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Conservatives have been all a'tizzy defending torture since President Obama released the Yoo/Bybee memos two weeks ago.  From "intellectuals" like George Will and Michael Kinsley to fire-breathers on Fox News, they've thrown up all kinds of arguments for why neither those who authorized nor those who conducted torture should be investigated, let alone prosecuted.  And as for progressives who call for investigation, we're partisan, we're naïve, we're anything but trying to uphold the rule of law.

Are there legal defenses for torture?  Sure.  But those defenses exist in a court of law, not in secret memoranda.  The law is not an institution of secrets, and our Constitution trusts ordinary citizens to make those legal decisions.

More below the fold....

Is Torture Legally Indefensible?  Not Exactly....

Torture is a crime, by our Constitution (the Eighth Amendment), by our treaties (including the Geneva Convention), and by federal statutes.  Is that the end of the legal issue?  No.  Murder, battery, and extortion are also crimes.  And all crimes - including murder, battery, extortion, and torture - include some legal defenses.  We didn't need John Yoo or Jay Bybee to tell us that.  We've had those defenses for centuries.

But you don't plead a defense in a secret memorandum.  You plead a defense in a court of law, in a public proceeding, to a judge or a jury.  That's how the rule of law works, and conservatism's arrogant disdain for the rule of law is at the heart of the torture debate.  Conservatives have been trying to neuter our courts for a generation, from complaints about "activist judges" to "tort reform" to court-stripping legislation to evading the FISA Court and now claims that investigating crimes would be "criminalizing policy disagreement."

Many conservatives - despite their "law and order" rhetoric - don't like or trust the institution of law.  If they did, they'd probably welcome investigations of torture, because all of the defenses they've put out in the media could be offered to a jury ... and they might even win a not guilty verdict.

Affirmative Defenses

As a criminal appellate attorney, I studied and used a wide variety of legal defenses in representing my clients.  Most were technical, having to do with whether the prosecution had met its burden of proof.  The statutory language that defines a crime is broken out into elements, and the state must prove every element of the offense charged, beyond and to the exclusion of any reasonable doubt, with evidence lawfully obtained and lawfully presented to the finder of fact.  If the prosecution can't prove a necessary element, the defendant is entitled to acquittal.  If the prosecution can't prove an element without using evidence that was unlawfully obtained, or without presenting that evidence in an unlawful manner at trial, the defendant is entitled to acquittal.

To call these "technicalities" is both accurate and misleading.  It's accurate in the sense that they question the technical components of the prosecution's case.  It's misleading in that it implies they are less important than the defendant's guilt or innocence.  Our system of law is premised on the idea that an unfettered government - rather than criminals - is the greatest danger to our lives and liberty.  We make it difficult for government to put citizens in prison or on death row for the simple and sensible reason that we have more to fear from government than we do from each other.  Government can protect us from each other, but an unfettered government cannot protect us from itself.

But aside from the technical defenses, there are also legal principles known as affirmative defenses.  We call them affirmative the burden of proof shifts to the defendant.  The defendant must raise the defense, and the defendant must present evidence to prove the defense applies in his/her case.

Affirmative defenses fall into two broad categories: justifications and excuses.  In most cases there's little or no practical difference; either a justification or an excuse can yield a not guilty verdict.  But we have greater sympathy for a justification (e.g.: self-defense) than we do for an excuse (e.g.: insanity).  As a defense attorney, I'd much rather plead a justification than an excuse, because juries are more likely to acquit on a justification than on an excuse.

The affirmative defenses conservatives have offered for torture fall generally into three classes:

  1. Defense of third party - This is a legal justification, and it's the so-called "ticking bomb" argument.  If presented in court, it would go something like this.

You may find that my client violated the law by committing an act of torture, but my client was acting to protect the American people.  My client had reason to believe there was an imminent terrorist threat, and in fact there was.  The terrorist he was interrogating caused that threat, not my client, and not the American people.  My client believed these interrogation tactics would yield the information he needed, and he had no other way to stop the threat.  He got that information and stopped that threat.

Note there are four important factual elements that must be proved by evidence: (a) there was an imminent threat to a third party; (b) the victim caused the threat; (c) the acts alleged were a reasonable attempt to protect the third party;  and, (d) the defendant had no other means to protect the third party.  This cannot be a hypothetical proof.  The defendant must present evidence to prove those elements did exist, or facts that would lead a reasonable person acting in good faith to believe the elements existed, in his/her case.  And of course the prosecution can present evidence to rebut those elements, e.g.: that torture does not yield reliable information and thus is not a reasonable way to protect the American people.  (Note: I included this defense for completeness, but as Firecrow notes below, the trial judge could and arguably should bar the defendant from even raising such a defense, under the terms of the U.N. Convention Against Torture.)

  1. Temporary insanity - This is a legal excuse, and it's the so-called "post-9/11" argument.  If presented in court, it would go something like this.

You may find my client violated the law by committing an act of torture, but please consider my client's state of mind at the time.  It was right after 9/11.  Like all of us, he was outraged and in shock.  He believed he was doing the right thing.  We can look back now and say maybe he was or he wasn't, but at the time he felt compelled to do it and believed it was right.

This defense would have to pass the M'Naughton standard, which is essentially that the defendant, because of some mental defect, was unaware of the nature and consequences of his actions.  Either he didn't know what he was doing, or he didn't know it was illegal.  The "mental defect" would be the outrage and shock after 9/11.  But given that the interrogators apparently expressed their doubts up the chain of command - that's why the Yoo/Bybee memos were written - and that they went to such lengths to keep their actions secret, it would be difficult to convince a jury that the interrogators reasonably believed what they were doing was legal and right.

  1. Mistake - This is also a legal excuse, and it's the "just following orders" argument.  If presented in court, it would go something like this.

You may find my client violated the law by committing an act of torture, but remember that he'd been told it was legal.  My client is not a legal scholar.  He's not schooled in the Constitution, the Geneva Convention, or federal statutes.  He's an intelligence officer.  The lawyers up the chain of command told him these acts were legal, and he believed them.

The problem here is that "ignorance of the law is not an excuse."  There is a legal defense for mistakes of fact - e.g.: you took what you thought was your bicycle, but in fact it was another bicycle that looked exactly like yours but belonged to someone else - but we are all presumed to know what is legal and what is illegal.  And it is very difficult to rebut that presumption: a defendant must show that he had both no reason to doubt the legality of his actions and good reason to conclude those actions were legal.  If you recognize a need to ask a lawyer for guidance, and that guidance turns out to be wrong, you had a reason to doubt the legality of your actions and neither your nor your lawyer's ignorance of the law will excuse you.

Jury Nullification

Jury nullification is not a defense per se, but a fact of how our legal system operates.  The Fifth Amendment Double Jeopardy Clause precludes the government from appealing a not guilty verdict, or filing the charges again, regardless of the evidence of guilt.  So if the jury decides to acquit, even when the evidence of guilt is overwhelming, that is the end of the case.  There are some exceptions - a civil case can be filed even after a criminal acquittal, and a different sovereign can try the defendant on the same criminal charge - but I'll set those aside for purposes of this discussion.

As a matter of trial strategy, jury nullification is a difficult strategy because the defense attorney can't tell the jury it exists.  A defense attorney can't say "As a jury you can ignore the law and find my client not guilty even if you find the evidence proves my client's guilt beyond a reasonable doubt.  You don't have to explain your verdict, and under our legal system the prosecution can't challenge a not guilty verdict."  To say that would violate the attorney's oath to uphold the law, and it would probably get the attorney sanctioned if not disbarred.

But the attorney can get to the same place by "plucking the heartstrings" of the jury.  Often the nullification argument comes down to a legally groundless but emotionally compelling plea that the act needed doing or the victim deserved it.  One of most famous jury nullification summations was given in the John Grisham novel A Time To Kill, delivered on screen by Matthew McConaughey:

This is the "but these were terrorists" defense.  It says the law be damned, the act needed doing.  And sometimes juries agree.

"Tell it to a jury."

All of these defenses exist in our law.  All of them respect the rule of law, even jury nullification.  As bizarre as it seems, jury nullification respects the rule of law because in order to make that claim, a defendant must plead for the mercy of the court.  The defendant must "tell it to a jury."

And that's something conservatives don't want to do.  Their objections are not about defending those who authorized or committed torture from unjust prosecution.  We have legal defenses to use when a prosecution is unjust.  Their objections are about rejecting the rule of law itself.  As they see it, the decisions of the Bush administration and the actions spurred by those decisions should be beyond question, period.  To make a legal defense, you must acknowledge and submit to the rule of law.

Let the Department of Justice investigate.  Where there is evidence to warrant prosecution, let the Department of Justice prosecute.  Let the defendants present a defense.  And let a jury of ordinary citizens render a verdict.  That is the rule of law.

And that's what conservatives reject.

+++++

Happy Saturday!

Originally posted to NCrissieB on Sat May 02, 2009 at 04:40 AM PDT.

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Comment Preferences

  •  Tips for the rule of law. :) (155+ / 0-)
    Recommended by:
    chuck utzman, Aeolus, Chi, Upper West, burrow owl, limulus, TrueBlueMajority, bread, Pescadero Bill, frisco, chipoliwog, housesella, Gustogirl, SoCalJayhawk, ovals49, Ignacio Magaloni, nargel, Hawksana, riverlover, nailbender, nehark, bobdevo, UpTooLate, Jeffersonian Democrat, David R, JanetT in MD, mjd in florida, tRueffert, irate, KnotIookin, teacherbill, btrflisoul, NLinStPaul, cfk, indiemcemopants, Yamara, Shotput8, jiml, begone, MsCasey, third Party please, Orinoco, ej25, mr crabby, Yellow Canary, tecampbell, Ashaman, nonnie9999, tapestry, plf515, bleeding heart, Zwoof, kurt, zedaker, Hedwig, Temmoku, NonnyO, Mishima, cherry ghost, phonegery, Cali Techie, JFinNe, linkage, Allogenes, joyful, newpioneer, Seneca Doane, chicago jeff, Zydekos, Neon Mama, rogerdaddy, tdub, Ms Citizen, ShadowSD, Chacounne, zerone, indyada, LI Mike, elwior, brooklynbadboy, lineatus, pamelabrown, evora, geomoo, pickandshovel, MsWings, tamasher, mofembot, mommaK, Shaviv, winterbanyan, luckylizard, BlueStateRedhead, DixieDishrag, dmhlt 66, rhutcheson, billmosby, LaFeminista, aufklaerer, litoralis, juca, An Affirming Flame, En Passant, maryabein, remingtonsteele, mississippi boatrat, obscuresportsquarterly, allep10, guyeda, notquitedelilah, stevenwag, elropsych, vadasz, Shuruq, JSC ltd, ratmach, mikelow, amk for obama, green minute, CS in AZ, LeftyAce, NY brit expat, pixxer, Lady Libertine, SoCalHobbit, Anne933, legalarray, quagmiremonkey, pateTX, nickrud, nosleep4u, DudleyMason, jeanma, theKgirls, watershed, allenjo, SuperBowlXX, FeloniousMonk, cranquette, nicethugbert, Olon, MaryinHammondsport, dabug, FarWestGirl, Aranfell, lovespaper, Carolyn in Oregon, BarackStarObama, muddy boots, merrily1000, AgnesBee, Edgewater, Dungaree, JL, Buddhist Brother

    As always, ::smoooooooooochies:: to Kula, and ::huggggggggggs:: to the Kula Krew.

    •  Excellent diary, NCrissie!! (30+ / 0-)

      And huge hugs to you too.

      Another great diary on this topic by MeMeMeMeMe may get lost in the morning rush, so please forgive me if I link it here?

      Happy Saturday!

      "The care of human life and happiness and not their destruction is the first and only legitimate object of every good Government" ~ Thomas Jefferson

      by watershed on Sat May 02, 2009 at 05:08:55 AM PDT

      [ Parent ]

    •  Excellent diary, Crissie!!! (21+ / 0-)

      Diaries like these are real teaching tools for those of us who are not attornies.  It helps us to understand the intricacies of how a prosecution or a defense might be constructed and also the burdens of those constructs.  Thank you again for another great diary.

      :::::::hugs::::::: to you and all the Krew, and to Kula whom we all miss very much.

      "in the wake of Sept. 11, a frightened nation betrayed one of its core principles -- the rule of law -- for the fool's gold of security." Leonard Pitts

      by gulfgal98 on Sat May 02, 2009 at 05:37:46 AM PDT

      [ Parent ]

      •  "Law is codified common sense." (12+ / 0-)

        That old maxim is not always true, but it's true far more often than not.  And when it comes to the legal defenses in criminal cases, most really are "codified common sense."  For example, you can't claim a legal defense of intervening to protect a third party if the person you're "protecting" started the fight.  It isn't something most of us would consider, but once you consider it ... yeah, that's common sense.  And the institution of law has had a long time and a lot of cases by which to build up that body of "codified common sense."

        Good morning! ::huggggggggggggs::

        •  Well put! I am a convicted felon. (3+ / 0-)
          Recommended by:
          UpTooLate, NCrissieB, kktlaw

          It was a "white-collar" crime. I was judged by a jury of my peers. The Federal judge expected an aquittal, the jury saw it differently. The judge made no effort to change the jury's verdict.

          The odd thing is, I have never, ever felt I got anything but justice. To this day, I feel an aquittal was the proper verdict. But that comes from knowledge of the tactics used by the prosecution rather than from a "miscarriage" of justice.

          Our system worked. It still works. On the margins, some injustice results. As a nation we must accept that that will happen. I am still convinced that our system is as good as it can get, even though I was convicted "at the margins".

          I would have it no other way, for myself, or, more importantly. for those who enabled torture in our names.

          Political Correctness Police: may your puckered, disapproving lips forever cover your donuts.

          by FeloniousMonk on Sat May 02, 2009 at 12:16:05 PM PDT

          [ Parent ]

          •  No human system is perfect. (2+ / 0-)
            Recommended by:
            kktlaw, FeloniousMonk

            We humans are imperfect, so any system we create and inhabit will be imperfect.  Our legal system has problems - any lawyer or judge will admit that - but most are irreducible human failure problems.  As for the rest, what I saw were budgetary: too few and thus overworked judges, public defenders, etc.

