama is handling the situation well. He is releasing information for the people to know that does not compromise his duty to protect national security. He is drawing lines where he will not go. He is not going to allow a witch hunt of Bush at the expense of the government's on-going national interests. It's a principled stand.
posted by dios at 1:44 PM on May 12, 2009 [1 favorite]


Barack Obama's long game is giving people these pronoid fantasies about his long game.
posted by TheOnlyCoolTim at 1:46 PM on May 12, 2009 [5 favorites]


The real problem here is that the Obama administration cannot control the inevitable information flow that follows after the criminal activities of the Bush administration and its apologists. Obama has hit a fork in the road, and he seems unsure which direction to choose.

One solution, if somewhat difficult for Obama's lawyers to implement, is to try to bury all the evidence under a rock through legalese and then move on. We're seeing them attempt this now.

The other solution, while problematic for Republicans, would be for Obama to bring shine sunlight on the crimes perpetrated by the right-wing element over the last eight years.

It's not clear what obligations Obama has to defend the interests of Republican criminals. But the nature and extent of the crimes is global and they are coming to light, whether he likes it not, so how he deals with it will reflect on him and his presidential legacy, not to mention how the world chooses to deal with the United States going forward. Let's hope he chooses wisely.
posted by Blazecock Pileon at 1:48 PM on May 12, 2009




If Bush had walked into the Congress and shot Nancy Pelosi in cold blood, he would have been prosecuted.

He did much worse than that. He walked into Congress and lied in such a way that it resulted in the needless deaths of 4000 Americans (and tens of thousands of Iraqis and Afghanis).

He is not going to allow a witch hunt of Bush

Why is upholding the Constitution and rule of law a witch hunt?
posted by ornate insect at 1:49 PM on May 12, 2009 [6 favorites]


Look, the administration has already released enough documentation on torture for someone to make an airtight case that international law was broken, and even Obama recently went on record stating unequivocally that he believes "Waterboarding is torture," so someone file the damn case already!

There's enough evidence that crimes were committed. The President isn't the only one on the hook to bring prosecutions here. These policies were a violation of international law. So where's the Hague on this?

File the damn charges already in the international courts, and then Obama will have no choice but to preempt with a domestic prosecution, giving him plenty of political cover for the inevitable, highly-divisive accusations of partisanship to follow (which will probably also be coming from Greenwald when it finally comes down to it).

Quit scapegoating Obama. He's in an exceptionally tough spot, domestically. And there's more than one person with political power in the world at a time, you know. Where's the international pressure? Come on--we're counting on you, Netherlands. How could you betray us like this, international community? What's the hold up? Don't you care about human rights abuses?
posted by saulgoodman at 1:51 PM on May 12, 2009 [2 favorites]


Why is upholding the Constitution and rule of law a witch hunt?

It isn't, but it's the kind of shrill rhetoric that the right-wing requires to distract people from their crimes.
posted by Blazecock Pileon at 1:53 PM on May 12, 2009 [2 favorites]


He did much worse than that. He walked into Congress and lied in such a way that it resulted in the needless deaths of 4000 Americans (and tens of thousands of Iraqis and Afghanis).

So now we are going to prosecute him for the war?

And this is why we don't do this. Because every political disagreement turns into legal prosecutions.
posted by dios at 1:54 PM on May 12, 2009


Oh and doesn't giving a post the title "Obama administration's blackmail diplomacy" just hint ever-so-slightly at editorializing?
posted by saulgoodman at 1:54 PM on May 12, 2009


dios: "So now we are going to prosecute him for the war?"

You know who else we prosecuted for launching a war of aggression?
posted by Joe Beese at 1:56 PM on May 12, 2009 [3 favorites]


It's not clear what obligations Obama has to defend the interests of Republican criminals. But the nature and extent of the crimes is global and they are coming to light, whether he likes it not, so how he deals with it will reflect on him and his presidential legacy, not to mention how the world chooses to deal with the United States going forward. Let's hope he chooses wisely.

What do you mean? He wants to move forward not backwards! Except for the people we detained, they'll of course get to look backward in some kind of backwards-ass military tribunal where evidence tortured out of other people gets to be used against them. But they're not real people so it doesn't matter. The point is, focusing on the past would just be such a downer that Washington would just spend all its time moping around and not be able to pass Obama's ambitious agenda. And you know what they say, what's a few tortured prisoners when ambition is at stake!

Gibbs actually Criticised Cheney and other torture advocates the other day as "looking backwards". Not for the content of their comments but for Looking backwards. It's ironic, but it seems like those who perpitrated this stuff want the air cleared as soon as possible. It makes sense though, the closer we are to the events, the more difficult it would be to actually get convictions.

I imagine in 4 or 8 years, the situation on torture and prosecutions would look a lot different. Even if Obama did think people should be prosecuted, it makes sense to wait, at least until all of their friends can be removed from the government.

But we don't know if he does want to wait, or if he really does think we can just put all this behind us and bury everything (including the current detainees, of course). It would be irresponsible to just imagine things we wish he had in his head, and assume he does. Lots of people like to do that with politicians they like, for some reason.
posted by delmoi at 1:57 PM on May 12, 2009


dios, please give an example of a crime you think a member of the US Executive Branch should be accountable for, if they committed it in their suit and tie.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 1:58 PM on May 12, 2009 [3 favorites]


This is not as black and white as Greenwald suggests. But that's his shtick. He treats claims as irrevocably correct and then builds a case against the exaggerated claim.

There's a reason he's a former litigator.
posted by Ironmouth at 1:59 PM on May 12, 2009


So now we are going to prosecute him for the war?

And this is why we don't do this. Because every political disagreement turns into legal prosecutions.
-- Dios
What is this crap? You should know better then to argue the slippery slope. Come on.
posted by delmoi at 1:59 PM on May 12, 2009


So now we are going to prosecute him for the war?

No, for lying to Congress and the American people about WMD, yellowcake, etc. and for actively manufacturing "evidence" (re: lying) to inflate a threat (see the Downing Street Minutes and the forged Nigerian embassy documents).

Because every political disagreement

It's not political; it's not a vendetta; it's about accountability.
posted by ornate insect at 2:00 PM on May 12, 2009 [3 favorites]


saulgoodman: I take your point but I don't think that headline is significantly distorting the editorializing inherent in the linked piece
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 2:00 PM on May 12, 2009


An argument can be made to prosecute every "previous administration" for whatever value you want to be placed on that. Certainly if an action is egregious violation of the rule of law, a president will be prosecuted. If Bush had walked into the Congress and shot Nancy Pelosi in cold blood, he would have been prosecuted.

Perhaps we disagree about what an egregious violation of the rule of law is; I would consider waterboarding to be a form of torture, which is quite illegal, and at least as horrifying as murder, especially considering the hundreds of instances of torture that are involved.

He is not going to allow a witch hunt of Bush at the expense of the government's on-going national interests. It's a principled stand.

I agree with you that this issue is not perfectly clear-cut - I'm sure Obama is considering the consequences of a lengthy investigation. I admit that it would be unfortunate if an investigation into torture allegations hobbled the government for years, but I really doubt that would happen - I think our government can handle an investigation at the same time as conducting other business. Also, I wouldn't call it a principled stand - on the contrary it's an unprincipled, but pragmatic stand (and I would say, misguided).

And I dislike the reasoning that puts the national interest above the protection of human rights - I consider the protection of human rights to be one of the most important national interests.
posted by Salvor Hardin at 2:00 PM on May 12, 2009 [1 favorite]


There's a reason he's a former litigator.

From wikipedia:
In his entry in Unclaimed Territory for July 10, 2006, Greenwald explains, "I decided voluntarily to wind down my practice in 2005 because I could, and because, after ten years, I was bored with litigating full-time and wanted to do other things which I thought were more engaging and could make more of an impact, including political writing."[9]
Oooh scandalous...
posted by delmoi at 2:02 PM on May 12, 2009 [1 favorite]


The issue you are dealing with here is not black and white. Obama is handling the situation well. He is releasing information for the people to know that does not compromise his duty to protect national security. He is drawing lines where he will not go. He is not going to allow a witch hunt of Bush at the expense of the government's on-going national interests. It's a principled stand.

But if that document was written for the court case at the behest of the UK government, then what? I'm not too interested in whether this is national security-worthy stuff in the US, or simply just too embarrassing for them to have public. I am concerned that either way you look at this, the US government is meddling in a case involving a British citizen suing the British government in a British court. The US president has an absolute right to clasify any documents he pleases within US jurisdiction, but to attempt to maintain that classification outside the US by using threats? That's something else, that really is.
posted by Sova at 2:04 PM on May 12, 2009 [1 favorite]


dios, please give an example of a crime you think a member of the US Executive Branch should be accountable for, if they committed it in their suit and tie.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 3:58 PM on May 12


Transportation of water hyacinths.
posted by dios at 2:04 PM on May 12, 2009 [3 favorites]


Haven't you heard, sheeple?

According to Liz Cheney, Obama only wants to release information that makes America look bad, so the terrorists will win.

So obviously, the reason he's resorting to "blackmail diplomacy" in this case is to block the release of information that might accidentally vindicate America in some way.
posted by saulgoodman at 2:05 PM on May 12, 2009


Here's a paragraph from Andrew Sullivan I thought so interesting I'll just cut-and-paste:

> One assumes it has something to do with Pakistan. If the Musharraf government were implicated, the wave of anti-Americanism in that country could explode even further. But this is speculation on my part. It's unclear why the details of the Zubaydah torture could be released, but not the torture of Binyam.

At this point, I think a great many complicated issues boil down to the question of Pakistan, and how and whether its nukes can be kept from falling into unfriendly hands.
posted by darth_tedious at 2:05 PM on May 12, 2009 [1 favorite]


(And voting for Nader isn't throwing away your vote, if his platform is what you believe in. America, your two party system is both embarrassing and lame.)

Our two-party system (far less set in stone than outsiders think) prevents the US from embarassments like Stephen Harper and his government, who run a country despite 60% of people disagreeing with him.
posted by Ironmouth at 2:06 PM on May 12, 2009 [6 favorites]


There's no definition of "Left" that would include Obama (outside the United States). He's a centrist with right-wing leanings.

Oh, that canard. It isn't and hasn't ever been true; please quit trotting it out.
posted by oaf at 2:07 PM on May 12, 2009


ornate insect: Why is upholding the Constitution and rule of law a witch hunt?

You know, I wonder exactly that same thing.

If there is direct evidence that a previous administration did something which was directly opposed to laws which have stood since before the enactors were could even really talk, why is moving against that somehow a bad thing? If we truly believe in the Rule Of Law, then there is no looking the other way once evidence is revealed that laws have been broken. Nothing short of a Presidential pardon, perhaps. Is Obama willing to go THAT far to keep from having to uphold this supposed Jeffersonian mandate?

What's up with that, anyway? Jefferson never had to deal with the complex issues of things like the Geneva Convention and Presidents lying about torture on a world-wide stage. He never had to deal with suicide bombers and the temptation to treat someone as less than human... oh wait. slaves, etc... Hrm. So, I'm still good on the first point, right? Geneva Convention trumps Jeffersonian tradition?
posted by hippybear at 2:08 PM on May 12, 2009


So now we are going to prosecute him for the war?

No, and I don't think we should prosecute them for starting the war. The remedy for that was impeachment, and the time for that has passed.

Starting an unjust war isn't what's at issue. Torture is.
posted by oaf at 2:13 PM on May 12, 2009


I dislike the reasoning that puts the national interest above the protection of human rights

Yes: "As for our common defense, we reject as false the choice between our safety and our ideals."
posted by jbickers at 2:14 PM on May 12, 2009


dios, please give an example of a crime you think a member of the US Executive Branch should be accountable for, if they committed it in their suit and tie.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 3:58 PM on May 12

Transportation of water hyacinths.


Well played sir.

I salute your knowledge of U.S. Code Title 18, Part I, Chapter 3, § 46 :)
posted by Salvor Hardin at 2:18 PM on May 12, 2009 [1 favorite]


It is understandable that people hunger desperately for change after the open, scalding evils of the Bush years. It is understandable that they would seize on an attractively packaged figure who made a few progressive noises, carried a great deal of genuinely symbolic weight due to his race, and was more personable, cool and articulate than his god-awful predecessor. It is understandable that many people would want to give this figure the benefit of the doubt, to turn a blind eye to the many warning signs that emerged during the campaign, and hope for the best. After all, who would not rather live in hope?

But hope must be grounded in reality; and it must be invested in the right place. When reality gives it the lie, then it must be abandoned. There is no hope to be found in the Obama Administration: no hope for genuine change, no hope for a clean break (or any kind of break) from the relentless and ruthless promotion of empire, oligarchy and militarism. By his own choices -- his appointments, his policies, his court actions, his rhetoric -- Barack Obama has demonstrated beyond all doubt his sincere and abiding commitment to "continuity" in the most pernicious and corrosive elements of America's lawless hyper-state. To place one's hope in such a figure is a crippling, disastrous folly.
- Chris Floyd
posted by Joe Beese at 2:20 PM on May 12, 2009


He did much worse than that. He walked into Congress and lied in such a way that it resulted in the needless deaths of 4000 Americans (and tens of thousands of Iraqis and Afghanis).

So now we are going to prosecute him for the war?


No, we prosecute Bush, Cheney, Rice, Rumsfeld, Powell, etc. for their CHOICE to violate 18 USC 1001 and 18 USC 371, when they *knowingly* presented a facbricated case for the AUMF-Iraq to The People and Congress, denying them their constitutional oversight role.

Lying materially is a crime under 1001.
Doing so to defraud the US is a crime under 371.

Torture ( under 2340 ) isn't really the point, is it? I'd suggest that the purpose of the torture discussion is to distract from the very real criminal liability under 1001 and 371.

If the DOJ could send Martha Stewart to prison -- If the DOJ could send Marion Jones to prison -- what's the friggin hold-up with Bush and Cheney?
posted by mikelieman at 2:21 PM on May 12, 2009 [5 favorites]


And he is acting consistent with one of the greatest virtues of the American governmental system dating back to the days of Jefferson: administrations do not prosecute the previous administrations.

Then who does prosecute previous administrations?
posted by greasy_skillet at 2:21 PM on May 12, 2009


Our two-party system (far less set in stone than outsiders think) prevents the US from embarassments like Stephen Harper and his government, who run a country despite 60% of people disagreeing with him.

The Liberals under Chrétien had a majority (read: they could enact or kill any legislation they wanted to) for over ten years without ever winning more than 41.24% of the vote.
posted by oaf at 2:26 PM on May 12, 2009


btw, the allegations of torture from Binyam Mohamed include the use of razor blades to slice up his genitals. I hope that everyone can agree that slicing up a person's genitals is actual torture.
posted by ryoshu at 3:21 PM on May 12, 2009 [8 favorites]


I hope that everyone can agree that slicing up a person's genitals is actual torture.

Not if the US has admitted that it used interrogation techniques razor blades that it believes do not run afoul of the Geneva Convention. That's different.
posted by Combustible Edison Lighthouse at 3:24 PM on May 12, 2009


Our two-party system (far less set in stone than outsiders think) prevents the US from embarassments like Stephen Harper and his government, who run a country despite 60% of people disagreeing with him.

YEAH, the two-party system would never allow an embarrassment like THAT.
posted by Hat Maui at 3:27 PM on May 12, 2009 [1 favorite]


I hope that everyone can agree that slicing up a person's genitals is actual torture.

Not within the boundaries of the Geneva Convention that we keep redrawing.
posted by Blazecock Pileon at 3:29 PM on May 12, 2009


This has quickly become the most mind fucking administration of my life. I cannot understand how they can do so much right and then do stuff like this time and time again.

This is America we are talking about. We are in the early death throws of our earnest little wanna-be empire. Welcome to the reality of America The Super Power in the middle of two wars and a meltdown. I'm not sure what you guys ever expected. My disappointment with Obama started in 1984. With my first vote in a US presidential election.

You know what? Even an insufferable narcissist like Nader would be doing a great deal of the same shit or he'd get NOTHING done. I guarantee it. This freight train is gonna keep moving in a scary vector for a couple more decades.

Wielding this massive machine with the awesome power to blow up the world five times over is no simple task. It sobers your ideological ass right up seeing from inside the command module. Obama is dealing with all the back-biting players and attempting to re-direct 40 years of super-power historical momentum. It's a war of inches. Nah. Of millimeters.

It's not like Bush invented all the heinous shit he did and all Obama has to do is flip a switch and turn it all off. Bush was simply the (il)logical extension of where the system was going and the tipping point that pushed it over the edge.

There will NEVER be a lefty savior for America until America burns down to a manageable size. And for most of you that would mean not having the cushy lifestyles y'all got right now. So I'm not sure you're really all that anxious for all the changes you think you want.
posted by tkchrist at 3:32 PM on May 12, 2009 [9 favorites]


I hope that everyone can agree that slicing up a person's genitals is actual torture.

Millions of babies have their genitals sliced up every year by their family doctor. Are you saying that's torture?
posted by empath at 3:32 PM on May 12, 2009 [2 favorites]


I think an obligatory Bill Hicks quote is in order. I've updated it from it's original wording to make it relevant to today.

“I have this feeling that whoever is elected president, like Clinton Obama was, no matter what you promise on the campaign trail, blah, blah, blah... when you win, you go into this smoke-filled room with the twelve industrialist capitalist scum-fucks who got you in there. And you're in this smoky room, and this little film screen comes down ... and a big guy with a cigar goes, "Roll the film." And it's a shot of the Kennedy assassination from an angle you've never seen before ... that looks suspiciously like it's from the grassy knoll. And then the screen goes up and the lights come up, and they go to the new president, "Any questions?" "Er, just what my agenda is." "First we bomb Baghdad. deny torture ever happened under the previous administration." "You got it ..."

And then there's this quote, which is timeless and applicable to the argument in this thread.

“I'll show you politics in America. Here it is, right here. 'I think the puppet on the right shares my beliefs.' 'I think the puppet on the left is more to my liking.' 'Hey, wait a minute, there's one guy holding out both puppets!'”
posted by Effigy2000 at 3:35 PM on May 12, 2009 [3 favorites]


Millions of babies have their genitals sliced up every year by their family doctor. Are you saying that's torture?

Heh, good one. If you've ever seen a baby get circumcised it sure sounds like he's being tortured. But that doesn't fall under the statutory definition of torture (color of law, outside of the US, etc.).
posted by ryoshu at 3:37 PM on May 12, 2009


posted by tkchrist My disappointment with Obama started in 1984.

