The Prosecution Conundrum: Torture Detailed, "Nuremberg Defense" Revived & Blanket CIA Immunity

Yesterday, the torture condundrum was spelled out in vivid detail: Spain's Attorney General said prosecutors are recommending against opening an investigation into whether the top-level "Bush Six" sanctioned torture because they were not present when the alleged torture took place.  Meanwhile, President Barack Obama said that the CIA officials carrying out torture policies crafted and approved by the Justice Department will not be prosecuted.  

Crystal eyes note the absurdity: Absolved because you were ordered to torture by those who are absolved because they were not there.

A brilliant piece of twisted dark logic that renders justice not only blind but impotent.

An entire class of CIA operatives get blanket immunity while people like myself, Thomas Tamm and others who exposed Bush illegality were criminally investigated and are still suffering the fallout.  
No one is accountable.  Everyone's hands are still dirty.  

While I applaud President Obama for releasing the secret OLC memos, which is a huge victory for transparency, I don't agree that no one should be prosecuted for inflicting:

* cramped, dark confinement (plus insects)- no more than 18 hours/day

* "the waterboard" [their scare quotes, not mine]- no more than 2 hours/session

* walling [slamning a prisoner against a wall]- no more than 20-30 times consecutively

* extended sleep deprivation - no more than 11 days

Reading Spain and America's torture stances together, we can't prosecute the top officials who devised and blessed torture because they "weren't there," nor can we prosecute the CIA officials who carried it out because they were just following orders.

Candido Conde-Pumpido, Spain's Attorney General, said:

If one is dealing with a crime of mistreatment of prisoners of war, the complaint should go against those who physically carried it out.

 (Spain has obviously not adopted the legal concept of vicarious liability, which imputes legal responsibility for acts of another.)

Meanwhile, President Obama issued a statement on the release of torture memos by the Justice Department's Office of Legal Counsel (OLC), assuring

those who carried out their duties relying in good faith upon legal advice from the Department of Justice will not be subject to prosecution.

 You can read Obama's statement in full here: http://www.nytimes.com/....  (President Obama appears to endorse the much-discredited "Nuremberg defense," popular with Nazi defendants, that they were "just following orders" and are therefore not responsible for their crimes.)

In theory, torture is unequivocally and absolutely forbidden by the law of civilized nations, which used to include the United States.  No other practice except slavery is so universally and unanimously condemned in law and human convention.  But in practice, it is painstakingly prescribed, carried out, condoned and excused.

"The day we stop condemning torture--although we tortured--is the day we stop being human beings."  Those are the words not of our world leaders, but of an Argentinian torturer in Argentina's Dirty War.

By immunizing those who carried out torture, and refusing to investigate, much less prosecute, those who devised and authorized this conduct of the lowest moral order, we have lost our soul.  

•  Tip Jar: Apologies to the World

  Take it from the few here, because it does not appear that you're going to get it from anyone else.

  by Jesselyn Radack on Fri Apr 17, 2009 at 05:30:13 AM PDT

  •  Greenwald is worth a read this morning

    Nothing new, but a great little run down on how Obama's position on this is in direct conflict with international treaty and US law.

    Yesterday was a sad, sad day for justice.

    by heart of a quince on Fri Apr 17, 2009 at 05:37:03 AM PDT

    •  Lucky for Glenn that he doesn't have

      a country to govern.

      by Maimonides on Fri Apr 17, 2009 at 05:39:58 AM PDT

      •  Last I checked

        Governing a country was supposed to mean following the law.

        by heart of a quince on Fri Apr 17, 2009 at 05:40:58 AM PDT

        •  not if you got your constitutional law degree at

          Harvard      

          by need pr on Fri Apr 17, 2009 at 05:49:46 AM PDT

          •  I got mine at Yale.

            But I think many Harvard alums feel the same despair I do.

            by Jesselyn Radack on Fri Apr 17, 2009 at 05:57:28 AM PDT

            •  I got mine at

              I Can't Fucking Afford University.

              But even I get this one.

              by Moody Loner on Fri Apr 17, 2009 at 06:07:53 AM PDT

              •  No one should have to "afford" university.

                Investment in education is the best investment a country can make.

                by Demena on Fri Apr 17, 2009 at 07:18:54 AM PDT

                •  Alot of good this did all these educated jerks...

                  running the show during the Bush/Cheney years.

                  by jdmorg on Fri Apr 17, 2009 at 08:41:47 AM PDT

                  •  Clearly, the society

                    needs to be altered--we have a system that seems to ensure that jerks can get educated, but normal, decent people can't.

                    by ogre on Fri Apr 17, 2009 at 09:58:14 AM PDT

                    •  I'll just let my sig do the talking....again.

                      by STOP George on Fri Apr 17, 2009 at 11:41:14 AM PDT

                      •  mine too nt

                        by the girl on Fri Apr 17, 2009 at 01:07:51 PM PDT

                •  Or health care

                  It's a basic.

                  by elwior on Fri Apr 17, 2009 at 11:15:43 AM PDT

              •  Two classes of citizens

                To quote (the GREAT) Greenwald on this whole issue today:

                'The next time you're pulled over by a police officer for speeding, quote Barack Obama:  "This is a time for reflection, not retribution."  See if that works.  If not, move to:  "It's time to focus on the future, not look to the past."  Criminal defense attorneys should try that on juries and judges, too.'

                I wonder how long it's going to take for most Americans to realize that when it comes to our political elite in D.C., the laws really don't apply, and we really are a nation of MEN, instead of a nation of LAWS?

                See, following the laws in our society is just for the little people and the suckers.  If you are a powerful politician or someone protected by or connected with them, you can basically get away with just about anything that furthers the interests of the ruling class  (except a blowjob, of course). . . and BOTH political parties will close ranks around you to protect you.

                It reminds me of the things I was taught about the old Soviet Union:  How everybody in that society was supposedly equal . . . . except when it came to the high ranking party members and ruling elite of the society . . . who got to live in all sorts of luxury and do whatever it was they wanted.

                by LivinginReality on Fri Apr 17, 2009 at 04:46:43 PM PDT

            •  Many Harvard Alums Do. Most Harvard Alums Don't

              Of course, there are always exceptions.

              by greenskeeper on Fri Apr 17, 2009 at 06:17:15 AM PDT

            •  I got my JD at UF, and I never taught Con Law

              nor have I ever been asked to do so.  I understand the basic points at stake here.  I thought that Robert Jackson and the prosecution team demolished the "I was only following orders" defense at Nuremberg.

              I guess I understood wrong.

              by RFK Lives on Fri Apr 17, 2009 at 06:21:54 AM PDT

              •  I don't think you are the one

                that is misunderstanding.

                by heart of a quince on Fri Apr 17, 2009 at 06:25:17 AM PDT

              •  but

                but Germany only "evacuated" the jews, as that wrod was used as to remain "legal", so according to the twisted logic of our leaders, I guess Germany did nothing wrong since what they did was legal in Germany at the time.

                Obama is basically setting precendent to allow preisdents to do anything they want, and never be held accountable.

                If you can start illegal wars by invading sovereign nations, kill hundreds of thousands of innocent people,  roundup and torture hundreds, hold many others for years without even a criminal charge, what cant you do?

                seriously, do presidents now have to eat live babies on tv to get in trouble?

                by dark daze on Fri Apr 17, 2009 at 06:51:00 AM PDT

                •  Not only Obama,

                  but congress as well. The Speaker took impeachment off the table when this was going on. There has barely been a whisper of a call for accountability for Bush crimes since the election.

                  The only imaginable way this issue or any of the Bush era corruption will be addressed is if the Republicans call for it. As impossible as that scenario seems, it is more likely than the Democrats doing the right thing.  

                  by lgcap on Fri Apr 17, 2009 at 07:09:11 AM PDT

                  •  That would certainly be one way to win

                    votes from some Democrats. If the Democrats can't step up and the Republicans would. Big IF.

                    by allenjo on Fri Apr 17, 2009 at 08:26:46 AM PDT

                  •  I am more interested in holding accountable...

                    those who had the power, made the rules, and laid down the 'new laws'. (Except those in the CIA who tortured prior to the August 2002 Bush ruling, who would be responsible for their unlawful acts.) If those at the top had their shit in place, an underling who went rogue on torture would be in a position to be brought up on charges. And, in such a world, those at the top would, likewise, be in position to take action against these loose cannons.

                    However, those with the power to create the rulings (for torture) did not have their shit in place. They passed off their gold-dipped crap as rule of law. It doesnt seem quite fair or effective to me, to string up underlings, the small potatoes - that they should be expected to suss out what's law and what isnt, when they are being told by their superiors, by the executive branch itself, that "enhanced interrogation" is the law.

                    Put them through re-education, monitor them, re-assign them, kick them out if they seemed to take to those "enhanced" ways... but to criminalize them, while Bush cavorts in GatedLand, TX; Cheney does his thing in a duck blind, or back at his spread, sipping cognac as his tootsies rest upon temperature controlled flooring; and while Gonzales is free to roam the want-ads for new employment, just doesnt seem right.

                    by NYCee on Fri Apr 17, 2009 at 11:15:59 AM PDT

                  •  At what point does lack of action stop and.......

                    ......complicity in the crimes begin?  I find that with the efforts being made by both Obama and the congressional leaders at attempting to sweep the agregious crimes of the last administration under the table to be reprehensible.  

                    One of Obama's favorite expressions is "No one is above the law but we must look forward rather than look back".  I assume that Obama must have taken some courses in logic at Havard.  I find that his stand regarding this matter defies logic in that this is not an "either/or" matter.  We cannot really look forward unless we fully address the rule of law.

                    Unless the administration and congress face up to their constitutional responsibilities they will not be treated kindly by history.

                    by calibpatriot on Fri Apr 17, 2009 at 01:41:42 PM PDT

                •  He has not yet made it clear

                  that those responsible for crafting the policies will not be prosecuted. He seems to be playing chess on this.

                  What would make it near-impossible to get a conviction on the CIA agents and others who implemented the policies is that they do have documentation from the DOJ assuring them of its legality - i.e. the highest law enforcement office in the land said the policy was legal and not unconstitutional.

                  While "I was only following orders" is not a valid excuse as Nuremberg taught us, this goes beyond that and I wouldn't bet that even the best prosecutor in the DoJ could get a conviction.

                  As to the people who crafted the policies, well, it's up to us. Obama seems to be pushing for releasing more and more information and creating a public groundswell demanding justice - and then he'll respond to the will of the people. Like I said, a chess game.

                  by raptavio on Fri Apr 17, 2009 at 07:09:18 AM PDT

                  •  Finally, am intelligent response. 30

                    by Demena on Fri Apr 17, 2009 at 07:21:03 AM PDT

                  •  That is a distinction without a difference

                    Sorry.  Having a note from the hall monitor is no different than "I was only following orders" in the eyes of international law.  It fact, you'd have to be intellectually disingenuous to argue that they aren't precisely the same.  (And, yes, our President is being intellectually disingenuous and he knows it.)

                    The laws on torture are quite clear in this regard.  Torture is always wrong.  It doesn't matter how many permission slips you have.  If a prosecutor could not get a conviction on someone who committed waterboarding, then that prosecutor is incompetent.  If convictions were "near-impossible", there would have been no need for Obama to throw his immunity blanket out there.

                    And, sadly, you're theory about what Obama seems to be doing reads like a Conspiracy Theory, given that he's been quite clear in stating, over and over and over again, that he has no intention to "dwell on the past" and given that his actions have universally demonstrated a complete lack of will to hold anyone accountable for anything.  On this issue, Obama is not playing chess.  If anything, he's playing It's OK If You Are America.

                    by costello7 on Fri Apr 17, 2009 at 07:29:46 AM PDT

                    •  It's an odd kind of hubris

                      to say "I'm right, and if you disagree you're intellectually disingenuous." Let's not play that game, ok?

                      International law doesn't concern me nearly to the degree that US law does. The treaties we have ratified and the laws we have passed are the ones that matter. By those treaties and laws, yes, everyone who participated is a torturer.

                      But I also know the US court system, where these crimes must be prosecuted. And it would be all but impossible to get a conviction without being able to demonstrate that those doing the torture did not believe in good faith that the legal analysis from the DOJ was valid. To you and me and any layman, it seems obvious that they realized it was a veneer of legality at best, but proving that beyond a reasonable doubt in the prosecution of any of these individuals is nigh-impossible.

                      It will be far easier to prosecute those who crafted the policies and those under whose orders they were crafted. They, demonstrably, should have known better.

                      by raptavio on Fri Apr 17, 2009 at 07:44:35 AM PDT

                      •  I don't have the time to deal with

                        all the things you said that are wrong, but in our system we should let the jury decide whether to convict.  You are in no position to decide and you are even wrong on the law you make up.

                        by hestal on Fri Apr 17, 2009 at 08:20:18 AM PDT

                      •  Is hubris a fancy word for

                        bullshit?

                        I don't care if a conviction is not possible for some. I want them charged and tried in front of a jury.  I have faith in the majority of the American people and our core faith in our democracy, morality and the rule of law.

                        And you can't tell me that those working in the CIA didn't 'KNOW BETTER.'  They wanted to torture those prisoners and probably enjoyed doing it.  I do not want them to retain their jobs.  How can we condone the continued employment of torturers????????

                        by twinpeaks on Fri Apr 17, 2009 at 09:31:28 AM PDT

                      •  fuck that shit

                        Torture is as unconscionable as rape and "honor killings".  And trying to rationalize it or blow it off as "policy differences" is as depraved as trying to justify rape and "honor killings".

                        by Uberbah on Fri Apr 17, 2009 at 10:41:35 AM PDT

                      •  Respectfully disagree

                        If a prosecutor can't get a conviction after showing photos and video of this crap, (it DOES exist) then either his heart isn't in it, or this country is completely morally repugnant.

                        by davewill on Fri Apr 17, 2009 at 11:35:27 AM PDT

                        •  If you ask me

                          the fact that if an investigation were held it would lead to as Johnathon Turley said the quickest trial ever, because the evidence is all there, including admissions from the principles. It's obvious that this administration doesn't want this to happen. The reasons are many I suspect. Executive power ceded, perceived politics, complicity of congress, 'national security' the reasons are many but it all boils down to aiding and abetting war criminals.

                          The oath of office states defending the constitution as the first duty of the president. The weaseling of our sacred documents by sadistic lawyers and our own legislative branches needs to be overturned and repudiated. The so called intelligence community is nothing more then an American version of the KGB or the Gestapo, they should be reigned in not praised for keeping us safe. Safe from who? who is going to protect us the people and the world from these sadistic bully boys. The law is king, not Bush or Obama.      

                          by shaharazade on Fri Apr 17, 2009 at 01:20:57 PM PDT

                        •  Be that as it may, it can happen.

                          Anyone remember Rodney King?

                          Don't ever assume that this stuff is easy. It is not.

                          by LABobsterofAnaheim on Fri Apr 17, 2009 at 04:43:44 PM PDT

                      •  Abu Ghraib

                        Those who think the "just following orders" defence is legitimate might want to tell me if they felt the same way when the Abu Ghraib torturers were prosecuted and convicted.

                        Or does the fact that Obama says so make justice relative now?

                        by catnip on Fri Apr 17, 2009 at 01:15:04 PM PDT

                        •  Simple answer

                          The were following no orders given to them to commit those outrages against the dignity of their prisoners.

                          by Lib Dem FoP on Fri Apr 17, 2009 at 03:54:59 PM PDT

                          •  But there were implicit orders.

                            See Errol Morris's "Standard Operating Procedure" -- that, too, went right up to Cheney, only with better deniability.

                            by LABobsterofAnaheim on Fri Apr 17, 2009 at 04:45:41 PM PDT

                            •  From what I could see

                              The defendants in those cases seemed incapable of distinguishing a legal order, an explicit order, an implicit order or the dictates of their own warped minds.

                              by Lib Dem FoP on Fri Apr 17, 2009 at 05:25:45 PM PDT

                              •  See the movie.

                                With one or two exceptions, these weren't inherently bad people. If their minds got warped, it happened after they got there.

                                by LABobsterofAnaheim on Sat Apr 18, 2009 at 01:35:04 PM PDT

                      •  Just as you say...

                        "proving that beyond a reasonable doubt in the prosecution of any of these individuals is nigh-impossible.

                        It will be far easier to prosecute those who crafted the policies and those under whose orders they were crafted. They, demonstrably, should have known better.

                        And we will prosecute no one because, as any Marxist or student of power of any kind will tell you, power is everything.

                        All the niceties of constitution and law are window dressing on power... as Bush Cheney demonstrated and Obama has now confirmed.

                        Yes I know you believe that out there somewhere is President Feingold or President Wellstone and if he were in charge, well then it would all be different.  If that kind of optimism helps you get through your day, more power to you!

                        If you believe however that power is structural, not agential, and that the structure of relevance is economic, and ultimately rooted in capital and empire, then you will be less surprised when even a good man like Obama, upon ascending to high office, wholly adopts the perspective of the empire he now "controls" (in reality it controls him.)

                        How does this magical transformation come about?  They don't pin him down and torture him.  No, the logic of the steps he takes to get there, and the logic of the steps and obligations undertaken by Congress members, and the logic of military thinking and corporate thinking that is paid for and then feeds back its version of reality through its lobbyists and the revolving doors of employment, create an intense vortex around Washington in which it becomes too discomforting and mind bending to think in other terms.  The New President finds himself not only acting to preserve power, but probably believes himself to be acting consistent with his long and deeply held views about law and constitutional rights.

                        The Empire has no natural enemies (except perhaps internal decay and rot... or peak oil).  There is no position to stand to challenge its perspectives.  The people are plugged into the media mindstream.  Daily Kos affords us all an opportunity to protest, but in obscurity.

                        There is only and ever the interest of power, the action of power, the power of power....

                        ... and all the words and laws and screams of torture twisted bodies and media twisted minds (I mean us) mean nothing at all.

                        Only power.  Only power.  Only power.  

                        Feel the pain.

                        by Miles on Fri Apr 17, 2009 at 04:30:54 PM PDT

                    •  International law

                      should play out at two levels.

                      The administration ought to try to hew to it--and accept that the facts of U.S. law and the system may not permit full justice.

                      But that doesn't mean that the rest of the world can't pursue it without those obstacles.

                      Nor does it mean that the U.S. should obstruct it.

                      Saying "we understand you were ordered, and that you were given the utmost assurance that these were lawful orders... and that means that we won't just leave you to twist in the wind. Ethically, morally, we think that what was done--in secret--was wrong, and that you should have refused, and that refusal would have indeed been right and legal. But we owe you something, and that means you'll get legal counsel and support if/when the international community pursues it. At the same time, understand that it's ethically and legally obligatory that we not obstruct justice. You'll be given support to make your case, but you may have to face the necessity of making that case in court, and if an international case is made, the U.S. will not obstruct it."

                      by ogre on Fri Apr 17, 2009 at 10:04:12 AM PDT

                    •  "Daddy, Daddy, I'm through..."

                      No more. Plath's "Daddy" is what this "government" has become.

                      I'm through.

                      by Annalize5 on Fri Apr 17, 2009 at 02:14:15 PM PDT

                    •  Wrong

                      You seem to ignore a very important phrase in the statement those who tortured "relying in good faith upon legal advice from the Department of Justice ".

                      The advice is not from the "hall monitor" but the highest law officer in the land, An operative might therefore reasonably expect that advice to be accurate. That would form the basis of a defense and would be a powerful one. It would be very difficult to demonstrate that a defendant had not acted in good faith when they relied on the advice.

                      by Lib Dem FoP on Fri Apr 17, 2009 at 03:53:28 PM PDT

                      •  I disagree completely

                        Every country has a leader--"the highest law officer in the land".

                        Heck, during WWII, Japan's Emperor was believed by the people of that nation to be delivering the word of God himself.  Were not Japanese soldiers acting "in good faith" when the word of God, as delivered by their Emperor, was to waterboard their captives?  Surely, the word of God himself must rank higher on the "good faith" scale than the "highest law officer in the land."

                        And yet we prosecuted those soldiers.  Convicted them.  Sentenced them.  Carried out those sentences.  And no one in this country questioned those prosecutions, convictions or sentences.  Not even a little bit.

                        Sorry, but this "good faith" line is just another way of saying It's OK If You Are America.  And that is, at the very least, incredibly sad and, at the most, highly dangerous.

                        by costello7 on Fri Apr 17, 2009 at 04:44:29 PM PDT

                        •  Not really

                          Unless you expect every CIA operative and every member of the US armed forces to have their own access to an expert in international law, there comes a point where it becomes reasonable for them to accept those orders/SOPs as legal.

                          As I have said elsewhere, because of the violations of the UN Charter, a treaty the USA has ratified, the Iraq War is considered by many to be illegal. Are you, then, arguing in favor of prosecuting every soldier down to the lowliest private for waging that illegal war because they obeyed orders?

                          Unfortunately "Waging a War of Aggression" is a "Crime Against Peace" and the International Criminal Court does not yet have juresdiction over such crimes. It is therefore up to the respective countries's courts to try cases against them.

                          by Lib Dem FoP on Fri Apr 17, 2009 at 05:15:46 PM PDT

                          •  What a load of crap

                            Consistency requires that illegal wars (which Iraq clearly was) are the legal responsibility of the person who committed the troops, but torture is the legal responsibility of everyone who participated in the act, from the top of the chain to the bottom.  Generally, there's a sliding scale of culpability with the foot soldiers doing a few years of hard time while the generals and presidents are sentenced to life or executed.

                            That is the way the process has always been conducted, from Nuremberg forward.  The Laws of War have an even greater pedigree, extending back at least as far as Biblical times.  The idea that a soldier owes a duty not just to his nation, or his army, but also to his common humanity is a concept as old as civilization itself.

                            Soldiers and CIA operatives are instructed as to the general principles of torture.  Torture is the intentional infliction of physical and/or emotional suffering.  Hmmm.  Let's see.  I'm going to bounce this guy's head off a wall 20 consecutive times.  Is that an intentional infliction of physical and/or emotional suffering?  Ya think?  And waterboarding?  Even if one had somehow never heard of the practice, any human being observing the procedure would, if being honest, immediately recognize the practice as torture.

                            When you're a little kid frying bugs with your magnifying glass, you know it's wrong.  You don't need a legal opinion to figure that one out.  And no legal opinion to the contrary is really going to remove from your gut the certain knowledge that the act is wrong.

                            If you want to know whether something is torture or not, here's a hint; if an act requires a lawyer's determination as to its legality or illegality, it's torture.

                            You also completely sidestepped my point that the Japanese soldiers we prosecuted after WWII were "in good faith" carrying out the instructions of God.  Just because you don't believe in their God does not in any way make the argument less legitimate than a legal opinion from the WH.

                            The great tragedy of this discussion is that it proves that Bush and the neo-cons won.  The issue of torture is not a debatable one.  The issue of responsibility for torture is not a debatable one.  This is a very, very, very black and white issue.  The standard has been clear for decades.  But, since Bush, we have people saying there are some forms of torture that may not be torture and maybe a little bit of torture is OK and we can't hold people responsible for following orders "in good faith" and "what if there's a ticking time bomb."  It's all a crock of shit.  The neo-cons fed it to you and you ate it up.  This is exactly what they hoped and calculated would happen.

                            It's OK If You Are America.  At base, that's all any of it amounts to.

                            by costello7 on Fri Apr 17, 2009 at 10:48:13 PM PDT

                  •  Bad Faith

                    Except those torturers also knew those Do"J" memos were BS, cooked up by Cheney, who they all knew was full of BS, especially after lying us into Iraq and outing Plame (CIA/WMD).

                    The only possible out here is if Obama actually prosecutes all these torturers because they don't actually have "good faith" defenses. Everyone knows what torture is, especially those torturing actual people all day, and that it's illegal.

                    by DocGonzo on Fri Apr 17, 2009 at 07:32:27 AM PDT

                    •  It may well be bad faith.

                      But try proving it in a court of law.