            Thanks for your comments! ::huggggggggggs::

    •  Kudos...! (14+ / 0-)

      I was already a thousand percent in favor of war crimes trials for both the torture carried out at Gitmo and elsewhere and for the illegal war, both of which were ordered by Bush/Cheney on the flimsiest of transparently bad "legal memos" as well as trials for constitutional laws broken (some written after the crimes were committed, e.g. the warrantless wiretapping covered under FISA fiasco where the telecoms were forgiven)... but your explanation of these points of law make it a thousand and one percent.

      Highly recommended...!

      (¯`*._(¯`*._(-PROSECUTE-)_.*´¯)_.*´¯)

      by NonnyO on Sat May 02, 2009 at 06:14:51 AM PDT

      [ Parent ]

      •  That's what I'd hoped for! (13+ / 0-)

        If they have legal defenses to offer, "tell it to a jury."  We do, after all, have a sophisticated legal system that recognizes people sometimes break the law in extremis, and we have a big body of law to address precisely those situations.  Conservatives are talking as if no defendant has ever come into an American courtroom with a legal defense for his/her illegal actions.  Umm ... been there, done that, got it covered, thanks for the concern.  So "tell it to a jury."

        Good morning! ::huggggggggs::

        •  What's so frustrating... (8+ / 0-)

          ... is that politicians are using their political (not legal) voices declaring innocence or guilt ... or worse, dismissal (because they're too busy, even though any trials would not impact the legislative or executive branches while any possible trials were going on) ... of what was done to us and to innocent people for eight freakin' years...!

          Just thinking about the long list of lies and war crimes and high crimes and misdemeanors exhausts me...!  We'll never be able to try and convict them for ALL the crimes they've committed or the lies they've told, but taking one thing at a time, one crime at a time - of the ones we know about, at the very least, because they bragged about what they've done on tape, even - we need to start somewhere...!

          Did you watch Bill Moyers Journal last night?  BiPM had a link to the web site in C&J last night, and I watched it online (I haven't connected the digital converter yet, and my local PBS station switched over in Feb; I need to get a new UHF-VHF antenna 'cuz I only have rabbit ears).
          http://www.pbs.org/...
          Bill Moyers: Bruce Fein & Mark Danner

          IMHO, Bruce Fein would be a good person to have on our side, or as a special prosecutor (or a team of special prosecutors, or as a judge, even).  When Fein and John Nichols were interviewed by Moyers (?I think in Aug. '07?) about impeachment, Fein was so in favor of impeaching both Georgie and Dickie that he was spluttering trying to get his answers out as to why it needed to be done - both of them at the same time is what he advocated.  He may be a Repuke, but he knows the Constitution off the top of his head as well as Jonathan Turley seems to when he's interviewed by Keith Olbermann, and he seems to be able to quote long passages, plus compares and contrasts them to our treaties, etc.

          I'm not impressed with Danner because he talked about "torture as a policy" and didn't seem to get the fact that it's totally illegal under all kinds of laws and treaties to which the US is bound, and that torture has nothing whatsoever to do with "policy" but it has everything to do with war crimes and/or criminal activities.

          In any case, I want to know what the hell the hold-up is in appointing someone to hold PUBLIC trials or hearings or whatever - just get this torture issue out in the open, discussed, perpetrators charged.... and let's get this show on the road...!  If it's a special prosecutor like Fitzpatrick and grand juries that are behind closed doors, I'm NOT in favor of secret hearings or grand juries (there doesn't seem to be any "national secrets" to be worried about at this point - all or most of the lies have been busted long ago).  I want PUBLIC hearings or trials where all our dirty laundry is aired in public for all the Repukes and Lamestream Media to see... and think about... and be as embarrassed and ashamed of the US as we are, and to think long and hard about their roles in covering up the lies and war crimes and being the primary cheerleaders for the illegal war....

          Huggs backatcha, Crissie, and keep up the good work!  :-)

          (¯`*._(¯`*._(-PROSECUTE-)_.*´¯)_.*´¯)

          by NonnyO on Sat May 02, 2009 at 07:05:43 AM PDT

          [ Parent ]

          •  I favor public investigations, to a point. (11+ / 0-)

            In any criminal investigation, some of the work is necessarily kept private until someone is charged.  At that point, disclosure rules compel turning over all of the material evidence to the defendant(s).  But there may be leads that are followed up and found to be groundless, witnesses or persons of interest who are interviewed and found to be not involved, etc.  Publicizing everything as you go risks the Richard Jewel situation of someone being tried, convicted, and ruined in the media ... and we later learn the person did nothing wrong.  "Oops, sorry" is cold comfort when that happens.

            So I don't mind that these investigations are proceeding - and I think they are - largely out of the public spotlight at first.  In our zeal to hold the guilty accountable, let's not damn the innocent with our impatience.

          •  Bruce Fein has certainly changed (5+ / 0-)

            I think he finally saw too much and wants to leave the dark side

            Politics is like driving. To go backward, put it in R. To go forward, put it in D.
            President Obama. Still a thrill to see that in print.

            by TrueBlueMajority on Sat May 02, 2009 at 07:25:29 AM PDT

            [ Parent ]

    •  Brilliant as always (6+ / 0-)

      I completely agree with your points.  This in particular:

      And that's something conservatives don't want to do.  Their objections are not about defending those who authorized or committed torture from unjust prosecution.  We have legal defenses to use when a prosecution is unjust.  Their objections are about rejecting the rule of law itself.  As they see it, the decisions of the Bush administration and the actions spurred by those decisions should be beyond question, period.  To make a legal defense, you must acknowledge and submit to the rule of law.

      They aren't just defending torture - they're defending their conception of the unitary executive - a President who makes up the law as he goes along and who, by definition, cannot ever break the law.

      "The time for justice is always right now!" - Samantha Booke, Wiley College debate team, 1935

      by Edgewater on Sat May 02, 2009 at 10:29:04 AM PDT

      [ Parent ]

    •  Wonderful diary (2+ / 0-)
      Recommended by:
      NCrissieB, NY brit expat

      I'm just poking my head in briefly after returning from a trip and going off for my day, but this is a sophisticated argument that needed saying.  Kudos and thanks.

      They tortured people to get false confessions to fraudulently justify our invading Iraq.

      by Seneca Doane on Sat May 02, 2009 at 10:45:35 AM PDT

      [ Parent ]

      •  Thanks, Seneca :) (3+ / 0-)
        Recommended by:
        Seneca Doane, cranquette, Edgewater

        I guess I got a little tired of hearing Republicans talk as if our institution of law was just invented last week as a second-grade class project.  We've been working on that law thing for quite awhile now.  It'd be different if the dire outcomes they worry about were really novel, say, what do you do if the defendant is a radioactive space alien.  The defenses they're so worried about are routine stuff for any prosecutor, defense attorney, or criminal court judge.

        Thanks for your comments! ::huggggggggggs::

    •  OK, time to switch sig quotes (1+ / 0-)
      Recommended by:
      NCrissieB

      to this:

      Our system of law is premised on the idea that an unfettered government - rather than criminals - is the greatest danger to our lives and liberty.

      Remember the rule of law? What a concept...

      Thanks, great diary.

      The law in its infinite majesty forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread.
      - Anatole France

      by pixxer on Sat May 02, 2009 at 03:16:39 PM PDT

      [ Parent ]

  •  Semi OT bureaucratic stuff (14+ / 0-)

    Good morning!

    1. I will be the host on Tuesday with Monty Hall Problem; elropsych agreed to switch to Wednesday (thanks elropsych!)
    1. Would you like for all the MF diaries to be listed on Daily Kos University?  They pretty much all do teach.

    back with substantive comments in a minute.

  •  Amen! (20+ / 0-)

    Let the Department of Justice investigate.  Where there is evidence to warrant prosecution, let the Department of Justice prosecute.  Let the defendants present a defense.  And let a jury of ordinary citizens render a verdict.  That is the rule of law.

  •  Teacher, teacher, ya'didna answer my question.. (4+ / 0-)
    Recommended by:
    Orinoco, linkage, Shuruq, NCrissieB

    ....from yesterday

    Before doing the disappearing into work, let me ask:

    how do you describe NCrissieB's idea for this thread and how does that make it differ from others and in my case, foreswear all others, and pledge my troth etc.

    will be looking for ideas as I am often asked.

    and now the lurker returns to the shadows.

    happy sat.

    •  Oh, I didn't know that was directed to me. (4+ / 0-)
      Recommended by:
      Orinoco, JFinNe, linkage, BlueStateRedhead

      I read it as directed to other readers.  I couldn't answer because I wasn't entirely sure what you were asking about.  Perhaps a klarifikation?

      Good morning! ::hugggggggggggs::

      •  Comment on a comment on a comment (5+ / 0-)

        I have been asked to Klarify the question Teacher didna answer Friday.

        how do you describe NCrissieB's idea for this thread and how does that make it differ from others and in my case, foreswear all others, and pledge my troth etc.

        will be looking for ideas as I am often asked.

        so I will break it down

        I am often asked

        what about Morning Feature has made me

        foreswear all others, and pledge my troth etc.?

        in other words comment regularly here and here only within Dkos

        and the reason I given is

        NCrissieB's idea for this thread

        The thing that makes a discussion of say, torture, here different from one on any other of the hundreds (literally) of others.

        I have a word/phrase for it, that is a word the Chefish pleasure of puns (Karamba!! that pun was born of a typo!) and the Kaleidoscopic array of K words.

        But I would like to ask her and others how they describe it so that mine does not kollide with others.

        SO:

        how do you describe NCrissieB's idea for this thread and how does that make it differ from others

        BTW, anyone know the dates of the birth of Morning Feature and of NCB's adoption of the thread?

        •  The way I see it is (5+ / 0-)

          NCrissieB asks you to THINK rather than emote about a topic.  

        •  There are a number of idiosyncrasies (9+ / 0-)

          in the Morning Feature, and in Kula's diaries, such as K words, ::hugggggggs::, bad puns, the antics of the faculty and staff of BPI and the like, which makes for a bit of insider knowledge and produces something like an "in crowd" which calls itself the Kula Krew. The inside knowledge is fairly transparent, though, and anyone who posts twice is certainly included by the insiders as part of the Krew, and I'm pretty sure that, after lurking for a week and posting once or twice, most former outsiders will consider themselves part of the Krew as well.

          I don't think that's the main attraction, though. While in other diaries people rant, flame, engage in partisan invective not against conservatives but against each other, here in the groves of the Blogistan Politechnic Institute, it is civil, peaceful, calm.

          We all appreciate a righteous rant directed at appropriate targets in the right-wing-nut-o-sphere, but while at BPI we stack arms and steadfastly refuse to engage in circular firing squad behavior found elsewhere on Daily Kos.

          Thoughtful, peaceful, friendly discussion is very welcome these days, and may be the reason you're looking for.

          Good morning! :) and ::huggggggggggs::

          "You can't get something for nothing...It's time to stop being stupid." Bob Herbert

          by Orinoco on Sat May 02, 2009 at 06:48:11 AM PDT

          [ Parent ]

          •  Exactly. I call it.... (drumroll) (6+ / 0-)

            ... Discussion among people committed to rational explanations framed by a principle --of law, social science, game theory, military strategy,

            or

            NcB sets up a principled discussion.

            my point is that it is not only rational discussion about politics but one built around a principle derived from something not necessary political which is a tool of explanation of the political.

            SO however objects that
            a. it sounds weird as the opposite would be unprincipled discussion, and that makes it a moral/immoral distinction.
            b. the principle itself is not the object discussed by everyone.
            SO agrees that its principle-initiated.

            gotta go. mss and buying a new printer to edit it calls.

            Plus that every comme

          •  I think of Morning Feature as (6+ / 0-)

            a Salon in which Crissie or other Morning Feature writers toss out a topic for discussion.  Their initial diary posts are very well constructed to as to provoke discussion. All of the regular Krew prefer to keep our discourse civil and a variety of opinions are welcomed.  Once you post on Morning Feature, you are automatically a part of the Krew here.  

            Speaking for myself, what I have found is that many of the Krew are not only very intelligent, but also bring a wide range of experiences from which they draw their knowledge.  The posts here by Krew members further expand the depth of discussion and get me to thinking even more about the subject. Often I will come back to MF several times during the day after I have pondered the points others have made here earlier.

            "in the wake of Sept. 11, a frightened nation betrayed one of its core principles -- the rule of law -- for the fool's gold of security." Leonard Pitts

            by gulfgal98 on Sat May 02, 2009 at 09:25:43 AM PDT

            [ Parent ]

        •  It looks like Kula started calling it (5+ / 0-)

          Morning Feature on 9/25/2008 and her last posted diary was 1/22/2009.  Crissie started filling in on 1/14/09 and shouldered it completely on the 22nd.

          Information is abundant, wisdom is scarce. The Druid

          by FarWestGirl on Sat May 02, 2009 at 07:12:26 AM PDT

          [ Parent ]

  •  Great diary, as usual (9+ / 0-)

    On your first defense:

    You may find that my client violated the law by committing an act of torture, but my client was acting to protect the American people.  My client had reason to believe there was an imminent terrorist threat, and in fact there was.  The terrorist he was interrogating caused that threat, not my client, and not the American people.  My client believed these interrogation tactics would yield the information he needed, and he had no other way to stop the threat.  He got that information and stopped that threat.

    I have some questions.

    1. "No other way to stop the threat" - since it's been shown that torture does not work, I think this last requirement can never be met.
    1. What is the meaning of "cause" in "caused that threat"?
    1. What is the meaning of "imminent"?
    1. The final bit "stopped that threat" seems odd - it seems like this defense can only be valid when torture is successful.  But that seems very odd.  If we analogize to a person shooting at someone to prevent that person killing someone else, it seems like this would be saying that trying to prevent a crime is only OK if you succeed in preventing it.
    •  I do tax and estate shit, and the only time I see (8+ / 0-)

      a courtroom is when I watch Law & Order, but I kinda wonder if the defense of third parties here doesn't stretch causality a bit far.  The common example is where I shoot and kill someone as she's on the verge of killing or seriously harming a third party (weird: second day in a row of discussing defense of third parties on an NCrissieB diary).