In 1984, Obama was 23 years old.
posted by mattdidthat at 3:37 PM on May 12, 2009


Millions of babies have their genitals sliced up every year by their family doctor. Are you saying that's torture?

aaaaaaaand scene.
posted by Baby_Balrog at 3:37 PM on May 12, 2009 [2 favorites]


There will NEVER be a lefty savior for America until America burns down to a manageable size. And for most of you that would mean not having the cushy lifestyles y'all got right now. So I'm not sure you're really all that anxious for all the changes you think you want.

I guess Obama's right, some people actually want America to fail.
posted by Ironmouth at 3:44 PM on May 12, 2009


“I do not think Obama is awesome. Never did.”
Yeah, we should have elected…um…. That guy that is for real and truth, but that never would have gotten elected in a million years. Because we’re so hardcore.
Or is the idea that the president should have yet more power so he can simply roll over other political interests? Monarchy is great until you get a bad king.
Meh. Nothing wrong with liking or disliking him. As long as it doesn’t prejudice honest criticism.
----

“The issue you are dealing with here is not black and white. Obama is handling the situation well. He is releasing information for the people to know that does not compromise his duty to protect national security.”

I agree with the latter statement. The former – I think torture is a black and white issue (with the caveat that I'm taking a tangential tack there from dios' point). There might be some discussion to be had as to the extent of where the presidents authority begins and ends in terms of how he prosecutes war, but at the end of the day there is zero flexibility morally, ethically and legally in the treatment of prisoners, their interrogation and human rights.
Whether a given individual’s status is vague or where their citizenship lay, if any – is irrelevant because their treatment isn’t so much a matter of their well being, but of ours.

Just heard an ex-CIA agent on NPR the other day finally bring to light a point I’ve been belaboring for years, torture is harmful to any society that gives license to it. There’s no gray area when it comes to coercive interrogation because the confidence of information becomes irrelevant to whatever the agenda (security or otherwise) may be. It suddenly becomes purely political. (Old joke about the accountant who gets the job- closing the blinds, checking outside, saying "What do you want 2+2 to equal?")

It’s in our national interest to scour this practice from ourselves – certainly not by whatever means available, I agree that it can’t be a witch hunt – but by whatever means necessary within the bounds of the law. And, I’ll add, most vigorously.
Torture to the civic body is the equivalent, biologically, of leprosy to the human body.

But let me put some of this aside for a moment. We’re all talking nice here (and really, it is, despite whatever level of acrimony – we’re not using coercion - outside of rhetoric - to inflict our wills on each other … as far as I know anyway) but the simple fact is the Bush administration was correct in its assessment of straight power application.

I’m reminded of Schindler’s List, there’s a scene early on where a Jew is quoting the law at some clerk saying they can’t confiscate his property, move him forcibly, etc. etc. - and legally he was probably right. Morally, clearly he was. But the apparatus was in place and you’re arguing with a machine that’s already got a ton of inertia behind it.
Same concept here. Just because Bush is gone does not mean the entire power structure of the U.S. nor the related interests do a dramatic U turn on a dime and kowtow to Obama.

There are certain realities to having massive amounts of wealth and/or influence. This should not be so, but it is. You can beguile people into believing certain things that are manifestly not true or immoral. You can hire people to go on t.v. (or buy the news outlet) and repeat a lie over and over.

It’s not a straight fight on who’s right or wrong or what’s moral or what’s not. Dios is right that it’s not black and white – practically speaking. Loads of people out there saying waterboarding isn’t torture. Saying – even if it is, it’s ok when we do it.

Hell, Ted Koppel was saying (in the same NPR piece) that it’s to be expected in certain cases and that if someone uses it they should be open to prosecution. And he’s a fairly smart individual (or so I thought).
Which is the same B.S. line I’ve heard countless number of times from otherwise reasonably intelligent people (because if there’s a ‘ticking time bomb’ or ‘a little girl trapped and her air is running out’ and you have to use it, you should take the hit for it and suck it up and go to jail, or maybe be pardoned because it’s understandable, etc. etc.) as though – what? You now let the guy go because you tortured him?
Legally you’d have to, since it completely screws his rights. So ok – jumping over the phenomenally ridiculous particulars (the scenario itself and the concept that torture works at all, and that it works in this particular instance, on this particular guy who is hard enough to murder innocent people and/or torture children, but is going to crack because you’re such a bad ass, etc. etc. etc.) you now have a situation where you have to let a guy go who you know for certain is guilty. Wha? Like that’s going to happen.
I’d stop torture in process by any means necessary up to and including killing my own man, but hell *I * wouldn’t let the guy know if I knew he tortured some little kid.
So now you’ve got a catch-22 and either way you choose to go, your legal system is b.s. – which is why I’m saying (and is just one example of) – torture is corrosive to a society.

But you can manipulate folks into believing anything with enough propaganda, money, fear, etc.
There are solid truths though – what works and what doesn’t. What is superior and what is inferior. What is irrefutable is that torture does not work and is an inferior method of securing the country. This has been known for many years. The Nazis knew it, which is why their interrogators were so successful early in the war – and why – when they lost them, they resorted to more brutal methods which ultimately failed miserably.

There is no value judgment argument. It’s a manifestly deliberately harmful method, coercive in intent, and had only an authoritarian political agenda as it’s aim.

Everyone says “if the Nazis came, I’d fight them” – well, this was it. And it’s still going on. Use of torture is a dead giveaway of the establishment of an authoritarian regime based on terror.
Want to stop them? Prosecute them. Dismantle the apparatus. Halt the inertia. We do it now or it comes back and bites our asses mark my words.

But that’s generally speaking – not to the particulars on this. I don’t know if ‘threat’ is the proper word when the realities of intelligence sharing are that the U.S. is doing the U.K. a favor. Still – the U.K. shares intel with the U.S. – so it’s a two way street. I suppose if you’re saying ‘threaten’ to break a mutually beneficial deal...
But I think the British High Court has a point in saying (and I’m paraphrasing) WTF, Dude!?

And again – rendition, Bill Clinton started all that. This is a matter for the country, not party politics. Dem, GOP, we should stop putting people on planes and sending them off to be tortured or in-housing it. It's going to destroy us. And not in the bad government shitstorm we had with Bush. That was an appetizer at best. I mean in terms of straight power.
That's why power has to be exercised on this. Why we can't move on. Ain't enough to be right. The old Jew telling the Nazi clerk in Schindler's List that it was against the law for the government to take his property was right. Power has to be applied to this.
I respect Obama's restraint. But unless he's got something up his sleeve, I think he's wrong on this.
Either way, I'm not going to wait for him.
posted by Smedleyman at 3:46 PM on May 12, 2009 [21 favorites]


My disappointment with Obama started in 1984. With my first vote in a US presidential election.

You are entirely too forward thinking. My disappointment with Obama started in 1784, precisely 177 years before he was born, with the ratification of the Treaty of Paris. If not for this, we might still be under the good graces of her majesty.
posted by ornate insect at 3:47 PM on May 12, 2009 [4 favorites]


Smedleyman returned the fedora to his head, where it once again shadowed the worn, creased forehead of one too long a warrior for justice in the halls of the powerful. Turning into the darkness that encroached upon the alley, his trenchcoat swirling briefly around the guitar case he held, he offered one last thought as he disappeared into the fog.

"Either way, I'm not going to wait for him."

posted by Salvor Hardin at 3:57 PM on May 12, 2009


Who guards the guardians? It seems that it's enough to claim secrecy on national security grounds to cover up just about anything. Isn't that a prescription of impunity? What are the checks and balances here? And I mean, something with real teeth - not some theoretical "sharing of information" upon request in some thinly attended committee which is totally unequipped to judge whatever material the services deign to share. Watching the run up and consequences of the Iraq war, and indeed the entire MO of the previous administration, I have no doubt that the system is simply broken. When do we acknowledge that it needs fixing? Referring to Jefferson only goes so far. What size of abuse does it need to be before we say: time for reform?

In the absence of any reform, with a clearly broken system, perhaps this court route is the only way in which we can get some kind of check on this kind of impunity, however very imperfect this route may be. It's a temporary fix.

I would encourage the Brits to buck up and keep pressing ahead with a discovery process. We are warned of the consequences - and I welcome such consequences. If it prevents the next criminal hiding behind the overly broad national security free pass, I'll gladly pay the "price". I strongly suspect that the only "danger" here is to the career of some petty apparatchik, some thug in a suit and tie and his amoral superiors.

The reality is, that there are very few "true" secrets that need be kept. The vast majority of material is stamped "classified" out of all kinds of motivations - most of it not rising above bureaucratic inertia.

Let's have it out. If the occasional release of true secrets is the price we have to pay for a more transparent system, then it is a price we should gladly pay, rather than be dragged into criminal wars which not only result in thousands or millions of victims, but in the corruption of our democracy.

Oh, and two can play this game. The Brits ought to answer the Americans: "If you start restricting info that may be vital to our interests, we can do exactly the same to you - so think carefully." Security is a two way street here, and the U.S. does not hold all the cards. And criminals should be held accountable - yes, even those who act in the name of "national security".
posted by VikingSword at 4:03 PM on May 12, 2009 [4 favorites]


Who guards the guardians?

Magna Carta, shmagna carta.
posted by Marisa Stole the Precious Thing at 4:11 PM on May 12, 2009


I liked Greenwald before he was cool hysterical.
posted by R_Nebblesworth at 4:16 PM on May 12, 2009


Hey at least we know lying about blow jobs was all about THE RULE OF LAW.

We get what we deserve.

now shut up and go bail out some banks.
posted by Max Power at 4:22 PM on May 12, 2009 [2 favorites]


Have you noticed how there's always this fear that any oversight, or regulation will lead to a "chilling" of our brave defenders, cause them to second-guess themselves and in the process endanger our country? This sounds very familiar. We've seen it replayed countless times, whenever society decides to reign in the "guardians".

Memorably, the same "cautions" were trotted out when Miranda was debated. Criminals will go free! Any regulation of police behavior and "criminals will go free, cops will be tied up in legal knots". Somehow, we managed to do away with forced confessions and torture there - and a funny thing happened on the way to the lawless apocalypse. Cops actually became more effective, and less corrupt. More criminals were caught, and more of the actual guilty ended up in prison, instead of those who were simply too weak to withstand beatings and blackmail.

I noticed a funny correlation. In countries where the standards of policing and justice are low, they rely mostly on confessions. These, of course, are mostly forced. The rate of false positives is sky high. Confidence in the justice system is low. Cops investigative skills are nil. Meanwhile, in the "lax" West, the "legally restricted" PD are generally on a higher level, with better conviction rates, more just legal system and greater confidence from the populace.

I suspect it's rather the same with abolishing torture and excessive secrecy - it will lead to higher standards, better results, more confidence and support from society here and elsewhere. Relying on torture and "CYA" secrecy is lazy, corrupting and self-defeating. It's the way of corrupt dictatorships. Can't we do better than that? We did it with cops, however imperfectly. And don't worry about the doomsayers worrying about "chilling" - they've had the same tired arguments since the Inquisition and before.
posted by VikingSword at 4:44 PM on May 12, 2009 [6 favorites]


I guess Obama's right, some people actually want America to fail.

Maybe. Or maybe some of us can recognize that the kind of that family Chase choose, that family of gangster psychopaths that we all loved, The Sopranos, was not an arbitrary choice. Sure, the wife and kids didn't actually get involved with any of the torture, rape, and murder. But each of them, at some point when confronted with the reality made their choice to keep the big house and the luxury goods and pretend not to notice the flecks of blood on their money. Or allowed their initial disgust and thirst for justice to be perverted with rhetorical slights of hand into easy judicial or media careers defending and promoting murder and torture.

And here you are waving the flag; trying to suggest that those of us who prize human rights and our humanity above McMansions and Hummers and plasma tvs are anti-American? That we "want America to fail?"

It seems to me, by the measure of the values and goals on which the country was founded, that America has already failed. The question is whether we have the stomach to struggle for some measure of redemption. And I wonder if you can remember the exact moment when you lost your soul, or whether it happened bit by bit.
posted by cytherea at 5:01 PM on May 12, 2009 [7 favorites]


i'm not an obama fan but i voted for the man. i voted for him because i saw him as the better alternative, and because he strikes me as a reasonable & kind person--the exact opposite of what i perceived in w. however, anyone who believes his ascendancy to the throne has been 'all kinds of awesome' hasn't been paying much attention. lackluster would be preferable to embarrassing, and i choose to see lackluster. but this is all kinds of fucked up. ALL kinds of fucked up.
posted by msconduct at 5:08 PM on May 12, 2009 [1 favorite]


Have you noticed how there's always this fear that any oversight, or regulation will lead to a "chilling" of our brave defenders, cause them to second-guess themselves and in the process endanger our country?

Hence the need to avoid engaging them in litigation circumstances where these arguments can be made. Obama's smart. He knows these defenses will always be raised. Wisely, he avoids fighting in fora where they represent a competing value.

Case in point--Clinton. The GOP erred grieviously in impeaching Clinton. They gave him a forum to fight in before they had galvanized public opinion in their favor. They paid. They actually lost seats. The real beginning of the end of their revolution was the impeachment trial. The only real gains in the House after that were minimal and tied to procedural gambits like the Texas redistricting.

My point is this: To ignore the politics of this thing is a sure recipie of failure. A nuanced response puts us in a position to permanently politically punish those who did this. That means turning the electorate against torture, not just legal proceedings. Because it is the political price which is the one which will deter those who would repeat this tragedy.
posted by Ironmouth at 5:10 PM on May 12, 2009 [4 favorites]


Apologies if this has already been expouded upon in this thread, but we have to remember that, by American political tradition, Obama can't agressively pursue prosecutions of the previous administration. Well, he could, but he'll lose political capital towards other things, and if I had to choose between prosecuting Cheney and pals and getting universal health care, I'd choose universal health care in a heartbeat. (I know, I know, a false choice, but you get my drift)

Obama and company likely want to see Cheney and pals frogmarched out to some prison, but they just can't be seen as gleefully prosectutorial. Enter the 4th estate. We have to put pressure on the administration so that he "relents" and folds to the overwhelming pressure of the American public. Otherwise, they'll just sit on it, all the time wishing for louder and louder shouts of protest.

Get angry about it. Obama is counting on it.
posted by zardoz at 5:45 PM on May 12, 2009 [6 favorites]


I guess Obama's right, some people actually want America to fail.

In order for America TO succeed it will have to stop being— or attempting to be— an Empire.

And right now we don't know what else to be. History, and our shenanigans, have placed us as the worlds last and most powerful Empire. It does not suit our cultural temperament and conflicts with our stated ideals. Not to mention the position is damned expensive and dangerous. The more we fight to keep this untenable status the harder the fall is gonna be. But still you got let the momentum run out on it's own and put the brakes on gently. We will have to transition very carefully. I think Obama understands this somewhat. but also he was never a Big Lefty. In comparison to Bush he seemed that way. But so would Attila the Hun.

I just don't think people on the left fully appreciate what it will mean when we are no longer top dog. How it will impact their precious lifestyles. And what would happen if Obama really WAS the lefty savior they thought they wanted. Can you imagine how the nut-bag right would react if actually WAS a lefty? Look how they are now. If he actually was on the left there would be a coup and blood in the streets.

Like I said it's gonna be a long time before we get an actually honest to goodness progressive in there and before that happens SUV Suburban McMansion America will have to be dead and buried. And that's not a failure.
posted by tkchrist at 6:02 PM on May 12, 2009 [1 favorite]


If Ironmouth and dios agree on something, there's probably something to it...
posted by R_Nebblesworth at 6:11 PM on May 12, 2009


I think the point that Ironmouth has been trying to make is an important one that Greenwald and others are either missing or deliberately glossing over (in Greenwald's case, given his legal background, I don't understand how it could be unintentional, when it seems plain to me and I'm not even an attorney): These briefs represent narrow, tailored legal opinions that are concerned with clarifying and staking out specific legal--not policy--positions and not much else. They clarify what the DOJ believes the law already is, and what the legal reasoning is, not necessarily what it should be or what it will be in the future.

That's why parsing them out to spot sensationalized "Gotchas!" in an attempt to infer some conflict between a particular legal position and broader policies the way Greenwald has been doing so obsessively lately makes little sense.

This brief makes no new statements about the applicability of the Geneva Conventions to torture, the status of water boarding as torture, or any of the other more important and central legal issues involved in making the case against the Bush administration's torture policies. This brief concerns a very narrow legal question and it offers a statement of the DOJ's legal position on the question.

It's not an act of law, its a legal opinion, which the courts are free to take into consideration in its final decisions or not. It does not in any sense constitute: "Mohamed's quest for a day in court repeatedly [being] thwarted, by one individual: Barack Obama" as Greenwald puts it, in his best imitation of one of those political attack-ad voice-over guys. The claims about the significance of these briefs is being overstated.

And note...

The Washington Times' Eli Lake reported this morning that "the Obama administration [said] it may curtail Anglo-American intelligence sharing if the British High Court discloses new details of the treatment of a former Guantanamo detainee."

Greenwald is citing the notoriously partisan and propagandist Washington Times as if it's a reliable source to accurately paraphrase the administration's position? Really? As noted upthread, the position taken in the brief is a lot less heavy-handed or outrageous than either the Times or Greenwald make out.

The more and more I read of Greenwald's stuff lately, the more I think all the side work he's been getting from the conservative Cato Institute is really clouding his judgment.
posted by saulgoodman at 6:11 PM on May 12, 2009 [4 favorites]


zardoz: "by American political tradition, Obama can't agressively pursue prosecutions of the previous administration."

By American law, he is required to do so.

This is not the least complicated. The Geneva Convention is federal law. It requires the President to prosecute torture. It does not provide exemptions for "would really like to pass his healthcare legislation".

Any of you who are willing to countenance his publically declared intention to break federal law in the interest of expediency are no better than the people who re-elected Bush.
posted by Joe Beese at 6:27 PM on May 12, 2009 [5 favorites]


Joe Beese--I couldn't agree more. But unless there's mainstream (that is to say, a lot more) outrage about this, Obama ain't gonna do much about it. I know there's a law on the books, but unfortunately, politics does play into this, as much as it shouldn't. All I'm saying is that if we sit on the sidelines and hope for prosecutions to happen, it probably won't. We need AIG-bonus-pay kind of outrage over waterboarding, and I don't see it (yet).