                      In an ideal world, everyone who participated in this torture would be answerable to the law. In this world, however, the best I think we can reasonably hope for is the people at the top.

                      by raptavio on Fri Apr 17, 2009 at 07:38:27 AM PDT

                      •  Evidence

                        All the prosecution has to show is that the torturers knew the legal cover was BS. The interrogations were taped. That's why the CIA destroyed the tapes. Any recordings left would show any time the legitimacy was mentioned in the room, and any time the torturers reacted with anything less than perfect consistency with the legal cover. No "gallows humor" or sarcastic remarks betraying their bad faith. Given the incompetence at every level of these operations we've ever seen, I expect they betrayed themselves plenty of times over the years.

                        And all the destroyed evidence is clear evidence of bad faith by the destroyers. If no one else, those people shold get severe punishment. Which could be enough to deter future chains of command, any of which would break at a weakest link like this one, which would refuse to cooperate, and undo the chain.

                        by DocGonzo on Fri Apr 17, 2009 at 07:42:51 AM PDT

                        •  But on whose orders was the evidence destroyed?

                          Their destruction is clear evidence of the bad faith of whoever gave the order to destroy those tapes, I agree. If the choice came from down the ranks, you might be right. But if the orders came from on high, that is more grist for the "prosecute the assholes at the top" mill.

                          by raptavio on Fri Apr 17, 2009 at 07:46:14 AM PDT

                          •  begin at the bottom

                            you have to in order to get those at the top. Convictions of the lower level torturers can be mitigated for cooperating.

                            by cacamp on Fri Apr 17, 2009 at 08:12:20 AM PDT

                            •  Perhaps that's part of the strategy.

                              Immunity to encourage talking.

                              by raptavio on Fri Apr 17, 2009 at 08:45:11 AM PDT

                              •  ding ding ding!

                                I think that's exactly the strategy, and I'm patiently optimistic. Your comments rock, raptavio.

                                by ericlewis0 on Fri Apr 17, 2009 at 09:09:20 AM PDT

                                •  uh, what?

                                  To start at the bottom, Obama's DOJ would have to start with the torturers at the CIA.  He's just said he's not going to do this.

                                  by Uberbah on Fri Apr 17, 2009 at 10:43:21 AM PDT

                                •  Thank you.

                                  Nice to get a compliment :)

                                  by raptavio on Fri Apr 17, 2009 at 11:11:51 AM PDT

                              •  Isn't it S.O.P. to start at the bottom?

                                Prosecute the small fry, then make deals for more hard facts on the bigger fish and so on.  

                                by Calfacon on Fri Apr 17, 2009 at 11:33:47 AM PDT

                            •  I just cannot believe that Obama is

                              going to sweep this under the rug.  For one thing, it won't stay under the rug, there is something stinky and slithering under Bush's rug in the Oval Office.

                              I so want to cling to the idea that Obama is keeping his cards close to his vest at the moment.  If they came out right now with a special prosecutor or investigation, perhaps a lot of documents, pictures etc would disappear.

                              However, I believe that we must keep the pressure on and not give up.  Silence is the equivalent of approval.

                              Send comments to the White House:

                              http://www.whitehouse.com/...

                              Email the Department of Justice:

                              [e-mail]

                              by twinpeaks on Fri Apr 17, 2009 at 09:39:55 AM PDT

                              •  I agree: it's hard to believe Obama will duck out

                                I just can't imagine Obama, with his ethical public persona, washing his hands of this entire business. It would set such a horrible precedent.

                                Even what he has already done, in terms of exempting CIA employees from prosecution, sets a bad precedent, because even without explicit legal rulings, the next crop of torturers could say they believed what they were doing was legal.

                                Maybe Obama will get testimony under these effective grants of immunity. I hope so. The lawyers at DOJ, as well as top Bush people, are the ones that mostly deserve prosecution.

                                Finally, remember that even though some underlings have been prosecuted for events at Abu Ghraib, the military higher-ups haven't been touched. I'd guess Obama wants to avoid that pattern here.

                                I'd bet money that the new DOJ will prosecute the old DOJ personnel.

                                by dratman on Fri Apr 17, 2009 at 11:04:19 AM PDT

                                •  he just said NO

                                  and his AG is offering to defend them. Of course any good lawyer will tell them to clam up, so by doing this it pretty much ends any federal prosecution.

                                  by cacamp on Fri Apr 17, 2009 at 11:22:52 AM PDT

                                  •  And this to me is sickening n/t

                                    by Calfacon on Fri Apr 17, 2009 at 11:36:11 AM PDT

                          •  Let Them Prove It

                            When these people are accused of a crime for which evidence shows they are guilty of acting, but have exculpating arguments, the burden is on them to prove those arguments. They'd have to show evidence of those orders. Which would indeed show other crimes higher up. But they'd also have to show that a reasonable person wouldn't know those orders were illegal.

                            In the case of torture, there might indeed be some possibility that the methods were novel, outside of mention by the torturers' training and common sense, and the laws governing the boundary so complex that the legal status could possibly find that slamming someone's head into the wall 20-30 times a day somehow isn't torture. In the case of destroying the evidence, it's a lot harder for them to prove that an order to do so isn't obviously illegal, especially when the destroyed evidence shows actions like obvious torture.

                            So yeah, prosecute the higher ups. But the torture laws aren't so hard for trained military and CIA (and ex, as contractors) to recognize that these practices are torture, and that those memos are BS. So they should all hang.

                            by DocGonzo on Fri Apr 17, 2009 at 08:13:21 AM PDT

                            •  But, but . . .

                              as Doc said

                              When these people are accused of a crime for which evidence shows they are guilty of acting, but have exculpating arguments, the burden is on them to prove those arguments.

                              But we, the US, in the guise of the DOJ are going to be doing the proving for them.  As a citizen who believes in the rule of law and the Constitution - defending them in my name is a horrible miscarriage of justice.

                              by Calfacon on Fri Apr 17, 2009 at 11:40:01 AM PDT

                          •  Tapes

                            The tapes were destroyed after two years of discussions in the legal department of the CIA.

                            In describing the decision to destroy the tapes, current and former officials said John A. Rizzo, the agency’s top lawyer at the time, was not asked for final approval before the tapes were destroyed, although Mr. Rizzo had been involved in discussions for two years about the tapes.

                            It is unclear what weight an opinion from a lawyer within the clandestine service would have if it were not formally approved by Mr. Rizzo. But the former official said Mr. Rodriguez and others in the clandestine branch believed the legal judgment gave them the blessing to destroy the tapes.

                            The former official said the leaders of the clandestine service believed they "didn’t need to ask Rizzo’s permission."

                            John Rizzo is still the acting general counsel of the CIA, after having authorized the use of torture within the agency.

                            by darrelplant on Fri Apr 17, 2009 at 08:42:47 AM PDT

                            •  I'm all for prosecuting Rizzo.

                              by raptavio on Fri Apr 17, 2009 at 08:46:15 AM PDT

                              •  CIA

                                But he's one of the CIA officers who've been given carte blanche.

                                by darrelplant on Fri Apr 17, 2009 at 09:21:50 AM PDT

                                •  Not really

                                  Rizzo could be charged if there is enough evidence against him to show he acted in conscious contravention of the law -- and then it would be up to him to PROVE good faith.

                                  by Rayne on Fri Apr 17, 2009 at 09:49:12 AM PDT

                                  •  Orders

                                    He just approved the memos that came from the OLC for use within the CIA. Who was he to question the orders from above? And if there is to be no prosecution of CIA officers, then there's no reason for him to prove anything.

                                    by darrelplant on Fri Apr 17, 2009 at 10:39:38 AM PDT

                                    •  No prosecution, no peace.

                                      by Sharon Wraight on Fri Apr 17, 2009 at 01:40:48 PM PDT

                                    •  He has an OBLIGATION to the . . .

                                      . . . CONSTITUTION to question those orders. It's part of his OATH.

                                      by Orange County Liberal on Fri Apr 17, 2009 at 08:13:40 PM PDT

                            •  CIA-Acting General Counsel

                              CIA Acting General Counsel, John Rizzo

                              OGC's current Acting General Counsel, John Rizzo, has over 30 years of service to the CIA, making numerous contributions to the Agency mission throughout his career, especially while in his posts as Acting General Counsel and Senior Deputy General Counsel of the CIA. Previously, Mr. Rizzo served in other CIA leadership positions, including Deputy General Counsel for Operations and Deputy Director of the Office of Congressional Affairs.

                              Mr. Rizzo earned his undergraduate degree in political science from Brown University and graduated cum laude from George Washington Law School, where he was a member of the Law Review. Prior to joining the CIA, he practiced law for the US Department of Treasury's Office of General Counsel specializing in enforcement, customs and narcotics issues. He is a member of the District of Columbia Bar.

                              https://www.cia.gov/...

                              by allenjo on Fri Apr 17, 2009 at 04:07:42 PM PDT

                      •  Yeah, but some of us already seem to live there.

                        I'd really like to spend a vacation in the world some of these folks live in. Sometimes I get the feeling they've never heard of prosecutors going after "big fish" and not paying so much attention to minor criminals.

                        Despite the truly surprising and (to me) bizarre sound of the Spanish Court's decision, at least from what I read here -- seems to me the people who order this stuff are the most culpable, not the least -- what we really need to be pushing for here is prosecution of the Bush people who ordered this stuff.

                        Besides, we all know how the prosecution of the folks down the chain of command has been used as a form of scapegoating, even if the scapegoats are culpable themselves and deserve to be prosecuted, there is little of that much vaunted word, "justice," in going after them and ignoring the people who ordered the act with malice aforethought.

                        Of course, people here really seem to think this is all easy as pie. I suggest everyone here see Errol Morris' "Standard Operating Procedure" before being so certain that those lower level CIA people are as evil, evil, evil as they are sure they are. In a better world, some probably should be prosecuted but I guarantee you that a lot of them are angels compared to the people who created the world they were in.

                        by LABobsterofAnaheim on Fri Apr 17, 2009 at 08:15:49 AM PDT

                        •  Simple response

                          The Spanish court's argument is (to use another scenario) Augusto Pinochet was more culpable for ordering killings by the death squads than a member of a death squad for actually killing.

                          by Lib Dem FoP on Fri Apr 17, 2009 at 04:02:29 PM PDT

                      •  AI diary adresses the "good faith" argument

                        It's already slipped off the recent diary list but you really should read it if you think you're correct.

                        I guess the ACLU, AI and CCR are all radical fringe groups now according to people who are defending Obama's horrendous decision?

                        by catnip on Fri Apr 17, 2009 at 01:17:39 PM PDT

                  •  Ahh, the old

                    we can't win anyway, so why even bother.

                    Always encouraging...

                    by dfarrah on Fri Apr 17, 2009 at 08:17:08 AM PDT

                  •  I think it is time now to give up that chess game

                    theory. Yesterday's message from Obama was loud and very clear, and still boucing around inside my head.

                    Yesterday's anger has not leveled off, and I have so many more emotions today, because this is just wrong. Really Really Wrong, and I can't get past that.

                    A sad day for the rule of law, a sad day for justice, a sad day for democracy, a sad day for those who believed with Obama, we were taking our country back. A sad day for hope.

                    by allenjo on Fri Apr 17, 2009 at 08:32:17 AM PDT

                    •  Go read looseheadprop

                      She's a former prosecutor and ex-military.

                      I think she's made a very sound argument.

                      Christy also made some cogent points in comments in a previous post; allowing good faith does not constitute a Nuremberg defense.  And Christy is a former assistant prosecutor.

                      Both of them have a pretty good idea what it's going to investigate and prosecute torture.

                      by Rayne on Fri Apr 17, 2009 at 09:51:48 AM PDT

                      •  Thank you for the link

                        I followed looseheadprop closely during the Scooter Libby trial (along with Marcy, of course, and Christy).  I hope more people will go over to firedoglake and check out that diary.  It's worth a read as are  the comments.

                        by 3goldens on Fri Apr 17, 2009 at 11:00:22 AM PDT

                    •  the ACLU top lawyer

                      thinks Obama leaves the door open to prosecution. Check it out on plumline.

                      I have learned patience. This thing will not be decided in 24 hours. A lot depends on how we the people react and how Congress reacts. If Obama has some back-up I think he will be able to do the right thing. Anyone that thinks he won't have to be forced into this just hasn't paid attention to what he has said. He has always been consistent about his response to BushCo. His first priority has been ending these practices and he didn't promise much beyond that.

                      by loper2008 on Fri Apr 17, 2009 at 10:59:03 AM PDT

                      •  Yep John Dean said that too

                        On Countdown last night. But nobody cares about that part of the show...

                        by freakofsociety on Fri Apr 17, 2009 at 07:33:33 PM PDT

                  •  The memos said, we THINK these methods are

                    legal, but we make no guarantees about what the courts will say.

                    I'm not sure anyone could rely on that sort of statement in good faith.

                    by lysias on Fri Apr 17, 2009 at 08:34:05 AM PDT

                  •  Reminds me: "I like to know what I'm talking

                    about before..."

                    by Agathena on Fri Apr 17, 2009 at 09:53:31 AM PDT

                  •  Thank you.

                    I made this point multiple times yesterday, usually on deaf ears, unfortunately.  This isn't "just following orders".  This is getting a greenlight from the "top cop" that the actions are legal, that they are constitutional.  To now turn around and charge these CIA guys with a crime would unfair, and meeting the "beyond reasonable doubt" burden of proof would be impossible.  

                    In fact, now that I think of it, consider the scenario where a law enforcement agency tells someone that an action is legal, then that someone takes that action, then the same law enforcement agency charges that someone with a crime for taking that action.  Would that not be considered entrapment?  I could see a judge throwing out such a case based on that before letting it even get to a jury.

                    Prosecutors do weigh their chances of winning when deciding whether to go forward with a case.  I can't see any prosecutor going forward with a case against these CIA guys since there's no way to win.

                    Now, Obama and Holder said the CIA interrogators acting in "good faith" wrt the DOJ memos wouldn't be prosecuted.  But if it could be proved that a CIA interrogator didn't act in "good faith" wrt the memos (e.g. did things beyond what even the memos said were legal), then he could be prosecuted and that case could actually be won.

                    P.S.
                    I watched Keith Olbermann last night.  I knew that he would be pissed, but was very disappointed to see him go with the "just following orders" line.  He's normally much smarter than that.

                    by Escamillo on Fri Apr 17, 2009 at 10:22:24 AM PDT

                    •  no distinction OR difference

                      This isn't "just following orders".  This is getting a greenlight from the "top cop" that the actions are legal, that they are constitutional.  To now turn around and charge these CIA guys with a crime would unfair

                      Germany's policy towards Jews also came from the top.  This is still the Nuremberg defense, straight up.

                      by Uberbah on Fri Apr 17, 2009 at 10:47:03 AM PDT

                      •  Panetta's statement

                        Director of the Central Intelligence Agency Leon E. Excerpt from Panetta on the Release of Department of Justice Opinions

                        The President and the Attorney General have also made clear that there will be no investigation or prosecution of CIA personnel who operated within the legal system. In addition, the Department will provide legal representation to CIA personnel subject to investigations relating to these operations

                        --

                        Mission: The Central Intelligence Agency (CIA) is an independent US Government agency responsible for providing national security intelligence to senior US policymakers.

                        https://www.cia.gov/...

                        by allenjo on Fri Apr 17, 2009 at 04:38:12 PM PDT

                      •  You make a good point.

                        Escamillo's case is interesting, but with Nuremberg as a precedent, I'm not so sure it holds water.

                        Certainly, Germany in 1944 really was a place where "if the Fuhrer does it, it is not illegal." Certainly, those Germans believed that disobeying an order from above was illegal.

                        The question is: where does international law or basic morality trump ordinary or domestic law?

                        by LABobsterofAnaheim on Fri Apr 17, 2009 at 04:54:34 PM PDT

                      •  Nuremberg is a poor analogy.

                        I would think the difference is quite obvious.  Germany didn't put it's own people on trial, the allies did.  In Nuremberg, the victors of a war tried the losers.  That's completely different from the USDOJ charging people with crimes for doing things that the USDOJ itself greenlighted.  

                        The fact is, in this country, if law enforcement agencies do something to lure someone into committing a "crime" that they wouldn't have otherwise committed, then it's entrapment.  You can't use Nuremberg to get around laws against entrapment.  In order to win a case against the CIA interrogators, you'd have to prove that they would have used the same methods of interrogation even without the DOJ OK'ing them.  I've yet to see evidence of that, and these memos certainly are not proof of that (quite the contrary) so they wouldn't be the impetus of such a charge.

                        by Escamillo on Fri Apr 17, 2009 at 08:35:05 PM PDT

                        •  Nurembert is a PERFECT analogy

                          Fixed that for you.  The only difference now, is...

                          Germany didn't put it's own people on trial, the allies did.  In Nuremberg, the victors of a war tried the losers.  That's completely different from the USDOJ charging people with crimes for doing things that the USDOJ itself greenlighted.

                          ...now you have a nice list of distinctions, but still no difference to the point that "I was just following orders" is not an excuse.

                          by Uberbah on Mon Apr 20, 2009 at 05:05:54 AM PDT

                  •  If the legality was so uncertain that

                    the people actually physically doing the torture and hearing the screams thought it was not criminal because of the Yoo/Bybee torture memos, then wasn't the legality uncertain enough to make Yoo/Bybee's actions not criminal?

                    I'm probably not explaining this well, but I think the actual torturers have to be prosecuted, and that without that, Yoo and Bybee will walk.    

                    by VincaMajor on Fri Apr 17, 2009 at 12:15:46 PM PDT

                    •  David Bromwich said it better

                      http://www.huffingtonpost.com/...

                      It may seem that the worst of the torture amnesty is that by exonerating those who committed illegal acts, it discredits any eventual prosecution of those who gave the orders. The release of agents from the imputation of criminal conduct also implies a redefinition of the acts themselves as not criminal; and if no crime was committed when a person did a thing, no crime was meditated when a person ordered the thing done.

                      Bromwich's entire analysis of Obama's torture apology speech is brilliant.

                      by VincaMajor on Fri Apr 17, 2009 at 11:13:08 PM PDT

                  •  I've heard this argument before about how

                    "Obama isn't finished yet. He's just working to get more information published that will create a massive public outcry for justice, the kind of outcry that will force his hand to investigate and prosecute those who ordered the use of torture at the highest levels of the Bush Executive Branch."

                    Yeah, I happen to think a million people demonstrating in Washington would force his hand in that direction but for no other reason than that those million demonstrators would act as his "cover story." And that's not good, because investigating the Bush administration is something he should've done without the public standing on his neck.

                    After all, based on all the evidence in the public domain, investigations and prosecutions are appropriate actions. If he needs "public cover" to do what is appropriate, then his only reason for not doing so is purely political. And to say "this is a time for reflection rather than for retribution," is like saying upholding the rule of law is "payback" not justice; that inaction against injustice is preferable to taking action against injustice, because taking action means arousing political passion which endangers political agendas.

                    Constitutional Law Professor Jonathan Turley explained an interesting point on Rachel Maddow's show last night. He said that if President Obama simply appointed a Special Prosecutor to investigate the use of torture by the US, he would create an independent body, whose sole purpose would be to take the matter out of the hands of the Executive Branch. It would be the work of the Office of the Special Prosecutor to make the determination as to whether or not investigations would lead to criminal prosecutions, not the President, nor by the Attorney General.  

                    But by placing himself squarely in the middle of the debate, and making decisions as to whether or not investigations and/or prosecutions should even proceed, the President is clearly covering for the previous administration and in so doing is leaving a gaping hole for future presidents to repeat or even go beyond the actions of the Bush administration in the future.

                    The President has perhaps made this decision based on his very high approval numbers. Maybe he's confident that his popularity can take a hit and come back at a later time when this moment has faded from public memory. The problem is that history teaches us that moments such as this do not fade from public memory, they become the flashpoints of presidential legacies:

                    Gerald Ford's pardon of Richard Nixon is the highlight of his one-term presidency; Ronald Reagan's Iran-Contra scandal, at the time, resulted in the largest single drop in popularity for any US president. George H.W. Bush pardoned six convicted Reagan administration officials and even hired one of them to serve in his one-term administration. While many of the early Iran-Contra indictments and convictions were overtured or vacated, even Reagan had the good sense to appoint an Independent Counsel, Lawrence Walsh. Of course Bill Clinton's Monica Lewinisky scandal and his subsequent impeachment overshadows his two-term presidency to this day. Here again, an Independent Counsel had been appointed, in this case it was Ken Starr.

                    Compared to Nixon, Reagan, George H.W. Bush, or Clinton, President Obama's decision to not pursue investigations nor prosecutions for the illegal use of torture by the George W. Bush administration is even more egregious. Now international laws are broken and/or ignored; now long standing international treaties are violated and/or ignored; now US law is violated and/or ignored; now pardons are issued without even the administration of justice; and the will of the people is thwarted and deemed a desire for "retribution" rather than a call for thoughtful justice -- all this while two wars rage on in the Middle East, the very region where many of the tortured, whether guilty or innocent are from. No, this is not a minor blip on the meter of a popular president, this is a major flashpoint that will not be snuffed out by time.

                    by Freedom234 on Fri Apr 17, 2009 at 03:29:44 PM PDT

                    •  I am with you Freedom234, well said

                      This is not a minor blip on the Obama meter that will fade away, and it will not go away. It was the line was drawn in the sand.

                      The President has perhaps made this decision based on his very high approval numbers. Maybe he's confident that his popularity can take a hit and come back at a later time when this moment has faded from public memory. The problem is that history teaches us that moments such as this do not fade from public memory, they become the flashpoints of presidential legacies:

                      Gerald Ford's pardon of Richard Nixon is the highlight of his one-term presidency; Ronald Reagan's Iran-Contra scandal, at the time, resulted in the largest single drop in popularity for any US president. George H.W. Bush pardoned six convicted Reagan administration officials and even hired one of them to serve in his one-term administration. While many of the early Iran-Contra indictments and convictions were overtured or vacated, even Reagan had the good sense to appoint an Independent Counsel, Lawrence Walsh. Of course Bill Clinton's Monica Lewinisky scandal and his subsequent impeachment overshadows his two-term presidency to this day. Here again, an Independent Counsel had been appointed, in this case it was Ken Starr.

                      by allenjo on Fri Apr 17, 2009 at 04:43:38 PM PDT

                  •  Good response but people really need to lose

                    the chess game analogy. I usually give Obama the benefit of the doubt but even I am getting tired of it.

                    by freakofsociety on Fri Apr 17, 2009 at 03:54:06 PM PDT

                •  Ja, ja - only "enhanced evacuation techniques."

                  Alles ganz legal.

                  by lotlizard on Fri Apr 17, 2009 at 07:42:53 AM PDT

                •  By the looks of things US presidents

                  would have arguments to absolve themselves from eating babies as well. Just file them under "states secrets," "national security," "executive order" or "Authorization to Use Force" and there you go.

                  by Freedom234 on Fri Apr 17, 2009 at 12:15:47 PM PDT

              •  John Demjanjuk

                should have worked for the CIA!

                If you think that what happened during WW II is all in the past, look up John Demjanjuk who is alleged to have been an SS guard in Treblinka and still lives in the United States.

                If this man had worked for the CIA instead, then what?

                by Fabian on Fri Apr 17, 2009 at 07:16:06 AM PDT

                •  It certainly is ironic

                  that the USA has been trying to deport him to face war crimes charges in Germany, at the age of 89 (for the record, I think that they should deport him to face charges) but won't prosecute our own, much more recent, war crimes, because it is time to move on.

                  by Lost Left Coaster on Fri Apr 17, 2009 at 07:27:23 AM PDT

                  •  It certainly makes Germany

                    look more interested in accountability than the USofA is.

                    by Fabian on Fri Apr 17, 2009 at 07:31:41 AM PDT

                    •  So has it always been...