      Here, though, the causal link between the action (torture) and the attempted resolution (getting info and saving people) seems mighty tenuous.  

      My hunch is that it's too tenuous as a matter of law, although I haven't seen a L&O on the topic so I don't know for fact that it isn't a question for the jury.

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

      by burrow owl on Sat May 02, 2009 at 04:58:36 AM PDT

      [ Parent ]

    •  It's not an argument I'd want to rely on. (9+ / 0-)

      I'm going to take your questions out of sequence.

      #2 - that the victim must have caused the threat - means that when you intervene in defense of a third party, you must be sure who started the incident.  For example, if you see a friend being pummeled in a bar, you'd better have seen the fight break out, because if your friend started the fight, you have no legal defense.

      #3 - the threat must be "imminent" in the sense that a reasonable person would conclude, from the facts of the situation, that the third party was in imminent danger of death or bodily harm.  That is "imminent" both in intent (the victim was not merely considering violence but had already decided to use violence) and in time and place (the violence was already underway or likely to erupt immediately, in that place).  Thus you didn't have the option of removing the victim and yourself from the threat.

      #1 - I agree with you; given the unreliability of torture in extracting truthful information, I don't think a jury would find it a reasonable attempt to protect the third person.  You can't blow up the building down the street because it might distract an attacker who is pummeling your friend.  Likewise, I'd argue you can't torture someone because you might get the information you need.

      #4 - I included that because it helps sell the defense to the jury, but your defense of the third party need not succeed as a prerequisite for legal justification.  You can intervene to defend a friend who's being pummeled, and the friend might still die of his/her injuries.  A jury may be more likely to accept your defense if you saved your friend's life, but that's not a legal requirement for your defense.

      Good morning! ::hugggggggggggs::

    •  exuse me (12+ / 0-)

      From the United Nations Convention Against Torture:

      Article 2

      1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
      1. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
      1. An order from a superior officer or a public authority may not be invoked as a justification of torture.

      While I normally support these diaries, the idea of the "ticking bomb" defense is nothing more than a strawman. There is no defense, like it says:
      No exceptional circumstances whatsoever

      The trick is in what one emphasizes. We either make ourselves miserable, or we make ourselves happy. The amount of work is the same." Carlos Castaneda

      by FireCrow on Sat May 02, 2009 at 05:31:14 AM PDT

      [ Parent ]

      •  I think you meant to be responding (7+ / 0-)

        to the diarist, rather than to me.

        So I will let her respond.

        •  I replied to you (6+ / 0-)

          because of the questions you raised. I am in agreement with you on this but the only thing we accomplish by debating whether or not torture is defensible is to buy into the right wing framing that it is justified under certain scenarios.
          This is not the case. There is no justification under any circumstance, therefore no defense. And since the Bush administration  ordered, initiated and carried out torture, sometimes to death, on a wide scale, multi nation systematic program, no single individual gets to plead insanity either.

          The trick is in what one emphasizes. We either make ourselves miserable, or we make ourselves happy. The amount of work is the same." Carlos Castaneda

          by FireCrow on Sat May 02, 2009 at 06:01:44 AM PDT

          [ Parent ]

          •  OIC ... in that case (5+ / 0-)

            I think Crissie's diary is about American law ... when we signed the Geneva conventions, did they become law, or something else? I really don't know.

            •  I'm not a lawyer (8+ / 0-)

              but I'm quite sure that by the signing of several different international treaties they become our law too and that we are bound by numerous laws to not only prohibit torture of any kind, but to investigate, and if appropriate evidence is found, to prosecute all individuals responsible for torturing another human being. This goes straight to the highest levels of Bush's crowd and that is why there is so much obfuscation , obstruction and just plain lies being thrown about in the media. Bush, Cheney, Rice, half his cabinet and numerous DOJ officials ought to be hung imprisoned for life for this. They certainly had no problem hanging Saddam for the same thing, with the additional shame of killing about 20 times more Iraqis than Saddam did. And in a lot less time.
              This entire previous 8 years, the spying, illegal war and occupation, torture, murder, kidnapping, is one of the most shameful times in world history.

              The trick is in what one emphasizes. We either make ourselves miserable, or we make ourselves happy. The amount of work is the same." Carlos Castaneda

              by FireCrow on Sat May 02, 2009 at 06:21:10 AM PDT

              [ Parent ]

            •  Maybe this will help.. (3+ / 0-)
              Recommended by:
              Ms Citizen, NCrissieB, dabug

              In Foster v. Neilson,  Chief Justice Marshall explained that a treaty is to be regarded in courts ''as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.''

              Link

              It essentially goes, IIRC, Congress must vote on a treaty and if they ratify it, it essentially becomes equivalent to Congress passing a law.

              Congress, I believe, ratified the United Nations Convention Against Torture, therefore it is United States law.

              The DOJ is legally bound to investigate charges of torture ordered and carried out by the previous administration. It's a sticky and uncomfortable position for the Obama administration, but what else should one expect following the the most corrupt and Constitution-disregarding administration in the history of the United States.

              One has to ask, "Why do conservatives hate the Constitution?"

              And I'd have to answer, "Because it gets in the way of their plundering and taking advantage of the weak." Same is true of the courts.

              To whom it may concern. Waterboarding is torture. Torture is illegal. Sincerely, A. No Brainer.

              by Pescadero Bill on Sat May 02, 2009 at 09:32:49 AM PDT

              [ Parent ]

      •  FireCrow I hear you (8+ / 0-)

        hopefully DOJ and a jury of peers hears it loud and clear.

      •  That would be up to the trial judge. (6+ / 0-)

        I agree that the trial judge, based on that statute, should not allow a defendant to even raise the defense of third party claim.  I included it in the diary for completeness, not because I think it's a valid (or legally permissible) defense.  And as it happens, I don't think a defendant could prove the elements of that defense, even if it were permitted.

        But I'll update the diary to note your point.

        Good morning! ::hugggggggggggggs::

      •  too bad the US does not listen to the UN (4+ / 0-)
        Recommended by:
        FireCrow, linkage, winterbanyan, NCrissieB

        that's why the wingnuts are always so het up about sovereignty when it comes to following the UN.

        they like the UN when the UN tells them what they want to hear--the rest of the time they couldn't care less about international agreements

        Politics is like driving. To go backward, put it in R. To go forward, put it in D.
        President Obama. Still a thrill to see that in print.

        by TrueBlueMajority on Sat May 02, 2009 at 07:28:35 AM PDT

        [ Parent ]

  •  Investigate, prosecute, convict and imprison (17+ / 0-)

    A four step plan for restoring honor to America.

  •  Its difficuly to defend when (12+ / 0-)

    Malice aforethought will not be hard to prove.

    "Yes, I'm a fucking idealist because without ideals we are lost." LaFeminista 04/25/2009 [-4.88. -6.97]

    by LaFeminista on Sat May 02, 2009 at 04:58:22 AM PDT

  •  Drip drip drip (12+ / 0-)

    With more and more information and memos coming out, it will be impossible to suppress investigations and prosecutions.  The latest memos from the 'good guys' in Iraq asking the DOJ if Bush's signings/orders supercede the Geneva Convention (plus other) guidelines regarding torture is speeding up the drip drip drip of harmful information.  

    I see the memos from the 'good guys' as a form of CYA, but still, they must have wanted to use torture since they asked if they could.  

    •  Those memos undermine the "mistake" defense. (12+ / 0-)

      If you're questioning whether something is legal, then by definition you knew it might be illegal.  In that situation, ignorance of the law is no excuse if it turns out the act is illegal ... even if a lawyer said "It's okay."

      Good morning! ::huggggggggggs::

      •  oh SNAP (4+ / 0-)
        Recommended by:
        Orinoco, linkage, winterbanyan, NCrissieB

        i'm going to throw that back in the face of the next Limpublican who tries to hide behind the Nixon defense

        Politics is like driving. To go backward, put it in R. To go forward, put it in D.
        President Obama. Still a thrill to see that in print.

        by TrueBlueMajority on Sat May 02, 2009 at 07:30:20 AM PDT

        [ Parent ]

      •  That's a rather disconcerting fact (1+ / 0-)
        Recommended by:
        NCrissieB

        I have to say I'm surprised and somewhat worried about the fact that we, as citizens, cannot take the legal advice of our lawyer seriously. If they tell us that something we might want to do is legal and they are wrong, we are to blame? Wow. Like if I hire a lawyer to advise me on what is legal and what isn't in terms of say, running my business, and based on his/her advice I do something that turns out not to be legal, it's MY fault? How can that be right?

        If a doctor gives us incorrect medical information that a person follows and then they get more ill or injured or harmed by the bad medical advice, the doctor is held responsible for not doing his/her job correctly.

        But if a lawyer gives us bad or incorrect legal advice, we as laypersons are held responsible for not knowing that the professional was wrong? Wow. Frankly that seems just wrong to me.  

        Almost seems like lawyers wrote these laws so that they are never actually responsible for their own work. ha.

        •  It can seem disconcerting, yes. (2+ / 0-)
          Recommended by:
          CS in AZ, dabug

          The alternative would be having to prove that a given defendant had actual knowledge of the laws allegedly broken.  That's an almost impossible standard, and it would eviscerate our criminal justice system.  So we have some legal presumptions that we know are fiction but we treat as fact.  One is that every defendant knows the law.  Another is that every defendant is innocent.

          As to your specific concern about an issue of business law, there you're more likely into civil law, and in that context a mistake of law in reliance on counsel is defense.  If your company is sued for having not done X, and your attorney incorrectly told you that you weren't required to do X, you may not be liable under negligence doctrine.

          I say "may not be" because that's a fact-specific question.  Obviously if the attorney you asked had no expertise in that field and gave you an answer in a three-minute phone call, it's less protection than a specialist who did the research, wrote you a long legal memorandum ... and was wrong because a court (or legislature) changed the law in a barely-publicized proceeding a week later.

          But in criminal law, it's very close to strict liability in terms of your knowledge of the law.  Not quite, but very close.

          Thanks for your comments! ::huggggggggggggs::

          •  Thanks, you make some things so clear! (2+ / 0-)
            Recommended by:
            NCrissieB, CS in AZ

            For instance:

            So we have some legal presumptions that we know are fiction but we treat as fact.  One is that every defendant knows the law.  Another is that every defendant is innocent.

            And the line from your diary itself:

            Our system of law is premised on the idea that an unfettered government - rather than criminals - is the greatest danger to our lives and liberty.

        •  It's better than the alternative (2+ / 0-)
          Recommended by:
          NCrissieB, CS in AZ

          of allowing anyone with enough money for the legal fee to "buy" immunity from legal requirements by getting an opinion that "Why no, that wouldn't be illegal." (That's what the Bushies tried to do with the OLC torture memos authored by Bybee, Yoo, etc.)

          For what it's worth, you can still sue your lawyer if you asked for his good-faith opinion and he advised you erroneously.  

          Just as you can sue your doc if you go in for a check-up, he says you're fine, and you later discover he should have discovered a serious problem which could have been fixed if timely discovered.  But you can't tell the Grim Reaper "Hey, my doc said I was fine."

          Just think of the prosecutor as the equivalent of Grim Reaper.  No offense to the diarist.

    •  They may have been ordered to use torture (2+ / 0-)
      Recommended by:
      linkage, NCrissieB

      and knowing that following orders is not a defense, questioned the legality. Yes, it's an attempt at CYA, but it doesn't mean they wanted to.

      "You can't get something for nothing...It's time to stop being stupid." Bob Herbert

      by Orinoco on Sat May 02, 2009 at 07:53:47 AM PDT

      [ Parent ]

      •  As a matter of law ... (1+ / 0-)
        Recommended by:
        Orinoco

        ... if you have reason to doubt the legality of an act, you assume the risk for its illegality.  There is an exception for official statements issued by law enforcement officials - e.g.: the Attorney General - but not for house counsel at the WH or CIA.

        It is very difficult to rebut the legal presumption that every defendant knows the law.  Ironically, that is presumption is very often false in fact - often a defendant does not know the law - but it's a presumption we still apply because the alternative invites legal chaos: "Prove I knew it was illegal."

        •  One of the early duties of the Icelandic Speaker (3+ / 0-)
          Recommended by:
          linkage, Ms Citizen, NCrissieB

          was to stand on a large rock at the Thing (the annual assembly) and recite the law. Hammurabi had statutes carved on steles placed in the public square. Napoleon, noting that French law was getting too long and complex for even lawyers to know it, rewrote the code and tossed the old laws out. Societies that are interested in furthering the rule of law go to great lengths to ensure that citizens are not ignorant of the law. Whether citizens take advantage of this is another whole kettle of fish.

          "You can't get something for nothing...It's time to stop being stupid." Bob Herbert

          by Orinoco on Sat May 02, 2009 at 08:49:18 AM PDT

          [ Parent ]

  •  GOP: Trying to make mundane what is monstrous (21+ / 0-)

    First they tortured those in "ticking time bomb" cases.
    But I didn't mind ...
    We were in clear and imminent danger.

    Then they tortured "high-value" detainees.
    I didn't mind ...
    You never know what they might do.

    Then they tortured foreign prisoners.
    I didn't mind ...
    You never know what you might find out.

    Then they tortured prisoners to establish a link between Al Qaeda and Saddam.
    I didn't mind ...
    Because they were acting in "good faith."

    Finally, they came to torture me, and nobody cared.
    Because surely if the government was torturing me, then I deserved to be tortured.
    Besides – as Peggy Noonan says, some things are just mysterious, and it's best to just keep on walking.

    My version of something I recently read that was a variation of Pastor Martin Niemöller's quote made famous in Milton Mayer's "They Thought They Were Free"

  •  Cheney is going down. (10+ / 0-)

    We can all see where every road points to.  It's Dick Cheney.  The guy is going down.  He believes he is above the law, and is convinced he will get away with it.  I am going to put every chip on the opposite.  He is going down.  This will be the day the entire world celebrates.  I would also like to see KO or RM take a look into Dick Cheney's Halliburton portfolio, and disclose how much Mr. Cheney has profited from this war.  Just with Halliburton/KBR alone.  Dick Cheney has made millions of dollars.  Don't forget, Halliburton was a no bid contractor who even today, is making billions off of the war in Iraq, and will be in Afghanistan.