Polls show Americans split over waterboarding. Half the American people have a conscience about it, the other half fancy themselves as Jack Bauer and think it was ok, because hey, if it stops another 9/11, then what's the problem?

Obama is aware of those poll numbers and is taking action- or in this case, inaction- accordingly. Welcome to realpolitik.
posted by zardoz at 7:06 PM on May 12, 2009


I know there's a law on the books, but unfortunately [redacted]

Whatever follows the "but" is of little interest, because the first part of the sentence already answers the question: "Are we a country of laws or not?"

In the Soviet Union they used to have all kinds of wonderful sounding laws, the only trouble was that there followed a "but", rendering them nothing except a propaganda tool to brandish before the West "we have these laws". They meant nothing. It was a vicious, corrupt dictatorship.

Meanwhile, I wonder what other countries think when contemplating signing an international agreement. Is the American position "Yes, we have an agreement, but..."? I guess it's not worth the paper it's written on.

I think we can do better than the Soviet Union, but...
posted by VikingSword at 7:36 PM on May 12, 2009 [1 favorite]


By American law, he is required to do so.This is not the least complicated. The Geneva Convention is federal law. It requires the President to prosecute torture. It does not provide exemptions for "would really like to pass his healthcare legislation".Any of you who are willing to countenance his publically declared intention to break federal law in the interest of expediency are no better than the people who re-elected Bush.

This is an overstatement of the law. Prosecution is subject to discretion. No treaty requires a prosecutor to initiate a prosecution everytime some evidence exists that a prosecutable crime occured. Issues such as the resources available to the prosecution and the ability to succesfully bring a case are factors involved in the decision to bring a case.

Here, a doctrine called qualified immunity will make prosecutions very difficult. Without writing a legal memo, the doctrine protects those acting on the government's behalf, if there was a reasonable belief that their actions were legal, the actor is immune. Here, the memos would likely form a solid basis for just such a defense. This is more complicated than the articles we read--there are complex issues not discussed, issues that the journalists don't even know about.
posted by Ironmouth at 7:57 PM on May 12, 2009


Out of curiosity, what's the actual wording of the Geneva Conventions that requires Justice to prosecute torture (and does not allow the choice on the part of the executive to take no action)?
posted by oaf at 7:59 PM on May 12, 2009


oaf: "Out of curiosity, what's the actual wording of the Geneva Conventions that requires Justice to prosecute torture (and does not allow the choice on the part of the executive to take no action)?"

CONVENTION AGAINST TORTURE and Other Cruel, Inhuman or Degrading Treatment or Punishment (signed by the U.S. under Ronald Reagan):

Article 2, Section 1: Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

Article 2, Section 2: No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

Article 2, Section 3: An order from a superior officer or a public authority may not be invoked as a justification of torture. ...

Article 4, Section 1: Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

Article 7, Section 1: The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

Article 15: Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

Ronald Reagan, 5/20/1988, transmitting Treaty to the U.S. Senate: The United States participated actively and effectively in the negotiation of the Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.

U.S. Constitution, Article VI: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

(emphasis Greenwald)
posted by Joe Beese at 8:14 PM on May 12, 2009 [4 favorites]


By American law, he is required to do so.

This is not the least complicated.


Politically speaking this is very complicated. And what are the legal consequences for Obama and/or Holder for not prosecuting? None. Obama has peered into the White House skeleton closet and not only will he leave those bones undisturbed he'll probably leave a few of his own behind trusting that his successor will show him the same courtesy he's showing W. Such is the way things and if we don't like it,well, we always have the option of complaining on the internet.
posted by MikeMc at 8:29 PM on May 12, 2009


See, I think there's a greater than 50% Obama IS trying to build a credible case for prosecuting some former officials--he just knows he has to do it slowly and carefully, the way a good attorney does, to avoid having it blow up in his face and fail to get any successful prosecutions at all (which would be a disaster). He knows he has to proceed without giving the slightest impression of impartiality or pursuing a vendetta. These legal briefs that Greenwald keeps sputtering about as if they're the last word on the subject don't significantly impact the case for prosecution in the least, and yet, everyone here's all worked up about them as if they do. That's why I think Greenwald has gone off the deep end on this stuff.
posted by saulgoodman at 8:35 PM on May 12, 2009


Joe Beese: The language you cite, with a slightly different emphasis, couldn't be more clear on what the law is:

"The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution."

This language very pointedly seems to put the responsibility on international authorities to initiate action on violations of the conventions, while requiring the signatory states to either extradite the accused to face charges or to try them in their own legal systems. In either case, this language strongly suggests that the charges need to be brought in the international courts first, or at least, they could easily be construed that way. Legally, that makes it a little tricky. If indeed what the Bush administration did was illegal under international law (and I have no doubt it was), then doesn't it stand to reason that international authorities are equally bound under the conventions to bring the charges? If they haven't, then what basis is there for the signatory state to claim the case has standing, when the international courts aren't willing to go that far?

The international authorities have to press this issue first. Then the responsibility, under the conventions, falls on the US to either extradite the accused or to carry out the trials in our own legal system. At least, that's how this reads to me. And it's definitely the case that the international courts have the power to force this issue to a head.

Otherwise, with an unprecedented economic crisis to contend with, the total insolvency of medicare now projected to be only two or three years off, and two impossibly challenging major military conflicts underway at the same time, if the international community isn't willing to stand up and give these charges real legal standing by taking the matter up in the Hague, why is now the right time for the Obama administration to do it?
posted by saulgoodman at 8:53 PM on May 12, 2009


Article 7, Section 1: The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

This isn't strongly worded enough to compel Eric Holder to file charges against anyone, or to compel Barack Obama to fire Holder if he doesn't.

Keep in mind that in the U.S., the Geneva Convention can't be enforced where it comes into conflict with the Constitution.
posted by oaf at 9:00 PM on May 12, 2009


Article 2, Section 1: Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

This emphatically does not require specific prosecutions. The fact that Glen Greenwald says it does does not make it so. He's not being honest with you.
posted by Ironmouth at 9:04 PM on May 12, 2009 [2 favorites]


"The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution."This language very pointedly seems to put the responsibility on international authorities to initiate action on violations of the conventions, while requiring the signatory states to either extradite the accused to face charges or to try them in their own legal systems. In either case, this language strongly suggests that the charges need to be brought in the international courts first, or at least, they could easily be construed that way.

No. The US is not a signatory to the International Criminal court. There is no international criminal court of general jurisdiction recognized by the US.

Your interpretation would seem to indicate that international criminal courts or foreign courts could be used to prosecute a domestic case of torture. These courts lack jurisdiction and US courts would not extradite to them.
posted by Ironmouth at 9:21 PM on May 12, 2009


I agree with dios.

I don't know enough about law, international law, the Geneva Convention or the US Constitution to say anything assertively, but I suspect that there is a lot more going on in the background in this UK case than merely releasing or not releasing classified material.

What if, for argument's sake, the current Swat valley/Taliban clean-out was predicated on a US-UK agreement with Pakistan's shaky govt. not to release evidence of Pakistan's unsavoury role in the dude's torture and the US threat to withhold intelligence sharing was something of a ruse to get cooperative action in a place where crazies are within 100 miles of the Pakistani capital? International conspiracy theory? Maybe so. But I suspect, if forced, we could all dream up imaginative and complex rationale for why this news cycle event has occurred that doesn't, in the longer view, mean that Obama is either trying to save Bush co. from eventual prosecution or has abandoned any pledges with respect to torture. It's chess. I'm not saying that you have to give him the benefit of the doubt, but I do, at this stage
posted by peacay at 10:22 PM on May 12, 2009


If Ironmouth and dios agree on something, there's probably something to it...

It's awful when this kind of false thinking gets trotted out. It really damages logic and ethics.
posted by Blazecock Pileon at 11:11 PM on May 12, 2009


If Ironmouth and dios agree on something, there's probably something to it... evil afoot.

posted by mek at 3:47 AM on May 13, 2009 [1 favorite]


Isn't it normal for a government not to want an allied foreign government to declassify classified information, no matter what it is.

I mean I'm against waterboarding and obviously so is the Obama administration, but it's a bad precedence to set when we allow this kind of thing to happen.

There is no real threat given here. It's just the logical conclusion of what would follow. If you declassify information that we shared to you in private, well we're going to stop sharing.

Maybe I'm just not being cynical enough. When has the United States ever cared about the geneva convention. There do I sound like joe beese yet.
posted by Allan Gordon at 4:12 AM on May 13, 2009


Our two-party system (far less set in stone than outsiders think) prevents the US from embarassments like Stephen Harper and his government, who run a country despite 60% of people disagreeing with him.

Ah yes, Stephen Harper is far less embarrassing then George Bush was, who ran a country despite committing multiple impeachable offenses and being hated by 60% of the country.
posted by delmoi at 4:22 AM on May 13, 2009


Obama and company likely want to see Cheney and pals frogmarched out to some prison, but they just can't be seen as gleefully prosectutorial. Enter the 4th estate. We have to put pressure on the administration so that he "relents" and folds to the overwhelming pressure of the American public. Otherwise, they'll just sit on it, all the time wishing for louder and louder shouts of protest.

Get angry about it. Obama is counting on it.


What's up with this wishful thinking nonsense. It's so ridiculous.
posted by delmoi at 4:30 AM on May 13, 2009 [2 favorites]


The ideal situation here is not that the British government reveals the documents. It is that the US government unilaterally declassifies redacted versions of all documents related to the torture which they admit took place.

The Republicans have been saying that by releasing the torture memos, we have "shown our limits" to the terrorists, and we have made essential tools such as waterboarding useless. This means one thing: the next time a Republican is elected president (and there will be a next time), he will say that waterboarding is not enough. The terrorists will be expecting it. We need to gouge or slice something, or electrocute for prolonged periods, or something newly invented. They are the party of torture now. They almost unanimously support the war crimes of the previous administration, and they will do it again, unless the crimes are given the light of day and there is a prospect of their being held accountable.

It is not the duty of the government to win every court case. Its duty to do what is right for the American people. Read this. Time and time again, American lives have been saved because their enemy was willing to surrender rather than fight to the death. If America continues to be regarded as a torturer, no-one will surrender. A person does not need one shred of idealism or sympathy to wish to prevent the US from torturing in the future: it is simple pragmatism to help Americans win future wars. Obama appears to be a pragmatist. He should release these redacted documents and let the consequences unfold.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 5:41 AM on May 13, 2009 [1 favorite]


What's up with this wishful thinking nonsense. It's so ridiculous.

delmoi, I don't get your comment. I'm talking about the opposite of wishful thinking. Wishful thinking is hoping or assuming that the Obama administration will do something to prosecute the guilty without any further public pressure. Wishful thinking is praying that those bad men get arrested for their crimes, and oh hey, LOST is on.

I'm saying that we should do the opposite and be loud about our desire for prosecution, that we change the minds of those who feel torture is "okay sometimes". I don't claim to be some great voice towards this end, but I'm not stupid enough to just hope it comes true
posted by zardoz at 6:05 AM on May 13, 2009


delmoi, I don't get your comment. I'm talking about the opposite of wishful thinking.

The wishful thinking part is where you say that Obama secretly agrees with you, and is only acting the way he's acting because it's actually the best way to achieve your shared goal. I certainly agree there should be public pressure but imagining that Obama is actually on your side and just needs X amount of pressure to help him out is, although harmless I guess, annoying.
posted by delmoi at 6:37 AM on May 13, 2009


delmoi: "imagining that Obama is actually on your side and just needs X amount of pressure to help him out is, although harmless I guess, annoying."

Obama is the perfect embodiment of the system as it now exists. He will challenge it on no issue of importance. To the contrary, he will advance the goals of the ruling class and ensure that the powerful are fully protected. He will lie to you about all of this, as he already has on numerous occasions -- but as I have noted, many Americans, including many liberals and progressives, are enthusiastically willing to believe anything. - Arthur Silber
posted by Joe Beese at 6:44 AM on May 13, 2009


No. The US is not a signatory to the International Criminal court. There is no international criminal court of general jurisdiction recognized by the US.

Ah yes, that's right. Because the Bushies decided not to accept the constraints of international law. So I suppose the extradition language relates to charges of torture having been committed on foreign soil, then. That makes sense.

Still, the more international pressure to prosecute the better. And one way or another, some clear determination has to be made within the US legal system: are we still bound by our own laws on torture (which incorporate the Geneva Conventions as binding federal law) or are those laws now deemed superseded or unconstitutional? Is it now the established legal precedent that law breaking in "good faith" (for example, say I smoke a big fatty on the steps of the US capital because I believe in good faith that prohibitions on the use of marijuana are unconstitutional) can't be prosecuted?

The legal issues surrounding torture are too murky to be left unsettled as they stand. Some major legal action has to clarify these issues and bring them to a clear resolution or else the laws are too contradictory and ambiguous to be meaningful, leaving them even more open to potential abuse for partisan political ends than any precedent set by prosecution would.

And on that point, don't doubt for a second that future Republicans would be willing to engage in a politically opportune prosecution of a Democrat for even tenuous claims of torture. Hell, the Republican legislature relentlessly investigated and even impeached Bill Clinton over the meaning of the phrase "sexual relations." As far as partisan witch hunts go, the Republicans wrote the book on that subject long ago and have shown no signs of contrition or greater willingness to exercise self-restraint in the interest of moral or patriotic duty since.
posted by saulgoodman at 6:55 AM on May 13, 2009 [1 favorite]


Surely this?
posted by paisley henosis at 8:30 AM on May 13, 2009


Meanwhile, it's starting to look more and more likely we are going to see some action on Bush/Cheney's torture policies very soon.

It's still very early in the game. If this is a game of chess, we're not even halfway through the opening sequence yet.
posted by saulgoodman at 8:31 AM on May 13, 2009


Here, a doctrine called qualified immunity will make prosecutions very difficult. Without writing a legal memo, the doctrine protects those acting on the government's behalf, if there was a reasonable belief that their actions were legal, the actor is immune. Here, the memos would likely form a solid basis for just such a defense.

IANAL, but this has to be wrong. The torture statute applies specifically to agents of the government acting under the color of law. One interesting bit is the statute was amended by the PATRIOT Act to include the conspiracy clause.

The idea that the government can write a memo that says torture is not illegal and therefore does not apply when we torture someone would make the statute irrelevant. Based on the 2002 Yoo/Bybee memo, a sufficiently skilled lawyer could justify rape.

The only reason there is a debate over whether or not waterboarding is torture is because the people that are guilty of instituting the US torture programs have war crimes charges hanging over them like the Sword of Damocles. The Mississippi supreme court called waterboarding torture; the federal government called it torture when the Japanese did it to our soldiers; and the Reagan DOJ called it torture when they prosecuted a sheriff and his deputies for doing it.
posted by ryoshu at 8:32 AM on May 13, 2009 [1 favorite]


Meanwhile, it's starting to look more and more likely we are going to see some action on Bush/Cheney's torture policies very soon.

CSPAN 3 has some hearings going on right now.
posted by ryoshu at 8:36 AM on May 13, 2009


The idea that the government can write a memo that says torture is not illegal and therefore does not apply when we torture someone would make the statute irrelevant. Based on the 2002 Yoo/Bybee memo, a sufficiently skilled lawyer could justify rape.

I feel like a broken record. But a lot of you could really benefit in a course on critical analysis because you continually assume your conclusions.

The government did not write a memo that says "torture is not illegal." The government wrote a memo that says "these actions do not constitute torture [torture being illegal]."

This is not justifying rape. The problem here is that you already determined that rape occurred and then are accusing people of justifying it. That's not what is going on.

What occurred was some lawyers were asked about what forms of interrogation can be permitted for individuals who are captured in this situation where we have transnational combatants who may be involved in a terrorist group with plans for this country. So the lawyers did what lawyers do: they went and read all the law surrounding the area and applied to the facts like a coverage opinion. They said, in effect, "based on the law in this area, you can do A, B, C but you cannot do X, Y, and Z." They were asked can we do D? They examined it and said yes based on the law. Policies were then created and applied, with the belief that D was acceptable within the parameters of the law. And in this case, we are talking about a very vague and potentially arbitrary law.

This is all about where the boundaries are. It was never the case that they said there are no boundaries. It is was never the case that they said "we know this is outside the boundaries, but... fuck it, do it anyway." They engaged in highly technical analysis about where the boundaries are.

So bringing this back to your rape analysis, this isn't about justifying rape. This is more like defining what constitutes consent. Legal opinions were authored about what constitues consent and what does not. No legal opiniosn were authored that consent does not matter and just rape away.

If you look at this from those facts instead of assuming your conclusion that what was authorized was unquestionably known and intentional illegal torture by the state, you would see why this is a complex political issue for this administration one as opposed to a legal issue.
posted by dios at 9:53 AM on May 13, 2009 [2 favorites]


Now Obama will delay the release of photos he agreed to release. Trying to put the genie back in the bottle.

I think Iraqis are going to be more angry about the continuing coverup than about the abuse they already know happened.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 10:17 AM on May 13, 2009




"That's what I meant by begging the question earlier. The US has admitted that it used interrogation techniques that it believes do not run afoul of the Geneva Convention. "

Waterboarding is explicitly named as a torture technique which is prohibited. It doesn't matter what the US believes, if it admits it used waterboarding. Ignorance of the law is no excuse.
posted by krinklyfig at 10:39 AM on May 13, 2009


"The government did not write a memo that says 'torture is not illegal.' The government wrote a memo that says 'these actions do not constitute torture [torture being illegal].'"

That's correct, but their interpretation is laughable. In fact, Alberto Gonzales is still having difficulty finding work, as well as most of the other Bush administration legal apologists, and there is a fairly substantiated effort to have them all disbarred. You can find and hire a lawyer to give you the interpretation you want, if you look hard enough. That's what they did. They ignored the legal advice stating that these acts were illegal and fired those who tried to make that case to them. IOW, they selectively picked the interpretations they wanted and willfully ignored advice they didn't like.
posted by krinklyfig at 10:44 AM on May 13, 2009


So the lawyers did what lawyers do: they went and read all the law surrounding the area and applied to the facts like a coverage opinion.

Actually, they didn't. On the federal level Yoo ignored US vs. Carl Lee, a case where a Texas sheriff and his deputies waterboarded a suspect (prosecuted by the Reagan DoJ). The word torture was used 12 times by the court in that case and Lee was found guilty. There were also the cases following WWII of Japanese soldiers being prosecuted for waterboarding American POWs. There's even Fisher v. State, 110 So. 361, 362 (Miss. 1926) where the court stated, "that they had the appellant down upon the floor, tied, and were administering the water cure, a specie of torture well known to the bench and bar of the country." Yoo didn't bother to mention any of these cases in his dispassionate analysis.