                      For the losers in a war. There, I'm afraid, is your difference.

                      by LABobsterofAnaheim on Fri Apr 17, 2009 at 08:17:02 AM PDT

                •  if he worked for the CIA

                  , which he didn't of course, but if he had, he must have reported directly to Bush 1 and carried out his orders.

                  by FreeTradeIsYourEpitaph on Fri Apr 17, 2009 at 08:02:56 AM PDT

            •  this Nuremberg prosecutor

              also got his law degree from Yale and prosecuted the General Counsel of nazi germany.  He's still kicking but in poor health and he sent me some of his speeches, perhaps I'll ask him to send me all his old speeches.  I only have the ones he gave to federal judges in recent years alluding to the validity of war crimes committed by the bush administration.

              http://en.wikipedia.org/...

              http://www.lauferfilm.com/...

              by FreeTradeIsYourEpitaph on Fri Apr 17, 2009 at 08:00:05 AM PDT

              •  could you abreviate his opinion?

                did he oppose Bush torture? strongly?

                by cacamp on Fri Apr 17, 2009 at 08:14:38 AM PDT

                •  yes

                  he told me himself bush was violating international law.  

                  by FreeTradeIsYourEpitaph on Sun Apr 19, 2009 at 08:53:45 PM PDT

                •  specifically

                  the Universal Code for Military Justice is blatantly being violated though there is more to it than just that.

                  by FreeTradeIsYourEpitaph on Sun Apr 19, 2009 at 08:54:53 PM PDT

            •  Then You Ought To Know Better

              So should Greenwald (NYU Law, eh maybe not so much).  The International Convention he cites says that it is not a defense if the torturer acted on the basis of an order from a superior.  However, that is not what Obama and Holder are saying.  They said that if a CIA agent acted in good faith reliance upon legal advice received from the DOJ, then they will not be prosecuted.  That is not the "Nuremberg defense" - that is simply a recognition of the long-standing principle of Federal criminal law requiring "specific intent" to commit a crime, an element that is negated by "good faith reliance on legal advice" - precisely what Holder and Obama are talking about.  If the agents had been told by their superiors "Look, we don't care whether this is legal or not, we are ordering you to do it", then the agents would not have a defense, either under the International Convention or under US law.  However, that is not what Obama is talking about.  The agents were told by Bybee and others at DOJ that their conduct did not constitute "torture" prohibited by law.  Under these circumstances, their prosecution, assuming the agents relied on that legal advice in good faith, would not be consistent with US law, and there is nothing in the International Convention to the contrary.

              by Prince Nekhlyudov on Fri Apr 17, 2009 at 09:16:21 AM PDT

              •  Nuremburg defense w/ certificate of authenticity

                I recall a Dilbert strip from a few years ago, which when something like this:

                Dogbert hands someone (I forget who) a piece of paper, telling the person to do something.  The piece of paper is signed by Jesus.  The person naturally points out that this is ridiculous, to which Dogbert whips out a Certificate of Authenticity that proves that yes, it was signed by Jesus.

                The agents were told by Bybee and others at DOJ that their conduct did not constitute "torture" prohibited by law

                This is the Nuremburg defense with a 'Certificate of Authenticity' on top.  Too bad for the defendants at the 1945-46 trials that they didn't know that while "just following orders" wasn't an excuse, "having a memo that says gassing Jews is okay" would have gotten them off scott free.

                Under these circumstances, their prosecution, assuming the agents relied on that legal advice in good faith, would not be consistent with US law, and there is nothing in the International Convention to the contrary.

                

                by Uberbah on Fri Apr 17, 2009 at 03:09:31 PM PDT

        •  Last I checked

          the law didn't require prosecutions in any event for any matter.   The argument for prosecutions is not legal but moral and political.....which means that "running the country" is a legitimate counterweight to any argument for prosecutions.

          by Inland on Fri Apr 17, 2009 at 07:03:37 AM PDT

          •  Please reference

            It's an interesting theory, that the government has no duty to enforce the laws.

            by lgcap on Fri Apr 17, 2009 at 07:13:36 AM PDT

            •  The Executive's job is to....?

              Three Ring Circus may be more than just some Schoolhouse Rock song.

              by Fabian on Fri Apr 17, 2009 at 07:17:45 AM PDT

            •  Prosecutorial discretion is absolute.

              The term "prosecutorial discretion" refers to the fact that under American law, government prosecuting attorneys have nearly absolute and unreviewable power to choose whether or not to bring criminal charges, and what charges to bring, in cases where the evidence would justify charges. This authority provides the essential underpinning to the prevailing practice of plea bargaining, and guarantees that American prosecutors are among the most powerful of public officials.

              I don't know this site, it's just the first that came up in the google of "prosecutorial discretion".

              If you don't like the way that the discretion is handled, your remedy is to vote against the prosecutor.  I think that what people are raising is, more people would be against the prosecution of some low level CIA guys than for it and would vote for Future Bush in response.  

              by Inland on Fri Apr 17, 2009 at 07:33:54 AM PDT

              •  This is patently absurd. A prosecutor

                who does not prosecute is subject to prosecution himself.

                by hestal on Fri Apr 17, 2009 at 08:23:30 AM PDT

                •  That's not the case at all.

                  A prosecutor (1+ / 0-)
                  Recommended by:lgcap
                  who does not prosecute is subject to prosecution himself.

                  You can google "prosecutorial discretion" and get all the reference materials you need to know that's simply not true.  Sorry.  

                  by Inland on Fri Apr 17, 2009 at 08:40:44 AM PDT

                  •  No, I am right, you are wrong, and it

                    gives me great pleasure to remind you of that fact.

                    by hestal on Fri Apr 17, 2009 at 08:55:26 AM PDT

                    •  Thanks for the trolling alert.

                      Saves me lots of time knowing that your intention is to post to me forever with the same mistake.

                      by Inland on Fri Apr 17, 2009 at 08:57:51 AM PDT

              •  Prosecutorial misconduct

                The government has a responsibility to prosecute crimes. Selective prosecution is an abuse of discretion.

                by lgcap on Fri Apr 17, 2009 at 09:13:20 AM PDT

                •  So criminal defendants have claimed to no avail.

                  Criminal defendants try to argue that since other, similarly situated persons were not prosecuted, they shouldn't be prosecuted either.  Not suprisingly, it never works in a court of law.  In the political arena, where the prosecutor is running for election, sure.

                  Besides, it's not a selective prosecution.  Nobody is being prosecuted.

                  by Inland on Fri Apr 17, 2009 at 11:01:52 AM PDT

                  •  That's the wrong side of the argument...

                    of course that didn't work. The point here is that if you can show that the prosecutor is using his discretion for illegal purposes: personal or political gain, then you would have a case to prosecute him for it.

                    by davewill on Fri Apr 17, 2009 at 11:41:03 AM PDT

                    •  No, that's not the point.

                      The point here is that if you can show that the prosecutor is using his discretion for illegal purposes: personal or political gain, then you would have a case to prosecute him for it.

                      Nobody's suggesting prosecuting Obama.  They are suggesting that Obama is obligated legally regardless of his good purpose.

                      by Inland on Fri Apr 17, 2009 at 04:32:06 PM PDT

                      •  Well, I'm suggesting that

                        NOT investigating or prosecuting is tantamount to a coverup. That's criminal.

                        by davewill on Fri Apr 17, 2009 at 04:41:50 PM PDT

                        •  Sure, EVERYONE is a criminal now.

                          Crime is in the air.  All you have to do is breathe.

                          by Inland on Fri Apr 17, 2009 at 07:00:54 PM PDT

          •  Where in the fuckin' hell did you get

            the idea that "the law" does not "require prosecutions in any event for any matter"? Not only is that as wrong as can be -- government officials vested with the responsibility of enforcing our nation's laws absolutely have a duty to prosecute where there's evidence of wrongdoing -- but it's downright scary to think that some people actually believe that the enforcement of the law is entirely a matter of political discretion. That's called a dictatorship, or fascism.

            by pragprogress on Fri Apr 17, 2009 at 07:30:08 AM PDT

            •  Um....from the law?

              The term "prosecutorial discretion" refers to the fact that under American law, government prosecuting attorneys have nearly absolute and unreviewable power to choose whether or not to bring criminal charges, and what charges to bring, in cases where the evidence would justify charges. This authority provides the essential underpinning to the prevailing practice of plea bargaining, and guarantees that American prosecutors are among the most powerful of public officials.

              http://law.jrank.org/...

              People who think that the criminal law is the way to handle this should be aware....the law isn't nearly as useful as it seems in the first blush of discovery.

              by Inland on Fri Apr 17, 2009 at 07:35:38 AM PDT

              •  keep reading

                there are penalities for wrongful prosecution and remedies for the lack of prosecution such as speacial prosecutors and different juridictions.

                by cacamp on Fri Apr 17, 2009 at 08:18:44 AM PDT

                •  All of which is irrelevant to the issue at hand.

                  eom

                  by Inland on Fri Apr 17, 2009 at 08:34:40 AM PDT

              •  The law

                   

                " The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

                Berger v. U.S., 295 U.S. 78, 88 (1935).

                   

                by lgcap on Fri Apr 17, 2009 at 09:43:27 AM PDT

                •  Not on prosecutorial discretion. nt

                  by Inland on Fri Apr 17, 2009 at 10:57:16 AM PDT

                  •  Yes, on discression

                    It is precisely on point.

                    In legal authority, the Supreme Court is the law. It even supersedes a Google link.

                    by lgcap on Fri Apr 17, 2009 at 11:19:45 AM PDT

                    •  Never mentions prosecutorial discretion.

                      I think that would be your first clue that it's irrelevant to the issue of prosecutorial discretion.  Second clue would be, no mention of a legal obligation to bring any particular type of case in any circumstance.  Third clue would be, it wasn't a case where someone asked for a prosecutor to be ordred to bring a case.

                      Hm, your interpretation versus my own eyes and a Google link.  I'm going with my own eyes and a Google link.  At least it mentions the subject.

                      by Inland on Fri Apr 17, 2009 at 06:59:39 PM PDT

                      •  It doesn't use the words

                        "prosecutorial discretion," that's true.

                        by lgcap on Fri Apr 17, 2009 at 07:47:09 PM PDT

                •  "justice"

                  How quaint.

                  (Apparently.)

                  by catnip on Fri Apr 17, 2009 at 01:25:49 PM PDT

              •  That's exactly the point!!!

                The attorney has presecutorial discretion so that they can be shielded from political pressure. Politicians don't decide whether to enforce the law; a semi-independent judiciary does. When devolve into a society where politicians decide when and where to enforce the law instead of attorneys protected from political presure and guided by legal ethics, then we will have become just like any other banana republic with no real legal system at all, just a political system.

                by pragprogress on Fri Apr 17, 2009 at 11:38:37 AM PDT

          •  The treaty in question, however, does

            require prosecution. And signed and ratified treaties are the supreme law of the land.

            by Robobagpiper on Fri Apr 17, 2009 at 07:38:06 AM PDT

            •  It doesn't.

              It requires referral to the prosecuting authority.  Nothing about what steps have to be taken to prosecute, which makes sense: if the convention were meant to require prosecutions, it would have dictated the evidence necessary to do so.  Otherwise, you'd have prosecutions based on flimsy or no evidence.  

              BTW, ratified treaties are not the supreme law of the land.  The Consitution is, and the constitution vests executive power solely in the president.

              by Inland on Fri Apr 17, 2009 at 07:43:36 AM PDT

              •  "Supreme law of the land"

                is a direct quotation from the Constitution, regarding the status of treaties.

                by Robobagpiper on Fri Apr 17, 2009 at 07:47:24 AM PDT

                •  Treaties don't amend the constitution.

                  And no treaty can be contrary to the constitution.  

                  by Inland on Fri Apr 17, 2009 at 07:58:45 AM PDT

                  •  And a requirement to refer to prosecuting

                    authority, and failing that, the right to prosecute devolving to other signatory nations, in no way violates the Constitution.

                    We're not talking about Texas' "right" to split into 5 parts here.

                    by Robobagpiper on Fri Apr 17, 2009 at 08:04:25 AM PDT

              •  Article Six of the United States Constitution:

                This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

                Heh.

                by lotlizard on Fri Apr 17, 2009 at 07:49:03 AM PDT

                •  Um.

                  and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

                  Treaties are superior to the constitution and laws of any state. No surprise there.

                  by Inland on Fri Apr 17, 2009 at 08:01:07 AM PDT

              •  You do realize

                that you are, in effect, defending torture right?

                I am SURE you will come up with a clever legal reason 'proving' why you are not.

                But you are.

                by buhdydharma on Fri Apr 17, 2009 at 08:11:43 AM PDT

                •  Just like some defended terrorists, in Bush's eye

                  People should be able to defend the law and comment on the law without being accused of being pro-crime or pro-criminal.  

                  If we had a person who could stand up to Bush and tell him that the law even protected suspected terrorists, we wouldn't be having this discussion.

                  But no, Bush listened to the guy who dismissed it all as "clever legal reasonsing" that "defended terrorism."

                  Whatever mistakes Obama makes, it's not going to be listening to the likes of someone who poo poos the law as irrelevant.   Get used to it.

                  by Inland on Fri Apr 17, 2009 at 08:50:34 AM PDT

                  •  Stand up to Bush?

                    If we had a person who could stand up to Bush and tell him that the law even protected suspected terrorists, we wouldn't be having this discussion.

                    News flash: We're still not standing up to Bush, despite Obama's presence in the White House. It is as if Bush's power still has some remaining presence, as if Obama is still sharing the power with Bush's ghost.

                    by ZhenRen on Fri Apr 17, 2009 at 08:57:09 AM PDT

                  •  You are stacking MERE prosecutorial discretion

                    up against this.

                    Convention Against Torture -- signed by Reagan in 1988, ratified in 1994 by Senate:

                       Each State Party shall ensure that all acts of torture are offences under its criminal law (Article 4) . . . . The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

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

                    Geneva Conventions, Article 146:

                       Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.

                    Charter of the International Tribunal at Nuremberg, Article 8:

                       The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

                    U.S. Constitution, Article VI:

                       [A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.

                    In my opinion it is you who is poo pooing the law as irrelevant.

                    Discretion is choice.

                    Your defense of torture is that we can choose not to even try to enforce those laws in the case of the most heinous crimes that humans can commit.....torturing people to death.

                    You poo poo the spirit of the law in favor of the letter of the law.

                    You are advocating, in this case, fallible men choosing the letter of the law for political advantage in not enforcing the law, over the spirit of the law.

                    Who is doing "the law" more disservice, you or I? Who is calling the law irrelevant, if the law  is not used to prosecute the most heinous of crimes?

                    Yoo, Bybee, and Bradbury just proved the law can be perverted to serve political ends. You are arguing the same thing. That Obama has the choice not to prosecute for political reasons.

                    Will you stand up to Obama?

                    Or will you give him every legal out, as Yoo, Bybee, and Bradbury did for Bush, to use the law to thwart justice?

                    by buhdydharma on Fri Apr 17, 2009 at 09:15:08 AM PDT

                    •  How Cheneyesque of you.

                      You can't stop confusing a comment on the law with defending criminals.  

                      I'm sure your method of discussion is how torture got approved in the Bush administration: Cheney browbeating some legal counsel and telling him that talking about the law is siding with terrorists.  If we had a guy willing to tell him to just stuff it, we wouldn't be in this situation.

                      I'm sure there's lots of a good faith reason to prosecute someone, but you wouldn't have one.  Not when you tar all legal commentary as siding with torture.  

                      Frankly, you're just illustrating more good reasons to skip prosecution, since you won't accept a fair trial, not with that attitude.  There's no defending the rule of law by appeasing those who don't value the rule of law.

                      by Inland on Fri Apr 17, 2009 at 09:32:39 AM PDT

                      •  Linear thinking

                        You're not seeing the big picture here, Inland. Torture is such a toxic, heinous, infectious act, that it must always be opposed, prosecuted, denounced, and stopped in it's tracks. Those who engage in it, especially high level officials, must be brought to light for the sake of the global community. Your defenses, whatever logical appeal they may have to your mind, are just not strong enough to override the larger, global, big picture concerns. Just consider the history.

                        by ZhenRen on Fri Apr 17, 2009 at 09:41:14 AM PDT

                        •  Entirely too mystical for me.

                          It's harder to think of a bigger concern than avoiding another Bushlike presidency.  

                          opposed, prosecuted, denounced, and stopped in it's tracks.

                          Obama's done three out of four.

                          by Inland on Fri Apr 17, 2009 at 09:45:40 AM PDT

                          •  You're just not grasping the obvious

                            It's harder to think of a bigger concern than avoiding another Bushlike presidency.  

                            How are we avoiding another Bush presidency by not opposing the most oppressive acts of the Bush administration? By not countering the precedent that Bush/Cheney set for the presidency, we are creating the opportunity for a future administration to emulate Bush. We are not only avoiding such a fate, we're doing all we can to insure it.

                            by ZhenRen on Fri Apr 17, 2009 at 11:00:49 AM PDT

                            •  Um.

                              How are we avoiding another Bush presidency by not opposing the most oppressive acts of the Bush administration?

                              We are opposing them, and indeed stopping them.  Thanks to an election.

                              I don't know how I could be more simple and obvious than that.

                              by Inland on Fri Apr 17, 2009 at 11:04:00 AM PDT

                              •  We're allowing the precedent to stand

                                by not declaring the perpetrators to have engaged in criminal acts and holding them legally accountable. It's great that Obama claims to have stopped torture, but that falls far short of sending a message to future officials that there will be consequences if they ever again resort to torture.

                                by ZhenRen on Fri Apr 17, 2009 at 11:11:32 AM PDT

                                •  What precedent?

                                  The word means that Obama can't stop torture, period.  It's silly.

                                   It's great that Obama claims to have stopped torture, but that falls far short of sending a message to future officials that there will be consequences if they ever again resort to torture.

                                  I've already addressed that.  Even if the prosecutions are successful, you're guessing that future officials will see their situations as the same when the president gives them the go ahead.  

                                  Here's something that isn't guesswork:  Don't have a president that gives them the go ahead.

                                  by Inland on Fri Apr 17, 2009 at 04:35:38 PM PDT

                                  •  Oh my...

                                    Inland, when laws are not enforced, it sets a precedent for ignoring the law in the future, especially in the executive branch of government.

                                    We're going in circles, and repeating the debate. I'll leave you the last word. I've no use for this anymore. Enjoy.

                                    by ZhenRen on Fri Apr 17, 2009 at 04:47:43 PM PDT

                                    •  It most certainly does not.

                                      A "precedent" would mean others are obligated to follow.  Presidents following Obama are as obligated to follow him to the same extent Obama is obligated to follow Bush.  And you, I think, agree that Obama isn't obligated to rely on Bush's opinion of the law.

                                      by Inland on Fri Apr 17, 2009 at 05:20:08 PM PDT

                                      •  Not obligate

                                        Rather, it allows. It gives latitude to policy and behavior. In fact, Obama is continuing some precedents set by Bush with the state secrets defense, and with the continuing operation of the detainee center in Bagram in which detainees are brought from locations outside Afghanistan and held without trial.

                                        Sorry, had to answer.

                                        According to some constitutional scholars, Obama doesn't really have a choice but to uphold the various constitutional prohibitions that Bush violated. That he does ignore this makes it easier for the next guy to do the same.

                                        It seems you don't mind this pushing the envelope of executive power.

                                        by ZhenRen on Fri Apr 17, 2009 at 06:14:42 PM PDT

                            •  Meant to say

                              "We are not merely failing to avoid such a fate, we're doing all we can to insure it."

                              by ZhenRen on Fri Apr 17, 2009 at 11:05:57 AM PDT

                      •  You keep pushing the discretion meme

                        why?

                        (I'll just ignore your insults and the fact that you have no response but insult to my points, like a "good lawyer" does when he is wrong.)

                        Why do you bring up this particular "comment on the law."

                        Iow, why do you think there should be no justice, at the discrcetion of the AG.

                        Cui Bono?

                        by buhdydharma on Fri Apr 17, 2009 at 09:44:27 AM PDT

                        •  You keep pushing the "defending criminals" meme.

                          That's okay.  Lawyers are used to it.  Cui bono?  If you have to ask, then you don't understand the rule of law.

                          by Inland on Fri Apr 17, 2009 at 09:47:16 AM PDT

                          •  Ooooh...another non-answer!!!

                            You are a good lawyer aren't you!

                            And a complete waste of time, since all you can do is wriggle and squirm, apparently.

                            by buhdydharma on Fri Apr 17, 2009 at 09:59:37 AM PDT

                            •  Yes, those pesky lawyers and their laws.

                              How can one expect to protect the US from the terrorists/torturers [select one] with them around?    All they care about is their laws, which is terrible for freedom/rule of law [select one].  As soon as we stop paying attention to them, we can keep America safe.

                              Signed, Cheney/buhdydharma [select one]

                              by Inland on Fri Apr 17, 2009 at 10:53:19 AM PDT

                              •  So show me the LAW

                                that spells out the statutes and guidelines on prosecutorial discretion.

                                Is that discretion absolute?

                                Can it be challenged?

                                Where is it codified?

                                And again, according to them, all Yoo and Bybee and Bradbury cared about was the law too, right?

                                So you compare me to cheney, and I will compare you to Yoo and Bybee and Bradbury. You are using the law for your own ends.

                                Claiming that discretion takes precedence over prosecuting people for torture is twisting the law as much as they did.

                                So.....what ARE your ends? Why do you keep bringing up discretion to defend against prosecuting torture? How do YOU benefit from it? (Cui Bono) What are you trying to do by constantly bringing it up?

                                by buhdydharma on Fri Apr 17, 2009 at 12:02:56 PM PDT

                                •  Well ...

                                  ... I found something kind of interesting, just an opinion piece, on this subject:

                                  As the power of prosecutors relevant to other actors in the criminal justice system has grown, as sophisticated defense lawyers have come to appreciate that power, and as conscientious prosecutors have sought to define relevant standards and provide for internal review, an increasing proportion of criminal law practice has come to involve negotiations with or presentations to prosecutors, as opposed to arguments before courts and juries. For the vast majority of defendants—probably over 90 percent—the most important decisions affecting their fate are made in prosecutors offices rather than in courtrooms. Some observers have suggested that prosecutorial decision-making is so important that we have in effect created a criminal justice system that in reality is inquisitorial and administrative, rather than adversarial and judicial. It may be that the most important developments in American criminal procedure in the new century will involve the effort to render that system more public and accountable by regulating in various ways the procedure and substance of discretionary prosecutorial decisions.

                                  (Emphasis mine).

                                  I'm not of the mind to blithely praise lawyers these days, even though I work for some damned good ones.  After reading those memos - bleh.  And I am extremely disgusted that the professional lawyer associations did almost nothing in opposition to Yoo and Bybee when they could have at least condemned them.  I believe the American Bar Association wrote a memo against torture, but I couldn't find any real opposition by the profession itself.

                                  There are some good lawyers here who have made the case for prosecutions.  There are others who simply want to beat folks about the head on legal technicalities we already know about.  I'll leave you to guess which one I'm referring to here.

                                  by Nightprowlkitty on Fri Apr 17, 2009 at 12:25:22 PM PDT

                                •  No.

                                  Legal discusssions are reserved for people who don't throw the shit of "you're siding with terrorists/torturers" in response.  Life's too short to argue with you as if you're talking in good faith.

                                  by Inland on Fri Apr 17, 2009 at 03:25:50 PM PDT

                                  •  Aw shucks

                                    your just being all nice after a buncha folks called you on your bs.

                                    Stop flattering me like that!

                                    by buhdydharma on Fri Apr 17, 2009 at 09:48:38 PM PDT

                                    •  "You're siding with torturers" isn't a winner.

                                      You think it is. You think it's the trump that makes discusssion of law unnecessary.  Like Cheney and his "siding with terrorists" and dire warnings about the future if the law is followed.  What was that star trek episode with Frank Gorshin?  I say leave you both on the destroyed planet to fight it out without the law.

                                      by Inland on Sat Apr 18, 2009 at 07:26:14 AM PDT

                                      •  Saying that because your discretion fixation

                                        is bs doesn't make 'against the law' anymore than it makes you a terrorost, doofus.

                                        It IS saying that continually offering discretion as THE reason why we shouldn't prosecute makes you a doofus, doofus.

                                        All concepts are not equal under the law.

                                        Try this

                                        Not prosecuting heinous War Crimes with ONLY discretion as your excuse is wrong.

                                        Or is "wrong" not a legal concept that you comprehend?

                                        War Crimes BIG!, Discretion small.

                                        So....must prosecute BIG War Crimes.

                                        Despite the existence of the ...small....out that discretion gives.

                                        Get it?

                                        One more try.

                                        There are some crimes so heinous that you MUST prosecute them...even if you do have the excuse of discretion not to.