    I believe in President Obama, and The Beatles

    by bookkillrr on Sat May 02, 2009 at 05:04:17 AM PDT

  •  Excellent points. (6+ / 0-)

    Given the possible loopholes (technicalities as you call it) that exist in a court of law, why are the neocons afraid to face an investigation and "clear" their name ?

    Let's throw the neocon argument on FISA back at their venal faces, "If you have not done anything wrong, then there is nothing to worry about".

    After the bungling of Ted Steven's case, they still a stand chance of another screw-up by DOJ. :)

    From Alabama to Obama - You've come a long way baby.
    /
    The GOP is now the perfect size to drown in a bathtub.

    by amk for obama on Sat May 02, 2009 at 05:07:43 AM PDT

    •  They reject the rule of law, period. (8+ / 0-)

      It's not about whether they think they could win at trial.  It's about whether they think anyone should ever question their decisions and actions.  They do not.  And that is not the rule of law.

      Good morning! ::huggggggggs::

      •  All the more reason this is handled by DOJ (6+ / 0-)

        as a legal issue (they can't dodge a legal summons, can they ? - like rove thumbing the nose at the congressional summons) than by a blue ribbon or red ribbon or rainbow colored commission. Once the matter is sub-judice, all the talking heads and spin heads have to shut their mouth, don't they ?

        Question is does Holder have that gravitas ?

        From Alabama to Obama - You've come a long way baby.
        /
        The GOP is now the perfect size to drown in a bathtub.

        by amk for obama on Sat May 02, 2009 at 05:36:20 AM PDT

        [ Parent ]

        •  Do we have sub judis here, or is that only in (4+ / 0-)
          Recommended by:
          Orinoco, linkage, winterbanyan, NCrissieB
          Britain? I've never noticed any media backing off after charges were filed here.

          Information is abundant, wisdom is scarce. The Druid

          by FarWestGirl on Sat May 02, 2009 at 05:41:53 AM PDT

          [ Parent ]

        •  The media aren't bound by sub judice. (6+ / 0-)

          Administration officials couldn't comment on the case, but the media are not bound by a doctrine of sub judice.  Quite to the contrary, the Sixth Amendment provides that trials must be public, which has been taken to mean that the media must be allowed to report (and comment) on trial proceedings.

          Good morning! ::huggggggggggs::

          •  In a public jury trial, doesn't that contaminate (4+ / 0-)
            Recommended by:
            Orinoco, linkage, NCrissieB, FarWestGirl

            the jury pool ?

            From Alabama to Obama - You've come a long way baby.
            /
            The GOP is now the perfect size to drown in a bathtub.

            by amk for obama on Sat May 02, 2009 at 06:11:25 AM PDT

            [ Parent ]

            •  It has effects, definitely. The lawyers are (4+ / 0-)
              Recommended by:
              Orinoco, linkage, winterbanyan, NCrissieB

              very careful in questioning and accepting jurors. The more notice a case has had, the larger the pool they call in to sift through. I was on one where they called 400 people in and seated 12 plus 5 alternates, and there were only a dozen or so left when we were done.

              Information is abundant, wisdom is scarce. The Druid

              by FarWestGirl on Sat May 02, 2009 at 06:43:52 AM PDT

              [ Parent ]

            •  Pool and jury are two different things (5+ / 0-)

              If the pool is contaminated, it IS possible to sort out those who are contaminated.  That's the reason for voir dire, or questioning the jury pool before selecting a jury.  It's always possible to find people who haven't been following the subject in the media.

              Once the jury is selected, the instructions are strict: the case is not to be discussed among the jury, with anyone outside the jury, and the jury is directed to avoid all media... and all discussions on the case.

              Violation of jury rules can cause a juror to be dismissed, or even an entire jury to be dismissed.

              Huggs, and good morning!

              The austerity you see around you covers the richness of life like a veil -- Anonymous

              by winterbanyan on Sat May 02, 2009 at 06:44:14 AM PDT

              [ Parent ]

            •  They can be sequestered. (5+ / 0-)

              The jury is instructed not to talk to each other about a case in progress, and not to watch or read coverage of the case.  In most cases, jurors take that very seriously and don't.  (And most criminal trials last only a day or two.)  If that's an issue, the judge can have the jury sequestered so they have no access to media coverage.  Judges prefer not to do that for a lot of reasons - expense, inconvenience to the jury, etc. - but it can and does happen.  By and large, jurors take their instructions and duty very seriously and follow those instructions as well as they can.

              •  I was sequestered for two months (6+ / 0-)

                In a very high publicity criminal trial that had a change of venue due to being unable to seat a jury in its original venue.  

                The initial jury pool had 300 prospective jurors.  I was the last juror called in that pool and only the 11th juror seated.  The 12th juror plus our four alternates came from another pool.

                Being sequestered is very expensive for the state (hotel rooms and three meals a day for sixteen jurors and the two bailiffs who lived with us) and difficult for jurors.  The worst part about being sequestered was the weekends or days when we did not hear evidence.  In my experience, all of us took our responsibility very seriously and no other juror ever attempted to discuss the case with me.  

                "in the wake of Sept. 11, a frightened nation betrayed one of its core principles -- the rule of law -- for the fool's gold of security." Leonard Pitts

                by gulfgal98 on Sat May 02, 2009 at 09:41:00 AM PDT

                [ Parent ]

    •  They're afraid because they know what they did (8+ / 0-)

      was indefensible on many levels. All of the affirmative defenses, justifcations and excuses are predicated on them having acted in good faith. It all goes out the window when the evidence that they tortured people that they knew were innocent and had no pertinent info, using methods specifically designed to produce false confessions, in order to concoct a false foundation for going to war in Iraq, is substantiated and brought out in public. It doesn't matter if the reasons were wanting control of Iraq's oil, or wanting $6 Billion in no bid contracts or to manufacture more enemies to support the military industrial complex in the perptual war machine. Any one or combination of those reasons would show America and the world exactly what those people were. They can't go in front of a jury and defend themselves against even the evidence we've seen so far. And the thought of having to try terrifies them. And it should. They don't believe in the rule of law, they believe they are law unto themselves. Let them have their day in court. We need to investigate, follow the evidence and then follow the law and show that it does apply to everyone.

      Information is abundant, wisdom is scarce. The Druid

      by FarWestGirl on Sat May 02, 2009 at 06:04:53 AM PDT

      [ Parent ]

  •  Thanks Crissie for portraying this through (10+ / 0-)

    a criminal attorney's eyes. The normal legal constructs you set up here are the real way it works, and it better work. No matter the drama and the "necessity of enhanced interrogation techniques" crap the Repugs try to set up, I'm confident the rule of law will prevail. The Repugs keep forgetting one kinda important thing: Torture is illegal both by our laws and by international law. Instead of focusing on their logical argument that no torture was committed, they are so stupid as to admit they did torture, and it was a good thing, and that we should continue to use it, when a "crisis" warrants it. Of course I guess it would be hard to argue that we didn't torture what with all the graphic pics, memos, etc. Not a great defense for anything here. I'm wondering Crissie, how you would defend these thugs in criminal court. You don't have to say... I'm just curious. Good morning to you and to all the Krew and Huuuuuuuuugs!!

    •  Je Accuse! "criminal attorney's eyes." (7+ / 0-)

      A relative of mine is a criminal defense attorney, and sometimes I forget the 'defense' part and wonder if I have left the impression that he is, in fact, a 'criminal attorney.'

      Your point though is well taken as I too wonder how they would be defended?  Any military personnel would be defended by JAG attorneys?

      •  Defense of Zola's Accusation. it's J'accuse (6+ / 0-)

        ...not for historical and linguistic correctnes, but because the allided form sounds like it's thundering down from the gods and that is how Zola used it.

        He concluded his newspaper article protesting the judicial coverup of Col. Dreyfus's having been framed with a series of j'accuses that could be a template for a case agains the Bush administration

        J'accuse le lieutenant-colonel du Paty de Clam d'avoir été l'ouvrier diabolique de l'erreur judiciaire....[diabolical creator of this miscarriage of justice ] Cheney, Scooter Libby?

        J'accuse le général Mercier de s'être rendu complice...[of complicity, at least by mental weakness, in one of the greatest inequities of the century. ] Bush?

        J'accuse le général Billot... de s'être rendu coupable de ce crime de lèse-humanité et de lèse-justice, dans un but politique et pour sauver l'état-major compromis. [making himself guilty of this crime against mankind and justice, as a political expedient and a way for the compromised General Staff to save face. ] Guantanamo judges?

        ....
        J'accuse les trois experts en écritures, les sieurs Belhomme, Varinard et Couard, d'avoir fait des rapports mensongers et frauduleux ...[I accuse the three handwriting experts, Messrs. Belhomme, Varinard and Couard, of submitting reports that were deceitful and fraudulent, unless a medical examination finds them to be suffering from a condition that impairs their eyesight and judgement. ] DoJ first report to Mukasey?

        J'accuse les bureaux de la guerre d'avoir mené dans la presse... une campagne abominable, pour égarer l'opinion et couvrir leur faute. [to conduct an abominable campaign to mislead the general public and cover up their own wrongdoing.] Planted military experts, Judith Miller, and you name it.

        http://chameleon-translations.com/...

    •  Too fact-specific to answer. (6+ / 0-)

      The defense for a given client on a given charge is entirely fact-specific.  Not having a specific client or a specific charge, I couldn't speculate on what if any defenses I might plead.  Obviously, in any case I'd make the government "prove every element of the offense(s) charged, beyond and to the exclusion of any reasonable doubt, with evidence lawfully obtained and lawfully presented to the finder of fact."

      But beyond that, it's impossible to say what defenses may or may not exist for any given defendant.

      Good morning! ::hugggggggggs::

  •  Out of internet access for a week, (9+ / 0-)

    I am still trying to get back into the information hustle before I leave again for another week with no internet access.

    So, I know my own thoughts on this drip, drip of terrible information. NCrissieB, are you saying that you favor DoJ going through this (with law) versus a Commission? Personally, I have always thought that problems get moved to some investigatory body and then, poof, two or three years later, it is gone! The sweeping under the rug offense, or defense, whatever.

    Gotta go do laundry, hello to the Krew, hugs to all, it is much greener here than a week ago, and Monday we go to FL for a college graduation and sunburns. See ya soon, I hope!

    Americans, while occasionally willing to be serfs, have always been obstinate about being peasantry. F. Scott Fitzgerald, the Great Gatsby

    by riverlover on Sat May 02, 2009 at 05:17:14 AM PDT

  •  Thanks for the (8+ / 0-)

    enlightening diary Crissie.  I really do appreciate all the good work you do.  I think back to the pre Watergate hearings and find the arguments for and against hearings and investigations so eerily similar.  DOJ was also involved in the Watergate mess and I did not think that anything would be done.  What I am finding fascinating right now is the expanded effort to use all of these defenses in the open court of public opinion.  Back then there were  
    enough centrist Republicans willing to look beyond the Watergate break in.  I am not sure that we have any equivalent people in the Republican party today.
    Therefore any attempt to get to the bottom of this and hold people  other than the few soldiers accountable for the torture and abuse of prisoners is really dancing on the edge of a sword right now.  I am not optimistic; may the basic fundamentals of our government prove me otherwise.

  •  Michael Kinsley helped provide a (7+ / 0-)

    jury nullification defense.

    The American people are guilty because we elected Bush after we knew (or should have known) he was carrying out torture. We condoned the torture by our vote.

  •  Do you think the "mistake" (8+ / 0-)

    would even fly in court?

    You may find my client violated the law by committing an act of torture, but remember that he'd been told it was legal.  My client is not a legal scholar.  He's not schooled in the Constitution, the Geneva Convention, or federal statutes.  He's an intelligence officer.  The lawyers up the chain of command told him these acts were legal, and he believed them.

    Client may not be a legal scholar, but client doesn't have to be.  Every servicemember is a very basic annual or semi-annual briefing on Geneva and Law of Land Warfare.  Every soldier knows that you cannot massacre civilians and burn villages and that torture is wrong.

    Then there is a more fuzzy area of "values".  You were a Marine Chrissie, could you imagine any Marine believing that waterboarding was a Marine value?  It's fuzzy, but people get UCMJ action everyday for violating a Value, drunk on duty or something.

    The only thing I could see is the defense working on low level people who might not have perceived an open handed facial slap or a stress position as torture.

    But this is why I have no sympathy for the Abu Graib soldiers, they were MPs.  And as you know MPs get trained on what their job on the battlefield is in AIT, that is to process prisoners.  They were trained to know how to handle them especially after they surrender or captured and by Geneva are no longer "combatants"

    Even more training with interrogators and I would be very surprised in CIA officers didn't have comparative legal training if not more.

    "Where they burn books, they will ultimately also burn people." - Heinrich Heine, Almansor, 1821

    by Jeffersonian Democrat on Sat May 02, 2009 at 05:26:04 AM PDT

    •  I think the "mistake" argument is untenable. (8+ / 0-)

      These people obviously wondered if they were breaking the law; that's why they sent memos up the chain, asking for clarification.  If you wonder whether you are breaking the law - and it later turns out you are - you cannot claim mistake of law as a defense.  You are expected to "err on the side of caution," even if a lawyer tells you it's okay.

      And yes, it's even more difficult to claim ignorance of the law if you have any military experience, as we all get schooled in the Geneva Convention and our duty to refuse unlawful orders in basic training.

      Good morning! ::huggggggggggggs::

      •  What about the "reliance on counsel" defense? (3+ / 0-)
        Recommended by:
        linkage, winterbanyan, NCrissieB

        I've heard of that in some cases. It sounds like you're saying there's no such thing--that if you felt a need to "rely on counsel" you're already on thin ice.

        •  Exactly ... you're on thin ice. (2+ / 0-)
          Recommended by:
          linkage, winterbanyan

          You can rely on the official statements of senior law enforcement types like the Attorney General.  But you can't rely on private or house counsel as a complete legal shield.  (It may mitigate for sentencing.)