A further complication occurs when we look at the timeline of the first Yoo/Bybee memo. The memo was released in August 2002, months after the CIA had engaged in waterboarding. It's not a leap to consider that maybe the memo was written as CYA rather than a strict legal analysis. In fact, the Yoo memo, along with others, have been repudiated since.

So bringing this back to your rape analysis, this isn't about justifying rape.

I would suggest going back and reading the August 2002 memo, specifically the analysis of intent. Rape is allowed as long as the person committing the rape does not intend to cause severe pain or suffering. There is at least one allegation of rape from Khalid el-Masri at the hands of US interrogators in Afghanistan (el-Masri was kidnapped while on vacation thanks to a clerical error -- "al" being confused with "el").

If you look at this from those facts instead of assuming your conclusion that what was authorized was unquestionably known and intentional illegal torture by the state, you would see why this is a complex political issue for this administration one as opposed to a legal issue.

I'm not sure if it was or was not "unquestionably known and intentional illegal torture by the state," but I think the state engaged in a lot of stretching of reasonable readings of law in order to justify its actions. The state went so far as to ignore the vast majority of opinions coming from the armed forces, professional interrogators and administration lawyers, preferring to rely on John Yoo's analysis without debate (see Judge Advocates, Soufani, Zelikow, etc.).

This has put people that have sworn to uphold and protect the constitution in an unfortunate position where they may have received legal advice that leaves them open to prosecution. If I were a CIA agent that was told these actions were absolutely legal I would be fuming that I could now be in legal jeopardy due to the results oriented OLC analysis -- ignorantia juris non excusat being what it is.
posted by ryoshu at 10:44 AM on May 13, 2009 [4 favorites]


They're not really requesting to block the release, as the headline you linked suggests, but to delay it.

Defense and military officials tell NBC News that President Obama will seek to delay the release of hundreds of photos which reportedly depict the abuse of prisoners by U.S. military in Iraq and Afghanistan.
. . .
Gen. Ray Odierno, the top U.S. military commander in Iraq met with Obama at the White House Tuesday to ask the administration not to release the photos. Defense officials say Odierno is "vehemently opposed" to the release because he fears it could create a widespread "backlash" against military forces in both war zones.

. . .

The only legal option left to the government was to appeal the decision to the Supreme Court. Instead the Obama administration had earlier made the decision to end the appeals and release the photos.

Should he just ignore the military leadership on this? Besides, the courts could still rule in favor of releasing the photos. They're not bound to comply with the request. The administration would have to take the matter up with the supreme court to try to block the release.
posted by saulgoodman at 10:48 AM on May 13, 2009


"Should he just ignore the military leadership on this? Besides, the courts could still rule in favor of releasing the photos. They're not bound to comply with the request. The administration would have to take the matter up with the supreme court to try to block the release."

Obama clearly has to get the military on his side, and I think he's trying to do so and is succeeding more than a lot of people anticipated (he's no Clinton, who was unfairly maligned but admittedly didn't have a great grasp of military strategy). But subverting the rule of law in order to protect that sort of relationship will not work out the best in the long run, IMO.
posted by krinklyfig at 11:29 AM on May 13, 2009


That's correct, but their interpretation is laughable...
posted by krinklyfig at 12:39 PM on May 13

I'm not sure if it was or was not "unquestionably known and intentional illegal torture by the state," but I think the state engaged in a lot of stretching of reasonable readings of law in order to justify its actions.
posted by ryoshu at 12:44 PM on May 13


Here we go! I'm not going to argue against your opinions about the relative legal merits of the memos. I've read Sullivan, Greenwald and the rest, too. I also know the counter-arguments. I know the arguments (which are just that: arguments). I also have done enough coverage opinions to know that often you can arise at an opinion despite the existence of contradictory authority because said authority may be factually distinguishable or archaic such that it is no longer applicable in this instance. It's the reason that Supreme Court opinions have majority opinions and dissents, both of which usually cite a lot of authority in support of their opinions.

Ultimately, you might be correct that the opinions are "laughable" or "stretched." Or maybe they have correct about their legal opinions.

The salient point is that there is a legal argument to be had. There is nothing coming close to a binding, unarguably applicable precedent here. They might be wrong or correct about the boundaries. At the end of the day, I submit to you that the boundaries are so vague that opinions about where they lie ultimately are driven by political viewpoints, not legal requirements.

Importantly, the correctness of a the legal or political judgment on the issue of the previous Administration does not matter from the context of what Obama is facing. Obama cannot prosecute the actions of the previous administration, and he cannot allow other politically motivated prosecutions to occur when they threaten the national security interest of this country. From Obama perspective as the Executive and Commander of Chief, he has more important concerns than political considerations.
posted by dios at 11:49 AM on May 13, 2009


But subverting the rule of law in order to protect that sort of relationship will not work out the best in the long run, IMO.
posted by krinklyfig at 1:29 PM on May 13


*Assuming your conclusion alert*

Hypothetically speaking, suppose this went to the Supreme Court and they sided with Yoo. In such a circumstance, would not having engaged in the prosecution at the outset been "subverting the rule of law"?
posted by dios at 11:53 AM on May 13, 2009


But subverting the rule of law in order to protect that sort of relationship will not work out the best in the long run, IMO.

Well, in the case of the request to delay the release of the photos, they definitely aren't "subverting the rule of law."

They're only formally requesting that the courts delay the release, due to concerns within the military about the timing of the release potentially increasing the risk to military personnel in the field.

They're not, as is being so sloppily reported, "preventing" or "blocking" the release; only the courts have the authority to keep the release from going ahead.

If the current court says the release must go ahead as planned anyway despite the request for delay, then the administration has to appeal to the supreme court to prevent their release, and the supreme court gets to have the final say.

Isn't that exactly what's meant by observing the rule of law?
posted by saulgoodman at 12:21 PM on May 13, 2009


"Well, in the case of the request to delay the release of the photos, they definitely aren't 'subverting the rule of law.' "

Well, that's not exactly what I was talking about. I meant that in a general sense, if the Obama administration is willing to subvert the necessity in the Geneva Conventions to prosecute torture which they are aware of their own people and policies enacting, then they are subverting the rule of law, no matter if there is some political reason to do so.
posted by krinklyfig at 12:29 PM on May 13, 2009


"The salient point is that there is a legal argument to be had. There is nothing coming close to a binding, unarguably applicable precedent here. They might be wrong or correct about the boundaries. At the end of the day, I submit to you that the boundaries are so vague that opinions about where they lie ultimately are driven by political viewpoints, not legal requirements."

There is a requirement to prosecute torture when we are aware of it. It isn't optional. At this point, trying to claim there was no knowledge of torture is going to be difficult, particularly considering what Cheney has been saying lately. It's not really important if the US' lawyers consider waterboarding torture or not; it's explicitly and always prohibited, in US law (including case law) as well as military codes and the Geneva Conventions. They can present a case, but they can't hide behind the argument that their lawyers told them it was OK in order to avoid any type of culpability.
posted by krinklyfig at 12:35 PM on May 13, 2009


Here, a doctrine called qualified immunity will make prosecutions very difficult. Without writing a legal memo, the doctrine protects those acting on the government's behalf, if there was a reasonable belief that their actions were legal, the actor is immune. Here, the memos would likely form a solid basis for just such a defense.

IANAL, but this has to be wrong. The torture statute applies specifically to agents of the government acting under the color of law. One interesting bit is the statute was amended by the PATRIOT Act to include the conspiracy clause.


Well, I am a lawyer who does qualified immunity cases. Of course the statute applies. But the qualified immunity analysis occurs first.
posted by Ironmouth at 12:38 PM on May 13, 2009


saulgoodman: "They're only formally requesting that the courts delay the release, due to concerns within the military about the timing of the release potentially increasing the risk to military personnel in the field."

"Delay" until when, exactly? When the "War on Terror" - or whatever new marketing slogan Obama's team comes up with for it - is won? When American soldiers are no longer enforcing empire on regions relevant to "vital national interests"?
posted by Joe Beese at 12:40 PM on May 13, 2009


"Obama cannot prosecute the actions of the previous administration, and he cannot allow other politically motivated prosecutions to occur when they threaten the national security interest of this country."

I don't know where in the US code or Constitution it states that a previous administration cannot be prosecuted. Tradition is not legally binding, and indeed I believe the law applies to every citizen, president or not. How do you prosecute war crimes otherwise?

As far as politically motivated prosecutions, that's pure conjecture on your part. If the Geneva Conventions say we must prosecute torture and we do not, we are allowing our local politics to subvert our laws and international binding agreements (which we drafted, incidentally, and which our own Constitution refers to as the "law of the land," but this doesn't even include our own laws prohibiting it). If we prosecute where there is evidence to make a case, it's not political to bring indictments.
posted by krinklyfig at 12:40 PM on May 13, 2009




"he cannot allow other politically motivated prosecutions to occur when they threaten the national security interest of this country"

If we do nothing about the clear evidence of torture and conspiracy, it will have a devastating effect on our national security. The primary motivator in bringing new recruits to Al Q'aeda is the fact that we very clearly tortured Iraqi citizens, many of whom have no connection whatsoever to any terrorist organization and who were swept up in random raids. This has been stated repeatedly by members of the intelligence and soldiers on the ground, including General Karpinski and several others directly involved who are now discharged and are talking freely, and who are all pushing for full investigations and prosecutions.
posted by krinklyfig at 12:47 PM on May 13, 2009 [1 favorite]


Also, the argument about the law misses the point. The government should not be in the business of trying to twist the law as much as it can in order torture people and get away with it.

The proper place for lawyers to defend torture is defense council in a criminal trial.
posted by delmoi at 12:48 PM on May 13, 2009 [2 favorites]


Well, that's not exactly what I was talking about. I meant that in a general sense, if the Obama administration is willing to subvert the necessity in the Geneva Conventions to prosecute torture which they are aware of their own people and policies enacting, then they are subverting the rule of law, no matter if there is some political reason to do so.

Please stop saying that the Geneva Conventions "require" the US to prosecute individual torture cases. It does not. How could it? Must every allegation of torture by a person alleging to be covered by the Conventions be prosecuted? Say I assert that Sgt. Shultz tortured me, even though the facts show he was driving Col. Klink around the Eastern Front at the time. Must there be a prosecution?

No. The Conventions do not "require" torture prosecutions in individual cases. Prosecutorial discretion is vested in the executive. Your blanket and professionally uninformed statements do not state the law as it is. If there is no evidence to support a prosecution, no prosecution will go forward.

I agree with Glenn Greenwald's positions on about 90% of the issues he writes about. But he is a inverterate liar. Rather than informing his readers, he gives them incorrect information in order to inflame them. He is a trained lawyer and he knows better. Don't believe what he says about the law--he constantly stretches it as far as it will possibly go and misinforms his readers in the process.
posted by Ironmouth at 12:54 PM on May 13, 2009


If we do nothing about the clear evidence of torture and conspiracy....

There is a requirement to prosecute torture when we are aware of it.
posted by krinklyfig at 2:35 PM on May 13


I've said this a dozen times in this thread and you seem to be completely the concept: that illegal torture occurred is not a fact despite your belief that it has.

Are you unable to consider the possibility that you are wrong legally punishable torture was authorized?

It's not really important if the US' lawyers consider waterboarding torture or not; it's explicitly and always prohibited, in US law (including case law) as well as military codes and the Geneva Conventions.
posted by krinklyfig at 2:35 PM on May 13


Uh, no it's not. It is not explicit in the least. That's what the entire argument is over. And that's the point you are repeatedly missing.

I don't know where in the US code or Constitution it states that a previous administration cannot be prosecuted.
posted by krinklyfig at 2:35 PM on May 13


It's not a law. But its politically stupid to go on a political witch hunt of a previous administration. It might make you feel all good and warm inside to get those bastards, but it is a bad idea for Obama and establishes a horrible precedent for this country.

Because despite your firm belief that you know illegal torture was committed, the reality is different and not subject to the firmness of your personal belief.
posted by dios at 12:59 PM on May 13, 2009


And Ironmouth is dead on w/r/t prosecutorial discretion.
posted by dios at 1:02 PM on May 13, 2009


Well, I am a lawyer who does qualified immunity cases. Of course the statute applies. But the qualified immunity analysis occurs first.

The Fifth Circuit covered something similar in US vs. Lee[0]. The defendants were agents of the state and tried to claim ignorance and/or a "Nuremberg defense." In the case of agents of the US relying on advice from the OLC, we come to a question of law. Do you think such questions are a matter that should be referred for investigation and, if warranted, prosecution? Qualified immunity is a legal claim that needs to be presented in front of a court.

As I mentioned earlier, if I were a CIA agent I would be pissed at the OLC and the former administration. The question in the case of Yoo/Bybee is whether they were merely incompetent (something held by the OPR) or if they engaged in conspiracy to torture. That too requires an investigation.

[0] - I would assume US v. Lee could be distinguished since it was a civil rights case, but I don't know how that would effect any analysis that waterboarding is torture.
posted by ryoshu at 1:03 PM on May 13, 2009


"It's not a law. But its politically stupid to go on a political witch hunt of a previous administration. It might make you feel all good and warm inside to get those bastards, but it is a bad idea for Obama and establishes a horrible precedent for this country."

This assumes all our allies are fine with what we do no matter what. You know, our allies, the other signatories to the Geneva Conventions which we drafted in order to prevent the use of torture by anyone, but explicitly by the signatories, not explicitly and only our "enemies." If the Obama administration fails to act to deal with the problem, we jeopardize our alliances and our international standing. We will encourage more terrorist recruitments and cement Obama as a leader who talks the talk but doesn't walk the walk. We will severely damage our relationship with Pakistan as well as the citizens and nascent puppet governments of Iraq and Afghanistan, both of which are wanting us out ASAP. We may save a little face at home with the few remaining Republican defenders of torture, but at what cost?
posted by krinklyfig at 1:06 PM on May 13, 2009 [1 favorite]


"Because despite your firm belief that you know illegal torture was committed, the reality is different and not subject to the firmness of your personal belief."

You only make such arguments when it's politically preferable to your own views. It's all nice and good to speak as the objective lawyer, but we're not hiring you to practice.
posted by krinklyfig at 1:09 PM on May 13, 2009


The Fifth Circuit covered something similar in US vs. Lee.

No it did not. And this is the problem with relying on Greenwald and Sullivan. They are not accurate.

Read it for yourself
(hell, you cited the damn thing) and then try that point again.

The case was about severance. There was no holding or ruling at all about what constitutes torture, whether qualified immunity applies or anything relevant at all to this case.

(Which, incidentally, is why Yoo never mentioned the thing--despite your belief that the failure to do so renders his analysis defective)
posted by dios at 1:13 PM on May 13, 2009


(that first line should be in italics as it quoting ryoshu, not a comment of mine)
posted by dios at 1:13 PM on May 13, 2009


You only make such arguments when it's politically preferable to your own views. It's all nice and good to speak as the objective lawyer, but we're not hiring you to practice.
posted by krinklyfig at 3:09 PM on May 13


Is that your substantive response to what I said?
posted by dios at 1:16 PM on May 13, 2009


Also, the argument about the law misses the point. The government should not be in the business of trying to twist the law as much as it can in order torture people and get away with it.

The proper place for lawyers to defend torture is defense council in a criminal trial.


Exactly wrong. The law is the law. People would like it to work every time to produce the results they think right every time. However, the law is a combination of competing interests which get balanced off one another.

Let's take an example. Imagine a serial killer who keeps detailed notes about every crime he ever committed. He's killed 100's of children in cold blood. He hides these notes. An angry officer, working on a wild, unsupported hunch, breaks into the killer's house without a warrant and takes the notebook. 100's of bodies are dug up. It is incontrovertible that the notebook is evidence of a crime. The only evidence linking the killer to these hundreds of child murders is the notebook. Defense counsel moves for supression of the notebook on the basis of a violation of the Fourth Amendment.

You're the judge. You know the law incontrovertably holds the search and all fruits from it to be inadmissable in court. What do you do?

Here you have a conflict between two values. If you uphold the one, the other is completely wiped out. What do you do?

These are common, everyday situations in the law. Judges face them every single day across the country. What dios and I have been saying is that the situation isn't as clear-cut as Glenn Greenwald would like you to believe and that there are many competing values that have to be sorted out by the courts here.

That's why my point has been that this is a political matter that needs to be settled politically. Criminal and civil litigation brings a whole bunch of baggage into these matters which will allow those who want to see the US keep on torturing to muddy the waters. By focusing on the political aspects, you get what you saw today, which was Lindsey Graham trying to say that torture has been effective since the middle ages and that's why it is still around. Every time they are forced to defend torture on a straight-up policy basis, they will lose and we will win.

When courts get involved, then other values which the court must also endeavor to uphold will often come into conflict with learning about torture. Some decisions will go against those prosecuting torture, because those values are too pressing. People will be forced to make compromise decisions, like the President is forced to do now. He has to balance the need to protect the troops he commands with the need to get the photos out to inform the people. Lives may be lost because of his decision. It isn't easy.

I know everyone would like the law to be other than it is. There are many cases I have where I wish the law was different as it was. But the law represents a balancing of multiple interests whether we like it or not. The Glenn Greenwalds of this world don't inform you of this. That is where they fail.
posted by Ironmouth at 1:16 PM on May 13, 2009


"Delay" until when, exactly?

Until the courts say they can't delay any longer. Duh. It's not exclusively up to the discretion of the administration. They're not steamrolling over everybody else the way we got accustomed to the Bushies doing. They're deferring to the courts, which is how the system is supposed to work.
posted by saulgoodman at 1:19 PM on May 13, 2009


"Is that your substantive response to what I said?"

It's a comment. Talking with attorneys can be frustrating to laypeople, because you (all) tend to couch your personal opinions in legal arguments instead of stating your opinion. I get how legal training comes into play, although I often see lawyers use the objective legal argument to advance a personal opinion. To answer your question, assuming you're not just trolling me, that was not my whole response, no. Look at the comment above it.
posted by krinklyfig at 1:21 PM on May 13, 2009


"Every time they are forced to defend torture on a straight-up policy basis, they will lose and we will win."