                                        It's called morality. If the law is used immorally, as Yoo, Bybee and Bradbury did....that is WRONG.

                                        Capisce?

                                        And now you are proposing to NOT prosecute that wrong....based on the tiny little concept...relatively....of discretion.

                                        I hope that gives you a clue as to why so many folks called bullshit on you.

                                        by buhdydharma on Sat Apr 18, 2009 at 09:18:24 AM PDT

                                        •  I'll save the law for someone who cares.

                                          Someone who won't accuse me of siding with torturers or terrorists for it.  That isn't you.

                                          by Inland on Sat Apr 18, 2009 at 11:43:08 AM PDT

          •  What a bunch of crap.

            by hestal on Fri Apr 17, 2009 at 08:22:15 AM PDT

          •  Whaaaaat The F@#$#%!!???

            "running the country" is a legitimate counterweight to any argument for prosecutions.

            Time warp.  Warning - Time Warp - Now entering 2001

            by Calfacon on Fri Apr 17, 2009 at 11:44:14 AM PDT

        •  It's a little like what G. B. Shaw said....

          about Chrisitianity (paraphrase): "It would be a lovely idea if anyone ever tried it."

          There are reasons, however, why it is rare...and all but unheard of.

          by LABobsterofAnaheim on Fri Apr 17, 2009 at 08:02:24 AM PDT

        •  Do you even know what the law is

          regarding the concepts of prosecutorial discretion and reasonable doubt?

          by Geekesque on Fri Apr 17, 2009 at 06:08:01 PM PDT

      •  Unlucky for Obama that he does

        It's Obama's job to uphold the Constitution and the laws.  If he doesn't do that job, it's our responsibility as citizens to give him heat until he does.  Anything less is mere followership.

        by Dallasdoc on Fri Apr 17, 2009 at 05:41:53 AM PDT

        •  Something about the perfect and the good. nt

          by Maimonides on Fri Apr 17, 2009 at 06:30:16 AM PDT

          •  Wrong

            It's not about the perfect and the good.  It's about the right and the wrong.  It's about upholding the rule of law, now and for the future.

            by Dallasdoc on Fri Apr 17, 2009 at 06:33:20 AM PDT

            •  I fail to see any "good" here either.

              Just sayin'

              Cause I don't know about anybody else, but can anyone (except Cheney et al) really say that there is any "good" in this situation as it stands now?

              by inclusiveheart on Fri Apr 17, 2009 at 06:35:19 AM PDT

              •  Cheney can say it is good

                that he got away with it.  That he got away with mass murder.

                by Demena on Fri Apr 17, 2009 at 07:22:31 AM PDT

              •  The "good" here is some of the rest....

                of having the Democrats in office --- you know, the reason a lot of us worked our butts off a few months back; the reason we even have these documents to look at at all, the reason we don't have John McCain trying to solve a humongous economic crisis armed only with tax cuts and fending off pressure from his right flank to move ever closer to a truly authoritarian government. I'm sorry, but try to imagine a McCain government right now. It ain't pretty. And now we're looking at the possiblity of, at best, Tim Pawlenty and at worst, I don't know, Palin/Beck in '12.

                The reason Obama is leery is -- horrors -- politics. What does that mean, exactly? Wait for it....

                He's...concerned...about...losing. Well, that could sound selfish, I suppose -- and it might be, if he were a lone senator or the country was coasting after years of peace and prosperity and the opposition was lead by Olympia Snowe and the reincarnation of Lowell Weicker. But it's not. We're in deep and the other side is completely apeshit.

                If we lose congress in 2010 or the Presidency in 2012, we may well be permanently hosed on an epic and worldwide scale. I'm no "doomer" but clearly global warming alone is a world-threatening issue, and there's our economy which, if it gets bad enough, will have folks looking for radical solutions that I promise will be more rightwing than left, and even health care demanding attention right fucking now, while you guys obsess on points of law and demand that Obama give you justice now, now, now.

                Now, there are times when you have to be ready to lose for a principle -- and the failure to do that has very much been the Democrats downfall in the past -- but you also have to choose your battles and this is, I'm sorry to say, not priority #1. But, I know "The law!!!!!"

                I really hope we have investigations and prosecutions -- but I also really hope that Obama is able to stay as far away from it politically as he can.

                by LABobsterofAnaheim on Fri Apr 17, 2009 at 08:37:39 AM PDT

                •  The only way for Obama to stay away from

                  the politics of the torture issue is for him to get out of the way and hand it over to the courts to decide what needs to be done.  He's making this his problem - he is taking on the politics here.  If he is worried about the politics, then he should do what should have been done anyway and allow a special prosecutor to investigate and try whomever appears to have broken the law in a court of law.

                  Seriously.  And if there is some sort of deal with Republicans in Congress for cooperation on legislation - I'd say given the vote counts on his bills - that is clearly useless - so move on - let the chips fall where they may over at the Federal Courts on the torture front and get out of the middle of this conflict.

                  by inclusiveheart on Fri Apr 17, 2009 at 08:52:51 AM PDT

                  •  I doubt this is a legislative quid pro quo....

                    I agree that would be dumb. It's more that he could have an internal revolt on his hands at the CIA, which could then easily spiral out of control and the fact that it would all be in the special prosecutor's hands might not protect him any more than Dems and moderates didn't blame Newt Gringrich for what Kenneth Starr did.

                    If he appoints the special prosecutor without a lot of pushing or in too enthusiastic  -- and I hope he eventually does appoint one, very, very much -- he will still be seen by many, and quite possibly not just the usual far-right suspects as either engaging in some kind of political pay back. If there's another terrorist attack either here or a big one on an ally, then you'll also see a far more vocal pro-torture contingent, including many so-called moderates. (Like a not very bright relative of mine, who really does believe "9/11 changed everything" which is good because before 9/11, ice cream was fattening. These people actually vote -- last time for Obama.)

                    by LABobsterofAnaheim on Fri Apr 17, 2009 at 09:13:35 AM PDT

                    •  If he is afraid of the CIA, then he

                      should disband it immediately - and I am NOT kidding about that.

                      If you put a serious (real) prosecutor on the case like Fitzgerald on the case, there will be no circus.  Kenneth Starr and that entire impeachment was about politics and they sought the limelight to advance their political goals.

                      As for the far right - they are a minority.  They won't be able to gain traction for something like this if it is handled professionally and properly.  Don't use Kenneth Starr as your guide here.  He was not acting as a prosecutor.  His job was to be a dirtbag and come up with "the goods" - any goods.  If there hadn't been a Monica - he would have found something else - God knows he tried everything before he got that break.

                      by inclusiveheart on Fri Apr 17, 2009 at 09:23:14 AM PDT

                      •  I dunno.

                        The right is down right now, but we know how quickly things can turn around in politics. You can't get cocky.

                        And one way to help that along would be to disband the CIA. I don't care how good the reasons might be for it, the freak-out would be all encompassing.

                        You know, it's funny, I've been upbraiding the Democrats for being too timid literally for decades -- but give me a break. His administration would be over.

                        As for Ken Starr -- the facts won't matter. Many people will believe the inevitable spin that whoever gets put in the Special Prosecutor role, even the sainted Patrick Fitzgerald, is basically a liberal version of the same guy, because people are trained to think in a sort of bifurcated he said/she said way. Which is not an argument against doing it, just an argument for understanding why a President might want to keep his distance from this.

                        by LABobsterofAnaheim on Fri Apr 17, 2009 at 11:32:26 AM PDT

                        •  Honestly, if the CIA is threatening him,

                          I don't think the uproar you predict would be against him.  We have plenty of alphabet soup security forces in our government.  The FBI would be elated as they have been in fierce competition with the CIA for budget and territory for decades.

                          I don't anticipate that that would happen though.  But my point still stands, if Obama is afraid of the CIA, then he should shut it down - and if he doesn't want to do that his only other choice is to take the reigns and get them under control.  If he allows them to run over him, he's toast and so is the rest of the agenda that you think is at stake here (I don't agree with that at all as in DC if you start looking like a pushover, you'll get pushed from every direction).

                          by inclusiveheart on Fri Apr 17, 2009 at 01:01:54 PM PDT

                      •  Thank you inclusive <3

                        What kind of arguement is it that the President of the United States is afraid that if he enforces the law against the intelligence community these government employees will turn against him?
                         These people who are paid by the government (us) and who have taken an oath of office to uphold the Constitution?  
                            If there is enough evidence for Obama to even consider they would commit treason (for that's what it would be)if he enforced the law against those who committed heinous acts against humanity then:
                         it is time to fire the entire CIA, NSA, NSC and every other TLC in the intelligence community.

                        by Calfacon on Fri Apr 17, 2009 at 11:52:53 AM PDT

                •  If he's afraid of the politics, why f'n run?

                  Why give the flowery speeches that he's not really going to persue to the extent he eluded to in those same speeches? No chickenshit now. We elected him, so time to walk the walk.

                  by Skid on Fri Apr 17, 2009 at 11:47:04 AM PDT

                  •  "Tough" is not the same as "foolhardy" n/t

                    by LABobsterofAnaheim on Fri Apr 17, 2009 at 04:32:57 PM PDT

                    •  Foolhardy is to believe he "can't", so...

                      your point is specious at best.

                      by Skid on Sat Apr 18, 2009 at 07:57:28 AM PDT

                      •  I don't think that word means...

                        what you think it means.

                        With apologies to William Goldman.

                        by LABobsterofAnaheim on Sat Apr 18, 2009 at 01:37:33 PM PDT

                        •  You get the point regardless. nt

                          by Skid on Sat Apr 18, 2009 at 08:32:59 PM PDT

            •  We've failed to implement the rule of law before

              not once, not twice, but hundreds of times in our history.  The Republic survives, and hopefully learns from its mistakes.

              by Maimonides on Fri Apr 17, 2009 at 06:58:53 AM PDT

              •  Like when Nixon was pardoned?

                Like when the Iran-Contra criminals were unindicted or let go on pardons?  Failing to implement the rule of law against criminal acts by government officials works out so well, doesn't it?

                by Dallasdoc on Fri Apr 17, 2009 at 07:01:26 AM PDT

                •  The rot continues

                  and spreads.

                  If you don't prosecute the law, the law becomes irrelevant - useful in name only as an occasional fig leaf for crimes and misdemeanours.

                  by ThatBritGuy on Fri Apr 17, 2009 at 07:21:09 AM PDT

                  •  Only for the enemies of the state.

                    That's what the law is for.

                    It has no bearing on the State. There is no jurisdiction.

                    Neither International Law nor the Constitution has power over the State.

                    It's a shame.

                    by k9disc on Fri Apr 17, 2009 at 07:29:58 AM PDT

              •  I think your indifference to

                the rule of law would change if you were the one being tortured or affected by this. In fact I'm certain of it.

                by dotdot on Fri Apr 17, 2009 at 07:24:20 AM PDT

              •  we have failed but...

                does that mean we should again? or in this case? those are the questions.

                by cacamp on Fri Apr 17, 2009 at 08:21:00 AM PDT

            •  Exactly the reasoning against prosecutios.

              Torture isn't going to be stopped by prosecuting a few lower level guys who had a memo.  You know what stops it?  

              Having presidents that don't order torture, that don't gather his top aides in a room to figure out which tortures are acceptable, and don't hire lawyers to give bad faith advice to meet prior standards.

              The concept that we can prosecute a low level guy and usher in a future Bush and have LESS lawbreaking is incredible to me.  You don't get less lawbreaking by the president who doens't torture and respects the law and has a transparent government taking a kamikaze dive at some people at the bottom of the chain of command.

              And that's assuming that the prosecutions succeed.  I think it more than likely, just eyeballing it, that they would fail.  Why?  Because the law is drafted to defer to the decisions of the executive and the good faith of the people acting on the ground. Even the parts cited by Greenwald to compel prosecutions don't require them, and I think he's well aware of that.  

              by Inland on Fri Apr 17, 2009 at 07:11:13 AM PDT

              •  So if there are no consequences

                for criminal violations, the government has unlimited authority. The public must rely on the benevolence of the president for compliance. When the president is a bad actor, well, laws are broken. If the president is a nice guy, he'll comply.

                by lgcap on Fri Apr 17, 2009 at 07:17:20 AM PDT

                •  You're in the right direction

                  except for the assumption that there were criminal violations in the cases at hand, and that criminal law doesn't cover ANY thing.  Of course, it does, see Nixon.  

                  But it does rely on the president and the people giving orders, mostly.  Post-hoc picking out of one or two Liddie Englands doesn't create a serious disincentive when Future Bush and the people working for him are giving green lights, any more than the Nuremberg Trials meant much to the people at issue.  

                  And that's assuming there's guilty verdicts. It's hard enough to prosecute a police brutality case here in the US.

                  When the president is a bad actor, well, laws are broken. If the president is a nice guy, he'll comply.

                  Yep.  That's true no matter if there's prosecutions or not here, and political concerns are therefore legimate.  

                   

                  by Inland on Fri Apr 17, 2009 at 07:27:32 AM PDT

                  •  It doesn't follow that

                    because prosecution is difficult it should be avoided.

                    There is certainly probable cause to believe crimes were committed. The tortures can rely on "permission to torture" as a defense at trial.

                    by lgcap on Fri Apr 17, 2009 at 09:17:09 AM PDT

                    •  Um, it's not difficult as in time consuming.

                      It's difficult in the sense of, may very well lose in court and lose in public opinions.

                      There is certainly probable cause to believe crimes were committed. The tortures can rely on "permission to torture" as a defense at trial.

                      I haven't seen anyone set out the elements of a charge, but even so, the idea that the defenses shouldn't be considered in deciding the public insterest in a prosecution strikes me as a bad idea and not particularly consistent with calls for Obama to respect the rule of law.

                      by Inland on Fri Apr 17, 2009 at 05:09:38 PM PDT

              •  Have you really read Greenwald?

                Geneva Conventions, Article 146:

                   Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.

                There are allegations, e.g. when the Spanish AG says, those who did the torture should be prosecuted.
                I think the Geneva conventions top your prosecution discretion stuff.

                by Guest from EU on Fri Apr 17, 2009 at 07:42:11 AM PDT

                •  It wouldn't:

                  The idea that a mere "allegation" could require a prosecution is not only contrary to powers granted the president in Article II of the constitution, but it would be a violation of our criminal law principles.  The President can't "bring a person before the courts" in the US without an indictment.

                  But I suspect that when one gets into the convention we find that "alleged to have committed" is limited to allegations from a source other than Daily Kos.

                  by Inland on Fri Apr 17, 2009 at 07:56:54 AM PDT

                  •  If the US can't comply with the Geneva convention

                    for constitutional reasons, the US should officially denounce the them.

                    There have been people, that were in Guantanamo, like Murat Kurnaz, who have charged the Bush gov't in a US court, and didn't come forward, because of things like the executive privilege. There have been public confessions by at least one CIA agent (was broadcasted among other by countdown with KO). If this isn't enough to trigger a serious inquiry, the Geneva conventions are not uphold in the US.

                    by Guest from EU on Fri Apr 17, 2009 at 08:22:01 AM PDT

              •  You know what stops it?

                Having presidents that don't order torture, that don't gather his top aides in a room to figure out which tortures are acceptable, and don't hire lawyers to give bad faith advice to meet prior standards.

                Having a president that understands that "No one is above the law" and acts accordingly.

                by allenjo on Fri Apr 17, 2009 at 08:45:27 AM PDT

                •  Because Presidents are temporary and

                  CIA operatives are generally lifers - I'd say that there is a strong argument for prosecuting at that level.  Not many civil servants stood up and called the Bush Administration out during his tenure.  It was unusual to say the least.  I am not talking about going after the Lyndie Englands of the world.  I am talking about the officers in the CIA who would have been in charge and would have been around for years before the Bush era who participated in executing this program.  The fact that these memos even had to be written makes it clear that they knew that they were on the wrong side of the law.  What they should have done was tell the Administration no.

                  by inclusiveheart on Fri Apr 17, 2009 at 09:15:57 AM PDT

                •  If only slogans had that sort of power.

                  But they don't.  Like I said before, if you don't assume guilty verdicts, it's all unclear.  Your slogan assumes that "the law" is going to result in guilty verdicts.  I don't, because unlike a lot of commenters on this diary, I understand the difference between what I want the law to be and what the law is, and the problems of proof in a criminal trial about actions overseas.

                  So stopping it...not surprisingly, it's still best done by stopping it, not closing barn doors after the horse is gone.

                  by Inland on Fri Apr 17, 2009 at 09:40:36 AM PDT

          •  Nothing "good" about not prosecuting

            egregious crimes against humanity. The good would be prosecuting the torturers and the people that authorized the torture.  The perfect would be prosecuting Bush and Cheney for international war crimes.

            by Lost Left Coaster on Fri Apr 17, 2009 at 06:40:28 AM PDT

            •  We should prosecute the Bush and the Authorizers.

              I see no gains to be made by prosecuting our servicepeople and operatives who acted in good faith under what they believed were legally-vetted activities.  What I see is this becoming a bigger and bigger mess as state secrets, undercover operatives, and other arguments are brought up and the court becomes mired in the process.

              by Maimonides on Fri Apr 17, 2009 at 07:01:20 AM PDT

              •  Enough with the "good faith"

                Every one of the CIA professionals knew what torture is.

                Even if you are correct that it was the torturers "mistake," how does it absolve them of criminal responsibility? Why not let them present that defense at trial?

                by lgcap on Fri Apr 17, 2009 at 07:20:59 AM PDT

                •  Also, illegal orders

                  are illegal orders.

                  Some services refused. The CIA didn't.

                  The people who made that choice are accountable.

                  And a useful question that no one seems to be asking is - what did torture achieve? Was there any actual security benefit?

                  Because the last I heard Guanatanamo has a special wing for broken psychotic people who can only think and talk nonsense. The CIA put them there.

                  I'd really like to know what that process achieved which benefited the security of the West in any useful way.

                  by ThatBritGuy on Fri Apr 17, 2009 at 07:25:03 AM PDT

                •  Because the trials will fail.

                  Simple as that.  I don't see the point in show-prosecutions that will do more damage to the repulic than they will achieve justice.

                  I realize this is a pragmatist's choice, and an ugly one, but I've never thought (unlike so many others) that prosecuting the functionaries would be possible.

                  The implementers on the other hand . . . there is where justic can be served, and win.

                  by Maimonides on Fri Apr 17, 2009 at 07:25:18 AM PDT

                  •  Show prosecutions?

                    I'm adamantly opposed to show trials as well, so we don't need to debate that issue at all.

                    by lgcap on Fri Apr 17, 2009 at 07:29:02 AM PDT

                  •  Adopting that posture would severely

                    damage, if not destroy, our entire criminal justice system.

                    It's precisely what this diary is about, in fact.

                    You won't prosecute those who carried out the acts because they were only following orders and you won't prosecute those that issued the orders because they didn't commit the acts.  Tell Organized Crime it's open season everybody!

                    The only way the law has any efficacy at all is if everyone, at every level, is prosecuted for their role in the crimes.  The way it usually works is you start by prosecuting the lower level folks who carried out the acts and, in securing plea bargains with them, you build a case against the higher ups who are, in all such cases, highly insulated from the acts and, thus, from prosecution.

                    You'll never get Bush, Cheney, Gonzo, Yoo, Rummy--any of the architects--if you give blanket immunity to everybody else.

                    by costello7 on Fri Apr 17, 2009 at 07:42:49 AM PDT

                    •  That's a false argument.

                      Alien & Sedition Acts, Licoln's suspending habeas, Sacco and Vanzetti, Japanese internment, The Red Scare, war crimes in thousands of theatres.

                      No, the justice system will not be destroyed.

                      by Maimonides on Fri Apr 17, 2009 at 07:54:30 AM PDT

                      •  Beyond the first line of...

                        hyperbole, the comment makes a really good point about the efficacy of going after all actors involved in torture.

                        by lurkerX on Fri Apr 17, 2009 at 08:03:16 AM PDT

                        •  What about the torturers hired by the CIA?

                          Certainly, torturers for hire cannot be included in the defense that it was legal based on the memos.

                          WASHINGTON — The CIA has stopped using contractors to interrogate prisoners and fired private security guards at the CIA's now-shuttered secret overseas prisons, agency Director Leon Panetta said Thursday.

                          -

                          Terminating the private security guards who watched over the secret sites would save the agency $4 million, Panetta said. The CIA refused to provide details about the contract, including its total value and the company or companies that were fired

                          .

                          http://www.huffingtonpost.com/...

                          by allenjo on Fri Apr 17, 2009 at 08:50:32 AM PDT

              •  So according to you.

                We shouldn't have prosecuted those Nazi doctors that tortured jews with horrifying experiments either. I mean they were just following orders.

                by dotdot on Fri Apr 17, 2009 at 07:27:38 AM PDT

                •  And btw

                  not following an order would have been punished quite a bit more severe in the SS than in the CIA. The SS was proud, that its members would have killed their own mothers. The treatment of a 'traitor' is, I think, easy to imagine.

                  by Guest from EU on Fri Apr 17, 2009 at 08:49:54 AM PDT

              •  In good faith

                they bashed the detainees heads in and poured water down their throats.

                Grotesque.

                by Lost Left Coaster on Fri Apr 17, 2009 at 07:29:35 AM PDT

          •  We can't expect perfect results, but we must keep

            demanding them anyway, so that what we do get is better than it would otherwise be.

            While it's easy to put this on Obama, Holder, and the DoJ, everything that happens is ultimately on Us.  If the whole of the Nation were to, oh, I dunno, Yell Louder!!! about this, we'd have a different result today.

            The perfect is the enemy of the good when it gives up on the good for its lack of perfection.  Pressuring our leaders to do the right thing is the opposite of giving up.  Remaining engaged for he rest of our lives, and engaging our neighbors for the rest of their lives, in Civic Function and Duty is the overarching goal for all time, regardless of results today.

            by Leftcandid on Fri Apr 17, 2009 at 06:43:11 AM PDT

            •  I hope for and expect Bush's JD and Advisors

              to get prosecuted, either by Obama's JD or through other courts. If they don't, I'm with you, and will protest.  

              But the guys who believed that they had legal cover, while what they did was unforgiveable, I think may be unprosecutable.  In a world of unlimited needs and wants we have to pick those things that are possible and don't take away valuable political capital from other problems that are also pending.

              by Maimonides on Fri Apr 17, 2009 at 06:56:53 AM PDT

              •  No, let's get this straight

                They are unprosecutable now because they have been given legal cover by the President of the USA.

                That's what the memos were released to do - to absolve and excuse and to make prosecutions impossible.

                But this could have been handled differently. The memos could have been collected as evidence, and released in committee as part of a formal investigation.

                There was no inherent legal reason why the existence of these memos would make it impossible to prosecute torture.

                It all comes down to framing and presentation. Obama has chosen to frame and present this evidence - because that's what it is - in a way which makes prosecution much harder.

                It was his choice to do that. As a legal expert he would have known that there were other options.

                He chose not to follow them.

                And that's why we're here now - not because of the inherent weakness of the case, but because of the inherent weakness of the president.

                by ThatBritGuy on Fri Apr 17, 2009 at 07:30:13 AM PDT

                •  inherent weakness of the president

                  And that's why we're here now - not because of the inherent weakness of the case, but because of the inherent weakness of the president.

                  Sad, but true, based on what happened yesterday.
                  The CIA is more powerful that the president is what we learned.

                  by allenjo on Fri Apr 17, 2009 at 08:53:24 AM PDT

                  •  Bingo!

                    Obama doesn't want any lone nuts to start getting ideas, and it would be a shame if his lovely wife or daughters had a little "accident" . . .

                    Look, the CIA is a drug-running, money-laundering cesspit that keeps Americans narcotized and fed a continuous line of bullshit through their media mouthpieces. We all KNOW this to be true, and yet we thought merely electing a president would change that?

                    So who exactly is giving orders to whom here?

                    by rolandzebub on Fri Apr 17, 2009 at 12:46:36 PM PDT

            •  great response

              if Obama does not always fulfill our dreams do we merely drop him, or drop them?  

