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View Diary: Obama's DoJ: A Pattern of Obstruction in Torture, Wiretapping Cases (92 comments)

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  •  The intent is clearly to dismiss (3+ / 0-)
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    Valtin, jayden, costello7

    even if the motion isn't. If it fails, dismissal will be a next step.

    The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

    by kovie on Fri Feb 13, 2009 at 11:30:22 PM PST

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    •  That may be (2+ / 0-)
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      burrow owl, ablington

      I only look at what is actually before the court -- not the next step down the road.  I've done it myself for delay in order to get more information -- file a motion for stay and hope it gets granted.

      I tend to hold fire until I see that motion for dismissal filed.  Also, it is a rare event for an AG or state prosecutor to not protect his/her client -- which is the US or the State.  I'm not saying I like it -- but that is their legal duty.  The US is the defendant here.  Gerry Brown is the first prosecutor I've seen actually buck the state in the Prop 8 case.

      You'll never have a quiet world till you knock the patriotism out of the human race. - G.B. Shaw, "Misalliance"

      by gchaucer2 on Fri Feb 13, 2009 at 11:40:31 PM PST

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      •  I'm not complaining against the government lawyer (2+ / 0-)
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        walkshills, Valtin

        but the DoJ, which instructed him to do this. Sure they're tying to win a case, but that case itself is inherently contemptible. They are trying to both defend torturers and wiretappers and assert the doctrine of unchecked executive power. That Obama would try to do both is beyond despicable, and if it wasn't his intent, he'd have taken a different course, at the very least asked for a delay while they sort through the evidence and decide how to proceed--ideally, with a criminal investigation.

        I do see how either way, it's a huge mess for Obama even if he believes that crimes were committed and people deserve to be punished for them. If he drops the motions and allows the suits to proceed, he'll be compelled to present evidence that would not only imperil former Bushies and possibly some Dems (which however meritorious will cause him political problems without a doubt), but also reveal things about our national security apparatus that even without their being super sensitive would damn it and its members and cause the US to lose tremendous face around the world. Justice would be served but damage would be done. And if he tries to squelch this evidence to prevent this, he validates the Bush Doctrine of unchecked presidential power.

        So ideally, he'd ask for a delay, which he'd surely be granted since these are for past events and no ongoing harm is being asserted (I believe), to give him time to figure out what to do, which ideally would involve a special prosecutor. But taking the path that he is taking just seems dangerous in terms of separation of powers and executive power issues. It makes no sense unless he either WANTS these powers, or else expects the courts to rule against him, which seems strained.

        It's just weird, that's all. Very weird.

        The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

        by kovie on Fri Feb 13, 2009 at 11:53:41 PM PST

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      •  Au contraire (1+ / 0-)
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        By treaty law (Convention Against Torture) it is not their legal duty to obstruct investigations or prosecutions against torture (as in Jeppesen, or the Mohamed cases). In fact to do so is to put them in violation of the law. In the al Haramain case it may be more of an ethical breach, and a political betrayal, although one can argue it is a violation of the oath to uphold the Constitution.

        War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

        by Valtin on Fri Feb 13, 2009 at 11:56:41 PM PST

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        •  They're not bound by the CAT. (1+ / 0-)
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          The CAT was non-self-executing (the senate expressly said so as they ratified), so we look to the implementing domestic law to divine the DOJ's duties.

          We are building a team that is continuously being built. - Sarah Palin

          by burrow owl on Sat Feb 14, 2009 at 05:29:56 AM PST

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          •  Those laws were implemented by Congress (1+ / 0-)
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            specifically for CAT. See Congressional Research Service report on CAN, Overview and Application to Interrogation Techniques:

            The United States ratified CAT, subject to certain declarations, reservations, and understandings, including that the treaty was not self-executing and required implementing legislation to be enforced by U.S. courts. In order to ensure U.S.compliance with CAT obligations to criminalize all acts of torture, the United States enacted 18 U.S.C. §§ 2340 and 2340A, which prohibit torture occurring outside the United States (torture occurring inside the United States was already generally prohibited under several federal and state statutes criminalizing acts such as assault, battery, and murder). The applicability and scope of these statutes were the subjectof widely-reported memorandums by the Department of Defense and Department ofJustice in 2002. In late 2004, the Department of Justice released a memorandum superseding its earlier memo and modifying some of its conclusions.

            Obama's EO removed the applicability of the latter memos.

            Furthermore, there were more enabling acts of Congress on this, including the Detainee Treatment Act and the  the National Defense Authorization Act for FY2006.