Then why bother making it illegal at all? And what sort of precedent is established without legal consequence to laws which have been violated, but rather handing it politically? How do future administrations feel restrained when there are no clear consequences, and our own laws, military codes and international treaties are pushed aside for our internal issues? And how does that bode for our allies? If we have to prosecute leaders from other nations for war crimes, and we have done so in the past, but we claim we shouldn't be subject to the same laws for our own political considerations, where does that put us?
posted by krinklyfig at 1:25 PM on May 13, 2009 [1 favorite]


Ironmouth, Please stop saying that the Geneva Conventions "require" the US to prosecute individual torture cases. It does not.

The Convention Against Torture requires, "...its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction." (Part 1, Article 12).

It further states: "Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined its competent authorities." (Part 1, Article 13)

Khalid el-Masri and Maher Arar come to mind. Both have tried to bring suit, both were dismissed under the state secrets doctrine. The US is a signatory to and has ratified the CAT.

dios, Uh, no it's not. It is not explicit in the least. That's what the entire argument is over.

Waterboarding was widely understood to be torture prior to the August 2002 memo written by Yoo. From Torquemada, to Japanese officers in WWII, to the Khmer Rouge, even within our own domestic courts it has always been considered a method of torture.

But this is a question of law and should be settled as such. This isn't even going into the allegations of rape and rendition to be tortured (including slicing of genitals and beatings with shredded cables).
posted by ryoshu at 1:29 PM on May 13, 2009


"Criminal and civil litigation brings a whole bunch of baggage into these matters which will allow those who want to see the US keep on torturing to muddy the waters."

What evidence do you have to support this assertion? Is this what happened when we've prosecuted war criminals in the past? Is that a viable defense in a matter like this?
posted by krinklyfig at 1:30 PM on May 13, 2009


Talking with attorneys can be frustrating to laypeople, because you (all) tend to couch your personal opinions in legal arguments instead of stating your opinion.

Not at all. We don't couch our personal opinions in legal arguments. If that is what you believe, then you are greatly confused and perhaps explains your problem in this discussion. What we are doing is talking about the law requires and applying that to the facts as opposed our opinions about the facts.

Be that as it may, it is even more frustrating to discuss an issue with someone when they make a conclusion that is not required by the facts and then force you to talk about a subject based on their conclusion instead of the facts.

Again: is there any way you might consider that what occurred was not torture? Because if not, then we are not going to be able to get anywhere with this discussion with you because you have already assumed the conclusion. What we've been trying to tell you is (1) the facts are not as clear as you are assuming, (2) the law is not as clear as you are assuming, and (3) as a result the thought process for Obama is not a purely legal one and is heavily a political one.
posted by dios at 1:35 PM on May 13, 2009


Please stop saying that the Geneva Conventions "require" the US to prosecute individual torture cases. It does not. How could it? Must every allegation of torture by a person alleging to be covered by the Conventions be prosecuted? Say I assert that Sgt. Shultz tortured me, even though the facts show he was driving Col. Klink around the Eastern Front at the time. Must there be a prosecution?

Wow. How many disingenuous examples can you cram into one thread? here we have two different things.

1) Any accusation of torture
2) Know instances of torture.

You argue that mandatory prosecution of 2 can't be necessary because mandatory prosecution of 1 would be impractical. Do you seriously expect people to get confused or are you just trying to waste peoples time? Or are you actually confused yourself?

You seem to do this a lot, by the way, make arguments based on false analogies. It's such a waste of time.
posted by delmoi at 1:38 PM on May 13, 2009 [1 favorite]


Waterboarding was widely understood to be torture prior to the August 2002 memo written by Yoo. From Torquemada, to Japanese officers in WWII, to the Khmer Rouge, even within our own domestic courts it has always been considered a method of torture.

This is simply not true in any sense that is relevant to this inquiry. These are the kind of broad claims that muddy the water.

By the way, are you suggesting that US v. Lee is one of "our own domestic courts" that considered waterboarding a method of torture?
posted by dios at 1:39 PM on May 13, 2009


"Again: is there any way you might consider that what occurred was not torture?"

It is my opinion that torture occurred. It's difficult to conclude otherwise, as a thinking, rational person, though IANAL, so all I can give is my opinion. If you want to argue with a lawyer, there are others on here. I understand there is a legal process to determine exactly if it were the case, but you seem to be claiming that we enjoy some sort of immunity from the law or option to decide whether to investigate or prosecute where there is significant evidence of war crimes, immunity which involves our own internal political considerations. I don't think that would have worked at Nuremberg.
posted by krinklyfig at 1:46 PM on May 13, 2009


But this is a question of law and should be settled as such.
posted by ryoshu at 3:29 PM on May 13


There may be a legal question to be answered. But this is, and remains, a largely political one.

The "legal question" can be addressed legislatively. The Legislature can pass a law right now that says waterboarding constitutes torture and cannot be be used from here on out. Would that be sufficient for your purposes?

That result probably would not satisfy most of the people in this thread who want prosecutions for prosecutions sake. Most of this is driven by partisan blood thirst to "get the bastards." And that is what Obama is thankfully not pursuing because it establishes a horrible precedent.

Should we have prosecuted JFK (had he not died) for his Cold War and Vietnam decisions?
Should we have prosecuted LBJ for Vietnam decisions?
Should we have prosecuted Nixon for... any number of things?
Should we have prosecuted Reagan for Iran Contra things?
Should we have prosecuted Clinton for bombing the pharmaceutical factory?

We could make legally-based arguments that each of those presidents did various things in executing their jobs that may have run afoul of some law. In the end, they would all be political questions at their bare essence, not true legal questions. Each of those prosecutions would be bad and would be a bad precedent. Thankfully we don't do that.
posted by dios at 1:47 PM on May 13, 2009


That's why my point has been that this is a political matter that needs to be settled politically. Criminal and civil litigation brings a whole bunch of baggage into these matters which will allow those who want to see the US keep on torturing to muddy the waters. By focusing on the political aspects, you get what you saw today, which was Lindsey Graham trying to say that torture has been effective since the middle ages and that's why it is still around. Every time they are forced to defend torture on a straight-up policy basis, they will lose and we will win.

When courts get involved, then other values which the court must also endeavor to uphold will often come into conflict with learning about torture. Some decisions will go against those prosecuting torture, because those values are too pressing. People will be forced to make compromise decisions, like the President is forced to do now. He has to balance the need to protect the troops he commands with the need to get the photos out to inform the people. Lives may be lost because of his decision. It isn't easy.
So what you're saying is that we, as a policy, should not torture, but at the same time torture should not be illegal because that would mean courts would have to get involved? Frankly that's so stupid it's not even worth trying to come up with a counter argument. But I will point out that the policy was changed in secret by the bush administration. There was no public debate and they obviously didn't intend for anyone to find out. How that fact applies to your argument is left as an exercise for the reader.
posted by delmoi at 1:49 PM on May 13, 2009 [1 favorite]


Waterboarding was widely understood to be torture prior to the August 2002 memo written by Yoo.

And FWIW, Obama has already consistently gone out on the limb and publicly stated that he believes waterboarding is torture. To my mind, that suggests he's eventually planning to go somewhere with all this. He just wants to do it right.
posted by saulgoodman at 1:49 PM on May 13, 2009


Should we have prosecuted Clinton for bombing the pharmaceutical factory?

an interesting point you make. i think the answer is... maybe. but you seem to be forgetting that clinton WAS prosecuted via the quixotic impeachment proceeding. wasn't this precedent you seem to fear so greatly pretty well-established by that episode?
posted by Hat Maui at 1:53 PM on May 13, 2009 [1 favorite]


No it did not. And this is the problem with relying on Greenwald and Sullivan. They are not accurate.

Read it for yourself (hell, you cited the damn thing) and then try that point again.


You're right. I thought I read in the original case the defendants tried to claim qualified immunity, but I could be confusing that with something else (and Google is not helping me find it).

There was no holding or ruling at all about what constitutes torture

Ok, dicta, but it could be instructive. The fact that the Fifth Circuit referred to waterboarding as torture twelve times in a short opinion says something. Then there's a 1903 court martial case, a 1968 court martial case, two cases in Mississippi, the Tokyo Tribunal... I don't have access to Westlaw, but a search for water cure, water torture, waterboarding and variations thereof might prove interesting.

(Which, incidentally, is why Yoo never mentioned the thing--despite your belief that the failure to do so renders his analysis defective)

I'm hardly the only person that believes his analysis was defective. The OPR, his peers at the time, his successors, conservative law professors, former DoJ officials, etc. have all said the same thing.
posted by ryoshu at 1:54 PM on May 13, 2009 [1 favorite]


Should we have prosecuted JFK (had he not died) for his Cold War and Vietnam decisions?
Should we have prosecuted LBJ for Vietnam decisions?
Should we have prosecuted Nixon for... any number of things?
Should we have prosecuted Reagan for Iran Contra things?
Should we have prosecuted Clinton for bombing the pharmaceutical factory?


Why not? At least for the things that were actual crimes under U.S. law, such as Watergate and the Iran Contra affair. After all, if those people had not been pardoned, it's more likely that future criminality would never have happened. That's the whole point of having criminal law: to deter future crime by establishing a punishment.
posted by delmoi at 1:54 PM on May 13, 2009


"...its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction." (Part 1, Article 12).

It further states: "Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined its competent authorities." (Part 1, Article 13)


This is not a requirement to prosecute. A prompt and impartial inestigation is not a requirement to indict. I think we can lay this to rest. These passages have been massively distorted in this argument.
posted by Ironmouth at 1:55 PM on May 13, 2009


Let's take an example. Imagine a serial killer who keeps detailed notes about every crime he ever committed. He's killed 100's of children in cold blood. He hides these notes. An angry officer, working on a wild, unsupported hunch, breaks into the killer's house without a warrant and takes the notebook. 100's of bodies are dug up. It is incontrovertible that the notebook is evidence of a crime. The only evidence linking the killer to these hundreds of child murders is the notebook. Defense counsel moves for supression of the notebook on the basis of a violation of the Fourth Amendment.

You're the judge. You know the law incontrovertably holds the search and all fruits from it to be inadmissable in court. What do you do?


Why, to me there's not even an issue - of course, you order the illegally ceased evidence suppressed!

Why wouldn't you? Because you don't like the outcome of enforcing the law? Does that mean that every time some judge doesn't like some law, they are welcome to disregard it?

Be aware, that for every one case where the "angry cop" broke the law and was lucky enough for his hunch to be correct, there may be a thousand cases where the cop and his hunch were utterly wrong. But for the sake of the one cop who once in a blue moon happens to be right, you propose to in effect disregard a law? That opens the gates to a flood of abuse. Any cop anywhere is then welcome to think "but I am sure I'm right, so I'll just ignore the law, and the judge will back me up - oops, I guess I was wrong, never mind, I meant right". The entire point of the law as it stands it to prevent mere "hunches" from being used to disenfranchise citizens, whether the hunches spring from sincere motivations or not.

And what of this very case - the serial killer and the 100 kids? Here's the wisdom of the maxim: "it is better to let a thousand guilty men go free, than to imprison unjustly one innocent man". Are yo advocating the opposite? Would you rather imprison a thousand innocent men, to make sure one guilty person does not escape punishment?

Because that's the effect of disregarding the law in this case. There is a price to pay for a free society. And we found that it is a price worth paying, even if it results in some inefficiency and does not allow the trains to run on time 100% of the time. That's why we don't disregard laws, even if they are inconvenient - that's what it means to be a country of laws.

Should we find some law to be so flawed that the hypothetical killer gets away with crimes time and again, then it is time to change the law. We have recourse to that - changing the law, never ignoring it when we find it inconvenient.
posted by VikingSword at 1:59 PM on May 13, 2009 [1 favorite]


So what you're saying is that we, as a policy, should not torture, but at the same time torture should not be illegal because that would mean courts would have to get involved? Frankly that's so stupid it's not even worth trying to come up with a counter argument.

If my argument was the straw man you paint it to be, yes. Since that's not my argument, no. Please don't 'restate' my argument.

What I am saying here is that is this individual case, it would be better to pursue the political solution if we want to prevent this from happening again. In a case where the prior administration has authorized waterboarding and obtained several legal opinions which may serve to immunize the torturers and other, competing interests exist, more can be done by focusing on the political aspects of the matter. The focus on prosecutions that are likely to fail will only engender sympathy amongst the general populace, which is exactly what we don't want. Because the double-edged sword of torture will make it likely impossible to press criminal cases against those who were tortured, even if they do deserve it. The result would be that Khaled Sheik Mohammed and others will go free and those who tortured them would be prosecuted. I'm certain you would agree that this will not go over well with the American public, as the mastermind of 9/11 walks, while those who tortured him on behalf of the government are imprisoned. It is the height of political naievte to believe this will help the anti-torture case in any way.
posted by Ironmouth at 2:02 PM on May 13, 2009


saulgoodman: "It's not exclusively up to the discretion of the administration. They're not steamrolling over everybody else the way we got accustomed to the Bushies doing. They're deferring to the courts, which is how the system is supposed to work."

What on earth are you talking about?

"The courts" ruled in favor of the ACLU's Freedom of Information suit. The Obama Justice Department agreed to release the photographs by May 28.

All Obama has to do at this point is stand still. Perhaps focus his attention on seeing that the banksters don't destroy the economy again?

If that's your idea of "steamrolling over everybody else" [who? the torture apologists at the National Review?], I don't think we really have anything else to say to each other.
posted by Joe Beese at 2:04 PM on May 13, 2009


but I could be confusing that with something else

It's not your fault. Bloggers have been regurgitating that canard without even reading the 2 page opinion to see that it has no relevance at all.

I'm hardly the only person that believes his analysis was defective.
posted by ryoshu at 3:54 PM on May 13


Defective is an opinion. Was it completely and wholly untenable so as to constitute no basis in law or fact? Probably not. Was it the opinion that the Supreme Court might ultimately reach? Probably not. But maybe. I don't know because there is no good standard or guidance to rely upon.

I don't begrudge the opinion that Yoo was wrong. What I think is improper is the argument from Greenwald and Sullivan, et al. that the law was so unequivocally clear the opinion of Yoo could never reasonably exist given the status of the law. And that is just wrong. Legal opinions are rarely ever that clear cut in the absence of clear statutory authority.

Ok, dicta, but it could be instructive.

It's not even dicta. It's not instructive in the least. Nor is even clear if the "torture" they describe is in any way equivalent or similar to what Yoo was describing.

The fact that the Fifth Circuit referred to waterboarding as torture twelve times in a short opinion says something.

The Fifth Circuit never referred to "waterboarding as torture." The Fifth Circuit referred to something called "water torture" and used the shorthand phrase because it is was not legally relevant to the issue of severance.

Then there's a 1903 court martial case, a 1968 court martial case, two cases in Mississippi, the Tokyo Tribunal...

Same deal. Go back through all of those cases. They are not the least bit binding precedent.
posted by dios at 2:04 PM on May 13, 2009


Ok, dicta, but it could be instructive. The fact that the Fifth Circuit referred to waterboarding as torture twelve times in a short opinion says something. Then there's a 1903 court martial case, a 1968 court martial case, two cases in Mississippi, the Tokyo Tribunal... I don't have access to Westlaw, but a search for water cure, water torture, waterboarding and variations thereof might prove interesting.

I'm pretty sure that everyone here thinks its torture. The question is what is the best method to prevent it from happening in the future.
posted by Ironmouth at 2:05 PM on May 13, 2009


Why, to me there's not even an issue - of course, you order the illegally ceased evidence suppressed!

Why wouldn't you? Because you don't like the outcome of enforcing the law? Does that mean that every time some judge doesn't like some law, they are welcome to disregard it?

Be aware, that for every one case where the "angry cop" broke the law and was lucky enough for his hunch to be correct, there may be a thousand cases where the cop and his hunch were utterly wrong. But for the sake of the one cop who once in a blue moon happens to be right, you propose to in effect disregard a law?


I agree with you. Supression is the proper ruling. But what I'm trying to point out is that these are matters involving competing values which courts and prosecutors must wade through and some times other values will be found to be more important. That's why the courts are likely not going to be the best venue.
posted by Ironmouth at 2:08 PM on May 13, 2009


Same deal. Go back through all of those cases. They are not the least bit binding precedent.

Not only that, but there can be no "binding precedent" in an evidentiary sense. Declaring that one instance of "waterboarding" constituted torture does not bind every court to the same conclusion. It constitutes the difference between law and facts and what a court can bind other courts to follow. Each factual circumstance is different.

That said, waterboarding as practiced by in this case, as far as I know from the facts (not much), is torture.
posted by Ironmouth at 2:12 PM on May 13, 2009


Should we have prosecuted JFK (had he not died) for his Cold War and Vietnam decisions?
Should we have prosecuted LBJ for Vietnam decisions?
Should we have prosecuted Nixon for... any number of things?
Should we have prosecuted Reagan for Iran Contra things?
Should we have prosecuted Clinton for bombing the pharmaceutical factory?


An emphatic YES to all of these. If they broke the law - prosecute them to the fullest extent of the law. That is exactly the purpose of those laws - to prevent disasters as the ones you named. Let the law work - to all of our benefit.

Or are we again going to have the "chilling" argument? Frankly, I'd love there to be "chilling" to prevent unnecessary wars and other crimes - I bet we'd be a lot better off, if those in charge had to think extra hard "Can I really prove Saddam is in bed with AQ?", or less charitably, and more believably "What if I can't get away with forging these yellow cake documents?".

I'd love it if the Gulf of Tonkin incident couldn't happen because LBJ knew people would look extra hard into any justification for war. We'd all be a lot better off without the Vietnam war.

And I suspect, we'd still have plenty of room to defend ourselves from legitimate threats - there's not mistaking what Pearl Harbor meant. On the other hand, I can do without the wars which resulted from our worrying about chilling the geniuses who gave us Vietnam and Iraq II.

The laws are there for a reason. Enforce them. It is the corruption that comes from ignoring them that are the greatest danger to this republic - not the chilling that comes from enforcing legitimate laws.

Finally, let us all remember - should we ever find a law to be impractical, we always have the recourse to change it through a legitimate process. So we are not "stuck" with a bad law. Meanwhile we should never ignore laws for the sake of covering nasty deeds - that way lies corruption, disaster, and self-defeat.
posted by VikingSword at 2:12 PM on May 13, 2009 [1 favorite]


I'm pretty sure that everyone here thinks its torture.
posted by Ironmouth at 4:05 PM on May 13


If you ask me if it is torture under the common usage of the word torture to me, then I'd say yes. But as you know, the legal question is an entirely different beast.