              We have to raise the level of our own political....inconvenience....

              by Tony McArthur on Fri Apr 17, 2009 at 02:09:21 PM PDT

          •  You couldn't be more

            wrong.  If the timing weren't off, I'd believe you were the author of the 3/5's of a person lines.  After all, allowing that anyone black was a 100% human being would be too radical.  Therefore 3/5's was good enough, though not perfect.

            by Heart of the Rockies on Fri Apr 17, 2009 at 06:55:37 AM PDT

            •  So you disagree and call me a RACIST?

              Brilliant.

              by Maimonides on Fri Apr 17, 2009 at 06:57:53 AM PDT

              •  I called you a racist?

                Nope.  I suggested, given your argument based totally on expediency, you'd likely support something like this.  Because that's where your argument takes one.

                by Heart of the Rockies on Fri Apr 17, 2009 at 07:02:55 AM PDT

                •  No, that's where your inability to address my

                  argument takes you.  "Doesn't think there is anything to gain by prosecuting functionaries, therefore he would have supported the 3/5ths compromise."

                  In underpants gnomic:

                  1. I disagree with your argument

                  2. Something

                  3. You are against civil rights!

                  by Maimonides on Fri Apr 17, 2009 at 07:17:48 AM PDT

            •  Thanks for the illustration of purist thinking.

              If the timing weren't off, I'd believe you were the author of the 3/5's of a person lines.

              Yes, awful that a compromise lead to the constitution and the United States.  What an insult.  If only Benjamin Franklin had the purist instincts of a daily kos blogger, we'd have such a better world today.  

              by Inland on Fri Apr 17, 2009 at 07:18:36 AM PDT

              •  Um...

                If the Constitution had outlawed slavery, then yes, we would have a better world today.

                by Lost Left Coaster on Fri Apr 17, 2009 at 07:31:39 AM PDT

                •  If the draft constitution had outlawed slavery

                  it wouldn't have been approved at the convention, and then we would have had a worse world.  

                  by Inland on Fri Apr 17, 2009 at 07:37:43 AM PDT

                  •  Prove it n/t

                    by darrelplant on Fri Apr 17, 2009 at 08:50:54 AM PDT

                    •  Prove what?

                      That the constitution wouldn't have been approved, or that we'd be worse off without it?  Never mind.  The first is a matter you can google yourself, and the second I'm not interested in debating.

                      by Inland on Fri Apr 17, 2009 at 09:02:50 AM PDT

                      •  No Proof

                        Well, then you can't categorically say that we'd have been worse off without the 3/5 provision, then, can you? Things would have taken a different course if the Constitution hadn't been approved, maybe worse maybe better, but you certainly can't say for certain that the world would have been worse with any certainty.

                        by darrelplant on Fri Apr 17, 2009 at 09:25:12 AM PDT

                        •  There's no proof?

                          Says who?

                          by Inland on Fri Apr 17, 2009 at 09:34:46 AM PDT

                •  well, all things considered

                  The world without the States declaring independence from England in the 18th Century might be better off.  Canada doesn't seem that bad of a nation as an alternative example.

                  by h bridges on Fri Apr 17, 2009 at 07:42:27 AM PDT

                  •  If Britain hadn't had the rebellion of the

                    American colonies as a cautionary example of what happens when colonies are treated in a high-handed manner, Britain probably would have been much less lenient in its handling of Canada.

                    by lysias on Fri Apr 17, 2009 at 08:55:41 AM PDT

            •  You are correct, 3/5ths is way off for black folk

              Here are my suggestions:

              Lithuanians: 18/13ths of a regular American.

              Singaporeans: 19/15ths of a regular American.

              Portuguese: 144/127ths of a regular American.

              African Americans: 132/127ths of a regular American.

              Regular Americans: 100/100ths of a regular American.

              French: 37/51ths of a regular American.

              Canadians: 32/56ths of a regular American.

              Hippopotami: 32/77ths of a regular American.

              French Canadians: 3/77ths of a regular American

              Celine Dion: 1/431,432,399ths of a regular American

              Clearly, this is still a work in progress . . .

              by Roadbed Guy on Fri Apr 17, 2009 at 07:25:05 AM PDT

              •  haha poor Celine

                how about people who torture other humans, 0/10% American?

                by cacamp on Fri Apr 17, 2009 at 08:27:21 AM PDT

                •  Yes indeed, the torturers . . . .

                  and possibly people who express sympathy (ala "poor Celine") should indeed rank lower than her . . .

                  by Roadbed Guy on Fri Apr 17, 2009 at 08:36:34 AM PDT

                  •  or people who use

                    "indeed" are pretty low rankers too?

                    by cacamp on Fri Apr 17, 2009 at 11:24:45 AM PDT

                    •  Indeed.

                      by Roadbed Guy on Fri Apr 17, 2009 at 11:52:31 AM PDT

                •  I thought that was the Celine category!

                  ;)

                  by rolandzebub on Fri Apr 17, 2009 at 12:51:28 PM PDT

            •  Do you have any clue what the 3/5ths refers to?

              The slave states were the ones who wanted slaves to be counted in full for apportionment, and settled for counting them 3/5ths.

              Counting slaves as 3/5ths of a person was not a slight because it valued them less than fully - it was a slight because it gave slave states more representation in Congress than they deserved by counting the slaves at all.

              Please, put the 3/5ths analogy to rest.

              by Robobagpiper on Fri Apr 17, 2009 at 07:43:00 AM PDT

          •  What's good

            about letting torture slide?  Please, enlighten me.

            by Johnny Q on Fri Apr 17, 2009 at 11:45:27 AM PDT

        •  Obama, like Bush, is safe. He is

          untouchable.

          by hestal on Fri Apr 17, 2009 at 08:25:12 AM PDT

      •  "Having a country to govern" is no excuse.

        Obama campaigned mightily for that honor,l and we elected him to do so.

        by Jesselyn Radack on Fri Apr 17, 2009 at 05:47:17 AM PDT

        •  I campaigned for him to make the smart decisions

          in the face of impossible circumstances.  

          by Maimonides on Fri Apr 17, 2009 at 06:29:52 AM PDT

          •  Then keep campaigning

            He's not your candidate now, he's the President.  And you are not a campaign worker anymore, you're a citizen.  The relationship has changed, and so have the responsibilities on both parts.

            by Dallasdoc on Fri Apr 17, 2009 at 06:32:30 AM PDT

            •  Curiously, as a Citizen of the Republic

              I see my "responsibilities" differently than you do.

              by Maimonides on Fri Apr 17, 2009 at 07:03:10 AM PDT

              •  Clearly

                Your view seems to correspond more closely to that of Republicans in the first six years of the Bush administration.

                Obama has said he'll make mistakes, as if we needed to be told.  He's asked for our pressure to help him do the right things.  What's wrong with applying that pressure.

                by Dallasdoc on Fri Apr 17, 2009 at 07:24:15 AM PDT

          •  Define impossible.

            I'm curious, and in the spirit of the man for whom we each devoted months of work (I was on staff), let us lay out what we think, and use discussion to bring into clear outline where we differ.

            I'll start by saying that I worked to put someone in the White House who would rule for the rule of law, and for the people our laws were written to protect.  You appear to be advocating compromise with war criminals (and torturers -- can we agree that torture is a sub-set of war crimes?) -- compromise with those who studiously, repeatedly, and knowingly broke national and international laws.  I don't understand your stance.

            by Yellow Canary on Fri Apr 17, 2009 at 06:48:14 AM PDT

            •  yeah

              I defend Obama on his economic decisions, ugly as some of them may be, because he is in somewhat uncharted territory there, and it really is all theoretical, and really does take time to see if these things are working or not.

              in this case, however, its a crap example, there is no time issue, no question of whether it will 'work' or not, its something the country largely wants, and its SOMETHING OBAMA SPECIFICALLY CAMPAIGNED ON! that we would follow the law, hold people who broke the law accountable, uphold the Constitution (and hey, why not vote for the guy who's taught Con law!?!), and end torture policies/practices.

              if there is never an official refutation of the policies, just Barack Obama's say-so that we don't do 'it' anymore, then that is worthless. worse than worthless, it is actively harmful. firstly because it almost ensures that these things will happen again, and secondly because if we don't punish ourselves over this, others will do it for us. but instead of controlled trials where guilty people are tried and prosecuted and punished, we will be the recipients of random attacks which will take the lives of innocents. millions all around the world will want to pay the US back over this issue, for decades.

              other cultures have attention spans that last much longer than ours. we'll forget about Abu Ghraib long, long before anyone else will.

              by itsbenj on Fri Apr 17, 2009 at 07:09:25 AM PDT

              •  Recc'd

                But I think (hope) that people are not reading his words carefully enough.

                He isn't a prosecutor.  He is the president.  If he gets his ducks in line (when) then prosecutions will follow.

                by Demena on Fri Apr 17, 2009 at 07:28:10 AM PDT

                •  and as President

                  he can appoint a prosecutor or not. call on Congress to act, or not. and in this case, he has quite overtly chosen the 'not' option in each case.

                  prosecutions don't just drum themselves up out of nowhere, there has to be significant force behind them, and Obama basically waived a white flag and kicked the proverbial can down the road here.

                  by itsbenj on Fri Apr 17, 2009 at 07:39:34 AM PDT

                  •  Obama should expedite the prosecutions.

                    Supposing convictions ensue, if the president then still feels that actual punishment of any particular torturer is unjust, he can always pardon him or her.

                    by lotlizard on Fri Apr 17, 2009 at 08:00:28 AM PDT

                  •  I am not an expert in US law.

                    But it would seem to me that the prosecution in this case depends on the attorney general.  It would seem to me that given enough evidence the AG has no legal choice but to prosecute - and Obama knows that.

                    By releasing the memos he has put the AG in an untenable position.  Get the 'top' first.  They are the important ones.  Once they go down the minions can be dealt with.  But at this point of time he is dependent on many of those minions - even for his and his families personal survival.

                    The swamp is full of alligators.

                    by Demena on Fri Apr 17, 2009 at 08:02:43 AM PDT

                    •  no, it's the presidents responsibility

                      he alone made this decision on advice from his advisors of course. Prosecutions must begin at the bottom and work up to get cooperation and evidence, convictions of lower perps can be mitigated at sentencing or by pardon.

                      by cacamp on Fri Apr 17, 2009 at 08:35:43 AM PDT

              •  Well put.

                Continuing down this road of American exceptionalism without American exceptional acts of justice and penalties for our own tarnishes our already battered reputation in the world.

                Doing the right thing is some times extremely hard. Obama seems to be taking the easy and politically safe way out and leaving the rest of us automatically burdened with an inherently negative reputation when we travel abroad.

                by Pescadero Bill on Fri Apr 17, 2009 at 08:19:09 AM PDT

            •  "In a world of unlimited needs and wants . . . "

              So begins the defintion of economics.  We are literally faced with Republic-ending problems: a legacy of war-crimes, two out-of-control foreign adventures, a looming Depression, the threat of internal violence in reaction to the election of a black man . . . the list goes on.

              I believe that Obama's JD will only have the opportunity to prosecute the ones who authorized war crimes.  That attempts to prosecute functionaries and operatives will get mired in states secrets, classified information, undercover operatives and a thousand other intelligence and military reasons.  The trials would be inconclusive, and more a waste of energy than an exercise in justice.

              I'm not saying we shouldn't.  I'm saying we can't.

              Thanks for the respectful reply.  I'm signing off this argument now, I doubt many will agree with me here.  But you'll learn to live with the result because you have to.

              by Maimonides on Fri Apr 17, 2009 at 07:09:35 AM PDT

              •  Yes indeed.

                The soiled reputation that comes with being an American citizen is our burden and our children's burden because prosecuting our leaders is hard.

                by Pescadero Bill on Fri Apr 17, 2009 at 08:22:31 AM PDT

              •  very wrong

                it must be done to preserve the rule of law and protect our servicemen and women. It must be done to preserve the honor of the Nation and our service men and women. It must be done.

                by cacamp on Fri Apr 17, 2009 at 08:38:34 AM PDT

            •  If it were as easy as typing

              compromise with those who studiously, repeatedly, and knowingly broke national and international laws.

              Everyone assumes this is a done deal, and open and shut.  Nobody thinks that there will be acquittals.   I think, therefore, it's more appropriate to say that Obama is compromising with the possiblities and politics and not with guilty parties.  

              by Inland on Fri Apr 17, 2009 at 07:15:42 AM PDT

              •  Not true.

                My number one goal is a complete accounting of the war crimes committed in my name with my money by my leaders and those under their command or oversight.

                Accounting comes before accountability.  I want to know -- and I want everyone in the world, today and forever -- to know who did what when.

                Law is a tricky; justice is slippery.  I accept that.  But you say, "I think, therefore, it's more appropriate to say that Obama is compromising with the possiblities and politics and not with guilty parties"  That makes no sense to me.  He just said he would not prosecute torturers for torturing.  Why is it inappropriate to refer to that as compromising with law-breakers?

                by Yellow Canary on Fri Apr 17, 2009 at 08:14:25 AM PDT

              •  acquittals are justice too

                if they can acquit someone that shows the trials were conducted properly, same with convictions. I could certainly see some acquittals being handed down especially for the lower ranking people also some commutations and pardons where appropriate.

                by cacamp on Fri Apr 17, 2009 at 08:42:23 AM PDT

          •  I campaigned so Obama would uphold the law n/t

            by IngeniousGirl on Fri Apr 17, 2009 at 08:49:39 AM PDT

            •  He is upholding the law

              under his administration. That is all he ever promised to do. Do you have anything that suggest otherwise?

              I am shocked by the shock. Panetta and Holder had already made it clear they weren't going after the CIA during their confirmation hearings. This is not news.

              The head of the ACLU sees the possibility of future prosecutions from Obama's statements because Obama did not offer blanket immunity unlike what the diarist claims. Obama ensured by releasing the memos yesterday that these torture methods will not be used again.

              by loper2008 on Fri Apr 17, 2009 at 11:14:37 AM PDT

              •  Why not?

                What is the demonstrated penalty for violation...Obama's penalty levied on the CIA?

                Sorry it just does not float.

                by Bobjack23 on Fri Apr 17, 2009 at 11:55:25 AM PDT

              •  Thank you

                I'm sorry but this diary needs to be taken down because it is accusing Obama of saying something he never said. I'm sick and tired of this! He never promised immunity.

                by freakofsociety on Fri Apr 17, 2009 at 07:29:02 PM PDT

      •  what a lame excuse

        by need pr on Fri Apr 17, 2009 at 05:48:46 AM PDT

      •  Our problem is a lack of government!

        Greedy wall-streeters running wild through the financial industry after de-regulation...power-hungry lawyers running wild through the justice department trying to justify torture...same damn thing. And they'll continue to run wild until they learn that there are consequences for their actions. Does it appear to you that Obama is going to try and educate them of this?

        by Seemabes on Fri Apr 17, 2009 at 06:50:19 AM PDT

      •  or a constitution to uphold

        Pres George W Bush made the assertion by his actions that the US Condtitution is a Situational Document.

        Pres Obama Codified that yesterday by his actions.

        I'm not alawyer or even a college Graduate but I think I understand the decision to granta pardon BEFORE a prosecution is something even W wouldn't do for Scooter Libby.

        This move by Pres. Obama,a Constitutional Law Professer, sadly does more damage to the constitution than anything W did.

        by ctkeith on Fri Apr 17, 2009 at 07:11:09 AM PDT

      •  Yes He Does

        This is a democracy, where the people rule. By electing and petitioning officials who make, enforce and judge laws.

        Unless your approval rating is over 60%. Then you can run a country with torture. No particular partisan affiliation need apply.

        In your country, we don't have democracy anymore, we have mob rule.

        by DocGonzo on Fri Apr 17, 2009 at 07:29:36 AM PDT

      •  Yeah, being Reichskanzler is hard work. n/t

        by lotlizard on Fri Apr 17, 2009 at 07:44:09 AM PDT

      •  Governing also means respecting int'l law.

        Obama's administration is deliberately muddying the legal waters, and it's going to stain his presidency over the long term.

        Their reasoning behind the decision not to prosecute is doublespeak at best. They're implicitly acknowledging that the Bush administration was in fact above the law, and that the CIA still is.

        I have one thought, though... what if Obama is waiting to see if there is enough of a public outcry to support prosecuation?

        by Hafez of Shiraz on Fri Apr 17, 2009 at 07:51:19 AM PDT

        •  You know

          I was not looking at it that way-but you're right. This does put the CIA above the law. No one should be above the law. No one.

          by lyvwyr101 on Fri Apr 17, 2009 at 08:07:23 AM PDT

          •  They are above the law.

            Even the Inspector General of the CIA can't audit his own agency.

            by rolandzebub on Fri Apr 17, 2009 at 01:04:06 PM PDT

      •  Don't forget your pom-poms. n/t

        by bigchin on Fri Apr 17, 2009 at 08:08:35 AM PDT

      •  And your remark applies to no prosecutions for

        torture, how?

        You have to ignore what your country has done to govern a country????

        by allenjo on Fri Apr 17, 2009 at 08:23:57 AM PDT

      •  What does govern mean to you?

        by NearlyNormal on Fri Apr 17, 2009 at 08:30:24 AM PDT

      •  Lucky for us that Maimonides

        doesn't have a country to govern.

        by Agathena on Fri Apr 17, 2009 at 09:52:05 AM PDT

        •  How so? His philosophy is governing us now

          by Bobjack23 on Fri Apr 17, 2009 at 11:50:08 AM PDT

          •  OOPS! I meant "malmonides"

            aka "mean people"

            

            by Agathena on Fri Apr 17, 2009 at 12:26:25 PM PDT

      •  Laws, not men.

        There are ways.

        Diplomatically -- discreetly -- egg on the Spanish, affirming that the U.S. will cooperate and will in fact turn over those charged with crimes to face justice.  When that day comes, simply state that the nation is a nation of laws, that these are our obligations under long-standing law, and treaties which the U.S. signed, which the U.S. Senate agreed to, and which are,under U.S. law, part of U.S. law, and that we cannot refuse, legally.

        It's the law. It's obligatory.

        by ogre on Fri Apr 17, 2009 at 09:57:09 AM PDT

        •  Well, Kissinger is still wanted in France,

          I believe, but he's continuously feted on here. What are the chances the scion of the Bush clan or any of his favored cronies will be sent off to some "furrin" country to face justice?

          by rolandzebub on Fri Apr 17, 2009 at 01:14:26 PM PDT

      •  Do you actually think...

        ...that sort of lame remark is an excuse for Obama's behavior in granting blanket immunity and refusing to prosecute war crimes and prosecute crimes against the Constitution and international law ? If so, I damned well hope you never have a hand in governing anything beyond a dog kennel.

        The truth of the matter is that the behavior is out-and-out moral cowardice...and defending it is bad citizenship.

        Sport this country invaded a country that did not attack us, did not posses weapons of mass distrustion and did not have the technology to deliver them past 100 miles even if they had them. That was a violation of the constution’s carefuly outlined war making powers and of any interpertation of international law concerning the making and declaring war on a nother soverign power. Hundresd of thousands died that makes it a war crime as well. Bush needs to be prosecuted along with the Neo-Cons who ginned up the phony intelligence trying to justify an illegal preemptive invasion. Not doing so is an act of moral cowardice and dereliction of duty.

        These are not minor matters to be sloughed of with some utter nonsense about the impracticality of enforcing the law nor is the letting the same forces who destroyed the economy be in charge of printing trillions of unbacked Federal Reserve notes to give to themselves as a reward for failure. These things have no defence...NONE!

        by Bobjack23 on Fri Apr 17, 2009 at 11:48:16 AM PDT

      •  Total cop-out

        If Obama can't handle this IN ADDITION TO everything else involved in "governing a country", then maybe he's not as qualified to be in that office as we all claimed.

        Walk and chew gum...

        ... or something like that.

        by ratmach on Fri Apr 17, 2009 at 12:25:47 PM PDT

      •  Glennwald does not have the elite to cover for.

        That's the difference. Politicians cater to the rich, the powerful.

        Holding people accountable to the law? that's only applies to common folks, not the elite.

        by Tom J on Fri Apr 17, 2009 at 12:53:54 PM PDT

        •  Just like paying your taxes

          For the little people.

          by rolandzebub on Fri Apr 17, 2009 at 01:15:28 PM PDT

    •  Greenwald is a kindred spirit and

      one of the many bloggers without borders.

      I agree with him entirely.

      by Jesselyn Radack on Fri Apr 17, 2009 at 05:56:15 AM PDT

      •  I don't always agree with him entirely

        but I do more often than I don't - and the particular column I linked to I agree with 110%.

        by heart of a quince on Fri Apr 17, 2009 at 05:57:43 AM PDT

      •  Also Jonathan Turley

        who speaks regularly on Maddow's show with civilized and articulate passion.

        by Heart of the Rockies on Fri Apr 17, 2009 at 06:57:53 AM PDT

      •  Glenn is ethical and rational n/t

        by IngeniousGirl on Fri Apr 17, 2009 at 08:54:43 AM PDT

    •  But see: this post at intl law blog Opinio Juris

      for the counterargument: link

      by burrow owl on Fri Apr 17, 2009 at 06:16:15 AM PDT

      •  I've read that

        I was about to offer my opinion on why its bunk in the current situation, but greenwald already did. Heller addresses this in the update:

        UPDATE: Glenn Greenwald points out, in response to this post, that "the excuses being offered by Bush apologists as to why prosecutions are unwarranted — i.e.: the torturers acted pursuant to orders, the torture was made legal under domestic law, there were exceptional circumstances — are all ones that are explicitly barred by the Convention as grounds for failing to prosecute torture."  I completely agree.

        To quote Obama:

        it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.

        This is SPECIFICALLY prohibited as a defense in the conventions against torture.

        by heart of a quince on Fri Apr 17, 2009 at 06:24:20 AM PDT

        •  Policy considerations are not prohibited, though.

          There's a reasonable argument that Obama may decline to prosecute for policy reasons.  re: policy, here's Anonymous Liberal:

          Given the kind of things these folks are asked to do and the important missions entrusted to them, they have to be able to rely on the legal advice they're given by the government. If we start prosecuting people for conduct they were specifically advised was legal by the OLC, it will severely hamper our ability to conduct future intelligence work. No one will trust the advice they are given, they'll worry that the rug will be pulled out from under them at some point down the road. That's an untenable situation.

          link

          by burrow owl on Fri Apr 17, 2009 at 06:29:42 AM PDT

          •  I don't agree

            that policy considerations are valid in this case since the "policy" being presented is a specifically prohibited defense.

            Obama:

            If we start prosecuting people for conduct they were specifically advised was legal by the OLC, it will severely hamper our ability to conduct future intelligence work.

            ICAT:

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

            by heart of a quince on Fri Apr 17, 2009 at 06:33:34 AM PDT

            •  That provision looks back to the prior conduct,

              while the policy argument looks forward to future effects of prosecution.  It's not "it was war, therefore justified," but "if we prosecute, our future legal efforts will be compromised."

              All that said, I do you think you, Greenwald, Raddick, etal are right and that Obama does have an obligation to prosecute in this case.  I'm not convinved it's a legal obligation, but it's certainly an ethical obligation.

              (re: legal obligation: there's some gray in the CAT, particularly when we note that the CAT was expressly non-self-executing.  The upshot of that is that the CAT is only binding - AFAIK - and please correct if I'm wrong - to the extent it has been codified in our domestic law)

              by burrow owl on Fri Apr 17, 2009 at 06:40:16 AM PDT

              •  And if he is reluctant to go after the people who

                carried out the orders because he's afraid that'll affect future operations, that leaves Bybee and all those who twisted the law -- right up to GW Bush and Cheney.

                Why can't he go after them?

                sig here

                by Marc in KS on Fri Apr 17, 2009 at 06:43:25 AM PDT

              •  I certainly agree that the moral obligation

                is obvious.

                There might be some gray area in the legal obligation to prosecute, but I haven't seen an argument I find convincing yet.

                by heart of a quince on Fri Apr 17, 2009 at 06:46:20 AM PDT

              •  In this case, the effects of prosecution

                would probably be that people in service to our government would be pretty clear on the fact that torture is prohibited under both US and international law.  I would think that would be a good thing.