            The enabling legislation was passed, in part, because, "The United States nevertheless has an international obligation to adjust its laws as necessary to give legal effect to international agreements."

            War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

            by Valtin on Sat Feb 14, 2009 at 06:59:55 AM PST

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            •  Sure, but the point above was whether the (0+ / 0-)

              US DOJ has a legal duty to prosecute that arises out of the CAT.  The CAT expressly says that parties have a duty to prosecute.  Under US law, by contrary, prosecutors and the executive are given broad latitude to decide whether the pursue a particular case.  

              So in order to rebut that, you'd need to show me a statute that specifically implemented the "duty to prosecute" clause of the CAT, rather than the substantive law banning torture.

              We are building a team that is continuously being built. - Sarah Palin

              by burrow owl on Sat Feb 14, 2009 at 07:49:28 AM PST

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              •  Okay, then (1+ / 0-)
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                There's no get out of jail card here, burrow owl.

                The CAN treaty specifically states:

                Article 4

                  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.
                  2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

                Article 5

                  1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
                        1. When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
                        2. When the alleged offender is a national of that State;
                        3. When the victim was a national of that State if that State considers it appropriate.
                  2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article....

                Article 7

                  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.
                  2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

                You are correct that Articles 1-16 of the treaty are said by the U.S. to be self-executing, one of a number of reservations made by the U.S. that led to ratification of the treaty. But in those reservations is the following:

                U.S. Reservation II (5) of the Convention Against Torture states (emphasis added):

                1. That the United States understands that this Convention shall be implemented by the United States Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention and otherwise by the state and local governments. Accordingly, in implementing Articles 10-14 and 16, the United States Government shall take measures appropriate to the Federal system to the end that the competent authorities of the constituent units of the United States of America may take appropriate measures for the fulfillment of the Convention.

                So the U.S. is obligated to implement sections 4,5, and 7. One cannot take the fact that it mentioned specifically that it would implement Articles 10-14 and 16 as any limitation upon what articles it would implement. If for some reason these articles are not implemented yet, then they should be, and prosecutions can proceed.

                I do not know if they are already implemented. The CRS report on CAN is silent on the issue.

                I also believe that the Geneva Conventions require a duty to prosecute war crimes. So there are two routes to go in readying prosecutions. From The Progressive:

                No less a figure that the UN’s Special Rapporteur on Torture said on CNN Monday that "Rumsfeld clearly authorized torture methods." The Rapporteur, Manfred Nowak, said the United States has an "obligation" to investigate this, and he has passed his recommendation on to the United Nations.

                The smoking gun is a December 2, 2002, directive Rumsfeld issued that ordered sensory deprivation, stress positions, isolation, and the use of dogs on prisoners.

                He also admitted hiding at least one detainee from the Red Cross, which violates the Geneva Conventions.

                War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

                by Valtin on Sun Feb 15, 2009 at 02:18:42 PM PST

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              •  Further (0+ / 0-)

                On the question of prosecutorial discretion on these matters see discussion at Opinio Juris, "Does CAT Require the Prosecution of Torturers?", and "Sands and Lithwick on the Prosecution of Torturers".

                Re limitations on prosecution, here's a passage from Chris Ingelse’s book The UN Committee Against Torture: An Assessment (H/T Kevin Jon Heller) (emphases added):

                Article 7, par. 2 grants the authorities a discretionary power in terms of whether or not they prosecuted a suspect of torture.  The Committee confirmed — in abstract terms — that the discretionary power was not unlimited and could not be determined on the grounds of national law only.  In any event, the discretionary power could not extend as far as to allow those responsible for torture to escape punishment.  The Committee found that there had to be opportunities for an individual to submit a complaint against prosecutors who fail to prosecute suspects of torture.  If necessary, there had to be an opportunity for the victim himself to initiate criminal proceedings against the person suspected of torture.

                War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

                by Valtin on Sun Feb 15, 2009 at 03:14:06 PM PST

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          •  Also (0+ / 0-)

            They ARE bound by CAT. It is a treaty and subject to Constitutional law now. Just because it is self-executing doesn't mean they aren't bound by it. In fact, the U.S. Reservations make that very point in II (5), which I have quoted elsewhere in this thread.

            Calling a treaty "self-executing" is not a clever way to abrogate the very treaty you are ratifying. That would destroy all concept of international law.

            Speaking of international law, here's the situation with Geneva:

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

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

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

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

            Geneva III POWs, art. 129, Geneva IV Civilians, art. 146; see also 18 USC 2441(c)(1).

            War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

            by Valtin on Sun Feb 15, 2009 at 03:03:33 PM PST

            [ Parent ]

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