          The basic principle is: if a reasonable person would doubt the legality of an action, you assume the risk of its illegality.  That hypothetical "reasonable person" is assumed to be familiar with all of the basic principles of law.  But if you sought legal counsel, then obviously you doubted the legality of the action (or you wouldn't have sought counsel), so you assume the risk of its illegality.

          It is very difficult to rebut the legal presumption that the defendant knows the law, as the alternative presumption invites legal chaos: "Prove I knew that was illegal."

          Good morning! ::huggggggggggs::

      •  Ignorance of the law... (3+ / 0-)
        Recommended by:
        linkage, winterbanyan, NCrissieB

        Last spring, my 17-year-old son was arrested for violating a curfew that neither he nor I knew existed. Nevertheless, he was sentenced to 20 hours of community service. I'm not one of those moms who thinks her kids can do no wrong, and he truly enjoyed his hours of work in the local soup kitchen. But what kind of country do we live in where we punish "ignorant" teenagers for being out in public after 10 pm, yet let "ignorant" torturers go free?

  •  Re: Affirmative defenses (7+ / 0-)

    The language of the Convention Against Torture would seem to  directly prohibit interposing the ticking time bomb affirmative defense:

    No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

    Since that language was not incorporated exactly into the criminal statute there might be some wiggle room, butit might be better to invoke the ticking time bomb as a mitigating factor at sentencing.

    "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex" Dwight D. Eisenhower

    by bobdevo on Sat May 02, 2009 at 05:43:15 AM PDT

    •  Thank you, already updated. :) (6+ / 0-)

      Someone noted that above.  I included the defense in the diary for completeness - it's the one that has been offered most often - and to show how difficult it would be to prove the elements of that defense in a given case.  My main point there was that it's not enough to prove a hypothetical situation that might exist; in order to raise that defense, a defendant must present evidence to prove that the situation actually did exist.  But I updated the diary to reflect that a trial judge could and arguably should bar the defendant from even raising that defense, under that treaty.

      Good morning! ::hugggggggggggs::

    •  As unlikely as it may be.... (5+ / 0-)

      ... Try to put yourself in the place of someone who may or may not have planted a bomb, but was picked up and tortured.

      If you truly wanted some place to blow up (and if you had NOT made a bomb but only heard of it after the torture started to be inflicted, thus you hoped it would blow something up even though you didn't make or plant a bomb), would you:

      - never speak of a bomb to anyone, friend or foe, so that it would blow up its intended target without a hitch (if you had not talked to anyone and mentioned a bomb, why would you be picked up in the first place)?

      - give the answer the torturers wanted to hear to get the torture to stop 'cuz you don't know what the hell they're talking about?

      - lie about the location of the bomb so that it would blow up the intended target and hope you weren't tortured too bad after it blew up its intended target?

      This is why, IMHO, the "ticking time bomb" bullshite doesn't hold water as justification for torture.  There are too many variables, but the "ticking time bomb" is only found in really bad movies and TV series.

      It's like suicide... those who want it to be done don't talk to anyone about their intent, they just make all their arrangements, then go commit suicide, and most don't even leave a note.  The ones who want to be rescued from themselves talk about suicide to everyone in their circle of acquaintance; they want to be stopped, and talking about suicide makes them the center of attention, which is what they wanted all along (they're really rather selfish individuals, more psychic leeches, and suck up all the oxygen within their circle of "friends").

      Still, if someone even only threatened me with torture, I'd ask what they want to know and then tell them what they want to hear (and I don't have the foggiest clue how to make a bomb, nor am I interested in learning, so it wouldn't matter what I said, it would be all wrong).

      (¯`*._(¯`*._(-PROSECUTE-)_.*´¯)_.*´¯)

      by NonnyO on Sat May 02, 2009 at 06:37:13 AM PDT

      [ Parent ]

  •  In a nutshell (11+ / 0-)

    Here are my favorite lines in today's diary because they really summarize the BushCo mentality and arrogance, not just about torture, but in regard to everything.  And now we are paying dearly for their arrogance and criminality.

    But you don't plead a defense in a secret memorandum.  You plead a defense in a court of law, in a public proceeding, to a judge or a jury.  That's how the rule of law works, and conservatism's arrogant disdain for the rule of law is at the heart of the torture debate.  

    The emphasis in bold is mine.  

    Thank you for another great diary, Crissie.

    "in the wake of Sept. 11, a frightened nation betrayed one of its core principles -- the rule of law -- for the fool's gold of security." Leonard Pitts

    by gulfgal98 on Sat May 02, 2009 at 05:43:46 AM PDT

    •  Let's do what Bush suggested about torture (6+ / 0-)

      This is Bush on Arab TV talking about Abu Grabi.

      "It's important for people to understand that in a democracy, there will be a full investigation. In other words, we want to know the truth. In our country, when there's an allegation of abuse ... there will be a full investigation, and justice will be delivered. ... It's very important for people and your listeners to understand that in our country, when an issue is brought to our attention on this magnitude, we act. And we act in a way in which leaders are willing to discuss it with the media. ... In other words, people want to know the truth.

      "That stands in contrast to dictatorships. A dictator wouldn't be answering questions about this. A dictator wouldn't be saying that the system will be investigated and the world will see the results of the investigation."

    •  I'll second J Edward citing Bush: (5+ / 0-)

      That stands in contrast to dictatorships. A dictator wouldn't be answering questions about this. A dictator wouldn't be saying that the system will be investigated and the world will see the results of the investigation.

      -- George W. Bush

      So let the investigations follow the facts, wherever they lead.  Otherwise Bush really was a dictator.

      Good morning! ::huggggggggggs::

    •  They distain the rule of law when they're (5+ / 0-)

      planning actions, they're terrified of it after they've taken action.

      Information is abundant, wisdom is scarce. The Druid

      by FarWestGirl on Sat May 02, 2009 at 06:20:18 AM PDT

      [ Parent ]

  •  Article VI of the Constitution also (5+ / 0-)

    touches on torture, saying,"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"

    Actual wording from the UN Convention on Torture Treaty signed by neocon hero Reagan in 1988..
    1 "Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in any official capacity."
    2 "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."
    3 "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."

    Anyone, like Cheney, trying to justify torture as necessary is ignoring reality as well as the law of the land, and is Guilty, Guilty, Guilty.
    Frankly, this law is not hard to read and understand.  If, as they are arguing that, rendition for purposes of torture started under Clinton then he should be included in the investigation.  There is no statute of limitation on crimes against humanity.

    •  The language of the Convention Against (8+ / 0-)

      Torture was deemed not to be self-executing for the initial articles, and hence it needed to be incorporated into the US Code (which it was). However, the language in the US Code does not exactly follow that of CAT, so while the CAT language generally defines our obligations under the treaty, prosecutions come under sections 2340 and 2340A of the United States Criminal Code.

      As for statute of limitations, it is my understanding the statute of limitations on the CAT as incorporated into the US Code is 8 years, so we need prosecutions by the end of 2010 or these assholes may walk.

      "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex" Dwight D. Eisenhower

      by bobdevo on Sat May 02, 2009 at 06:11:22 AM PDT

      [ Parent ]

      •  The statute of limitation question is tricky. (6+ / 0-)

        The statute of limitations doesn't begin to toll until a crime is discovered.  If these crimes were concealed from the Department of Justice and other law enforcement agencies under whose jurisdictions those acts fall, then the statute of limitations would not have begun until those agencies learned of the criminal acts.  So it's not quite 2010-or-bust, though it's not much later than that either.

        Good morning! ::huggggggggggs::

        •  Concealed from the DoJ? And the FBI?? (6+ / 0-)

          Ashcroft/Gonzales certainly had knowledge, and they were the AG, so Justice would be imputed to have knowledge at that time, wouldn't it?

          The FBI Director ordered the FBI not to participate in torture sessions, so they clearly had knowledge something was going on.

          This of course merely drives home the hideous point the government was involved in a criminal conspiracy involving the Pres/Vp/Dod/CIA/NSA/DoJ to violate the laws against torture.

          And the delicious irony is since the conspirators were also the officials sworn to enforce the laws, their failure to act will no doubt be used to protect them as criminal defendants should a time come to prosecute.

          And good morning back at you - this is a really good diary.

          "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex" Dwight D. Eisenhower

          by bobdevo on Sat May 02, 2009 at 06:53:15 AM PDT

          [ Parent ]

          •  The reason I raised that ... (8+ / 0-)

            ... is that it makes Ashcroft, Gonzales, etc. relevant witnesses.  "What did you know and when did you know it?"  Those aren't "political" facts; they are directly relevant to the prosecution, because they determine when the statute of limitations began to toll.

            And note that there's no good answer.  "I knew back in 2002" (thus the statute began tolling then) begs the question "Why didn't you prosecute?"  By contrast, "I didn't find out until 2004" pushes the statute to 2012.

    •  I alluded to that in the opening paragraph. (7+ / 0-)

      I didn't want to get into the details of citing the particular treaties (there are several) and statutes (again there are several) involved.  That torture is a crime under U.S. law is inarguable.  I wanted to put the focus on the legal sufficiency (or lack thereof) of the defenses that have been offered, and more importantly on where those defenses should be pled and proved: in a court of law.

      Good morning! ::huggggggggggs::

      •  Inarguable (3+ / 0-)
        Recommended by:
        Orinoco, linkage, NCrissieB

        That torture is a crime under U.S. law is inarguable.

        And yet there are blockheads still arguing the point. Every time I see the words "debate on torture" I want to put the writer into a stress position. There is no debate. It is illegal.

        •  They argue whether a technique is "torture." (2+ / 0-)
          Recommended by:
          linkage, winterbanyan

          I haven't seen anyone make the argument that torture is legal.  They may argue whether a given technique is "torture," but that's a different argument than whether torture is illegal.  It violates the plain meaning of several federal statutes.

          •  Actually, (3+ / 0-)
            Recommended by:
            linkage, winterbanyan, NCrissieB

            I've even seen it here. Several commenters, maybe trolls, have been bringing up the "what if torture is legal?" question or the more subtle "we don't have a consensus on whether torture is legal?"

            Drives me right up a wall, it does.

          •  Question for the trier of fact. (1+ / 0-)
            Recommended by:
            NCrissieB

            I think a live in-person water boarding demonstration would more than likely persuade a jury.

            "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex" Dwight D. Eisenhower

            by bobdevo on Sat May 02, 2009 at 11:55:16 AM PDT

            [ Parent ]

            •  Hannity offered to do it live on TV (3+ / 0-)
              Recommended by:
              bobdevo, NCrissieB, kktlaw

              And then Olberman called his bluff.  It is really too bad that there is less chance that Hannity would go through it then of Cheney having volunteering for the Viet Nam era draft.   Since waterboarding takes advantage of several automatic bodily responses, I personally think I might enjoy seeing Sean pissing himself and craping his pants and then spinning the experience for his neocon fans.

  •  My worry about handling (6+ / 0-)

    this in a court of law has much more to do with the myriad technicalities that are likely to be brought up in defense and cloud the clarity we feel now. It seems to me that's how things usually go when the system tries to hold the monied powerful accountable. Its the old adage of "the devil's in the details." And if something like this ever gets to a trial - you can bet that the defense will have millions of details to argue about that are designed to do nothing but detract, slow the process down so that it takes years, and hope that we eventually move on to the next crisis issue. If you look at any major corporation defense, that's seems to me how it works.

    •  That's a legitimate concern. (6+ / 0-)

      For me, as a lawyer, I'm less concerned about our feelings of clarity - though I concede that can be a legitimate issue - than the rule of law.  And yes, if it goes to court the trials will be prolonged and the arguments detailed.  We may even see acquittals in cases where clarity would suggest convictions.  But those details and nuance are at the heart of our rule of law, because they protect all of us against the full weight of the government crashing down on us in a quest for clarity.

      I understand your concern there, but as a matter of law, we can't put so high a premium on clarity that we ignore the law itself.

      Good morning! ::huggggggggggs::

      •  My main concern (3+ / 0-)
        Recommended by:
        Orinoco, linkage, NCrissieB

        is that I have not often seen "justice" done when it comes to using our legal system to take on the monied powerful.

        I get the sense that people think prosecutions will be a slam dunk because the evidence is so overwhelming.

        From what I've seen, prosecuting these kinds of folks is NEVER a slam dunk and if not successful could do more damage than good.

        I guess ultimately it comes down to how much we believe in our current system to hold these folks accountable. I hear it when people doubt the potential for a commission to do so. But I have the same kinds of doubts about our court system.

        •  I guess we disagree on "success." (6+ / 0-)

          For me, the rule of law is a process, not an outcome.  That a prosecution isn't a "slam dunk," or even results in an acquittal, does not invalidate the rule of law.  The fact that the case was investigated and, if the facts warrant, prosecuted ... is the very definition of "the rule of law."

          •  I appreciate your defense (6+ / 0-)

            of the rule of law and the integrity you demonstrate.

            I just don't hear many who acknowledge the possibility of acquittal for many of the individuals involved...something that I think is quite likely.

            We all know that Cheney approved the outing of Valerie Plame. But that case never even made it out of a grand jury. I know that's because people lied. But they found a "fall guy" and it worked. I have no doubt these same people would/could do that again - especially when the stakes are even higher.

            For me, this case is so far outside of the box with its breadth of collusion and history that I'd like to think outside the box for a resolution.

            The reality is that, as you demonstrated with your series on exceptionalism, we're talking about a whole arm of the government that has been out of control for decades. And in the instance of Bushco, a system of checks and balances that were colluded to the point that they were meaningless in providing any accountability.

            I fear that the prosecution of a few individuals that were involved in this latest episode - even if they are found guilty - means that we sweep all of that under the rug and move on. To me, that is the biggest obstacle in making sure this never happens again.

            •  I'm talking here only about the criminal forum. (5+ / 0-)

              There's another forum - a congressional or independent commission - to air all of the dirty laundry that doesn't add up to a criminal case.  I've no problem with such commissions, so long as those running them don't offer blanket immunity to people the DOJ has been building cases to prosecute.  I'm only talking about criminal prosecutions in this diary, but the public accounting need not and perhaps should not be limited to criminal prosecutions.