                And if some asshole in the future from the Office of Legal Counsel wants to get on a plane and torture a prisoner himself because everyone else understands the rules and refuses to participate, then it just makes it much less difficult to bring together a band of conspirators intent on breaking the law.

                So unless the objective here is to keep torture as an option and keep an army of individuals in line to mete it out from time to time, then I can't see why the "chilling effect" with respect to torture and being given orders to do so is a bad thing.

                by inclusiveheart on Fri Apr 17, 2009 at 07:20:29 AM PDT

            •  I'm with you.

              They should follow the law.  If it takes twisted legalese and 20 lawyers to explain that what appears to you as illegal really really really is legal, then it's probably not and you should stay away from it.

              People in the intelligence community should rely on two things: the law and their consciences.  Shit, even soldiers are allowed to disobey orders if they have a conscientious objection.

              sig here

              by Marc in KS on Fri Apr 17, 2009 at 06:42:11 AM PDT

              •  They are not allowed, they are obligated.

                That's the point of the Nuremberg trials, right?

                That they were obligated to disobey illegal orders.

                by k9disc on Fri Apr 17, 2009 at 07:37:58 AM PDT

          •  What is reasonable about it?

            From a purely structural point of view, it gives carte blanche to the providers of legal advice.  (One is one easy rung from concluding that this was the very mechanism the war criminals worked out in their quest to commit war crimes.)

            Giving carte blanche to providers of legal advice is surely seen as stupid, no?

            I'd like to look at two other things in the bit you cite.  They reveal the need the person writing is actually addressing.  S/he says:

            "Given the kind of things these folks are asked to do ... " and
            " ... severely hamper our ability to conduct future intelligence work ... ".

            What's at stake in the writer's mind seems to be a way of work that is illegal.  The argument is that in this case the law doesn't apply.  Seems topical.

            The Bush war criminals took this small behavioral loophole and murdered people with it.  Those who use the loophole are arguing "Don't close the loophole -- we need it to do our jobs".

            America has a Nuremberg in its future, just as it now has Bush-era war crimes in its past.

            by Yellow Canary on Fri Apr 17, 2009 at 07:04:33 AM PDT

          •  So?

            They should worry.  Every person should consider the ethics of each and every situation they are involved in.

            by Demena on Fri Apr 17, 2009 at 07:31:13 AM PDT

          •  i.e. "They are too important to prosecute" n/t

            by rolandzebub on Fri Apr 17, 2009 at 01:17:54 PM PDT

        •  that's why they want to avoid a trial!

          its not a 'defense' if its just a series of public statements, its a 'rationale'.

          this has long been the position of the leaders of the Dem party, and since 2004 and before, EVERY major Dem candidate that I've seen talk about the matter, John Kerry for example, has promised, up and down, not to go after individual CIA agents, but rather the people who ordered the policies.

          its not surprising to see Obama let them off the hook, even though it is also wrong. but at the same time, its a self-fulfilling prophecy. in order to get the people at the top, you go after those lower-ranking people and then give them immunity when they turn on their superiors, and then you just go up the chain that way. simply saying nothing will ever conceivably happen to the torturers is pretty much a straight up admission that there will never be any effort to unravel what happened, or to LEGALLY REFUTE the practice of torture.

          Obama has, as far as we know, stopped the immediate practice of torture by the US. but he's not 'ending' it. just stopping it. meaning someone else can come along and start it back up again.

          by itsbenj on Fri Apr 17, 2009 at 07:30:35 AM PDT

          •  Good point.

            Obama has, as far as we know, stopped the immediate practice of torture by the US. but he's not 'ending' it. just stopping it. meaning someone else can come along and start it back up again.

            by dotdot on Fri Apr 17, 2009 at 07:34:12 AM PDT

      •  No offense to any lawyers here but...

        All that legal mumbo-jumbo and wrangling of words to fit what they want to do is BS.  Ordinary persons, not trained in the arcane use of language that lawyers thrive on see it this way...torture=illegal, illegal=prosecution and punishment.  Simple?  Simple-minded?  Doesn't matter, that's how I see it.

        by gdwtch52 on Fri Apr 17, 2009 at 07:21:24 AM PDT

    •  Working from Greenwald here is

      my email to Mr Holder.

      Mr. Holder,

      I do not see how you can excuse people who tortured. The USA has hung torturers who used waterboarding on Americans and others responsible for ordering torture.

      This is turning your back on American law as well as International Treaties.  You have a responsibility to follow the law NO MATTER WHERE IT LEADS.  Our Democracy is dead if you do not take your Oath of Office as an obligation that transcends political expediency.

      I DEMAND as an American Citizen that you uphold your office, the LAWS OF THE USA and INTERNATIONAL TREATIES.

      CONVENTION AGAINST TORTURE signed by Reagan and ratified by Senate DEMANDS YOUR ACTION

      GENEVA CONVENTIONS: Article 146 DEMANDS YOUR ACTION

      CHARTER OF INTERNATIONAL TRIBUNAL AT NUREMBERG, ARTICLE 8:  DEMANDS YOUR ACTION

      US CONSTITUTION ARTICLE VI DEMANDS YOUR ACTION

      If you will not do your duty to your Country, RESIGN.

      by twinpeaks on Fri Apr 17, 2009 at 09:24:21 AM PDT

    •  Glenn is ALWAYS a good read n/t

      by victoria2dc on Fri Apr 17, 2009 at 12:48:27 PM PDT

    •  It just doesn't fit

      I cannot, no matter how hard I try, get this absolutely horrible take on this issue to fit with the Barack Obama I know.

      This just seems to be so totally out of character with him - what is it? What is here that would cause Obama to abandon everything he stands for?

      I may be completely naive, and need a good whack upside the head, but it just seems to me there is more to this, something we don't know.

      Something that is so bad that it is worth sacrificing our constitution for. It is the only explanation I can come up with.

      But for the life of me, I have no idea what could ever in the history of the world - be so bad that we should abandon the foundation of our country.

      It just doesn't make sense and it makes me really sad to see Obama do this. He's wrong here.

      by the girl on Fri Apr 17, 2009 at 01:13:16 PM PDT

      •  I'm pretty darned critical of Obama, but...

        ...I look at this as--potentially--focusing on the real perpetrators. If there are to be prosecutions, it's really important to start at the sub-Cabinet level at the very least. There's no real sense in a "Lynndie England" trial. The key is to prosecute the decision-makers.

        Obviously, if the prosecutions never happen, I'm wrong and would have to agree with you completely.

        by catfood on Fri Apr 17, 2009 at 03:32:07 PM PDT

        •  I'm not arguing anything

          I am just very concerned. It doesn't fit with Obama. When did he start backing off from prosecution and looking back? When did that talk start?

          In my pea brain I have it after that awkward first meeting with Bush where he looked so much taller than the bastard.

          by the girl on Fri Apr 17, 2009 at 06:56:35 PM PDT

  •  It's still politics

    A change in administrations brings no more accountability than we would have seen with a continuation of the last because it will be politically impossible for Obama to withstand the outrage that would be assembled against him if he were to allow these investigations and any resultant prosecutions of wither high-level or low-level tortures.  

    I honestly believe that much of the national mood of the right is being assembled against him on the theory that, If you think we disagree with your fiscal policies, just try going after the Bush Administration on its treatment of detainees.  

    This issue will never see a full and fair hearing.  

    by GOTV on Fri Apr 17, 2009 at 05:39:59 AM PDT

    •  2013 may be our best shot.

      Let Congress air what dirty laundry they can between now and then, and let the economy settle down, and let Obama begin a second term.  Then he can decide whether or not he wants to chance a CIA assassination by prosecuting the torturers.

      by tbetz on Fri Apr 17, 2009 at 05:47:58 AM PDT

      •  By then, no one will give a

        rat's ass about what the Bush Administration did.  Bush's policies and those who implemented them will be left to the equivocal judgment of the history; not the courts.  

        by GOTV on Fri Apr 17, 2009 at 05:50:54 AM PDT

        •  Erratum:

          . . . the equivocal judgment of the history books; not the courts.

          by GOTV on Fri Apr 17, 2009 at 05:51:58 AM PDT

          •  History starts here.

            With those of us who are writing, protesting and shouting about this yesterday and today.

            by Jesselyn Radack on Fri Apr 17, 2009 at 06:12:05 AM PDT

            •  I certainly agree with

              that.

              by GOTV on Fri Apr 17, 2009 at 06:20:44 AM PDT

            •  I often think of that.

              Teapot Dome, an archaic abstraction, but a major point in history has been totally eclipsed by the bank bailouts today.

              We are writing a People's History right now.

              It's a shame it's in the ether and not in print.

              by k9disc on Fri Apr 17, 2009 at 07:43:21 AM PDT

        •  That is the risk.

          But I don't see a better option, given the realities.  Bush left behind too many flaming bags of shit that urgently need putting out (and need the willing help of the intelligence state establishment to put some of them out) for Obama to have much more of an option.

          We need to keep the issue alive, so enough people give give a shit when Obama doesn't have to worry any more about re-election.

          by tbetz on Fri Apr 17, 2009 at 06:00:44 AM PDT

      •  Leon Panetta directs the CIA.

        Personally, if I had to choose one or the other, I'm more in favor of going after the top officials than the CIA field guys.

        by Jesselyn Radack on Fri Apr 17, 2009 at 06:10:32 AM PDT

      •  What makes you think that Obama will

        get a second term?  

        His base is deserting him because he is not who we thought he was.  Many are still giving him time to wake-up, but it doesn't look too good from the law and order viewpoint.

        by victoria2dc on Fri Apr 17, 2009 at 06:15:47 AM PDT

        •  Right

          That 60+ approval rating is the kiss of death at the ballot box.

          by kyeo on Fri Apr 17, 2009 at 06:35:26 AM PDT

          •  well for now 60%

            In 1991 GHWB had a 90%+ approval rating.  In 1992 Bill Clinton was elected President.

            by h bridges on Fri Apr 17, 2009 at 07:48:19 AM PDT

        •  Um his base is fine

          and he's doing a good job so far.  Not everything is perfect, but I never expected it to be.  He's got like what 95% approval ratings with "his base".  

          by Into The Stars on Fri Apr 17, 2009 at 07:03:05 AM PDT

        •  I don't see his base deserting him.

          Single-issue fanatics may be deserting him for now, but there isn't a chance in hell that the Republicans will offer up a candidate that's more likely to appeal to those fanatics than Obama does.  Unless Obama screws everything up (and I see no indication that he will) they'll return to the fold in 2012.

          by tbetz on Fri Apr 17, 2009 at 07:29:43 AM PDT

          •  It's funny how

            voting for upholding the Constitution and the Rule of Law is viewed as single-issue fanaticism on this board.

            by costello7 on Fri Apr 17, 2009 at 07:58:49 AM PDT

            •  Can you believ it?

              For a US citizen to care abou the law-now we're "single issue fanatics?"

              by lyvwyr101 on Fri Apr 17, 2009 at 08:12:42 AM PDT

              •  I'm still wondering

                when, exactly, Torture is wrong became a fringe, lefty, fanatic single issue.

                by Moody Loner on Fri Apr 17, 2009 at 09:19:51 AM PDT

              •  well, abortion rights people

                think there was a genocide in the US of over 50 million, I am sure they would be just as outraged as you to be called a fanatic.

                Today the Obama administration ruled greenhouse gases are toxic. I may wish Obama would prosecute everybody, but it doesn't make me say, "that's not the change I believe in" and all that crap. I love Obama's budget and many other things. Perspective. I have patience, too, and don't think any of us can say for sure what will come from the release of these memos.

                by loper2008 on Fri Apr 17, 2009 at 11:20:14 AM PDT

            •  See what Glenn Greenwald says about it...

              ... here.

              by tbetz on Fri Apr 17, 2009 at 09:23:26 AM PDT

            •  If you abandon the Democratic President...

              ... without offering up a better and equally viable alternative because of this one decision, yes, you are a fanatic.  I can say this because you may be certain that the Republican who runs against him will be worse.

              The non-fanatic position is to influence the Democratic President in such a way as he considers it safe -- for his programs, for his vision of what else he wants to do, and for his life -- to change his mind.

              by tbetz on Fri Apr 17, 2009 at 09:27:29 AM PDT

        •  Glenn Greenwald articulates this case...

          ... better than I can:

          Purely as an analytical matter, releasing the OLC memos and advocating against prosecutions are two separate acts.  It's perfectly coherent to praise one and condemn the other.  There is an unhealthy tendency to want to make categorical, absolute judgments about the persona of politicians generally and Obama especially ("I like him"/"I don't like him"; "I trust him/I don't trust him") rather than case-by-case judgments about his specific acts.  "Like" and "trust" are sentiments appropriate for one's friends and loved ones, not political leaders.  A politician who does something horrible yesterday can do something praiseworthy tomorrow.  Generally bad people can do good things (even if for ignoble reasons) and generally good people can do bad things.  That's why I care little about motives, which I think, in any event, are impossible to know.  Regardless of motives, good acts (releasing the torture memos) should be praised, and bad acts (arguing against prosecutions) should be condemned.

          Beyond those generalities, I think the significance of Obama's decision to release those memos -- and the political courage it took -- shouldn't be minimized.  There is no question that many key factions in the "intelligence community" were vehemently opposed to release of those memos.  I have no doubt that reports that they waged a "war" to prevent  release of these memos were absolutely true.  The disgusting comments of former CIA Director Mike Hayden on MSNBC yesterday -- where he made clear that he simply does not believe in the right of citizens to know what their government does and that government crimes should be kept hidden-- is clearly what Obama was hearing from many powerful circles.  That twisted anti-democratic mentality is the one that predominates in our political class.

          In the United States, what Obama did yesterday is simply not done.  American Presidents do not disseminate to the world documents which narrate in vivid, elaborate detail the dirty, illegal deeds done by the CIA, especially not when the actions are very recent, were approved and ordered by the President of the United States, and the CIA is aggressively demanding that the documents remain concealed and claiming that their release will harm national security.  When is the last time a President did that?  

          by tbetz on Fri Apr 17, 2009 at 07:45:23 AM PDT

    •  Outrage Greater Than Those Calling For Secession?

      It's the same crowd - Right Wing Conservatives - that's  always outraged.  

      And, all we're talking about is an investigation.  How could that have been precluded?  

      Over 2/3 of the Nation wants an investigation, what about our outrage:

      Close to two-thirds of those surveyed said there should be investigations into allegations that the Bush team used torture to interrogate terrorism suspects and its program of wiretapping U.S. citizens without getting warrants. Almost four in 10 favor criminal investigations and about a quarter want investigations without criminal charges. One-third said they want nothing to be done.

      Even more people want action on alleged attempts by the Bush team to use the Justice Department for political purposes. Four in 10 favored a criminal probe, three in 10 an independent panel, and 25% neither.

      The ACLU and other groups are pressing for inquiries into whether the Bush administration violated U.S. and international bans on torture and the constitutional right to privacy. House Judiciary Chairman John Conyers and his Senate counterpart, Patrick Leahy, have proposed commissions to investigate.

       Source: USAToday.com

      by leonard145b on Fri Apr 17, 2009 at 06:03:55 AM PDT

      •  As we don't own Fux news

        "our outrage will not be televised".

        by Lisa Lockwood on Fri Apr 17, 2009 at 06:33:25 AM PDT

      •  Exactly!

        The only people that will be outraged, as far as the electorate goes, are the people that are already accusing Obama of being like Hitler because he wants to cut their taxes.  Or something.  They don't even know what they believe and they get apoplectic over everything that Obama does.

        The real issue is that Obama will have to take on the intelligence apparatus in order for justice to be served. And the real question is, who really runs our country? Our elected leaders, or nameless CIA bureaucrats?  That's the battle that I want Obama to wage.  Right now.  There is no other choice.  I didn't vote for him and give him as much money as I could for him to back down in the face of CIA pressure.

        If Obama won't do it, then Congress will have to.  We need to exert as much pressure as we can on both branches.  

        by Lost Left Coaster on Fri Apr 17, 2009 at 06:47:23 AM PDT

      •  not precluded but "pre-framed" you that thing

        who frames the issues identifies the possibles and works on the impossibles.

        Our mission is the same, we re-frame the obligation our country has to prosecute war crimes.  We re-frame the obligation of our country to uphold the law.  We are doing that here in Jessica's diary.

        by IngeniousGirl on Fri Apr 17, 2009 at 08:58:55 AM PDT

    •  Do you think that many people would rally behind

      defending the linkes of Donald Rumsfeld, Dick Cheney and John Yoo?

      by Jesselyn Radack on Fri Apr 17, 2009 at 06:09:03 AM PDT

      •  Non-Americans -- no.

        by AllisonInSeattle on Fri Apr 17, 2009 at 06:11:17 AM PDT

      •  Hell no Jesselyn...

        Do you think that many people would rally behind defending the linkes of Donald Rumsfeld, Dick Cheney and John Yoo?

        There is something really wrong here.   Mr. Obama is in charge, or at least that's what we all worked so hard for, isn't it?

        by victoria2dc on Fri Apr 17, 2009 at 06:21:03 AM PDT

        •  No, he is not in charge.

          He has to be in a position where his orders will be obeyed.

          The first thing that anyone in authority learns is not to give an order that will not be obeyed.

          The current Overton window does not permit prosecution.  But Obama challenged the CIA in part by releasing the memos.  That moves the window.  Give him time, he is not stupid.  Let him get his ducks in a row.

          by Demena on Fri Apr 17, 2009 at 07:40:20 AM PDT

          •  Obey

            The first thing that anyone in authority learns is not to give an order that will not be obeyed.

            Maybe he could give an order to torture people. That always seems to be obeyed.

            by darrelplant on Fri Apr 17, 2009 at 08:54:38 AM PDT

      •  I hate to say it, but

        I really do. I believe that they will use such support as a vehicle to gin up the anti-Obama fervor they're attempting now. Mind you, I am still arguing for moving strongly forward and letting the political chips fall where they must. I'm just recognizing that there will be a necessary cost.

        by GOTV on Fri Apr 17, 2009 at 06:30:18 AM PDT

        •  A necessary cost

          A low viewership cable station goes on a non-stop rant, losing them even more viewers. A Republican party that has lost most of it's moderate membership looses all of it's moderate membership, shrinking that party to smaller than the regional party it is now. A small handful of marginal members of congress, elected from gerrymandered districts full of fanatics, stage PR stunts to get air time for their over the top rants.

          Are we really worried that people will pay attention to clowns like Beck, Malkin, Coulter, Bachmann, Limbaugh and O'Reilly? That a few outraged marginal bat shit crazies ranting on soap boxes in the public square is a COST that we cannot pay to bring torturers to justice?

          Let them do their worst. When their crazy people show up in the dozens at rallies, carrying guns, arrest them. Price. Paid.

          by Orinoco on Fri Apr 17, 2009 at 07:02:44 AM PDT

          •  A good point

            No, worried is not the right level of concern, but you do make a good point that GOP antics of this sort are rather magnified for those who pay constant attention to this. For Earl in Omaha, my archetypical average American, their crap is more likely closer to so much backround noise.

            by GOTV on Fri Apr 17, 2009 at 07:32:50 AM PDT

          •  You forget

            about the behind the scenes actors.  He has to cope with those as well.

            by Demena on Fri Apr 17, 2009 at 07:41:29 AM PDT

        •  Who cares!

          Fuck them.

          They're c...r...a...z...y.

          They're going to do it anyway.

          The only way he can win is to do the right thing. It's the only action that can combat teh stupid.

          by k9disc on Fri Apr 17, 2009 at 07:46:16 AM PDT

      •  I think "many" people would, as

        there are many wingnuts in the USA.

        But that's not bad.  Let 'em focus on the "outrageousness" of prosecuting Rumsfeld, Cheney, etc., where such prosecutions are desired by a sizeable majority of Americans.  I don't think the wingnuts are capable of focusing their ire on very many perceived transgressions of the Obama administration.

        by h bridges on Fri Apr 17, 2009 at 07:53:29 AM PDT

  •  I Absolutely Agree,

    but I have just one question. At least according to John Dean last night on Countdown, just because Spain's AG is leaning against an investigation doesn't preclude Spanish courts or legal officials from investigating anyway. Did I understand that correctly? Plus, other nations could bring charges, too.

    by CityLightsLover on Fri Apr 17, 2009 at 06:45:59 AM PDT

  •  My head has sunk lower in shame

    Shame on Obama, a constitutional scholar, for using Bushista terminology, for condoning Bush/Cheney, et alia, torture by refusing to prosecute the people who wrote the flimsy excuses "justifying" torture and the people who actually carried out the torture (I note the "contract interrogators" were not mentioned, and they were the ones the CIA just recently said they wouldn't be using any more).

    What's this horror praising CIA agents and the US military for "doing their duty" when, in fact, their actual moral and ethical duty was to refuse to follow immoral and illegal orders because "I was only following orders" is NOT a defense for committing war crimes...?!?!?  The ludicrousness of it all never fails to astonish me.

    A couple of links to Olbermann's Countdown last night:

    http://www.msnbc.msn.com/...
    Keith Olbermann, Torture Memos released. Interview with Howard Fineman.

    http://www.msnbc.msn.com/...
    Keith Olbermann, Special Comment, April 16, 2009

    http://www.msnbc.msn.com/...
    Interview with John Dean regarding the torture memos.

    If this is an example of Obama's "leadership" then he has already failed.  I have to wonder what he was offered by Repukes in exchange for adamantly (but politely passively-aggressively) refusing to support impeachment prior to election day and now doing the same with prosecutions for the men who wrote the torture memos at the behest of the sadists who ordered the memos be written...?

    by NonnyO on Fri Apr 17, 2009 at 07:48:33 AM PDT

    •  I have to agree.

      I don't consider myself a "fanatic," either for feeling UTTERLY betrayed by this decision.  As someone above said, moving forward and looking back are not polar opposites--the two go hand in hand.

      Letting Bush admin torturers, murderers, war criminals, and their enablers get away with what they did without any accountability, reckoning, consequence, or responsibility drives a stake through the heart of democracy.  

      It is a betrayal of our best selves, of every ideal we have ever stood for.  Nothing less.

      This is not what I voted for.

      by mozartssister on Fri Apr 17, 2009 at 04:44:49 PM PDT

  •  Maybe the problem is "mens rea"....

    the state of mind necessary for a crime to have been committed.  The defendants couldn't argue that being ordered to commit a crime lets them off the hook, but maybe they could argue that the memos assured them that what they were doing wasn't a crime.  The prosecution rejoinder, of course, would be that some things should be obvious to any reasonable person, and that waterboarding, etc. are obviously torture.  Good defense counsel, however, would try very hard to differentiate between things which are self-evidently torture--the rack, hot irons, electrodes--and the oh-so-carefully nuanced treatments laid out in the memos. I doubt that any of them would be convicted.

    It's more important, I think, to go after the people who ordered the torture in the first place.  Indeed, charging the ones who actually executed the orders, and letting them plead out to get to the principal villians, is a classic prosecutorial tactic.  What do you want to bet that the trail leads right to an undisclosed secure location?

    by btfjd on Fri Apr 17, 2009 at 08:17:09 AM PDT

    •  the Field Manual of Counter-Insurgency

      as lawyer briefings prior to US Army missions always advises troops that when confronted with a direct order that this illegal, they must resist.  

      I can't help but wonder whether those words ever stopped an atrocity.  Those that ordered this torture, Bush, Cheney etc. have "intent" to commit those crimes by the very act of seeking to justify those crimes by ordering an attorney to "make it legal".  The testimony of those participating would make that clear.

      I believe that if prosecuted correctly, from the outside up to the top, people would cave and give up the INTENT of the top officials.

      by IngeniousGirl on Fri Apr 17, 2009 at 09:03:04 AM PDT

  •  Its the tip of the iceberg...

    How many reasons have the CIA given the world to hate us??  It may be the crux of all our problems.

    by gdwtch52 on Fri Apr 17, 2009 at 08:30:36 AM PDT

  •  I'd be very pissed if I were you

    I posted on this Nuremberg issue yesterday, but it never broke completely through.

    Obama & Holder Trash Nuremberg Principles

    More importantly, I just published an article at AlterNet that outs one of the SERE psychologists, and shows exactly how OLC cherry-picked a certain SERE memorandum to arrive at their "conclusions".