The easy solution is to pass legislation making it clear and prohibiting in the future. The more interesting question is why the Legislature is not keen on codifying the issue of torture in order to proscribe it in the future. My suspicion is that because while they like to clear their throats about it, they are concerned about setting limitations on future actions that they cannot foresee with perfect clarity.
posted by dios at 2:13 PM on May 13, 2009


"The easy solution is to pass legislation making it clear and prohibiting in the future."

Why was there no misunderstanding before Bush II, going back to the original CAT? We have clear military and US code prohibiting it, which was never in doubt before. Was this really an unsettled and open question before now? Why did military training up until Bush include compulsory education in prohibitions of torture in the military code and the Geneva Conventions if it were unsettled? Would we have given a leader accused of war crimes from another country the same benefit of the doubt?
posted by krinklyfig at 2:20 PM on May 13, 2009


I agree with you. Supression is the proper ruling. But what I'm trying to point out is that these are matters involving competing values which courts and prosecutors must wade through and some times other values will be found to be more important. That's why the courts are likely not going to be the best venue.

And I'm saying that the outcome of any "competition" is clear - enforce the law as it is. If the law is found to be wanting, change it through legitimate avenues, but meanwhile don't disregard the law as it is. Thus, it is irrelevant that anyone doesn't "like" the result of this enforcement, and your example of serial killer gives me nothing. It's an open and shut case. If you are using this to bolster your case, you need something else, because this is not working.
posted by VikingSword at 2:21 PM on May 13, 2009


"The courts" ruled in favor of the ACLU's Freedom of Information suit. The Obama Justice Department agreed to release the photographs by May 28.

Yes and all the Obama administration has done is file a request with the court to delay that release. If you'd read the actual details of the news accounts and not just the headlines before you jerked your knee, you'd have realized that.

No, that's not fair. The problem is with the reporting on this. It's really misleading. Anyway...

It's now in the court's discretion whether to consent to the requested delay (a request for delay doesn't carry the weight of law as far as I know) or to require the administration to proceed according to the original agreement.

So if the courts don't consent to the delay, the administration is right back in the position it was in before it consented to the planned release: the only way to block the release is to file an appeal to the supreme court.

That's what I'm talking about.
posted by saulgoodman at 2:23 PM on May 13, 2009


"What I am saying here is that is this individual case, it would be better to pursue the political solution if we want to prevent this from happening again."

Can you give me an example where this worked to prevent similar actions in the future, or does solving it politically invite further overreaching of power by subsequent administrations?
posted by krinklyfig at 2:23 PM on May 13, 2009


We have clear military and US code prohibiting it, which was never in doubt before.

krinklyfig, with all due respect, I'm done discussing this with you because we cannot move beyond this one issue. You are simply wrong that this issue was "clear." If you think the US Code directly addressed the issue Yoo addressed, please give me the citation. It doesn't. But you cannot get passed your firm, but completely baseless, opinion that the issue addressed by Yoo was unquestionably and demonstrably illegal torture at issue here.

Until you stop making the same sweeping claims of your opinion as if it is fact, I respectfully cannot continue to repeat this over and over and over. W
posted by dios at 2:24 PM on May 13, 2009


"This is not a requirement to prosecute. A prompt and impartial inestigation is not a requirement to indict. I think we can lay this to rest. These passages have been massively distorted in this argument."

Where is the investigation?
posted by krinklyfig at 2:25 PM on May 13, 2009


The "legal question" can be addressed legislatively. The Legislature can pass a law right now that says waterboarding constitutes torture and cannot be be used from here on out. Would that be sufficient for your purposes?

No, and I bet you can guess why. Off the top of my head I can't think of any federal criminal statutes that give an exhaustive list of ways to violate the statute (there may be some, but I can't think of them). Criminal statutes are written broadly for a reason.

That result probably would not satisfy most of the people in this thread who want prosecutions for prosecutions sake. Most of this is driven by partisan blood thirst to "get the bastards." And that is what Obama is thankfully not pursuing because it establishes a horrible precedent.

I can't speak for others in this thread, but I'm not fully convinced that prosecutions are warranted at this point, mostly because of the political difficulties. I do think we need an investigation. I'm sure there is partisan blood thirst driving some people too. The thing that bothers me with the "look forward, not back" is we are widening the two systems of justice between the politically powerful and the rest of us. If laws were broken here and we don't even investigate what prevents worse abuses in the future?

The kind of charges that could occur in an investigation into torture are always going to be politically difficult. That doesn't mean we shouldn't investigate where there are persuasive allegations of wrong doing (el-Masri, Arar, Mohamed).

Nor is even clear if the "torture" they describe is in any way equivalent or similar to what Yoo was describing.

It seems to be:
Gregg Magee, a deputy sheriff who testified against Sheriff Parker and three of the deputies said he witnessed Harkless being handcuffed to a chair by Parker and then getting “the water treatment.”

“A towel was draped over his head,” Magee said, according to court documents. “He was pulled back in the chair and water was poured over the towel.”

Harkless said he thought he was “going to be strangled to death,” adding: “I couldn't breathe.”
But, whatever. I doubt I can convince you that the controlled drowning of a person to the point where they may need an emergency tracheotomy (2005 CIA memo) is torture if you haven't come to that conclusion on your own.
posted by ryoshu at 2:28 PM on May 13, 2009


delmoi: "You seem to do this a lot, by the way, make arguments based on false analogies. It's such a waste of time."

You mean, as in... ?

Imagine a serial killer who keeps detailed notes about every crime he ever committed. He's killed 100's of children in cold blood. He hides these notes. An angry officer, working on a wild, unsupported hunch, breaks into the killer's house without a warrant and takes the notebook. 100's of bodies are dug up. It is incontrovertible that the notebook is evidence of a crime. The only evidence linking the killer to these hundreds of child murders is the notebook. Defense counsel moves for supression of the notebook on the basis of a violation of the Fourth Amendment. You're the judge. You know the law incontrovertably holds the search and all fruits from it to be inadmissable in court. What do you do?

Ever notice how these hypotheticals always assume the known guilt of the accused? When not only have we not established the guilt of the people we've tortured, in many cases they're completely innocent?

Ironmouth, what I do as a judge in your fantasy of supremely evil villains and bold heroes who aren't afraid to "do what it takes" [you know, I think they could make an entertaining TV show out of that] is uphold the fucking law. It's regrettable that you seem to find that such a difficult concept.
posted by Joe Beese at 2:31 PM on May 13, 2009


"Until you stop making the same sweeping claims of your opinion as if it is fact, I respectfully cannot continue to repeat this over and over and over. W"

Gee, I'm so hurt, dios. Anytime someone says, "With all due respect," you can count on the least amount of respect to follow.

Until you stop treating me like I'm supposed to have legal training in order to have a conversation with you, then I'm not really interested in pursuing it, either. Except you inject yourself into these conversations all the time and arrogantly dismiss anyone who isn't a lawyer. Your training doesn't impress me, because you hide behind it in order to advance your opinions.
posted by krinklyfig at 2:35 PM on May 13, 2009 [1 favorite]


krinklyfig, I don't ask that you have legal training. I just ask that if you are going to discuss the issue that you not make unestablished assumptions and then try to argue the point based on your assumptions.

Here is an analogy. Suppose we were discussing whether it was proper for Mrs. Smith to tell Mr. Smith to not take his umbrella. You would be taking the position that it was completely rude and improper for Mrs. Smith to not tell Mr. Smith to take his umbrella because everyone knows a person should have an umbrella when it rains. Of course, in so arguing, you would be assuming that it was actually raining outside. My position would be that it is unclear that it was raining and that the Mrs. Smith's opinion was based on the fact that it was not raining, so you cannot evaluate her opinion based on the assumption it was raining.

Do you see how how impossible it would be to have this discussion with you assuming a fact that has not been established?

Suppose the issue was not waterboarding but the playing of Beethoven at 10 decibels. You might hate Beethoven and think it is torture to make people to listen to it. So you might be throwing up your hands about how the rule of law requires us to prosecute the player because we must prosecute torture. Of course the fundamental issue is whether it is torture in the first place.

Here, you have made the assumption that the actions at issue here are clearly and indisputable torture and are arguing about how people should act in light of that fact. However, the entire point of this discussion and what Obama must decide to do is that it is not clear that it constitutes torture at law and Obama's entire decision tree comes down to whether the previous administration's view was in any way legally justified.
posted by dios at 2:49 PM on May 13, 2009


TheOnlyCoolTim: Obama's long game is giving people these paranoid fantasies about his long game.

Yes! Goals <> methods. Doing something <> doing something now. Clinton tried the immediate frontal attack, with his war room and failed over-reaching (health care, gays in military). He got stuffed. Obama promised a no-drama, non-vindictive, results-oriented administration, and he's delivering, as frustrating as that is. But what's the hurry?

Look how unnerved Cheney is by fear of prosecution - he has said more in the last month than in 8 years under Bush. Soon enough, some Republicans will break ranks, for book royalties or plea bargains. Already Scott McLellan and others have turned. Who's next? Colin Powell? Condoleeza Rice? I'm hoping for a wild card like Karen Hughes or Alberto Gonzales, or Yoo copping a plea.

Joe Beese: "Delay" until when, exactly?

I dunno, maybe until he gets the chance to pick the 3 new Supreme Court justices expected in his first year or two? Until some Republicans lose their nerve, or documents arise (under FOIA)? Until the Spanish court prosecutes Yoo and Addington, who are the foundation of the Bush administration's defense?
posted by msalt at 2:50 PM on May 13, 2009


serial killer

The hypothetical is ridiculous. With current DNA testing and other forensics, police can't tie HUNDREDS of bodies to a known killer? They can't persuade the jury with the circumstantial but damning coincidence that the suspect was at the scene of the murder hundreds of times? And this killer makes not a single mistake leaving other evidence (rope, fibers, fingerprints)?
posted by msalt at 2:54 PM on May 13, 2009


Condoleeza Rice?


I wouldn't hold my breath on that one:
And so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.
If the president says it's legal, it's legal. QED.
posted by ryoshu at 3:04 PM on May 13, 2009


What I am saying here is that is this individual case, it would be better to pursue the political solution if we want to prevent this from happening again. In a case where the prior administration has authorized waterboarding and obtained several legal opinions which may serve to immunize the torturers and other, competing interests exist, more can be done by focusing on the political aspects of the matter. The focus on prosecutions that are likely to fail will only engender sympathy amongst the general populace, which is exactly what we don't want. Because the double-edged sword of torture will make it likely impossible to press criminal cases against those who were tortured, even if they do deserve it. The result would be that Khaled Sheik Mohammed and others will go free and those who tortured them would be prosecuted. I'm certain you would agree that this will not go over well with the American public, as the mastermind of 9/11 walks, while those who tortured him on behalf of the government are imprisoned. It is the height of political naievte to believe this will help the anti-torture case in any way.

1) How is it possible to have a political solution if the next administration is free to break whatever laws are passed without any chance of criminal prosecution, not to mention that they wouldn't even pay the hypothetical political price cover if they actually manage to keep it secret?

That's the problem with what you're arguing. There can't be any "political" solution to torture because politics changes all the time. If we simply decide we are not going to torture, for now, but preclude any kind of enforcement, there is no reason for a future president not to torture.

2) How are the prosecution of torturers and the freedom to KSM, etc related? It doesn't look like they are going to be released now, so why would prosecution of their torturers increase the likelihood of their release? Besides, there is plenty of evidence against the main players without the tortured evidence. As for the evidence acquired under torture, well, how do we even know that's accurate? Mahar Arar was implicated during torture sessions at guantanmo, but we know for sure he was innocent. How do we know that others weren't also falsely implicated if all we have are tortured confessions?

But the main point of 2) is that whether or not torturers are prosecuted has no effect on whether or not torture-es are released.

And 3) You seem to be making a political argument, that people really like torture if it's explained to them and if prosecutions happen they'll decide they're for it. First of all, there is no way to predict politics. 6 years ago karl rove was talking about a "permanent republican majority" and everyone believed him. Predicting how masses of people will respond politically to new information isn't possible. Although, would imagine the opposite was true: once people see someone hauled off to jail, they tend to believe they're guilty, bad people, etc, and they won't identify with them.
posted by delmoi at 3:09 PM on May 13, 2009




Yes! Goals <> methods. Doing something <> doing something now. Clinton tried the immediate frontal attack, with his war room and failed over-reaching (health care, gays in military). He got stuffed. Obama promised a no-drama, non-vindictive, results-oriented administration, and he's delivering, as frustrating as that is. But what's the hurry?

Well, whether or not he does or tries to do what he promised is one thing, but there seems to be this strain of thought that when he says he's against things like gay marriage, prosecuting torturers, legalizing weed, and single payer healthcare, it means he must have secret plans to do these things.
posted by TheOnlyCoolTim at 4:06 PM on May 13, 2009 [2 favorites]


Well, whether or not he does or tries to do what he promised is one thing, but there seems to be this strain of thought that when he says he's against things like gay marriage, prosecuting torturers, legalizing weed, and single payer healthcare, it means he must have secret plans to do these things.

It's the left-wing inverse of right-wing paranoia that says Obama is a Secret Muslim. For the left, Obama is a Secret Hero who will save America from the last few decades of right-wing terrorism.
posted by Blazecock Pileon at 4:23 PM on May 13, 2009 [2 favorites]


uphold the fucking law. It's regrettable that you seem to find that such a difficult concept.


I'm saying you have no idea what the law is. There's one common thing here--what laymen seem to think is an 'open and shut' case, is considered far from that by the professionals. I agree that it is likely crimes were committed. However, a criminal prosecution, given the facts we have now, is unlikely to succeed. Its a battle of those who desperately want a prosecution and are willing to ignore the real problems that will exist with such a prosecution and those who think that a prosecution has tremendous legal and political hurdles exist which will likely result in sympathy for torturers and no convictions.

Let me ask a hypothetical--if the situation is as I say, would you rather see convictions that result in mass sympathy for the torturers and increased support for the practice, or a situation with no convictions and widespread and lasting digust for the practice and those who engage in it?
posted by Ironmouth at 4:32 PM on May 13, 2009


delmoi-The wishful thinking part is where you say that Obama secretly agrees with you, and is only acting the way he's acting because it's actually the best way to achieve your shared goal.

away all the naivete out of my situation and it doesn't really change. If the public pressure is loud enough, Obama will pursue prosecution. And yes, even if he's as utterly reluctant as you seem to think he is. Remember, this is his first term, he can't let going against the majority bite him on the fundament in 2012. (It's that "loud" part we have to work on).
posted by zardoz at 4:40 PM on May 13, 2009


By the way, if you were wondering what Obama's motivation was, he's now explained it. releasing the photos Hurt the troops.
posted by delmoi at 5:12 PM on May 13, 2009


Let me ask a hypothetical--if the situation is as I say, would you rather see convictions that result in mass sympathy for the torturers and increased support for the practice, or a situation with no convictions and widespread and lasting digust for the practice and those who engage in it?

That is such an absurd hypothetical. You are saying that there are a large number of people would be disgusted by unprosecuted torture, but supportive of torture if the perpetrators were prosecuted.
posted by delmoi at 5:16 PM on May 13, 2009


Greenwald is merciless on the hypocrisy of Obama's reversal and its apologists. You absolutely must read the whole thing.

For all of you defend-Obama-at-all-cost cheerleaders who are about to descend into my comment section and other online venues to explain how Obama did the right thing because of National Security, I have this question: if you actually want to argue that concealing these photographs is the right thing to do, then you must have been criticizing Obama when, two weeks ago, he announced that he would release them. Otherwise, it's pretty clear that you don't have any actual beliefs other than: "I support what Obama does because it's Obama who does it." So for those arguing today that concealing these photographs is the right thing to do: were you criticizing Obama two weeks ago for announcing he would release these photographs?

Also, the OLC torture memos released several weeks ago surely increased anti-American sentiment. Indeed, those on the Right who objected to the release of those memos cited exactly that argument. How can anyone cheer on Obama's decision today to conceal these photographs while also cheering on his decision to release the OLC memos? Those who have any intellectual coherence would have to oppose both or support both. Those two decisions only have one fact in common: Obama made them. Thus, the only way to cheer on both decisions is to be guided by the modified Nixonian mantra: what Obama does is right because Obama does it.

posted by Joe Beese at 5:21 PM on May 13, 2009 [1 favorite]


FISA, torture, letting Republican criminals off the hook. Next, Obama will be handing over the Treasury to Wall Street.

Oh, wait.

Still, if he keeps reversing himself, we can look forward to mandatory gay marriage for everyone. I gots my fingers crossed!
posted by Blazecock Pileon at 5:33 PM on May 13, 2009


Greenwald is merciless on the hypocrisy of Obama's reversal and its apologists.

Greenwald has been described as hysterical, partisan, etc., but from what I've seen he's been consistent. Partisanship doesn't seem to enter the debate when he calls people to task.
posted by ryoshu at 5:43 PM on May 13, 2009


(my translations from Kos-speak to MeFi-speak indicated by quotation marks)

After Election Day, my posting frequency at Daily Kos went from as high as you might imagine from my ubiquity here to virtually zero. But in the depth of my bitterness, I went there today and commented in someone's "post":

I can admit when I've been had. Apparently the "poster" can not. So desperate are they to cling to their fantasy-Obama - the one they believed in and worked for - that they refuse to recognize that it was never more than a fantasy, even as Obama smacks them in the face with the proof of it. ... Obama has made himself an accomplice after the fact in the Bush/Cheney war crime.

It got five "favorites" and this reply:

A month ago, you would be"flagged" to oblivion for that. Hell, in a couple more, it could put you on "the sidebar"!

Offered simply as evidence of how this move is playing among his base.
posted by Joe Beese at 5:54 PM on May 13, 2009


"Here, you have made the assumption that the actions at issue here are clearly and indisputable torture and are arguing about how people should act in light of that fact. However, the entire point of this discussion and what Obama must decide to do is that it is not clear that it constitutes torture at law and Obama's entire decision tree comes down to whether the previous administration's view was in any way legally justified."