          •  Crissie, aren't there a lot of situations where (4+ / 0-)
            Recommended by:
            linkage, winterbanyan, NCrissieB, kktlaw

            a law or laws have definitely been broken but the DA or prosecutor simply decides not to pursue prosecution? In other words, not every crime is prosecuted, even when there is evidence. When this happens does it negate the rule of law, in your opinion? Just curious about your thoughts on this.

            I know I missed most of the morning discussion again, but once again really appreciate the diary and conversation, even if I missed out on the action.

            ::hugggggggggggs::

            •  It depends on why there's no prosecution. (2+ / 0-)
              Recommended by:
              CS in AZ, kktlaw

              Most often the prosecutor declines to bring charges, or the charges are dismissed, because there's just too little evidence.  That is "the rule of law."

              And sometimes it's simply an economic issue: given X prosecutors and Y courtrooms and Z cases likely to go to trial, which ones do you plead out or dismiss?  We can agree that shouldn't happen, but it does because our legal system is chronically underfunded.  That is "the rule of law" in a practical sense.

              Finally there are cases where the prosecutor had a bad faith reason not to bring charges such as bribes, personal bias, etc.  That's a failure of the rule of law.  Those cases are less common than we fear, but more common than we'd like.  It's an inescapable fact of human beings that we'll do bad things.  We can try to protect against it - and the law does - but we are still going to see failures.

  •  Jury nullification at times a check on abuse (8+ / 0-)

    by the authorities.  Here I am reminded of the trial of William Penn and William Meade in England, where the judge even went so far as to imprison the jury in the attempt to get the two men convicted, but the jury refused.  

    do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

    by teacherken on Sat May 02, 2009 at 06:20:05 AM PDT

    •  Jury nullification tends to be about abuse. (8+ / 0-)

      I've seen cases of jury nullification, and they tend to fall into two categories: (a) the defendant broke the law but the jury thought the prosecution was an abuse of power; or, (b) the defendant was a cop who broke the law, but the jury figured he did the right thing anyway.

      The former is a check on the abuse of power.  The latter arguably permits the abuse of power.  Most jury nullification cases fall in one of those two classes.

      Good morning! ::huggggggggs::

      •  Also sometimes because the jury thinks the law (2+ / 0-)
        Recommended by:
        NCrissieB, kktlaw

        itself is simply wrong.

        For instance, I would like to see a lot more jury nullifications in cases where people are being prosecuted for nonviolent drug 'crimes' such as marijuana possession. The jury can and should "just say no" to putting people in jail for that, because the law itself is wrong and unjust.

        I really do worry that if/when there are criminal trials for torturers, there are going to be at least a couple of people on any jury who think that the US should be allowed to torture people in certain circumstances and will feel that they should not go to jail for what they did, regardless of what the law says, and so they will not be convicted.

        I know that from the standpoint of the law this is fine if that is the outcome ... but I don't think the majority of people calling for prosecutions will be satisfied with a hung jury or a not guilty verdict.

  •  Tell it to a jury indeed (6+ / 0-)

    well done Crissie.

    Free University and Health Care for all, now. -8.88, -7.13

    by SoCalHobbit on Sat May 02, 2009 at 06:31:46 AM PDT

  •  Justification for criminal act codified in (5+ / 0-)

    Illnois law:

    (720 ILCS 5/7‑13) (from Ch. 38, par. 7‑13)
       Sec. 7‑13. Necessity.
       Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.

    Watch the video of Beck with the sound off. His grimaces, tics, shrugs, shit-eating grins and hand-waving convey his instability better than his words.

    by Inland on Sat May 02, 2009 at 06:42:22 AM PDT

    •  Most states have such defenses. (4+ / 0-)

      Either codified in statute or developed in case law.  The federal criminal courts do as well.  We didn't need Yoo/Bybee.  Our courts have seen cases where a defendant pled self-defense, defense of other, or some other legal justification or excuse.  Despite the claims of conservatives, the legal system is a lot more comprehensive - and capable - than a lot of people imagine.

      Good morning! ::huggggggggggs::

  •  so helpful to hear in this way (7+ / 0-)

    and from this perspective. Thanks so much, NCrissie.

    Now, I wish someone lawyerly would look here and comment, I still dont fully get it, about trying Gitmo prisoners.

    Buy the ticket, take the ride. ~HST

    by Lady Libertine on Sat May 02, 2009 at 06:42:29 AM PDT

  •  Why leave out entrapment? The memos (2+ / 0-)
    Recommended by:
    Orinoco, NCrissieB

    basically tell the lower downs that what they are doing is legal.  The USG paid them and promoted them for their acts.  Now it's supposed to prosecute them because there's a change in managment?  And put them through trial to prove it up?  

    Watch the video of Beck with the sound off. His grimaces, tics, shrugs, shit-eating grins and hand-waving convey his instability better than his words.

    by Inland on Sat May 02, 2009 at 06:45:01 AM PDT

  •  Brilliant argument (8+ / 0-)

    I was trying to articulate this earlier, but you've said it quite well.  The only response we need for any torture apology is simply "tell it to a judge/jury."

  •  The people transported to Guantanamo (9+ / 0-)

    may have had some peripheral relevance to the terroristic acts, but I'm increasingly inclined to the hypothesis that the whole network of interrogation facilities was designed to test whether or not intelligence could be collected wholesale and on the cheap--sort of a market analysis strategy applied to unfriendlies.

    There's a whole lot of targeting various populations to find out what they want or don't want going on, seemingly in hopes of finding the automatic triggers that will prompt specified behaviors--the evolution of using sex to sell cars.

    The other thought I'm leaning towards is that the conservative strategy is bound to fail simply because they dismiss the individual actor as distinct from his/her participation in any group.  Indeed, they insist that individuals are defined by their participation in a group and have no independent existence.  It's what their paradigm tells them they have to believe, but it's just not realistic.  Not only are no two people exactly the same, the individual isn't the same person over time.  My current example is an 89 year old man who's still making decisions on the basis of what he experienced as a seven year old boy.

    Which, if nothing else, raises the question what will the children of Iraq do fifty years from now?  Not a question the conservative paradigm can even consider, even though they're quite content to believe that the group is determinative.

    How do you tell a predator from a protector? The predator will eat you sooner rather than later.

    by hannah on Sat May 02, 2009 at 07:01:15 AM PDT

    •  Their real concern ... (4+ / 0-)
      Recommended by:
      Orinoco, linkage, kktlaw, FarWestGirl

      ... is two-fold.

      First, they believe in the "unitary executive," unfettered by any legislature and most assuredly unfettered by any judge.  Simply, no one should ever be allowed to question the decisions or actions of the "unitary executive," ever.  Period.  And I think part of this torture program - like their stubborn refusal to follow the original FISA statutes - was simply to step over the legal line and defiantly say "No, we don't have to follow the law, so just try to stop us."

      Second, given that, they know they've violated the law, and they know they're in serious difficulty if those cases ever see trial.  I wouldn't put much stock in any of the defenses I raises in this diary, given what the prosecution could present about the true scope and intentions of the program.

      Good morning! ::hugggggggggs::

  •  thanks for a great diary on a subject that (7+ / 0-)

    needs to see the inside of a courthouse. My friend thinks this subject will get passed by because there are other things 'more important' or 'need doing'. Since when can't we do simultaneously? We have a DOJ 'department' don't we? There is more than one US Attorney ain't there?

    Yes we did. And we will keep doing...

    by pickandshovel on Sat May 02, 2009 at 07:10:50 AM PDT

    •  The investigations seem to be underway. (7+ / 0-)

      Statements by President Obama - e.g.: that it would be inappropriate for him to prejudge the results of the Attorney General's investigation - lead me to think the investigations are already underway.  Right now they're being done quietly, and that's probably better for reasons I explored in other comments here today.  We don't want to see innocent people - whose names come up and are later shown to have not been involved - be tried, convicted, and ruined by the media because every detail of the investigation is being publicized day by day.

      So I don't think this is going to be swept under the rug.  I'm guessing there are a whole lot of folks, including many at the FBI who've seen hard-worked cases go down in flames because their defendants or witnesses were tortured, who want accountability.

      Good morning! ::huggggggggs::

  •  NCrissieB! (6+ / 0-)

    You blew me away! "Yes, indeed."

    "Tell it to the jury." That's how we do business in this country.

    "Men never do evil so completely and cheerfully as when they do it from a religious conviction." Blaise Pascal ...

    by lyvwyr101 on Sat May 02, 2009 at 07:11:13 AM PDT

  •  GREAT diary, Crissie! (5+ / 0-)
    Recommended by:
    catfood, Orinoco, linkage, NCrissieB, kktlaw

    Thanks for discussing the defenses, which are in themselves a reason to "take it to a jury."

    You can defend yourself against these charges (maybe not successfully) but to completely avoid investigation/charge/trial is to nullify the law before the law has even taken a hand.

    While I believe juries are the "mercy" intended to temper justice, I've also never believed they were made up of people who had decided beforehand.

    Tell it to the jury indeed!

    Huggggs and good morning to all the Krew!

    The austerity you see around you covers the richness of life like a veil -- Anonymous

    by winterbanyan on Sat May 02, 2009 at 07:24:08 AM PDT

  •  Whoa! I'll be coming back to this one. (5+ / 0-)

    My brain isn't quite alert enough to follow this just yet :-)

    -7.62, -7.28 "Hold fast to dreams, for if dreams die, life is a broken winged bird that cannot fly." -Langston Hughes

    by luckylizard on Sat May 02, 2009 at 07:29:02 AM PDT

  •  thanks for the Time to Kill clip (3+ / 0-)
    Recommended by:
    Orinoco, linkage, NCrissieB

    I hadn't seen that before. And good morning! {{{hugs}}}

    So, the analog would be that a defense attorney speaking in support of his client, an accused torturer, would make a case that the people who were tortured "deserved it"?

    Basically, "yes, we tortured them, but they were terrorists. So don't convict, even though they broke the law."

    Sadly, it could work.

    But that's not the trial I want to see. What the torturers did was revolting and a crime against humanity. Unfortunately, the President has weighed in on such potential trials, and he doesn't think they should go forward.

    What I most want to see is a trial of those in power who created the system within which gathering suspected enemies and torturing them was seen as legal. Let's prosecute those who gave the orders, who misrepresented the law, who ignored international treaties, who disdained the mores of humanity!

    That's the trial I want to see.

    •  I agree with you. (6+ / 0-)

      Do I think someone charged might raise the tactic of "but they were terrorists," complete with a raft of horrific photos from 9/11, the beheadings, etc?  Yeah, someone would.  Would it work?  Not if the prosecutors prepare the case well, because if the evidence we've seen is true, the torture was ordered and conducted to get someone - anyone! - to say "Yes, Saddam Hussein planned 9/11."

      Once it comes out that this was done to produce what they knew to be false information to justify the Iraq War, I think the jury nullification argument goes out the window.  I've never seen a jury nullification verdict where the defendant acted in bad faith, and here I think they did.

      But if there were a good faith defendant charged and the jury decided "We know he broke the law, but he was acting out of the very best intentions and in good faith we just don't think he should go to jail" ... that is a legitimate verdict under our rule of law, and I'll accept it that verdict.

      The rule of law is a process, not an outcome.

      Good morning! ::huggggggggggs::

      P.S.: That summation in A Time to Kill is one of the most powerful and moving arguments I've ever heard.  I would hate to be on that jury.

      •  What questions did they ask... (3+ / 0-)
        Recommended by:
        linkage, winterbanyan, NCrissieB

        .... while they waterboarded, body-slammed, beat people to a pulp?

        That would go a long way toward showing that the intent of the interrogations/torture was to get people to give false information.

        I've seen some of the quotes from people in the White House who felt they had to keep coming back to Bush with their reports on who carried out the 9/11 attacks, because Bush's version of the right answer was "Iraq did it, we should invade."

        Perhaps, the DOJ can get details from those who conducted interrogations about who told them what to ask, and what those questions were.

  •  Kood bye, Klass. An assignment, though (3+ / 0-)
    Recommended by:
    Orinoco, linkage, NCrissieB

    Please....

    Consider my above request to characterize our difference.

    And I would love to have others play the j'accuse parlor game.

  •  There's going to be two arguments made... (5+ / 0-)

    ....the first will invoke the official statement exception (basically the one exception to the mistake of law doctrine: if the party was relying on an official statement of the law by a very high level law enforcement official (such as the attorney general), they may use that as a defense), and the second will invoke some version of "but it's the CIA, they break lots of laws in the name of national security, why should this be any different"+"Unitary executive doctrine".

    The first one can be defeated by showing that the memos were written in bad faith.  The second probably won't withstand close scrutiny by the courts.

    •  The official statement doctrine is weak here. (6+ / 0-)

      There's no official statement on this - or none that's been revealed so far - from the Attorney General or anyone directly tasked with enforcing the law.  I've seen memos from the White House OLC, but they are not positioned to issue official statements on the law.  I've read that there were also memos from house counsel at the CIA and DOD, but those in turn relied on WHOLC's so I don't think that holds up either.  Barring a memo from the Attorney General, I don't see them escaping the "you doubted its legality thus you assumed the risk of its illegality" rule for mistakes of law.

      As to the other arguments - that the CIA breaks laws all the time, and the "unitary executive" theory - I agree those won't hold up in court.  In fact, I doubt a trial judge would even permit them as neither has a basis in the law.

      Good morning! ::hugggggggggggs::

      •  The opinions in issue -- (1+ / 0-)
        Recommended by:
        NCrissieB

        the Yoo/Barbee memos -- came from the DOJ OLC, not the White House OLC, as you seem to say (unless I misunderstand).  And the DOJ OLC would appear to have delegated authority from the AG to issue "authoritative" interpretations of the law to Exec Branch agencies.

        As the DOJ OLC's web site states:

        By delegation from the Attorney General, the Assistant Attorney General in charge of the Office of Legal Counsel provides authoritative legal advice to the President and all the Executive Branch agencies. The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department. Such requests typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement. The Office also is responsible for providing legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for constitutionality.

        By "delegated authority" and "authoritative" is meant, I believe, that if the head of the OLC (i.e., Bybee) says it, it's the same as if the AG said it, and Exec Branch personnel are entitled to act on it.  Indeed, they are supposed to act on it.

        The "Torture Memos" happen to be pure crap.  But if the were more reasonable, they might provide a more formidable defense.