    Like a cherry on top, I cite major psych research on SERE that give the opposite results that Bybee claimed in his 8/2002 memo, demonstrating these memos were written in "bad faith" and cannot be used for the immunity granted by Obama/Holder.

    The Torture Memos Are Not Just Sick, They're Full of Lies: A Closer Look at the Bybee Memo

    Reading the just released August 1, 2002 memo by John Yoo (reportedly ghosting for Jay Bybee, then Assistant Attorney General of the United States, and now an Appeals Court Judge for the Ninth Circuit), to John Rizzo, then Acting General Counsel for the CIA, on the interrogation of Abu Zubaydah, is a surreal experience. There is so much that is strange and awful in it, it's hard to know where to begin.

    But one thing that struck me right off the bat was the similarity of the statistics presented in the early part of the memo with the statement of Dr. Jerald Ogrisseg, a psychologist with Joint Personnel Recovery Agency, United States Joint Forces Command, before the Senate Committee on Armed Services on June 17, 2008.

    by Valtin on Fri Apr 17, 2009 at 09:37:23 AM PDT

    •  Bybee's freudian slips

      In the August 1, 2002, on page 1, Bybee uses the word "techniqlies."  Lies about techniques really being used?

      On page 2, he uses the word "culmillating."  What's that, a titillating climax?

      There are many errors, actually, that look like OCR errors.

      by VincaMajor on Fri Apr 17, 2009 at 02:50:20 PM PDT

    •  Law professor Benjami Davis says Yoo's analysis

      of the statutory definition of "severe pain" was so unreasonable that even a lay person could not rely on it.

      http://jurist.law.pitt.edu/...

      [Yoo] had the specific intent to do what he did. And what he did was create a standard for "severe pain" out of whole cloth that was unsupported by the statute he cited.

      [T]he Yoo analysis is untenable on its face. In addition, given that the exercise I just went through took me about five minutes of looking up the relevant statutes that Yoo cites, I must question whether any lawyer in this process or layperson with the reasonable sense to ask a lawyer to check the point could be seen as being reasonable in relying on a "severe pain" standard that is made up from thin air.

      by VincaMajor on Fri Apr 17, 2009 at 03:06:04 PM PDT

  •  Edit suggestion:

    (I understand the point you're making, so this is off-topic): the Spanish AG seems to be either overruling or preempting the prosecutors.  My understanding is that the prosecutors themselves hadn't yet made a recommendation.

    by skrekk on Fri Apr 17, 2009 at 09:47:47 AM PDT

  •  I've been wondering where the line is

    between those protected by this ("following orders"--and yes, I'm aware of the moral and legal challenge of that...), and those who were not merely following orders.

    The Bush regime weren't the Nazis (mere wannabees, maybe).

    The post-war decision was not to pursue and prosecute every individual who had a hand in the crimes of the Nazi regime.  I think there's some justification for that--for acknowledging the moral frailty and weakness of human beings, particularly in the face of orders and expectations from authority (those horrifying and shocking psych test experiments...).  But the flip side of that is that if we accept that the normal individual in the low end of the chain is under immense pressure to conform and is powerfully, naturally, inclined to conform, then the onus is on those up the chain.

    Those who knew--and should at least have resigned in protest, publicly.  Those who knew and were in the position of shaping and transmitting the nightmare vision of the top into nightmare reality at the bottom.  And particularly those at the top.

    Particularly those at the top.

    The only way that this begins to be justifiable ethically and in terms of long-term socio-political effects is if the price paid at the upper echelons--and particularly at the top--is severe.  The logic of saying we understand that you took orders and did things that were wrong requires that those who did wrong understand that what they did was wrong, that what they did, the choice they made, was wrong... and that it's because of our understanding of human frailty that they are being granted mercy. It ought to be framed that way.

    But it only, only, only works if the culpability and accountability that rests at the top is addressed, and punished suitably.

    Letting the Spanish do it for us won't fly--at least not unless the new administration cooperates with international efforts at justice.

    by ogre on Fri Apr 17, 2009 at 09:54:06 AM PDT

  •  "I don't agree that no one should be prosecuted"

    Except that isn't what the Obama administration said. What was glaringly not stated nor included in yesterdays statements was immunity for those who implemented the policy of torture.

    While I am worried that this may be slow-walking that door shut to go after anyone at all, your statement I quoted above is simply not accurate, and thereby degrades the legitimate points of concern about not holding to account who is ultimately responsible for illegal torture, the senior administration people who drove the policy.

    Mitch Gore

    Pass Medicare buy-in for all via reconciliation, since it is fiscally related (and sound) policy.

    by Lestatdelc on Fri Apr 17, 2009 at 10:07:13 AM PDT

  •  hey from you I take them

    being one of those out in "the world" I take your apologies gladly ... absolutely support your diary here. For us (in Europe) this entire matter as rather nasty as well - as you will know some countries went as far as allowing teh CIA to have dark prisons in country, others helped with or at least "overlooked" renditions through their areas of authority, or let people taken in Afghanistan to the US full well knowing what was going to happen - virtually all european countries in one way or other became complicit. I know of none that had the guts to really stand up to this horrendous practice of the Bush administration.

    Not even my own one (Germany), not even under a red-green government. Not even our government that we progressives had worked for seemingly endless years to get there. In fact I don´t think that you have to give much apopolgies to us - we have plenty to reckon of with ourselves. And we don´t do it either.

    by marsanges on Fri Apr 17, 2009 at 10:23:38 AM PDT

  •  Demand Accountability for Torture

    Tell Attorney General Eric Holder to appoint an independent prosecutor to investigate the detainee abuse.

    Send a letter from ACLU:

    https://secure.aclu.org/...

    by allenjo on Fri Apr 17, 2009 at 11:39:17 AM PDT

  •  This is getting tougher by the day

    I'm trying to be patient, I'm trying to maintain some tiny amount of optimism. But I'm having LOTS of trouble doing so.

    I'm thinking LBJ more and more here recently. The guy did a bunch of good things for this country. But nobody much remembers that. What they DO remember is Vietnam. I can see a similar thing happening with Obama. No matter how much good he does, it may come down to how he deals with Bush and the others.

    "Oh yeah, Obama. He was that president who prevented Bush and the other fascists from having to pay for their crimes. What an idiot."

    by ratmach on Fri Apr 17, 2009 at 12:22:02 PM PDT

  •  If anyone has the (whatever it takes) to

    listen to Ed Schultz (either on radio or on MSNB) please let him know that he has it all wrong about supporting Obama's position to just let it all go.

    He pissed me off this a.m. when I was in my car and just happened to hear him start his show off.

    If you have any ability (like a podcast subscription) to record it and put it in an mp3 format, please do it so people can let him know he's dead wrong and why.

    He is 100% owned by the Obama administration.  In fact, I'm sure they helped him get where he is today.

    by victoria2dc on Fri Apr 17, 2009 at 12:47:58 PM PDT

  •  Nadler and Conyers statements today

    I don't know if this has been brought up in the comments, but...

    Today Rep. Jerrold Nadler called on Obama to appoint a special prosecutor. But since he was only the chairman of a SUB-committee, I didn't know if it would lead anywhere. But now, John Conyers, the chairman of the committee Nadler's sub-committe is a part of (House Judiciary) is speaking even MORE strongly:

    Rep. John Conyers, the Michigan Democrat who is chairman of the House Judiciary Committee, on Friday raised the prospect of prosecutions of senior Bush Administration officials and Justice Department lawyers who authorized the harsh interrogations.

    "If our leaders are found to have violated the strict laws against torture, either by ordering these techniques without proper legal authority or by knowingly crafting legal fictions to justify torture, they should be criminally prosecuted," he said in a written statement.

    Is this as important as it seems to me?

    by ratmach on Fri Apr 17, 2009 at 02:32:28 PM PDT

•  Gah!

  I'm speachless.  

  by funluvn1 on Fri Apr 17, 2009 at 05:34:24 AM PDT

  •  I had a migraine headache and am now crying a lot

    by Jesselyn Radack on Fri Apr 17, 2009 at 06:14:32 AM PDT

    •  I turned off my 'puter yesterday afternoon

      with a migraine, tears and nausea too. I was getting too angry, posting very rage filled comments at DD, and decided I should pull away from the edge for a few hours.
      This is worse than the Congressional vote supporting the Military Commissions Act, which also had me throwing things at my TV and crying.
      I'm stumped. I don't understand what they don't get about "following orders" is not a defense. I don't understand what they don't get about the fact that we prosecuted and then hung Japanese soldiers for doing EXACTLY what the CIA was doing at GITMO.
      The disconnect is too wide to bridge.

      by Lisa Lockwood on Fri Apr 17, 2009 at 06:39:06 AM PDT

      •  I am sorry you cried.

        but bear in mind the situation is not over yet.

        Politics is the "art of the possible".  Your tears and reactions change what is possible.

        Keep talking, keep discussing it.  

        by Demena on Fri Apr 17, 2009 at 07:43:44 AM PDT

        •  I guess many of us need

          a period to mourn what has been lost.

          

          by Lisa Lockwood on Fri Apr 17, 2009 at 08:17:05 AM PDT

          •  its not lost

            as long as you and I are not lost wanting it. And we won´t stop being.

            by marsanges on Fri Apr 17, 2009 at 10:26:03 AM PDT

    •  Jeselyn we keep persisting that is the mission n/

      by IngeniousGirl on Fri Apr 17, 2009 at 09:03:44 AM PDT

•  This cannot stand.

  I don't care as much about the grunts who did the act (although they, too, should be held responsible).  However, on the sliding scale of who needs to be prosecuted the most, these are my top dogs:  Jay Bybee, Alberto Gonzales; George Bush; Dick Cheney; David Addington; Donald Rumsfield; Condi Rice.

  Those who intellectualized and ordered the torture are the ones most in need of a trial.

  by real world chick on Fri Apr 17, 2009 at 05:37:47 AM PDT

  •  Forgot the good Mr. Yoo. Feel free to add to the

    list.  It certainly isn't all inclusive.

    by real world chick on Fri Apr 17, 2009 at 05:38:46 AM PDT

    •  Steven Hadley I believe

      The SERE guys who volunteered to "reverse engineer" SERE.

      by sullivanst on Fri Apr 17, 2009 at 06:11:09 AM PDT

      •  Feith

        by IngeniousGirl on Fri Apr 17, 2009 at 09:04:21 AM PDT

    •  Feith. n/t

      by costello7 on Fri Apr 17, 2009 at 08:02:17 AM PDT

      •  you beat me to Fe Fi Fo Frum & Feith n/t

        by IngeniousGirl on Fri Apr 17, 2009 at 09:04:42 AM PDT

        •  Has anyone mentioned Wolfie, yet? n/t

          by costello7 on Fri Apr 17, 2009 at 09:09:04 AM PDT

    •  I actually meant Steven Bradbury

      But Stephen Hadley should definitely be on the list too.

      The psychs and doctors who violated their oaths to enable the program. They should definitely have known better.

      by sullivanst on Fri Apr 17, 2009 at 08:40:23 AM PDT

      •  Addington

        by IngeniousGirl on Fri Apr 17, 2009 at 09:05:02 AM PDT

        •  RWC listed him already n/t

          by sullivanst on Fri Apr 17, 2009 at 09:39:54 AM PDT

  •  I agree.

    by Jesselyn Radack on Fri Apr 17, 2009 at 06:15:01 AM PDT

    •  But do you really think it'll be used that way?

      I don't.

      Thanks for the good work you do.

      by Wom Bat on Fri Apr 17, 2009 at 07:21:23 AM PDT

  •  Speaking as a pragmatist

    After reading the first memos, I'm now inclined to support prosecution of the people who authorized the torture. The grunts who carried out the policy are small fish, like Lyndie England, but the Rumsfelds and Gonzoleses are definitely on the hook.

    They knew, and they signed off on the orders. In the case of Rummy, some of them requested that this be done in our names. Putting people in coffins and dropping in insects isn't what America is about.

    We need to start a movement on this that compels the administration to move forward, because they are indicating that they would prefer to move on and not look back.

    by The Raven on Fri Apr 17, 2009 at 06:17:48 AM PDT

    •  Join the Kossack e-mail group...

      bloggers against torture.  Also, democrats.com is working and doing outreach to bring people together.

      You received this message because you are subscribed to the Google Groups "Bloggers Against Torture" group.

      To post to this group, send email to [e-mail]

      Also, DO NOT let the return of the Obama election machine campaign go unnoticed.  You probably got an e-mail this week that they are back in your state.  They're having meetings locally to hear the voices of the BASE who did the work.

      Gather your friends and go beat on the door of the state organizer and tell him to get back to Axelrod and let him know that they have lost your confidence and your vote!

      Let's make sure they get our message in Washington. You should have a message like this one, which I am copying directly from the e-mail:

      On Apr 14, 2009, at 10:23 AM, Gabe Lifton-Zoline, CO.BarackObama.com wrote:

      Dear Vicki,

      My name is Gabe Lifton-Zoline, and I'm the new Colorado State Director for Organizing for America.

      Since Inauguration Day, Organizing for America has been dedicated to making real the change we fought for during the election. But to be successful, we need to hear from you -- your effort and commitment are the backbone of this movement and this organization.

      That's why I'm so excited to announce that we're back on the ground in Colorado and, starting this week, we'll be hosting Listening Tour Town Halls across the state.

      Will you make your voice heard and join us on the Listening Tour?

      At Listening Tour meetings, you'll get a chance to meet new state staff members, hear about some lessons learned during the general election, and offer your thoughts on how we can organize Colorado going forward. Your ideas will be used to write a Colorado-specific plan for Organizing for America in 2009 and beyond.

      The campaign brought an unprecedented number of new voices into the process -- we need to make sure those voices remain at the center of the debate as the President and Congress work on providing solutions for our economy.

      But these meetings are not just for folks who were involved in the campaign -- we're hopeful that every Coloradan will get involved.

      We can't stop growing our movement now. We've never had a better opportunity to shape our future -- and just like during the election, we'll do it from the bottom up.

      Sign up now to attend a Listening Tour event:

      http://co.barackobama.com/...

      I look forward to seeing you,

      Gabe

      Gabe Lifton-Zoline
      Colorado State Director
      Organizing for America

      They are begging us to let them know that we're not happy:

      P.S. -- If you can't make it to a Listening Tour event, you can still get involved with Organizing for America in Colorado. Let us know how you'd like to see Colorado organized:

      http://co.barackobama.com/...

      Take action today!

      by victoria2dc on Fri Apr 17, 2009 at 06:44:59 AM PDT

      •  BAT listserve

        BLOGGERS AGAINST TORTURE
        Patriot Daily  has set up a Google Group listserve.

        This group is for ANYONE opposing torture or cruel, inhuman or degrading treatment of any person.  We are readers, posters, and lurkers on DailyKos.com.  This group serves as a clearinghouse and rapid alert system for anti-torture diaries.  This group is for ANYONE opposing torture or cruel, inhuman or degrading treatment of any person.  We are readers, posters, and lurkers on DailyKos.com.  This group serves as a clearinghouse and rapid alert system for anti-torture diaries.  

        Click the badge to sign up!

        

        by Lady Libertine on Fri Apr 17, 2009 at 08:13:23 AM PDT

    •  I agree it is the leaders in a system of

      corruption who are culpable and should be held responsible.  That is, if you ever want a certain practice to stop.  If you only punish the underlings who carry out the orders (who will be court martialed or thrown in prison themselves), then the ugly practice can continue ad infinitum.  The leaders can continue to abuse their powers, giving the unlawful orders with impunity.

      by In her own Voice on Fri Apr 17, 2009 at 06:47:10 AM PDT

    •  well put and well focused

      John Dean said on Countdown that the policy authors have not been immunized.  The fact that the lower level agents have immunity provides an opportunity for testimony against those at the top, right?  If this is how we get them, I'm OK with it.

      by Leftcandid on Fri Apr 17, 2009 at 06:47:52 AM PDT

      •  Strong point

        The fact that the lower level agents have immunity provides an opportunity for testimony against those at the top

        Yes.

        by The Raven on Fri Apr 17, 2009 at 06:51:21 AM PDT

      •  I don't think it works that way

        If there is no threat of prosecution, then they don't have to say anything. You grant them immunity as part of a deal to get them to testify against the higher ups.  I would certainly support that; that's how you get the big fish. But you can't do it if you let the little fish off the hook from the very beginning.

        Don't preemptively give them immunity. Investigate, arrest, and then make a deal if they're willing to help out with investigations of the higher-ups.  If some lower level people end up going free because they provided testimony that put the higher people away, then fine, but you have to have a stick first to motivate them to say anything at all.  

        by Lost Left Coaster on Fri Apr 17, 2009 at 07:40:06 AM PDT

        •  Have to agree.

          There is no stick.

          They've got to admit to heinous crimes, embarrassing and dirty deeds. They also have to turn on their superiors.

          Not going to happen without a threat.

          by k9disc on Fri Apr 17, 2009 at 07:49:57 AM PDT

        •  I don't know

          how I feel about letting the "little fish" off the hook entirely, either. I keep seeing hands slamming people's heads against the walls, hands stuffing people into small boxes, hands pouring water on people who believe they're drowning. People being sexually assaulted-it makes my  blood boil to think that these perverted degenerates may walk-as some part of a deal. Sickening. Working for the government-my ass! What the hell kind of work is that?

          by lyvwyr101 on Fri Apr 17, 2009 at 08:24:04 AM PDT

          •  One of those is still prosecutable

            Obama's and Holder's statements would not extend immunity to anyone who sexually assaulted as prisoner.

            by sullivanst on Fri Apr 17, 2009 at 08:44:37 AM PDT

      •  Recc'd

        But I don't think they have been immunized.  Obama is not a prosecutor and it isn't his job.  If he directs a prosecution or an immunization then that is an act he does not have the power to do.  All he has is the power of pardon.

        by Demena on Fri Apr 17, 2009 at 07:47:37 AM PDT

  •  Not trying the CIA guys is a red herring...

    ...that's being used (successfully) to prevent the prosecution of higher-ups, among them those you've mentioned here.

    There will be no torture prosecutions ... of anyone.

    Let's be realistic about what Obama has dumped on us here: another fuck-the-people, fuck-the-rule-of-law outrage we're simply going to have to live with.

    Regardless of party, they take care of each other. It's a club, and none of us are members.

    by Wom Bat on Fri Apr 17, 2009 at 07:17:29 AM PDT

•  The Obama compromise is a failure

  It appears clear to me that Barack Obama was trying to split the baby, releasing the torture memos while simultaneously guaranteeing that CIA employees will not be prosecuted for torture.  But as Keith Olbermann said last night, "Sometimes going halfway is worse than nothing."   Obama has made it plain that crimes have been committed in our names; he has shown us the evidence that those crimes were sanctioned from on high; and yet he says those who committed the crimes will not be punished for them.

  Not good enough, Mr. President.  Adolf Eichmann tried the "I was only following orders" defense, and it didn't work for him.  Every military recruit learns early in training that following an illegal order will leave them as culpable as the officer giving the order.  This issue should not be micromanaged from the Oval Office.  It should be handed to a non-partisan career prosecutor to investigate and prosecute where lawbreaking is found.  Anything less leaves the door open to future administrations to break the laws with impunity.

  by Dallasdoc on Fri Apr 17, 2009 at 05:40:06 AM PDT

  •  Its worse than that

    and yet he says those who committed the crimes will not be punished for them.

    He says this, then he has a moment of pure indefensible hypocrisy when he follows with "we are a nation of laws".

    by heart of a quince on Fri Apr 17, 2009 at 05:45:27 AM PDT

    •  We are apparently a nation of lip service

      Barack Obama cannot have it both ways.  He can investigate and when necessary prosecute the Bush administration for torture, warrantless wiretapping and other crimes, or he will become an accomplice after the fact.

      His position gives him no other options.

      by Dallasdoc on Fri Apr 17, 2009 at 05:49:55 AM PDT

      •  That's certainly my take

        I've been referring to it as "driving the get away car".

        by heart of a quince on Fri Apr 17, 2009 at 05:51:58 AM PDT

      •  we only go after drug offenders and athletes

        by need pr on Fri Apr 17, 2009 at 05:52:37 AM PDT

        •  Torture is ok while marijuana is a horrible thing

          This is the crystal-clear message.

          by xxdr zombiexx on Fri Apr 17, 2009 at 05:54:12 AM PDT

          •  Shoplifting a pack of gum

            has greater legal consequences than torturing another human being.

            That is the United States now.

            by heart of a quince on Fri Apr 17, 2009 at 05:55:47 AM PDT

            •  Of course it does!

              The gum is a product, which, when stolen, does not allow profit to be made on its manufacture.

              Torture is nothing like that!

              /snark, sadly

              by roadbear on Fri Apr 17, 2009 at 06:25:27 AM PDT

              •  Even more sadly

                I'm not sure that is snark.

                by heart of a quince on Fri Apr 17, 2009 at 06:34:47 AM PDT

                •  prosecute the poor reward the rich n/t

                  by IngeniousGirl on Fri Apr 17, 2009 at 09:07:12 AM PDT

            •  Spizer hires a hooker and has to

              step down as Governor - they threaten to prosecute him - and he may or may not be able to keep his law license.

              But these sick fucks torture a bunch of people and everyone gives them a pass - a pass to live on happily in their fancy homes, making oodles of money from speaking engagements, allowing them to continue on in lifetime appointments on the court...

              Obama announces that he is going to "crack down" on drug use in the United States, but he won't touch these sick fucks who tortured people.

              There is something seriously wrong here.

              by inclusiveheart on Fri Apr 17, 2009 at 06:33:22 AM PDT

              •  No one has given them a pass

                Obama is not god.  He does not have the authority to say they will not be prosecuted, only to pardon them.

                by Demena on Fri Apr 17, 2009 at 07:50:42 AM PDT

                •  Of course, Obama has the authority to

                  protect them from prosecution and he has thus far said he would do so.

                  And who said anything about god?

                  How about you go review the scope of power held by the President and the Executive Branch - which btw has nothing to do with god or otherworldly hocus pocus - because you're dead wrong about what Obama can do here.

                  by inclusiveheart on Fri Apr 17, 2009 at 08:01:07 AM PDT

                  •  He could direct their prosecution, sure.

                    And he could pardon them.  But Bush couldn't stop Libby's prosecution.  Obama can't stop prosecutions either.  Just issue pardons.

                    by Demena on Fri Apr 17, 2009 at 08:05:16 AM PDT

                    •  Bush couldn't stop that investigation

                      because they were investigating his administration.  Nixon's "Saturday Night Massacre" essentially set a precedent against Presidents firing people for investigating their administrations.  Bush and his clan chose to block the investigation instead.

                      by inclusiveheart on Fri Apr 17, 2009 at 08:23:16 AM PDT

                  •  The Executive Branch has the absolute power

                    to determine who will and will not be prosecuted.  And Obama is the head of the Executive Branch.

                    So, yes, Obama has the authority to prevent any prosecution on his say so.

                    You don't seem to understand our system.

                    by costello7 on Fri Apr 17, 2009 at 08:07:31 AM PDT

          •  Absolving Those Who Tortured, Restoring Banks

            to continue their predation/destruction of the nation's economy, yet laughing as Kids go to jail in America for smoking a joint....

            by leonard145b on Fri Apr 17, 2009 at 06:13:04 AM PDT

            •  Raided and shot in the chest. nt

              by k9disc on Fri Apr 17, 2009 at 07:52:22 AM PDT

        •  And Martha Stewart goes to the slammer

          while Wall Street high roller crooks get billions in bail outs.

          We only prosecute little fish because the big ones have sharp teeth.

          by crystal eyes on Fri Apr 17, 2009 at 06:29:03 AM PDT

          •  And Martha went to jail

            for lying about a crime she was never even charged with...go figure!

            by Actbriniel on Fri Apr 17, 2009 at 08:29:20 AM PDT

      •  worse, with this kind of attitude he

        gives a lot of soldiers and veterans even more reason to "go crazy" and despair over their situation. PTSD has some real reasons, one of them is the hypocrisy to allow torture to blossom in the back alleys of the "dark and secret prisons" and interrogation rooms and at the same time brainwash the soldiers to be involved in a "noble war".