It's not clear to me how the Bush administration can seek legal advice in order to justify what they knew was incredibly risky and possibly illegal, ignore the advice given against their pursuits, and then try to hang the whole thing on the definition of torture. Many, many people inside and outside the administration whom they solicited for legal justification warned them that the techniques they were pursuing did constitute or come dangerously close to torture as it is legally understood, as well as internally, within the Army's own written policies, as the CIA understands it, and as we are prohibited from practicing under international binding agreements which have previously produced prosecutions for the very same techniques they pushed. I understand that the case must be established in the correct manner. But what bothers me about your particular argument here is that you're entirely hung up on that issue of the definition alone. I'm not trying to gloss over it, but if what the Bush administration explicitly and repeatedly promoted does not legally constitute torture, we're hopeless. I don't take it as a foregone conclusion, but this is not a court of law right here, and there is little point in trying to argue that issue into the ground. What might be more interesting is to try to figure out what the goal is of the current administration. As far as I understand, if our AG is not really free to choose which cases he likes to prosecute, and nor is Obama. Rather, it's not up to Obama, and the law must take its course where these situations become known.

The following is really my issue, which you have entirely ignored.

We can act with politics in mind, and it would be a bad idea to rush into something and not come up with a worthwhile result, but we are not alone on this earth, and what we do as a result of this will have a profound effect on our relationships with the rest of the world for decades to come. If we drop the ball on this or decide that the Bush administration did not cross the legal threshold (which might constitute a basis for the argument that those techniques are legal and can be used further), then we're going to be facing a very hostile reaction from the nations we need on our side the most right now, and we will not be trusted. If we only pursue the political result and do not hold those legally accountable for torture, while we claim to be saving the world from the evils of terrorism, it will be a severe and probably long-term defeat for international relations and any meaningful continuing efforts to create worthwhile relationships throughout the Middle East, Central Asia and other areas where we are trying to recruit popular opinion to our supposedly superior vision. We will be seen as the nation without scruples and without the ability to live up to its own standard, and we will be known as the nation who deals with problems through invasive, aggressive war and torture, contravening all our international agreements and our own code of law, and failing to act to prevent or hold those accountable who are responsible when we are presented with mountains of evidence. It will make us look like legalistic jellyfish who are incapable of global leadership, or of even claiming the mantle of moral actor. We will be known as the nation which allows torture. And that will be true even if the court(s) and/or investigations conclude differently.
posted by krinklyfig at 6:50 PM on May 13, 2009 [2 favorites]


"Let me ask a hypothetical--if the situation is as I say, would you rather see convictions that result in mass sympathy for the torturers and increased support for the practice, or a situation with no convictions and widespread and lasting digust for the practice and those who engage in it?"

If the result has no legal basis, it's only worthwhile as long as people remember or choose to care. Political tides are inconsistent and not at all rational. We shouldn't depend on political sentiment to protect against serious violations of our actual, existing, real-live binding laws and treaties. When a citizen breaks a law, that person is subject to being tried and prosecuted if there is enough evidence. That should not be interpreted as only the non-powerful citizens.

We have pursued the political result for quite a long time now. We have prosecuted and indeed fully endorsed the destruction of other leaders for engaging in the same actions. But we haven't come to a point where the public's disgust actually prevented anyone in a position of power from doing whatever they wanted as long as they could get away with it. The history of results is not impressive. I think we need to risk abiding by the laws which apply to everyone, or they only apply to those who are powerless, and we end up with leaders like Bush who parade about their utter defiance of the law or any sense of common decency.
posted by krinklyfig at 7:12 PM on May 13, 2009


That is such an absurd hypothetical. You are saying that there are a large number of people would be disgusted by unprosecuted torture, but supportive of torture if the perpetrators were prosecuted.

The American people do not care a rat's ass about this right now. They are worried about their own asses, first and foremost. They think it doesn't affect them. It is easier to make the case to them that you must torture to make them safe than to connect torture to their everyday lives.

If this is going to be about poor Khalid Sheik Mohammed being waterboarded, it will be a very hard sell. People don't agree with us. He is the mastermind of 9/11 and a dangerous criminal.

That torture is eventually corrosive to civilized behavior is not as easy a case to make. The more abstract dangers we describe are not as visceral.

And it will be easy to make a sympathetic case for the torturers. They were asked to do something they were told would protect America. The focus will be put only on KSM and others who were known terrorists. It isn't as easy as you think. Legal aspects of the case will make it difficult.

But if the program is condemned but not the people, sympathy for the interrogators won't be an issue. The legal problems of criminal prosecution won't be in the way. Pressure can be focused on where it belongs--on who authorized the program and what it was really used for.

Instead the focus needs to be on the program--and who really authorized it. If Cheney kept info from Bush and used it to try and gin up evidence linking Al Qaeda to Iraq, our case is made.
posted by Ironmouth at 7:39 PM on May 13, 2009


"But if the program is condemned but not the people, sympathy for the interrogators won't be an issue. The legal problems of criminal prosecution won't be in the way. Pressure can be focused on where it belongs--on who authorized the program"

There has to be some consequence for those people. If not, there is no disincentive to prevent this from happening again. It's not as if Bush were elected because people felt Clinton didn't torture enough. He didn't exactly run on that sort of platform. Indeed, he didn't want people to know about it, and for a while the only thing we heard were vague references that turning to the "dark side" was necessary to defeat this sort of enemy. I cannot be positive, but I do believe that if Cheney actually thought he'd be prosecuted in the US for war crimes, he never would have made the choices he did. If he remains free but highly disliked and shunned, well, that's not all that different from what he's experiencing right now. As long as he's free and full of cash, he doesn't give a damn. I think he would if he were not free, however, and it would send a very clear signal that we do not take these matters lightly, especially when we are responsible. Sure, probably not going to happen, but it really should.
posted by krinklyfig at 8:06 PM on May 13, 2009


"This is all about where the boundaries are. It was never the case that they said there are no boundaries. It is was never the case that they said 'we know this is outside the boundaries, but... fuck it, do it anyway.' They engaged in highly technical analysis about where the boundaries are."

One more thing, dios. The bureaucratic listing of acceptable techniques is a perfect example of the banality of evil, and you see this sort of thing over and over in the records made by the Nazis of their prisoners, in the symbolic representations of the endless bureaucracy that is Hell in recent Chinese mythology, in the Inquisition, which was a legalistic process fully justified in their own courts by their own internal standards. There is a tendency with authoritarian regimes to employ barbarous methods fully justified by their own meticulous and careful analysis and record keeping, all in writing and in great detail.
posted by krinklyfig at 8:39 PM on May 13, 2009


If Cheney kept info from Bush and used it to try and gin up evidence linking Al Qaeda to Iraq, our case is made.

Bears repeating lest it be lost in the word-fog.
posted by saulgoodman at 8:56 PM on May 13, 2009 [3 favorites]


There has to be some consequence for those people. If not, there is no disincentive to prevent this from happening again. It's not as if Bush were elected because people felt Clinton didn't torture enough. He didn't exactly run on that sort of platform. Indeed, he didn't want people to know about it, and for a while the only thing we heard were vague references that turning to the "dark side" was necessary to defeat this sort of enemy. I cannot be positive, but I do believe that if Cheney actually thought he'd be prosecuted in the US for war crimes, he never would have made the choices he did. If he remains free but highly disliked and shunned, well, that's not all that different from what he's experiencing right now. As long as he's free and full of cash, he doesn't give a damn. I think he would if he were not free, however, and it would send a very clear signal that we do not take these matters lightly, especially when we are responsible. Sure, probably not going to happen, but it really should.

What Presidents want is to be successful politically. The major impact of all of this is going to be political. How many people remember who Charles Colson, John Dean, or G. Gordon Liddy are? Relatively few. But people damn well remember who Richard M. Nixon is. They remember he was disgraced and would have been impeached. More importantly, presidents remember it. And if the result here is a death-blow to the Republican party, it will be remembered forever. And if it is remembered forever, presidents won't do it.

And I do mean "death-blow." What's bubbling under the surface here in Washington, DC is this: This program was Dick Cheney's. Cheney may have taken actions not authorized by the President of the United States. These memos are possibly going to turn out to be after-the-fact justifications for actions not authorized by George W. Bush. And the purpose of these unauthorized actions would have been to provide evidence that Al Qaeda and Saddam Hussein were working together. Where Cheney, the Iraq war run-up and torture meet is going to be one hell of a radioactive place.

This is more than speculation. On Sunday's Face the Nation, Cheney was asked if Bush approved the program. Cheney responded that the President authorized it in its "basic form" and gave what could only be described as a very woozy answer on the subject.

Now I watched that clip Monday night. Not 5 minutes later, I turned to the rerun of Hardball. Chris Matthews was laughing about Cheney going to jail as he wound up a segment with Pat Buchanan and Lawrence O'Donnell. O'Donnell spoke up and said that "it won't be for what you think, Chris." "It will be for Cheney usurping the President of the United States."

I often exchange e-mails with one of the savviest political guys out there, a name a lot of people know. I instantly e-mailed him after I saw those two segments. He agreed that this likely was going to be the real ground zero of the scandal.

Think of it this way. An indictment tomorrow will lead to a conviction in 2013 if successful. No one will care by then because the political angle will have long run its course. But the political implications of this scandal could extinct the Republican party.

Focusing on prosecutions is exactly what the Republicans want. It takes the heat off them and puts it on some lowly contractors, who they will fete as heroes wrongly prosecuted by Obama for trying to defend the country. The Lt. Calleys of our generation.

One more thing: Barack Obama plays politics at a whole 'nother level. This is a master. I have a sneaking suspicion that those who suggest that he is slowly working this while appearing to be reluctantly dragged into it are not far off the mark. He is influenced mightily by Saul Alinsky, who taught that you cannot force change on an unwilling populace, but must win the people over before acting.

If this one blows, it will be the biggest scandal since Watergate. It can go that far. Imagine if it becomes clear Bush knew there were no WMDs and knew it was a lie. People are in denial about that now. If that changes, we are talking the H-bomb of scandals. That's where this one is headed.
posted by Ironmouth at 9:32 PM on May 13, 2009 [2 favorites]


And if the result here is a death-blow to the Republican party, it will be remembered forever. And if it is remembered forever, presidents won't do it.

I will bet you fifty dollars that the Republican party is either the first or second-most represented party in Congress in ten years.

The two parties are ... pretty entrenched. The Democratic party survived splitting in two and one of them went to war to defend slavery. A little torture of foreigners is a minor transgression.
posted by TheOnlyCoolTim at 10:08 PM on May 13, 2009 [1 favorite]


A little torture of foreigners is a minor transgression.

Its not the torture, its the lying about Iraq's having no WMD and our governments knowledge of that before the invasion.
posted by Ironmouth at 10:14 PM on May 13, 2009


Yeah, we should have elected…um…. That guy that is for real and truth, but that never would have gotten elected in a million years. Because we’re so hardcore.

No, the problem was that every choice was sub-par.
posted by Malice at 10:24 PM on May 13, 2009


"It will be for Cheney usurping the President of the United States."

Please. Bush and Cheney are co-conspirators. But that's not saying I wouldn't mind seeing Cheney's heart explode in a "You can't handle the truth!" moment on Meet the Press.
posted by Blazecock Pileon at 10:58 PM on May 13, 2009


Its not the torture, its the lying about Iraq's having no WMD and our governments knowledge of that before the invasion.

Or the use of torture to justify the invasion of Iraq. But al-Libi just died of suicide in a Libyan prison, so who knows?
posted by ryoshu at 11:15 PM on May 13, 2009


the problem was that every choice was sub-par.

No, Obama is extraordinary. And I say that as a former Obama skeptic who took a lot of crap on the Blue for saying so. He's not a secret far left liberal, he won't right every wrong of the Bush years or the 20th century, and he's certainly not infallible. But which presidents define the par that you think he is sub-?

He's digging us out of an economic, moral, financial, military, environmental and constitutional hole deeper than that faced by any president (with the possible exception of Franklin Roosevelt) and juggling it all with amazing finesse and political acumen. 120 days or so and we've got movement on health care, global warming, stem cells, the Supreme Court, Guantanamo, Iraq, Afghanistan and just today regulation of securities. Let's have some perspective, please.
posted by msalt at 12:08 AM on May 14, 2009


A traveler left his own country and entered the place known as the Land of Fools. He was told by some of the inhabitants about a fearsome monster that lived in a field. When they brought him to see it, he discovered that the 'monster' was a watermelon. He offered to kill the 'monster' for them. He cut the watermelon off the stalk, sliced it up, and began eating it.

To his great surprise, the people, far from thanking him, became terrified of him. "He's killed the monster!" they said. "He'll kill us next!" And they eventually drove him out of the country.

At around the same time, another traveler came to the same country, and the same thing happened. But this traveler, when he saw the watermelon, said, "Indeed it is a fearsome monster. Let us withdraw to a safe place so that we can study its habits more closely." By this means he gained their trust, and working very carefully over many months he was able not only to get them over their fear of watermelons, but to teach them how to cultivate them themselves.

posted by KevinSkomsvold at 5:49 AM on May 14, 2009 [2 favorites]




"What Presidents want is to be successful politically. The major impact of all of this is going to be political. How many people remember who Charles Colson, John Dean, or G. Gordon Liddy are? Relatively few. But people damn well remember who Richard M. Nixon is. They remember he was disgraced and would have been impeached. More importantly, presidents remember it. And if the result here is a death-blow to the Republican party, it will be remembered forever. And if it is remembered forever, presidents won't do it."

Nixon lived a comfortable life after he was pardoned, if not exactly lauded, but he wasn't hurting. Liddy has his own talk show and was always stirring things up during the last Bush's time - he seems to relish being the outlaw Republican. John Dean has been a regular on MSNBC, particularly Olbermann's show, where he often pushes for legal consequences for things like Bush's illegal torture program.

Several people from Nixon's administration went on to work in Bush's administration. How, exactly, did it work out, then, that we didn't impeach nor indict Nixon? His cronies went on to cause many further problems, including the very one we're discussing now.
posted by krinklyfig at 10:35 AM on May 14, 2009


ryoshu: why is that the worst of the worst? Presumably the administration had some belief that an Iraq-AQ connection existed. As such, why would the administration not be interested in using EIT to find out about it?
posted by dios at 10:37 AM on May 14, 2009


dios, the use of torture was "justified" because it stopped ticking time bomb scenarios. The more information that comes out, the more we see that the claim is a lie. Again, I'm not a lawyer, but waterboarding an Iraqi intelligence official, whether civilian or military, would have been a gross breach of the Geneva Conventions. No amount of lawyering can get around that.

Of course none of this matters, we need to look forward, not back, etc. Who care if the VP's office committed/wanted to commit war crimes?

Feh.
posted by ryoshu at 10:44 AM on May 14, 2009


"Let's have some perspective, please."

We will see what the results are. Clinton also tried health care reform.

I'm personally concentrating on him keeping to his word concerning civil liberties and human rights in general, including wiretapping and torture. This is where past Democrats have failed badly. It's too early to tell, and I'll give him some time to work through it as there are so many things happening at once, but I do expect him to live up to the standards he set for himself and the very important policy proclamations he made. And of course we should welcome some reform where possible through compromise. But where he "compromises" for political reasons where it jeopardizes civil liberties or human rights, I must strongly object.
posted by krinklyfig at 10:53 AM on May 14, 2009


ryoshu: why is that the worst of the worst? Presumably the administration had some belief that an Iraq-AQ connection existed. As such, why would the administration not be interested in using EIT to find out about it?
posted by dios 17 minutes ago [+]


Torture is a terrible way to get unknown infromation. It's a great way to extract a confession. It makes perfect sense to torture someone if the point is to lie the country into an unjustified war.
posted by empath at 10:56 AM on May 14, 2009


dios, the use of torture was "justified" because it stopped ticking time bomb scenarios.

Two things: (1) we are still not past the "is waterboarding torture under the law" issue, but (2) there apparently was a concern that there was a relationship between Saddam and AQ which obviously would give rise to the concern that perhaps they collaborated on a planned attack of the US.

In retrospect, it's easy to second guess the thought process. But at the time there apparently were some contested belief that Saddam was willing, able and attempting to collaborate with terrorists. That those beliefs appear to be specious in retrospect does not change the culpable mental state of the decision makers at the time.

Of course none of this matters, we need to look forward, not back, etc. Who care if the VP's office committed/wanted to commit war crimes?

Well, we are getting a sense on the difficulty of prosecuting these kinds of things. So many decisions are layered upon layers of other decisions and its not clean cut to go back and try to disentangle them all, while still holding people culpable only for the information they had at the time and not what we know now.

And I think everyone would care if the VP committed war crimes. Unfortunately that allegation still requires the lexically prior decision about what constitutes a war crime. I can call wearing white after Labor Day a war crime, but I suspect less people would care about that. So we are still locked into the first step of whether what was done was violative of the law. And as the law is unclear, a good way to stop it in the future is to define it going forward.

I ignored this snark earlier from kinklyfig:

The bureaucratic listing of acceptable techniques is a perfect example of the banality of evil

because I could see where he was going with that. But the easy response is that "the bureaucratic legislative listing of acceptable" things is actually what the legislature does whenever they codify the law. And we are in a stronger position going forward of clarifying the law. Because as is it is not clear, so we are forced into a position of whether we launch a prosecution of the prior administration because their political beliefs about what the law allowed differed from the present administration.

This is problematic.
posted by dios at 10:56 AM on May 14, 2009


Torture is a terrible way to get unknown infromation. It's a great way to extract a confession.

Actually, I think there is some dispute about whether waterboarding (glazing over your labeling of it as torture) is a good way to get information. I know there are democrats who also believe it is effective to get unknown information (that's why it would be used in the ticking timebomb scenario).

I understand the narrative in your head is that we tortured people to get them to lie so that Chimpy McBushHitler could have a pretext to invade Iraq and get all that oil (or whatever the theory is these days). But there is also a reasonable explanation based on their public comments: if the danger of Saddam was that he may be collaborating with terrorist groups, and you get someone who would know about that, you would probably want to know what, if any, collaborations occurred.
posted by dios at 11:03 AM on May 14, 2009


Because as is it is not clear, so we are forced into a position of whether we launch a prosecution of the prior administration because their political beliefs about what the law allowed differed from the present administration.

Well, let's take it to court and then we can see how unclear the law is.
posted by empath at 11:06 AM on May 14, 2009 [1 favorite]


For the record, I bet my right hand against dios' lies.
posted by chunking express at 11:06 AM on May 14, 2009 [2 favorites]


I find it odd that someone who professes to be a lawyer seems so unwilling to let the law take its course.
posted by empath at 11:07 AM on May 14, 2009


I know there are democrats who also believe it is effective to get unknown information (that's why it would be used in the ticking timebomb scenario).