        •  Ahh ... that is a difference then. (0+ / 0-)

          And it might - might - provide enough cover.  But again, the problem is that the people downstream apparently asked for the memos.  That means they knew what they were doing might be illegal.  In principle, if you have reason to doubt the legality of your actions then you assume the risk for their illegality, even if you act on legal advice that turns out to be wrong.

  •  What happens when history is ignored (4+ / 0-)
    Recommended by:
    Gary Norton, Orinoco, linkage, NCrissieB

    The problem here is the Bush Administration engaged in torture ostensibly to try to obtain useful information from the people they were torturing.

    The problem is that's not the real purpose of torturing. That's the justification for doing it. History shows the true purpose of torture is to gain false confessions for propaganda purposes, and the torture done in our names was no different.

    Now is the time to investigate, prosecute, and imprison the former Bush regime. -6.0 -5.33

    by Cali Techie on Sat May 02, 2009 at 08:36:43 AM PDT

  •  Excellent, but you overlook two (4+ / 0-)
    Recommended by:
    Orinoco, linkage, Allogenes, NCrissieB

    provisions in the Convention Against Torture. For sure the elements of the crime must always be proved, but two defenses are taken away.

    Defense of a third party is pretty well undercut by this,

    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.

    "Mistake," or just following orders is seriously undercut by this,

    An order from a superior officer or a public authority may not be invoked as a justification of torture.

    I agree completely with the thrust of your post. But in the torture arena these defenses have been asserted for a long time and the drafters of the CAT, under Reagan, tried their best to make them unavailable moving forward.

    •  I noted that in an update. (6+ / 0-)

      I didn't want to get too deep into the statutory weeds, so I focused on justifications and excuses as they exist in common law.  The point remains that we do have a sophisticated legal system that includes the possibility of a defendant claiming a legal justification or excuse.  Some defendants have even made claims of legal justification and excuse.  The claims have been litigated, refined, and applied in thousands of cases through the years.  Conservatives' braying aside, we didn't invent the law yesterday.  So "tell it to a jury."

      Good morning! ::hugggggggggggs::

  •  I'd recommend this a zillion times (5+ / 0-)

    if I could, Crissie. Thanks for this.

    Book excerpts: nonlynnear; other writings: mofembot.

    by mofembot on Sat May 02, 2009 at 08:57:56 AM PDT

  •  Crissie, great diary, and good morning (3+ / 0-)
    Recommended by:
    winterbanyan, NCrissieB, kktlaw

    hugs to you. (Ok, I missed the morning by ten minutes, so have some afternoon hugs!)

    I like your use of, "Tell it to a jury." That's really where we need to go from here. If those who tortured can defend themselves and their actions before a jury, then so be it. But they must go before one to maintain our country as one that believes in the rule of law.

    The one thing I don't want to see happen, though, is the prosecution of only those who committed the acts. While it is obviously awful to have tortured, even when you thought you were doing something legal, it is far worse to have created the situation that made people think it was ok to do so. I do not want to see a bunch of the "little people" go to jail while those who made it happen, all the way up to the highest level, get off without meaningful consequences.

    It still burns me that those young military kids went to jail when those who permitted and encouraged their actions did not. The higher-ups should have served longer jail terms than those who were just following orders, albeit unlawful ones.

    •  I agree we can't stop at the Judas goats. (2+ / 0-)
      Recommended by:
      Shuruq, kktlaw

      I think that's why President Obama has said it would be "inappropriate" to prosecute those who acted in good faith reliance on administration policy.  If we only go after the Judas goats, we don't get near the root of the problem: a "unitary executive" acting in a culture of secrecy.

      Thanks for your comments! ::hugggggggggggs::

  •  Your analysis makes me soooo jealous! (4+ / 0-)

    For this old lawyer, it's one of those "I wish I'd said that" diaries.

    If perception is relevant, truth is irrelevant.

    by legalarray on Sat May 02, 2009 at 09:11:56 AM PDT

    •  Well now you can say it. :) (1+ / 0-)
      Recommended by:
      kktlaw

      You'll phrase it in terms of your own experience, of course, but it's important that we lawyers get this "But but but what about the defenses???" meme out of the way.  We've seen defenses before.  As I wrote to Seneca Doane above, to hear the conservatives talk, you'd think our institution of law was invented last week as a second-grade class project.

      Thanks for your comments! ::huggggggggggs::

      •  Years ago, I took a murder case on appeal. (2+ / 0-)
        Recommended by:
        NCrissieB, kktlaw

        On the record, objectively, it was the classic case of self defense against a threatening intruding stranger in his own home in the middle of the night. But the defendant never seemed to grasp that this wasn't enough.  Something about his attitude, his testimony, his demeanor, his choice of words, the totality of the circumstances, caused the jury to doubt that he was actually afraid for his life when he shot the intruder in the chest -- then stood over him and shot him two more times!

        Imagine if this defendant had produced a letter from his previous lawyer that said he had a "right to kill" a threatening nighttime intruder in his home.  The judge and prosecutor would still be laughing.

        There's a huge difference between "I had to do it!" and "I had a right to do it."  That's the problem with the "advice of counsel" defense and the absurdity of a "torture memo."  As you said, "Tell it to the jury."

        When my clients ask me when they can use deadly force in self defense or "necessity," I tell them "If you have to ask, the answer is no."

        If perception is relevant, truth is irrelevant.

        by legalarray on Sat May 02, 2009 at 04:17:52 PM PDT

        [ Parent ]

  •  Thank You - N/T (1+ / 0-)
    Recommended by:
    NCrissieB

    "Upward, not Northward" - Flatland, by EA Abbott

    by linkage on Sat May 02, 2009 at 09:23:17 AM PDT

  •  Distaste for the authority of science (3+ / 0-)
    Recommended by:
    NCrissieB, kktlaw, Edgewater

    springs from the same source:  desire to do make up reality and do whatever they want.  It's a two-year-old's definition of freedom.  Me.  Mine.  I want.

    Thanks for the terrific diary.  I've been trying to work this out myself--nice to get the complete analysis from a lawyer.  It looks inarguable to me, but it does presume an acceptance of the rule of law.

    Recognition of the inherent dignity and of the equal and inalienable rights of all is the foundation of freedom, justice and peace.

    by geomoo on Sat May 02, 2009 at 10:28:01 AM PDT

    •  I forgot--I wanted to underline this statement: (2+ / 0-)
      Recommended by:
      NCrissieB, kktlaw

      Our system of law is premised on the idea that an unfettered government - rather than criminals - is the greatest danger to our lives and liberty.

      We seem largely to have forgotten this, which was THE message our founders left us.  The whole constitutional exercise was driven primarily by the truth expressed here.  We have forgotten that torture has always been associated with the abuses in tyranny; in fact, that is one thing it does accomplish:  frightening the populace into compliance.  It is impossible to overstate the extent to which individual freedom of a person not to suffer torture by the state is fundamental to our entire rule of law and even system of government.  This is bedrock stuff.

      Recognition of the inherent dignity and of the equal and inalienable rights of all is the foundation of freedom, justice and peace.

      by geomoo on Sat May 02, 2009 at 01:00:40 PM PDT

      [ Parent ]

      •  I agree about the childishness. (2+ / 0-)
        Recommended by:
        geomoo, kktlaw

        You nailed the conservatives' approach to science and law in this:

        It's a two-year-old's definition of freedom.  Me.  Mine.  I want.

        And yes, our institution of law is premised on the idea that our greatest danger is an unfettered government.  Police often describe themselves as "the thin blue line" that protect innocent citizens from criminals, and there's truth to that.  Criminal defense attorneys are "the thin grey line" that protect all of us from overzealous law enforcement, and from government run amok.  Neither is perfect, but we need both.  And both rely on the institution of law.

        Thanks for your comments! ::hugggggggggggggs::

        •  "thin grey line" I like it, (2+ / 0-)
          Recommended by:
          NCrissieB, kktlaw

          especially with the Brit spelling. :)

          I was just reading a diary by Lady Libertine describing the Obama administration's considerations of whether to revive the military commissions as a means to try Guantanamo detainees.  It seems the federal courts are likely to present unfavorable burdens to proving the guilt of those already assumed to be guilty.  The notion seems to be to establish a new system of "justice" for the express purpose of maintaining the form of our traditional system (for the sake of appearance, as far as I can tell) while allowing the "establishment" of guilt of those we have decided we need to prove guilty.  That this would be discussed is an egregious insult to the bedrock principles of our country.  How many people understand that this is no different from the Soviet show trials which deserved our scorn.  I believe we are rapidly losing our way.

          "If you can keep it" indeed.

          Recognition of the inherent dignity and of the equal and inalienable rights of all is the foundation of freedom, justice and peace.

          by geomoo on Sat May 02, 2009 at 02:16:52 PM PDT

          [ Parent ]

  •  Jonathan Alter's torture prosecution fatalism (2+ / 0-)
    Recommended by:
    NCrissieB, kktlaw

    is totally insincere and idiotic.

    Here he is on Countdown last night:

    Jessen and Mitchell were really bad actors. I mean they knew nothing about Islam, spoke no Arabic, totally unqualified to do these interrogations, said that the prisoners should be treated like quote, "a dog in a cage," but should the whole thing be laid on them? Of course not. They were hired by somebody and the person who hired them was indeed assigned to hire them by somebody. So this by definition goes up the chain of command and that's what an investigation should be for.

    ...

    I don't think that's going to happen wrt prosecutions. There are all sorts of problems that liberal lawyers  have raised with the prosecutions that you would need John Yu and some of these others to have shown intentionality, and actually they sincerely believed as a legal theory that they could do some of this kind of thing, and would you end up trying to prosecute Dick Cheney? It's a can of worms they simply are not going to open. But truth commission, truth hearings, we need 'em badly.

    http://www.msnbc.msn.com/...

    So the guys who wanted to treat prisoners like "a dog in a cage" showed no intentionality wrt torture?

    The guys who were hired by somebody who was instructed to  hire them by somebody... they didn't show intentionality?

    Alter's puffy-faced (what was up with that? is he sick?) fatalism wrt prosecutions sounds like rah rah America bullshit to me.

    I'm sorry. The psychologists above were hired specifically because the ones in the CIA who typically do this work refused to be a part of the legitimization of torture.

    Cheney et al were told. And the people they got to legitimize their torture told them to treat our prisoners like dogs in  cages.

    That's the definition of intentionality Mr. Alter.

    So shut the fuck up.

    Keith shouldn't have Alter on his show until he admits on air that he was full of shit.

    Someone feel free to diary this. I'm too new to do so.

    •  Alter isn't a lawyer, and it shows. (2+ / 0-)
      Recommended by:
      kktlaw, laurabmd

      Sadly, the institution of law has been so maligned, so widely, and for so long that too many - including some in the media - think it's inadequate to do the very thing we've been using it to do for centuries: resolve disputes of behavior and law.  I don't write about it often because it usually feels like spitting into a hurricane.  Our legal system isn't perfect, but it's far from being as imperfect as folks like Alter suggest.

      Thanks for your comments! ::huggggggggggggs::

      •  He's playing "fair and balanced" with the legal (2+ / 0-)
        Recommended by:
        NCrissieB, kktlaw

        arguments in order to try and prevent prosecutions.

        But actually, I think he's aware of how absurd it is to believe that intentionality would be hard to prove.

        Alter is Jewish (that's not a strike against him unless it's part of a set of beliefs on these issues). He's also pretty pro-Israel. And he supported torture after 911. It's sad that Keith has him on.

        Time To Think About Torture
        It's A New World, And Survival May Well Require Old Techniques That Seemed Out Of The Question
        By Jonathan Alter | NEWSWEEK
        From the magazine issue dated Nov 5, 2001

        Couldn't we at least subject them to psychological torture, like tapes of dying rabbits or high-decibel rap? (The military has done that in Panama and elsewhere.) How about truth serum, administered with a mandatory IV? Or deportation to Saudi Arabia, land of beheadings? (As the frustrated FBI has been threatening.) Some people still argue that we needn't rethink any of our old assumptions about law enforcement, but they're hopelessly "Sept. 10"--living in a country that no longer exists

        .

        •  That's when Alter lost me, in fact. (2+ / 0-)
          Recommended by:
          kktlaw, laurabmd

          That column was when I stopped paying attention to Alter.  I stopped paying attention to anyone - and there were a lot of them - who acted as if "9/11 changed everything."  That was a pernicious and very dangerous lie, always.  We've dealt with tragedies before in the United States.  9/11 did not "change everything," except in the minds of those who were already looking for a justification to gut the law and the Constitution.

  •  Prosecution undermined by discovery. (2+ / 0-)
    Recommended by:
    sebastianguy99, NCrissieB

    One of the problems we have here, before a defense is raised, is that the prosecution will have to get its evidence admitted.

    We are entering new territory.

    •  Well, Bush has admitted ordering enhanced (2+ / 0-)
      Recommended by:
      An Affirming Flame, NCrissieB

      interrogations.  Are public statements against interest not admissible?  Or signed executive orders.  Getting the evidence admitted will be the least of the government's problems.

      "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex" Dwight D. Eisenhower

      by bobdevo on Sat May 02, 2009 at 11:52:55 AM PDT

      [ Parent ]

    •  That won't be too great an issue. (1+ / 0-)
      Recommended by:
      kktlaw

      Actually gathering the evidence from agencies that are accustomed to operating in secrecy will be more challenging than vetting that evidence for trial.  We have quite a bit of practice with the evidence thing.

      Thanks for your comments! ::huggggggggggggggs::

      •  Given the recent appellate court rulings (2+ / 0-)
        Recommended by:
        brooklynbadboy, NCrissieB

        Regarding Jeppesen and Al-Haramain, I think that getting to the discovery phase just became a lot easier. The DoJ might still appeal, and perhaps win, but I think that either is unlikely at this point. Plus, how would it look if Holder declined to investigate let alone prosecute by saying "Hey, what do you want me to do, my hands are tied, states secrets, national security, blah blah blah"? He would embarrass and bring disgrace upon himself, the DoJ, and Obama, by trying to pull something so blatant, especially after evidence was presented by those tortured that they were tortured.