Are those democrats experts in interrogation techiques? If not, then I don't care what political party they are. Find me some real interrogators who believe that, and back it up with evidence.
posted by empath at 11:08 AM on May 14, 2009


dios, out of curiosity, could you legally justify the beating to death of a uniformed Iraqi general while he was in custody? I'm just wondering how deep down the rabbit hole you can go.

I mean, are you seriously saying that waterboarding an Iraqi intelligence official would not be a violation of the Geneva Conventions? That type of shit is exactly why the GC were created. If you are suggesting that waterboarding a member of an opposing country's military or civilian government is perfectly legal, then I don't think we have anything left to discuss. The plain and legal readings of the treaties we are party to have absolutely no meaning anymore.
posted by ryoshu at 11:09 AM on May 14, 2009


empath: as I said above, we can make the law explicit by legislation. Taking it court is a possibility, but as Ironmouth and I have been trying to tell you, it has an entire weight of baggage attendant to it. Alternatively, we can disclose information that does not jeopardize our national security about what occurred for the press and the people to review and we can make the law clear in the future.



chunking: if you have nothing of substance to add to what has been a very good substantive discussion, then please, stfu. If you think I "lied" somewhere here, feel free to show me what "lie" I told. Just casting baseless aspersions is nothing but noise and ruins a good discussion. So please spare us of that feckless garbage.
posted by dios at 11:12 AM on May 14, 2009


dios, out of curiosity, could you legally justify the beating to death of a uniformed Iraqi general while he was in custody? I'm just wondering how deep down the rabbit hole you can go.

No. I cannot justify that, nor would I try. And those that beat the officer to death should be prosecuted for their actions.

I mean, are you seriously saying that waterboarding an Iraqi intelligence official would not be a violation of the Geneva Conventions?

I am making no claims other than the fact it is not explicitly clear and that the entire point of the memos at issue and legal opinions was to define what is permissible and what is not under the Geneva Conventions.
posted by dios at 11:16 AM on May 14, 2009


I am making no claims other than the fact it is not explicitly clear and that the entire point of the memos at issue and legal opinions was to define what is permissible and what is not under the Geneva Conventions.

The memos at issue deal with the CAT and the torture statute. The protections offered by the GC to military members or civilians are much more restrictive.
posted by ryoshu at 11:22 AM on May 14, 2009


ryoshu: now you are in the land of unlawful combatants, which is part of the complications of the entire analysis that necessitated the legal opinions.
posted by dios at 11:27 AM on May 14, 2009


I find it odd that someone who professes to be a lawyer seems so unwilling to let the law take its course.

Then you probably aren't that familiar with lawsuits. They take years and gobs of money and do not track at all directly with "TRUTH". Many people go to court thinking they will be proved right and ruin a good chunk of their lives, or at least distract themselves from more useful projects.

IANAL but my mom, grandpa and great-grandpa are and were. And I avoid court like the plague.
posted by msalt at 11:28 AM on May 14, 2009


now you are in the land of unlawful combatants, which is part of the complications of the entire analysis that necessitated the legal opinions.

An Iraqi intelligence officer is an unlawful combatant?
posted by ryoshu at 11:37 AM on May 14, 2009


dios sorry I hurt your feelings. I was quoting son_of_minya. I didn't mean to suggest you were literally lying. I just think you're being a weaselly-ass lawyer in the way you always argue in these discussions. I mean, isn't unlawful combatant a made up word, like collateral damage and extraordinary rendition?

I'm not a lawyer mind you, just a regular-ass dude who knows how to type in the message boxes here at MetaFilter. Maybe torturing the shit out of people is cool, I just don't know how to argue the case properly. I'll read this thread more carefully.
posted by chunking express at 11:39 AM on May 14, 2009 [1 favorite]


ryoshu: why is that the worst of the worst? Presumably the administration had some belief that an Iraq-AQ connection existed. As such, why would the administration not be interested in using EIT to find out about it? -- Dios
Wow, either you're not paying attention or you're retarded.
posted by delmoi at 12:09 PM on May 14, 2009 [2 favorites]


An Iraqi intelligence officer is an unlawful combatant?
posted by ryoshu at 1:37 PM on May 14


Probably not. I'm at a loss because I think you are referring to the specific case addressed in the blog post at the Daily Beast, and I do not have enough facts about that.

All I can say is that the question is better phrased as "is that individual a lawful combatant" because the Military Commissions Act defines "unlawful combatant" as those who are not "lawful combatants." Lawful combatant is defined as:
"The term 'lawful enemy combatant' means a person who is —
(A) a member of the regular forces of a State party engaged in hostilities against the United States;
(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or
(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States."
I don't know enough to tell you whether that individual at that point in time falls under that definition or which part.
posted by dios at 12:11 PM on May 14, 2009


"Actually, I think there is some dispute about whether waterboarding (glazing over your labeling of it as torture) is a good way to get information. I know there are democrats who also believe it is effective to get unknown information (that's why it would be used in the ticking timebomb scenario)."

I would like to see evidence of that, because it contradicts everything we know from our own military and intelligence experts. The SERE training program was well understood in that the techniques used were primarily used to extract confessions (true or false), not actionable intelligence, so the soldiers were trained to understand how to survive such scenarios. But it hardly matters. It doesn't matter whether torture is efficaceous or not. It is illegal whether or not it "works" for the purposes someone wants to use it.

The ticking time bomb scenario is a canard. That only happens in movies and on "24." Are you going to deprive someone of sleep for 21 days (sleep deprivation is torture) while the bomb is ticking?

"I am making no claims other than the fact it is not explicitly clear and that the entire point of the memos at issue and legal opinions was to define what is permissible and what is not under the Geneva Conventions."

Part of the CAT states that there are no exceptions when torture is permissible, that it is always a war crime. From what the Red Cross has found, it's hard to argue that the US did not engage in torture. They have far more credibility throughout the world than Addington or Yoo.

If we pass legislation which contradicts our 60-year-old agreements, we will have to renegotiate. If we try to loosen the standard to meet a different standard we passed in our legislature, it will not be received well.
posted by krinklyfig at 12:33 PM on May 14, 2009


"Part of the CAT states that there are no exceptions when torture is permissible, that it is always a war crime."

By the way, there are also no exceptions for "illegal combatants." They are still considered POWs whether we call them that or not, and torturing "combatants" of any kind is a war crime.
posted by krinklyfig at 12:34 PM on May 14, 2009


"All I can say is that the question is better phrased as 'is that individual a lawful combatant' because the Military Commissions Act defines 'unlawful combatant' as those who are not 'lawful combatants.'"

The law makes no exceptions for when you can commit torture - not US law, not the military code, and not the CAT. This cannot be repeated enough. The argument about illegal combatants enjoying no rights whatsoever is not something any court has so far recognized as a legitimate reason for violating laws and conventions against torture. It was a purely invented argument which will not withstand any sort of serious legal challenge over the long term.
posted by krinklyfig at 12:41 PM on May 14, 2009


I'm not saying Obama is acting stupid; I'm just saying that Obama is acting less stupid than Republicans.

Obama is still sort of a conservatard, but at least he's still generally socially liberal. He's just not edged into full-fledged fascism. Obama isn't scum.

Republicans, on the other hand, make scum look like Einstein.
posted by kldickson at 12:42 PM on May 14, 2009


Dios: Would you submit to a waterboarding session?
posted by Blazecock Pileon at 1:06 PM on May 14, 2009


Dios: Would you submit to a waterboarding session?

there is no useful information to extract from him, but we could probably get him to confess to being dhoyt.
posted by Hat Maui at 3:03 PM on May 14, 2009 [2 favorites]


just make the safeword "Waterboarding is torture."
posted by empath at 4:00 PM on May 14, 2009 [1 favorite]


"Delay" until when, exactly?

Until the slow drip of developments like this erode any remaining public support for the Bush policy:
Focus Shifting To Evidence Bushies Ordered Torture To Boost Case For Iraq War
posted by msalt at 5:15 PM on May 14, 2009


Dios: You submit that you do not agree that waterboarding is torture, in that the application of the Geneva Conventions on waterboarding is, in your words "arbitrary" and contrary to the "interests of national security".

Again, therefore, will you, Dios, agree to submit to a waterboarding session, provided at others expense with a medical professional to keep you alive?

It's a simple yes or no answer.
posted by Blazecock Pileon at 9:10 PM on May 14, 2009


BP, take a powder. dios is talking about the law and you are reading personal opinion and political advocacy. But it's only a legal opinion. Stop trying to goad him. What you and many others seem to view as black and white is absolutely not in terms of law.
posted by peacay at 10:16 PM on May 14, 2009


Stop trying to goad him.

I'm not goading him, I'm trying to get an answer to a straightforward question.
posted by Blazecock Pileon at 10:30 PM on May 14, 2009


I'm not goading him, I'm trying to get an answer to a straightforward question.

And do you think that you'll ever actually get a straightforward answer out of him? All he ever does is misdirect, usually wasting everyone's time.

In this case though I think every sane person is pretty much going to be against torture so I'm not sure what kind of discussion you could have without some disingenuous people to argue with.
posted by delmoi at 6:25 AM on May 15, 2009


BP, take a powder. dios is talking about the law and you are reading personal opinion and political advocacy. But it's only a legal opinion. Stop trying to goad him. What you and many others seem to view as black and white is absolutely not in terms of law.

Nonsense. Dios dresses up his personal opinions with a patina of legal jargon as if that makes them authoritative, and on some people, apparently, it works.
posted by delmoi at 6:27 AM on May 15, 2009 [2 favorites]


Exactly. If you want to hear a real-live human rights lawyer's opinions on this stuff, Scott Horton might be a better source for information. He is certainly far more clear and direct in his writing.
posted by chunking express at 6:50 AM on May 15, 2009


God damn it Obama. "U.S. President Barack Obama will restart military tribunals for a small number of Guantanamo detainees, reviving a fiercely disputed trial system he once denounced but with new legal protections for terror suspects, U.S. officials said Thursday."
posted by chunking express at 8:00 AM on May 15, 2009


delmoi: "Nonsense. Dios dresses up his personal opinions with a patina of legal jargon as if that makes them authoritative, and on some people, apparently, it works."

Well then put in the "some people" catgory because I happen to agree with him. I guess that makes me a advocate for waterboarding or some stupid shit like that?
posted by KevinSkomsvold at 8:49 AM on May 15, 2009


If you say so, sure.
posted by chunking express at 8:51 AM on May 15, 2009


I'm not goading him, I'm trying to get an answer to a straightforward question.

"Would you let someone simulate drowning you" is not a straightforward question, and you know it.

here's what's going on here:

1. dios is saying that it's not a fact that the government admitted to torturing people. this is technically true, because the government is trying to say that waterboarding isn't torture.
2. most everyone else is saying that of course they admitted to torturing people because they admitted to waterboarding, and waterboarding is torture.
3. dios is saying that it's not a fact that waterboarding is torture.
4. everyone is assuming that dios is aying that waterboarding isn't torture.
5. this is not what dios is saying. dios is being annoyingly coy, here, and isn't saying one way or the other whether or not he thinks waterboarding is torture. what dios is saying is that the legal argument is still being had, and that until the argument is settled, it cannot be called a fact that waterboarding is torture. he has not expressed an opinion on whether or not he thinks it SHOULD or should not be considered torture.
6. nobody else seems to be realizing this, so everyone is assuming that dios is still defending waterboarding as a practice.
7. in the end, dios is trying to have a discussion about legal definitions. everyone else is trying to discuss moral imperatives.
8. honestly, dios is probably winding you up, because he's not being especially straightforward about where the disagreement lies, here. he knows why everyone is assuming he supports waterboarding, and he's not pointing it out. it's kind of a dick move.
9. that all notwithstanding, asking dios to submit to waterboarding is not a straightforward question. there is no right answer. if he says yes, this turns into a playground fight of "oh yeah? i don't believe you! I'll waterboard you, come on! if you don't meet me at my house, then you're a liar!" if he says no, then he's a hypocrite douchebag who doesn't want to undergo the sensation of drowning because it must be torture.

in the end, dios may very well think waterboarding SHOULD be considered torture. but dios being dios, he tends to put more stake in the law and law making process than he does in moral imperatives. it's not trolling, but it's not exactlly forthright and frank discussion, either.

so yeah. hope this clears things up a little.
posted by shmegegge at 8:54 AM on May 15, 2009 [2 favorites]


also, blazecock, i don't remember exactly but i feel pretty sure that dios has admitted previously to killfiling you. i don't think he even sees your comments.
posted by shmegegge at 8:57 AM on May 15, 2009


3. dios is saying that it's not a fact that waterboarding is torture.

If there is uncertainty about this, will he submit to the waterboarding procedure?

It's a simple question.

it's not trolling, but it's not exactlly forthright and frank discussion, either.

Isn't that the very definition of trolling?
posted by Blazecock Pileon at 10:51 AM on May 15, 2009


What shmegegge said. Law is NOT right or wrong. It is not what we want, or what should be. Because it is enforced by courts and prisons and even death, it is extremely limited and tied up in all sorts of weird rules that distort the outcome.

I can't tell if some of you really don't understand this, if you're trolling, or if you're simply angry that right doesn't mean legal might and you've settled on the lawyers here as the messengers of bad news to attack.

No one is defending waterboarding per se. But you're saying, "Obama just has to say the word and the law will send all Bush officials to The Hague as war criminals, and if he doesn't he loves torture too". And that's wrong and ignorant.
posted by msalt at 11:21 AM on May 15, 2009


If there is uncertainty about this, will he submit to the waterboarding procedure?

yes? no? I don't know, does it matter? He's talking about the legal side of this, and where federal law is concerned, he seems to be right that it has not yet been classified as torture in law, even if once it wouldn't have been a question. even if it should be classified without question.

at this point, I don't know what else I can tell you. as neat a question as you think it is, it's pretty beside dios' point.

now, dios' point seems to me to be beside the larger point (namely: legal definition of waterboarding aside, Obama's administration should not be covering up and even tacitly endorsing the interrogation tactics of the previous administration), which is where I think he's kind of being a jerk about things.

but demanding that he submit to waterboarding is neither a killer argument nor an especially straightforward proposal, either.

Isn't that the very definition of trolling?

depends on who you ask. I'm inclined to say "no, it's not trolling, it's just being kind of a jerk." to some people they're one and the same thing.
posted by shmegegge at 1:08 PM on May 15, 2009


I don't know, does it matter?

Yes, absolutely.

If you're going to say torture is a "gray area", but you wouldn't accept that kind of treatment yourself — well, there wasn't really much of a gray area to begin with, was there?

to some people they're one and the same thing.

Let's not mince words. If you put forward a view that you yourself do not really espouse, just to keep needling other people, that's more or less a defining characteristic of an Internet troll.

Leaving aside that old question that's already long been answered, asking if someone will submit to this treatment is really a very straightforward question.
posted by Blazecock Pileon at 1:28 PM on May 15, 2009


If you're going to say torture is a "gray area", but you wouldn't accept that kind of treatment yourself — well, there wasn't really much of a gray area to begin with, was there?

That's a ridiculous argument. Law is convoluted and has lots of gray areas, which has nothing to do with personal desire for something. Imprisonment is black and white acceptable, but I'm pretty sure Dios wouldn't accept imprisonment either, given the choice.

Is that supposed to make him a hypocrite?
posted by msalt at 1:38 PM on May 15, 2009


The issue you are dealing with here is not black and white.

The above is what dios said. Now, if we assume that "the issue" is torture, then hey I agree with you. Maybe even dios would, too. I don't know, because he's not really talking about whether or not he likes torture.

So what if "the issue," according to dios, is instead whether or not Obama should attempt to prosecute the previous administration for war crimes when it hasn't yet been decided by this country's government whether or not waterboarding legally constitutes torture and would therefore be considered a war crime?

I don't really agree with him, but I am inclined to think that he's saying the latter, in which case he's neither putting forward a view that he doesn't espouse nor is he saying that torture is a gray area.

Let's not mince words.

ok, let's not. in my opinion, you should rein back a bit, because you're being overly contentious and fighty because you have a long standing grudge against dios.
posted by shmegegge at 1:42 PM on May 15, 2009


you should rein back a bit, because you're being overly contentious and fighty

I'm being quite civil, actually.
posted by Blazecock Pileon at 2:02 PM on May 15, 2009


Someone who works hard to redefine torture into something else, yet will not acquiesce to such treatment himself, speaks as a woefully poor representative for his case.
posted by Blazecock Pileon at 12:49 PM on May 18, 2009


"I don't believe that a $60 fine is excessive for speeding."

"Would you give me $60 then?"

"Well, no"

"Well then, you clearly think it's an excessive fine or you'd give me $60."
posted by empath at 2:46 PM on May 18, 2009


Furthermore. I believe that waterboarding is torture, and there are some conditions under which I'd submit to it voluntarily.

Even if dios were to submit to it, it would prove nothing, because context is rather important when deciding whether something is torture or not. If it's submitted to voluntarily, it's almost by definiton NOT torture, because the point of torture is to break someone's will.
posted by empath at 2:49 PM on May 18, 2009


I'm going to come waterboard every last one of you.
posted by Burhanistan at 2:51 PM on May 18, 2009


That's not a very useful analogy. The silence is notable, regardless.
posted by Blazecock Pileon at 2:51 PM on May 18, 2009


In other words-- waterboarding, the act itself, may not be torture. Keeping someone awake may not be torture. Putting someone in stress positions may not be torture. Solitary confinement and cold rooms may not be torture.

It's the combination of those things, and the duration and the purpose that makes it torture. Quibbling over individual techniques rather misses the point. If you did all of that, but drew the line at waterboarding, would that mean they weren't tortured? No.

Let's not focus on the techniques so much.
posted by empath at 2:52 PM on May 18, 2009


Torture is an attack on the mind, and not the body. If we outlawed every method the Bush administration attempted to use to extract confessions, but didn't attack the practice of torture itself(that is, coercive interrogation), then they could simply devise new methods of torture. It's not like there are a limited number of techniques available to break the human spirit.
posted by empath at 2:57 PM on May 18, 2009


Let's not focus on the techniques so much.

Perhaps there is irony where those who make a living from arguing nuance in something, they are suddenly are blind to nuance in the practice itself when intimately confronted with its exercise on their person. All of a sudden: No more gray areas.
posted by Blazecock Pileon at 3:10 PM on May 18, 2009


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