        I can see why Obama and Holder are trying to make it look like they're resisting, for political reasons (assuming that that's what they're doing). And I'm sure that they'll keep on doing this for some time. But having done their false modesty shtick to avoid getting tagged with the false "witch hunt" meme, they really can't avoid letting investigations commence without looking really brazen in the public and world's eye.

        "Reagan's dead, and he was a lousy president!" -- Keith Olbermann 4/22/09

        by kovie on Sat May 02, 2009 at 02:19:39 PM PDT

        [ Parent ]

  •  Excellent diary Crissie! Thank you for all (2+ / 0-)
    Recommended by:
    NCrissieB, kktlaw

    the information and clarifications. As always, your diaries are worth reading and I am glad that PLF515 is listing them on kos university, I have learned a lot from this diary and received clarifications that I needed to respond to those advocating numerous points; specifically whether Bush's request for clarification on torture from white house attorneys would provide evidence of either innocence of the law ... in that he got bad advice or could be used as mitigating circumstances. Thank you once again!

    No society can surely be flourishing and happy, of which the far greater part of the members are poor and miserable (Adam Smith, 1776, I, p. 96).

    by NY brit expat on Sat May 02, 2009 at 11:17:04 AM PDT

    •  You're very welcome. :) (2+ / 0-)
      Recommended by:
      NY brit expat, kktlaw

      The key takeaway is this: our institution of law was not invented last week as a second-grade class project.  We've been doing the law thing for quite a while.  Our system isn't perfect, but neither is it as imperfect as the conservatives seem to think.  We have experience with defendants who claim they have a legal justification or excuse, and an entire body of law dealing with such claims.

      Thanks for your comments! ::hugggggggggggs::

  •  Thanks for this! (2+ / 0-)
    Recommended by:
    NCrissieB, kktlaw

    Tipped and recommended.

    I guess my question would be: what if the justifications and excuses given can be proven groundless or even lies?

    For example, the ticking time bomb thing. The idea that you have a terrorist and he will explode a nuke in America if you don't torture him. A lot of interrogators and officials have recently said that in a ticking time bomb scenario you wouldn't want to use torture anyway. Torture doesn't work. And that idea is more of an attempt to scare you anyway, i.e. "well we had to or America was going to die. Why do you hate America?" And when faced witha real ticking time bomb scenario, it's odd that the government didn't torture.

    Also that part in A Time to Kill was only in the movie, not the novel. Haha I'm a snob.

    "ENOUGH!" - President Barack Hussein Obama

    by indiemcemopants on Sat May 02, 2009 at 12:38:00 PM PDT

    •  If the legal defense can't be proved ... (2+ / 0-)
      Recommended by:
      indiemcemopants, kktlaw

      ... and if the prosecution has proven its case, the defendant gets convicted.  That happens a lot.  And I suspect that would happen in a lot of these cases, because I don't think they can prove the defenses the conservative blabbers keep claiming.  Most of them are affirmative defenses, which means the defendant has to prove that claim ... not in some hypothetical, but with actual evidence that relates to the specific acts alleged in the case.

      Thanks for your comments! ::huggggggggggs::

  •  What about sentencing? (2+ / 0-)
    Recommended by:
    Shuruq, NCrissieB

    Thanks for a GREAT exposition of how the system works - I love finding something by someone who knows whereof they speak on a subject like this.

    Regarding the mistake defense - for those lower down in the heirarchy, this might be seen as a variant of the just following orders defense. I know the convention against torture (and IMHO human decency) forbid this defense - but doesn't the treaty make allowances for this belief as mitigation during sentencing?

    My larger point is - I  think the premise that only the higher ups should be pursued, and those with a good faith belief that they were acting legally should not be referred for prosecution - is a mistake - first, the CAT specifically requires referral for prosection in ALL cases, and second, I think anybody who is asked or required to torture/abuse/humiliate a person in custody SHOULD have second thoughts in the future about whether they will be held to account for their behavior.

    Upon conviction, I might let them off with the sentence that they will have to live in the country they helped create, just like the rest of us

    •  Sentencing is a whole other issue. (1+ / 0-)
      Recommended by:
      kktlaw

      A discussion of the aggravating and mitigating circumstances that might affect sentencing would be an entire diary (or a series) of its own.  That's actually much "bigger" than the legal defenses to guilt themselves.

      As to the convention (adopted by statute) requiring prosecution, that's not as clear cut as it's been made out here on DKos.  A prosecutor shouldn't file a charge unless he/she has enough evidence regarding that defendant to prove the charges alleged, beyond any reasonable doubt.  "A crime was committed" is not the same as "We have evidence to prove this defendant committed this crime."

      Thanks for your comments! ::huggggggggggs::

      •  sentencing (1+ / 0-)
        Recommended by:
        NCrissieB

        I agree sentencing is another issue - I hope the tangent was not too off topic - I just keep on thinking of this when I hear people say we should give those who acted on the belief that the DOJ memos were accurate a pass.

        And if my post read as suggesting that prosecution was required, than I expressed myself poorly - my use of "referral for prosecution" was meant to imply a process that could, not must, end in prosecution. The point, if I understand it correctly, is that there must be a credible process in the face of clear evidence of a violation.

        Thanks again for the clear analysis - I will be on the lookout for your diaries in the future

  •  Excellent explanation of US juris prudence (3+ / 0-)
    Recommended by:
    Shuruq, NCrissieB, kktlaw

    But you leave out the ICC. Article VI says foreign treaties trump US federal law (which trumps US state law which trumps state municipality law etc.). At the same time, while enforcing Geneva and other UN resolutions the US has steadfastly tried to extricate itself from the jurisdiction of any international court. This, I think, is where the real battle will take place, and it may be that Obama recognises this and would prefer not to be the president who "gave up the US' ultimate sovreignty" or some other such spurious claim.

    •  The U.S. isn't an ICC member. (1+ / 0-)
      Recommended by:
      kktlaw

      The Clinton administration declined to sign and seek ratification for U.S. participation in the ICC.  The rationale was that we wouldn't join the ICC unless its jurisdiction was limited to cases referred by the U.N. Security Council, where of course the U.S. has veto power.  That was a mistake of the Clinton administration, and one the Obama administration should remedy.

      Also, ICC jurisdiction only attaches if the country can't or refuses to prosecute on its own.  If the U.S. prosecutes our own people for crimes, the ICC would have no jurisdiction, even if we were members.

      Finally, it's a bit of overbroad to say treaties trump federal law, which trumps state laws, etc.  The idea is right, but your statement of it isn't quite accurate.  Treaties are federal law, and supersede federal statutes.  As to federal law trumping state law, that depends on the specific issue of law.

      Thanks for your comments! ::huggggggggggggggs::

      •  I'm not sitting the bar here. (1+ / 0-)
        Recommended by:
        NCrissieB

        Unless it's a thread full of lawyers I tend to speak in layman's terms, calling up certain points of law if necessary. As to the ICC, the US is in a tricky position, what with Geneva and presiding over Nuremberg and Tokyo as well as the Constitution. And the instant anyone indicted in the ICC sets foot off US soil (even in a plane to a non-extraditing country since precedent was long ago set as to intercepting civilian and private passenger planes), it's "Hello Dutch people. What lovely jails you have here."

  •  Reasonable diary, though 8th Amendment assumption (1+ / 0-)
    Recommended by:
    NCrissieB

    Thank you for a well reasoned diary. I think we need more grounded analysis and less shouting at each other on the issue of prosecution.

    I would take one exception with the idea that:

    Torture is a crime, by our Constitution (the Eighth Amendment)...

    .

    I believe torture is a violation of U.S. law, but it is not at all settled that the 8th Amendment applies under the circumstances we are speaking about here.

    Until SCOTUS has had it's say, we cannot say with legal certainty that these policies and actions were in violation of the 8th Amendment.

    The evil Justice Scalia doesn't think so and has voiced his thoughts on the matter to 60 Minutes back in 2006.

    While we all might feel that it should be covered by the 8th Amendment we just don't know yet. But we do know what Scalia and torture defenders are going to say and we best be prepared to answer them whether we agree or not.

    "Most people would sooner die than think; in fact, they do so." ...Bertrand Russell

    by sebastianguy99 on Sat May 02, 2009 at 01:19:23 PM PDT

    •  In principle the 8th Amendment applies to torture (2+ / 0-)
      Recommended by:
      sebastianguy99, kktlaw

      Whether it applies to the specific facts of the Bush-era torture policies is, of course, open to court challenge.  But in principle it applies to the use of torture, and indeed that's precisely what it was enacted to forbid.  Its application to the death penalty has been based on the fact that some specific method of execution was, in effect, death by torture.

      Still, you're right that its application in this specific instance has not yet been tested.

      Thanks for your comments! ::huggggggggggs::

      •  Again, great diary (2+ / 0-)
        Recommended by:
        NCrissieB, kktlaw

        I wasn't trying to nitpick. I just want us to be clear what is established law and what isn't.

        There's plenty of law to put these people away and I want us to be ready for any argument torture-defenders might raise.

        Thanks again!

        "Most people would sooner die than think; in fact, they do so." ...Bertrand Russell

        by sebastianguy99 on Sat May 02, 2009 at 02:23:50 PM PDT

        [ Parent ]

  •  Thanks for the great diary! (2+ / 0-)
    Recommended by:
    NCrissieB, kktlaw

    It could have been straight out of my Crim Law I class last semester.  

  •  Pretty much what I wrote (1+ / 0-)
    Recommended by:
    NCrissieB

    in the comments section of Krauthammer's torture defense op-ed this week:

    There is a very simple and oft-repeated response to all who would have us legalize torture, even if limited to only such "ticking time bomb" scenarios, and no others. Make torture illegal, under all circumstances, including such scenarios, with severe penalties, but offer anyone found to have tortured the opportunity to defend their actions and explain how they were, or they at least thought they were at the time, justifiable and necesssary, and let those who judge them determine whether they should be punished.

    Oh, wait, we already have such a solution! It's called the criminal justice system (or UCMJ if done by active duty military staff when on duty). Duh.

    So I don't see the problem. If someone is in a situation where they believe that only by torturing someone can they prevent mass suffering, I assume that all the laws against torture and the prospect of prosecution and jail time aren't going to stop them from torturing that person. I'm not saying that they SHOULD torture, just that, if they believe so strongly in the need for it, I seriously doubt that a law and threat of severe consequences is going to stop them.

    So that's the problem here? Let's keep torture illegal and punishable, and when exceptions happen, let's deal with them in the legal system.

    Or is Mr. Krauthammer saying that if he were in a position such as this, he would refuse to torture because of the fear of going to jail? What kind of brave patriot would be that cowardly, only willing to commit a grave moral offense if he knows beforehand that he won't be punished for it. Seems kind of hypocritical to me.

    What say you, Mr. K?

    "Reagan's dead, and he was a lousy president!" -- Keith Olbermann 4/22/09

    by kovie on Sat May 02, 2009 at 02:04:29 PM PDT

    •  We made similar arguments. (2+ / 0-)
      Recommended by:
      kovie, kktlaw

      I think my diary went into a little more detail in terms of burdens of proof and elements to be proven, but essentially it's the same argument: "Tell it to a jury."  Which is exactly what conservatives are desperate to avoid, because that requires submitting to the rule of law.

      Thanks for your comments! ::huggggggggggggggs::

      •  Oh, you absolutely did a better job of it (2+ / 0-)
        Recommended by:
        NCrissieB, kktlaw

        Being one of those lawyer-type persons. ;-) But for a late-night comeback comment to yet another one of these torture defense op-eds that seem to be coming out in 2's and 3's every day, I think I did ok in presenting the gist of what I believe to be one of the primary knock-downs of the "Let's make torture just a teenie bit legal, in exceptional circumstances, to save the children!" arguments.

        I mean, there are rare justifications for running a red light (medical emergency, being persued by carjackers, broken stoplight). Doesn't mean that we need to specifically write all these justifications into the law. Judges and juries are adults and if you have a valid case, tell it to them and there's a good chance that they'll let you off.

        A lot harder to do in a torture defense than in running a red light, but the same basic principle applies. Plus, one would think that if one really cares that much about saving an entire city, and believes that torture is the only way to do it, one would be willing to risk going to jail for a very long time to do it, no? Does Mr. K really believe that one of his imagined patriotic would-be torturer heroes would refuse to torture simply due to the fear of jail time, even if they truly believed that torture was the only thing keeping those poor people alive? What kind of Jack Bauer wannabe does that?

        Their defense of torture fails at just about every level.

        "Reagan's dead, and he was a lousy president!" -- Keith Olbermann 4/22/09

        by kovie on Sat May 02, 2009 at 02:34:12 PM PDT

        [ Parent ]

  •  So good that it wants keeping. How? (2+ / 0-)
    Recommended by:
    NCrissieB, kktlaw

    Long ago I prepared a notebook for my dkos postings. I never used it.
    As if a notebook could hold a river flowing through it.
    Any one have a method for keeping track of thread to which one wants to return and here I really show my ignorance, printing out whole threads.

  •  Premeditated war crimes (2+ / 0-)
    Recommended by:
    NCrissieB, kktlaw

    The Bush apologists want us to think that torture was used only to save lives when time was a factor.  I ran across something that I think ruins that argument. Now Khalid Sheikh Mohammed was waterboarded 183 times in March of 2003.
    However he was captured on March 1, 2003.  Yet they claim he was given a chance to talk, however long, and then torture was unleashed.  In reality I doubt the pros at the FBI ever got a look at him and they just turned him over to sadistic amateurs who waterboarded him an average of 6 times a day for a month or an average of every 4 hours.  I have no moral choice but to call for justice for KSM since Bush and the neocons have us on a very slippery slope that we must not be go any further down to lawlessness.

    "Ratification of the UN Torture Convention Treaty by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today."  Ronald Reagan 1988

  •  Crissie, I just saw an update, so thinking (1+ / 0-)
    Recommended by:
    NCrissieB

    you're here. (?) I'm on for the first time since first comments. Fell asleep for a long time, then had stuff to do. I just love the comments about the Morning Feature and the Kula Krew. You should be so proud. This place is really getting a great reputation and one that the Kos founders should surely be proud of! Good evening!! And more huuuugs.

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