        I looks as if Obama just takes this way too lightly.

        His words made my stomach going bananas. He needs to get serious and stop thinking he can charm himself out of this. It's no basket ball game. If he doesn't get more pragmatic over this issue, he will lose his base.

        And why I am at it to get angry over Obama, Michelle should stop to change her outfit constantly and get off her compulsive fashion love. She is pretty enough to look good whatever she wears, has an inner beauty that shines through. Her outfits overshadow sometimes what she really is. So, it's enough already, ok?

        by mimi on Fri Apr 17, 2009 at 08:08:38 AM PDT

        •  Exactly, I dread thoughts of my Son in Afghanista

          n, faced with an atrocity about to be committed.  Will the attorney briefing give him cover to resist a commanding officer about to murder a prisoner in cold blood?  Think about how far down the chain this decision to "not look back" actually goes forward into infinity

          by IngeniousGirl on Fri Apr 17, 2009 at 09:10:11 AM PDT

    •  The words

      I was hoping I would not have to type in the Obama administration:

      There is no law.

      by Moody Loner on Fri Apr 17, 2009 at 05:52:36 AM PDT

      •  Wrong

        There is plenty of law - it just only applies if you are on the outside looking in.

        by heart of a quince on Fri Apr 17, 2009 at 05:54:33 AM PDT

        •  That is merely force.

          In a nation with the rule of law, laws apply to everyone. Sure, the wealthy and powerful get better lawyers, but at least there is the appearance of due process.

          Lawyers must be consulted, papers must be filed, the judicial system must be appeased at some level.

          Now, we are a country like we used to say China or the USSR was, where we have the forms of law to keep the proles in line, and the oligarchs do whatever they want.

          We used to call those countries "lawless". We are now "lawless". There is no law.

          by Moody Loner on Fri Apr 17, 2009 at 05:58:32 AM PDT

          •  Sorry - I was trying to be snarky

            I agree with you.

            by heart of a quince on Fri Apr 17, 2009 at 06:00:50 AM PDT

            •  I know.

              But I felt my point needed to be expanded a little.

              Plus, I wanted to bring up the USSR. Conservatives hate when I bring up how much we are like the USSR now, even though they're the ones that did most of it.

              Like there's one reading Daily Kos, but you never know.

              I was going to say that I'd count my duty as a citizen done if I jacked up Falafel Boy's blood pressure a couple points, but if that were true I wouldn't live in a country that tortures.

              by Moody Loner on Fri Apr 17, 2009 at 06:05:10 AM PDT

              •  USSR torture methods practiced in the USA

                The use of insects and enclosed spaces to torture suspects is straight out of the pages of the Gulag Archipelago by Solzhenitsyn.  

                I remember reading a section of the book back in high school which explicity talks about using insects and enclosed spaces to torture "suspects".
                At the time I thought, "Thank god I live in America, where things like aren't allowed to happen."  Little did I know that within 15 years time we would be doing exactly that and excusing the individuals who took part as "just following orders".  Not only are we committing the same types of torture practiced by Stalin we are throwing up excuses used by the Nazi's to justify it.

                We obviously have lost all ethical constraints on our behaviour.
                We have become everything we were raised to despise.

                by deatheats on Fri Apr 17, 2009 at 09:36:23 AM PDT

  •  I guess I don't read it that way.

    When he says that this is a time for reflection not retribution, I see that as giving the country an opportunity to confront what was done in our names.

    I see it as opening the door to the reality of the Bush torture regime, and as the reality is confronted, upon reflection, we as a nation will have to decide what legal actions to take.

    I see it as a deliberate, methodical approach. Taking one step at a time to change the direction of the country.  Not letting this step be overshadowed by politicized calls for retribution, but just getting the information out so that the wheels of justice can start turning.

    by Hyde Park on Fri Apr 17, 2009 at 05:58:09 AM PDT

    •  Promises of no prosecution

      do not sound like the wheels of justice turning to me.

      How are we going to enforce the laws against torture when there is no accountability for breaking them?

      by Moody Loner on Fri Apr 17, 2009 at 05:59:57 AM PDT

      •  It isn't a valid promise.

        The president does not have the power to promise that.  he only has the power to pardon.  Condemn him when he uses it, if he does.

        In the meantime it helps keep him alive and makes the nation more receptive to what happened and, hopefully, produces anger.

        by Demena on Fri Apr 17, 2009 at 07:53:30 AM PDT

        •  If

          our president has to be so careful of assassination by our intelligence services that he has to promise them immunity from prosecution to remain alive long enough to continue investigating...maybe we shouldn't have intelligence services.

          by Moody Loner on Fri Apr 17, 2009 at 09:07:07 AM PDT

    •  We know MANY crims were committed.

      People WERE tortured.

      People DIED during said TORTURE.

      What the fuck do we need to reflect upon?

      by xxdr zombiexx on Fri Apr 17, 2009 at 06:00:50 AM PDT

      •  Furthermore

        The conflation of justice and retribution is especially disturbing coming from Obama.

        by heart of a quince on Fri Apr 17, 2009 at 06:03:47 AM PDT

        •  Yes, I was disturbed by that too

          It makes me think that Bush types won the framing war.  Justice is justice!  Felonies were committed. Absolution is a matter between the torturers and their respective gods.  

          by Lost Left Coaster on Fri Apr 17, 2009 at 06:51:22 AM PDT

      •  YOU don't.

        But most of the country is still in hopeless ignorance and denial.

        Releasing the memos was a compromise.  We are responsible for the rest.  Make it popular, make it certain, and it will happen.

        Sometimes you can only "lead" a country by disgusting it.  I think he took a stand by releasing the memos.

        by Demena on Fri Apr 17, 2009 at 07:55:30 AM PDT

    •  I was hoping for such an approach.

      However, I was a bit stunned by Obama's ruling out of prosecution of low-level responsibles. Either this is a gamble where he can "submit to public pressure" at a later point or it's a serious fumble. At the moment I'd lean towards the latter.

      by RandomGuyFromGermany on Fri Apr 17, 2009 at 06:04:55 AM PDT

      •  What are the Germans saying?

        Give me a kind of general sense... a quote I can pass on!  I know you don't speak for the German people,  but what's the mood over there?

        by victoria2dc on Fri Apr 17, 2009 at 06:54:26 AM PDT

        •  A bit of "he said, she said".

          Headline of SPIEGEL: "Obama shys away from radical break with Bush Legacy". And that's about the most memorable; the rest emphasizes that there's a discussion going on in America.

          On the other hand, it comes as no surprise to Germans that there had been torture, so it is actually not that big a news here. General sentiment, though, seems to be that it's a mistake to rule out prosecution.

          by RandomGuyFromGermany on Fri Apr 17, 2009 at 07:43:23 AM PDT

    •  since when

      is following the rule of law, and prosecuting war crimes "retribution"?  If that's retribution, how is it not retribution to prosecute a drunk driver for killing someone?  Or name your favorite crime that normally gets prosecuted if the suspect is identified and there is enough evidence to bring an indictment.  Tarring and feathering - THAT would be retribution; waterboarding the alleged perpetrators until they confessed would also be retribution.  Prosecution?  Not so much.

      by lcork on Fri Apr 17, 2009 at 06:06:24 AM PDT

    •  how can we look forward

      when we cant see over the mountain of evidence that stands in the way?

      and now, through the tears too.

      by Lady Libertine on Fri Apr 17, 2009 at 06:21:52 AM PDT

      •  Lady... please read my post and see how we can

        use this Obama organizing message I inserted above to grow the bloggers against torture group to get some traction,  I'll be out of town next week, but will have access via e-mail.

        If everyone in the group has a state we can organize in, that's great!

        by victoria2dc on Fri Apr 17, 2009 at 06:57:47 AM PDT

        •  It's not Torture that is the problem, although

          it is a horrible, horrible symptom.

          The whole fucking system is trashed.

          Law. Respect. Citizenship.

          You can fight for prosecuting torturers all day long, but it won't change things.

          We need to scrap this system and start over.

          We'd be better off pushing for IRV and proportional representation.

          Please don't think I'm not against torture, I find it disgusting and repugnant, but it's a symptom.

          by k9disc on Fri Apr 17, 2009 at 07:57:54 AM PDT

    •  Same twisted logic could be used to excuse ANY

      crime under the sun, in theory.  In practice, such lame excuses are only paraded out when someone rich or powerful or both is on the hook.  Examples abound:  when W violated the specific instructions of in-house counsel. selling his Harken stock based on insider information and his former attorney was assigned by SEC to investigate him.

      Failure to prosecute GUARANTEES it will happen again.

      by bobdevo on Fri Apr 17, 2009 at 06:53:17 AM PDT

  •  Yea, I think this is the crux of the matter

    right here

    Every military recruit learns early in training that following an illegal order will leave them as culpable as the officer giving the order.

    I was thinking of writing a diary on this from my perspective as a SERE graduate this weekend, but tempers are pretty hot on this issue and I run the risk of autobanning I'm sure.

    But this gist of it is that neither one briefing a year on the Law of Land Warfare and Geneva nor the little wallet card on Geneva handed out to soldiers enough for the soldier to identify lawful from unlawful in this sense.

    Before Abu Graib, most soldiers thought of torture as iron maidens in dungeons, hot pokers, and bamboo shoots under the finger nails.  That is obviously torture.

    But threat of imminent death, walling, facial slaps, were not previously thought of as torture and therefore joe snuffy private or sergeant probably would not think of questioning if the order was lawful or not.

    The DoJ people were basically supposed to be like that JAG officer that comes around once a year to brief what is legal and what is not.

    If that JAG officer fails to instruct on something that is illegal but not apparently so (like murder or pulling out toenail, not just keeping aomeone from sleeping), then how is rank and file Joe Snuffy, without the education of a law degree, supposed to know?

    I imagine interrogaters at CIA have or should have much more in depth legal training, so that is really a question to explore.

    by Jeffersonian Democrat on Fri Apr 17, 2009 at 06:15:18 AM PDT

    •  There is an open question in some cases

      I don't think the question is open on waterboarding, which has a long history of being considered torture and which even a layperson would have to consider such upon witnessing it.  How could a CIA employee watching such treatment not regard it as torture?

      There is a closer question in some of the other approved methods as to whether low-level employees are culpable, given DOJ approval.  I think these questions should be considered by courts, given applicable case law which is substantial and germane.  I don't think closing the door on prosecutions serves this end.

      by Dallasdoc on Fri Apr 17, 2009 at 06:22:09 AM PDT

      •  well, here's the thing

        attributed to my own ignorance.  I didn't even know what waterboarding was until this crap came out.  They didn't do it in Army SERE school, at least not in '87 when I went through.  However, many things on that list were done to me as a student.  There words used were exploitation and coercion techniques.

        Now, CIA officers all have at least a four year degree, at least.  And I would expect those that specialized in this to know their law regarding it.

        But had I seen waterboarding actually done, not knowing what it really was nor that it was particularly mentioned as a form of torture, I would naturally rely on my superiors to know that.

        by Jeffersonian Democrat on Fri Apr 17, 2009 at 06:31:08 AM PDT

        •  I'll look forward to your diary

          I never got your training, but I remember knowing about waterboarding from before the Bush administration.  Can't tell you where I'd heard about it, though.

          Here's the other thing:  courts can thrash this out.  And given the magnitude of the crimes our country has committed, I think it's imperative that they should.  I don't prejudge the CIA employees who will be brought under investigation, but I do judge the actions of a president who says this process will not take place.

          by Dallasdoc on Fri Apr 17, 2009 at 06:35:52 AM PDT

          •  hear, hear n/t

            by Jeffersonian Democrat on Fri Apr 17, 2009 at 06:36:28 AM PDT

        •  JD, also ByBee's memo asserts SERE waterboarded

          all the time, goes into great detail about the SERE school experience with 10,000 students and only, check this out one (1) complaint in all those years.  My quick read was that all SERE students had gone through waterboarding, and so your comment that you did not calls into question an assertion of fact in ByBee's memo as FALSE.

          These are all the small pieces of a case that gets put together to show INTENT.  There was a lot of information and assertions of facts of what SERE accomplished and how no one was harmed... I'd love to see the true story of the SERE school experience in great detail.

          by IngeniousGirl on Fri Apr 17, 2009 at 09:14:25 AM PDT

          •  not necessarily

            Because I understand, once I started looking into this stuff, that the Navy and Marine Corps SERE programs have waterboarded.  I went through the Army program, it wasn't there when I went through.  But that could have also changed, they do change the curriculum from time to time in military schools and training.  I can only speak for my experience in November, 1987.

            So, I am in no position to confirm or dispute Bybee's claim.

            by Jeffersonian Democrat on Fri Apr 17, 2009 at 09:51:55 AM PDT

        •  Well, with a four year degree

          they should have heard something about the Convention against Torture?

          Like

          Article 1

          1. For the purposes of this Convention, 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 an official capacity.

          Article 10

          1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.

          2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such persons.

          Speaking just for myself as a former NCO in the German army:

          But threat of imminent death, walling, facial slaps, were not previously thought of as torture and therefore joe snuffy private or sergeant probably would not think of questioning if the order was lawful or not.

          At least the threat of imminent death and "walling" (slamming a prisoner against a wall) would have been recognized as obviously illegal. And I would have been legally required to not obey such an order. Are you telling me that American soldiers don´t know that such things are illegal? Even if you don´t know that they are torture but surely you should know that they violate the laws (of war)?

          by Detlef on Fri Apr 17, 2009 at 02:31:27 PM PDT

    •  Mitigation.

      There has to be a trial, so that they realize that what they were ordered to do was wrong, and so that we all see that it was.

      I'm not calling for their heads, that would be retribution, vengeance, and lawlessness.

      Let me check that - with as honest and dispassionate sense of the legal precedents involved that I can muster with a California public-school education, I believe that those who gave the orders, after a full and fair trial, ought to be hanged.

      But those following orders, even though I understand that they had no idea that those orders were illegal, should be brought into a courtroom and slapped on the wrist.

      by Moody Loner on Fri Apr 17, 2009 at 06:22:11 AM PDT

      •  I tend to agree

        and I would think I would want to see the investigation go in the direction of not only the legal opinions, but also who was responsible for the rank and file training?  Who was responsible for insuring that interrogators knew the law and what was and what was not legal?

        by Jeffersonian Democrat on Fri Apr 17, 2009 at 06:33:20 AM PDT

  •  Obama, Rahm and Axelrod are the

    perpetual politicians!  Like Bush/Rove, it's all politics.  We can use their own machine to force them to play our way.  

    We can do it if we organize and move quickly.

    by victoria2dc on Fri Apr 17, 2009 at 06:50:05 AM PDT

  •  Yes, just as Ford's Nixon pardon taught...

    ...young Dick Cheney and young Don Rumsfeld that really monstrous crimes committed by those at the top go unpunished.

    That pardon was the germ of the Reagan and Bush 41 and Bush 43 administrations.

    by Wom Bat on Fri Apr 17, 2009 at 07:27:44 AM PDT

•  What makes the difference

  so that "...I was just following my orders" gets you hanged and "...I carried out my duties in good faith" gets you nothing? Number of victims? Being same nationality like the (non)prosecutors?

  While I agree that those who gave the orders should be made accountable first. But ruling out accountability for those who carried it out (...and how can you do that in "good faith" btw.?) seriously undermines the credibility of the new administration and will be a festering wound in the flesh of justice for years to come.

  by RandomGuyFromGermany on Fri Apr 17, 2009 at 05:48:30 AM PDT

  •  The difference is that in the latter phrase

    you lie MORE.

    by xxdr zombiexx on Fri Apr 17, 2009 at 05:52:57 AM PDT

•  We have lost our soul...

        At least at the very highest levels of government.  I cannot remain silent and let this pass.  We must turn up the heat until the political part of Obama and Co.
  must respond.  I think he knows the right thing to do morally, but he isn't there politically.  Let us force him to that place.

  by Zydekos on Fri Apr 17, 2009 at 05:49:06 AM PDT

  •  here, here! or is it

    hear, hear...?

    ACLU site has their Petition up... to demand DoJ appoint a Special Prosecutor.

    Link to sign

    An Open Letter to Attorney General Eric Holder

    It is time to appoint an independent prosecutor to investigate who knew about and authorized the Bush administration’s torture policies. If the evidence warrants, prosecutions should occur.

    Nobody is above the law -- that includes high-ranking government officials. And we must look back to make sure this never happens again in order to move our country forward.

    Please appoint an independent prosecutor to restore credibility at home and abroad and to give us an America we can be proud of again.
    Signed,
    [Your Name]

    by Lady Libertine on Fri Apr 17, 2009 at 06:28:25 AM PDT

•  The people who did the torturing, the MD's

  who supervised it and consulted, the psychologists who supervised it and tortured have to be named and interviewed/assessed to determine if they are dangerous or not to society at large.

  If they are willing to engage in crimes against people like this they have crossed a human taboo very similar to rapists and child molesters.

  Torture policies have created a significant number of very dangerous people. The soldiers who have accepted torture training and have participated in it have become  valuable to private mecenary outfits like Blackwater and Dyncorp. These are people who will do anything to other people and...are dangerous.

  We need to know who they are and keep track of them.

  Medical professionals should have their licenses suspended pending the completion of some sort of debriefing/counseling.

  These are tainted citizens.

  by xxdr zombiexx on Fri Apr 17, 2009 at 05:51:26 AM PDT

  •  Mitchell, Jensen, Seligman

    I'd like to see some body, political or medical, investigate the hell out of these three, as it was their reverse engineering of the SERE program that allowed for these atrocities to be implemented.

    by GOTV on Fri Apr 17, 2009 at 05:55:22 AM PDT

  •  // Yet we won't even fire them

    by heart of a quince on Fri Apr 17, 2009 at 06:06:01 AM PDT

  •  I Believe the Reserved Phrase Is:

    They are a danger to themselves and others.

    Isn't that the standard for a temporary commitment for evaluation?

    by greenskeeper on Fri Apr 17, 2009 at 06:12:40 AM PDT

  •  Agreed

    No one held a gun to these fuckers heads. Anyone that could do that to another human out of there own free will is certainly tainted, for lack of a better word.

    by dotdot on Fri Apr 17, 2009 at 07:45:49 AM PDT

•  The more things change...

  I always hope each new administration will be truly different, truly live up to this county's rhetoric and ideals, and I alwys end up disappointed.
  I can go along with not prosecuting the lower level guys, after all they were following the guidelines of the Justice dept. so had every reason to believe that what they were doing was legal.
  The folks responsible for creating those memos and the departments position however, need to be tried, up to and including Goerge W. Bush.
  Sadly there is a better chance of me winning American Idol than that happening.
  I wonder what it's like to live in a country where the people in charge actually feel obligeted to follow the law, I'll probably never know.

  by fat old man on Fri Apr 17, 2009 at 05:53:28 AM PDT

•  This decision

  spits in the face of every person who has ever stood against torture with the confidence that in the fullness of time, the people who carried out the torture would be brought to justice.  It spits in the face of every victim of torture, saying "you don't matter, if your torturer was just following orders".  How pathetic do we have to become as a nation before a President says, "enough!"?

  by lcork on Fri Apr 17, 2009 at 06:00:36 AM PDT

  •  Well, as they say in Twelve-Step Programs like AA

    … apparently America still hasn't "hit bottom" yet.

    How pathetic do we have to become as a nation before a President says, "enough!"?

    by lotlizard on Fri Apr 17, 2009 at 12:20:12 PM PDT

•  Ideas? I'm going on a weekend hunger strike.

  by Jesselyn Radack on Fri Apr 17, 2009 at 06:02:01 AM PDT

  •  Do lawyers have influence with the ABA?

        And does the American Bar Association have any leverage to see that laws are followed and upheld?

        Unfortunately, a hunger strike hurts only you, Jesselyn.  People who approve torture probably couldn't give a rat's ass about whether you are hungry over the weekend.

        They might notice if someone threatened to disbar them for being accomplices in crime.

    by Zydekos on Fri Apr 17, 2009 at 06:08:40 AM PDT

•  Not actually the Nuremburg Defense

  The Nuremburg Defense is "it doesn't matter whether it was legal or not, I was told to do it so I had to".

  This defense is "I honestly believed it wasn't torture and was legal".

  This defense isn't the order itself, it's an honest belief in the legality of the order.

  Now, under most circumstances, ignorance of the law is not a defence. However, this does not apply to government employees acting in their official capacity. Agents of the government have qualified immunity.

  by sullivanst on Fri Apr 17, 2009 at 06:09:22 AM PDT

  •  And which statement is more honest?

    that I had to do it or that I believed it was legal? Jeeeezz...

    by RandomGuyFromGermany on Fri Apr 17, 2009 at 06:20:21 AM PDT

    •  Well, the part of government responsible

      for decided what is and is not legal for employees of the government to do is..... the OLC.

      "I was told to do it" is easier to establish objectively, but does not excuse an individual from making a moral judgment.

      "The legal department expressly responsible for telling me what was and was not legal, told me it's legal" forms part of the moral reasoning for the individual, and allows them to mount a defense that they had made the required moral judgment, but were led astray by people that knew better.

      by sullivanst on Fri Apr 17, 2009 at 06:27:32 AM PDT

      •  Oops, that should be "deciding" not "decided" n/t

        by sullivanst on Fri Apr 17, 2009 at 06:28:15 AM PDT

        •  Ive been thinking along these lines also

          thank you for saying it with more sense than I can. It IS different....maybe subtle, but different. And still not excusable of course.

          My impression is that these "underlings" were led to believe that these deeds were not only legal (BY the OLC and DoJ) but not prosecutable... and more than that, justified and in fact "necessary" in "wartime"...all a pack of lies, but a package they all bought, hook, line, and sinker. They are CIA, right? Not military personnel.

          Im still trying to wrap my brain around all this. Still w shock, disbelief.

          by Lady Libertine on Fri Apr 17, 2009 at 06:40:28 AM PDT

          •  Would a "reasonable man" torture someone without

            first ascertaining what the law said?  Try Googling united states laws on torture and see whether you'd waterboard someone after reading the hits on the first page of results.

            by bobdevo on Fri Apr 17, 2009 at 07:02:48 AM PDT

            •  A reasonable person would be expected

              to ask their lawyer, since legal terms often overlap regular English words but have different meanings that are not obvious.

              In this case, their lawyers, the OLC, said "yes, this is legal."

              by sullivanst on Fri Apr 17, 2009 at 07:23:23 AM PDT

              •  100 pounds of balogna. n/t

                by bobdevo on Fri Apr 17, 2009 at 07:34:58 AM PDT

                •  Legal

                  If your lawyer said the law of gravity had been repealed would you jump off a cliff?

                  by darrelplant on Fri Apr 17, 2009 at 09:08:22 AM PDT

            •  Would a reasonable man torture someone?

              by CentralMass on Fri Apr 17, 2009 at 09:19:31 AM PDT

      •  OK - thought experiment.

        Do you think the latter approach would have been accepted after WWII and saved 'coupe of German guys their heads?

        (...call me ignorant but I can't tell you whether there was German legislation that would have 'justified' the crimes, although I'm pretty sure there must have been - this being Germany, after all)

        by RandomGuyFromGermany on Fri Apr 17, 2009 at 06:37:51 AM PDT

        •  The Germans DID have legal opinions from tame

          Nazi lawyers justifying everything they did. But
          befehl ist befehl didn't play to well in the aftermath at Nuremberg.

          by bobdevo on Fri Apr 17, 2009 at 07:06:56 AM PDT

          •  It doesn't take a lawyer to know

            that murder is illegal.

            These techniques, on the other hand, were specifically designed to exist in gray areas - to maintain plausible deniability. After all, the starting point for all this BS was "we do this to our own troops, how bad could it be?"

            Note that the Nuremburg defense does not consider the objective legality of the acts themselves, it's just a cowering "you can't blame me for it, I was just doing what I was told". "Orders are orders" is the claim that "I knew it was wrong but I had to do it".

            This is a qualitatively different argument, and the severity of the transgressions is also qualitatively different.

            by sullivanst on Fri Apr 17, 2009 at 07:34:07 AM PDT

            •  Since some folks were TORTURED to death....

              it seems to me the difference between OUR torture and Nazi torture is one of quantity rather than quality. Again, taking a look at CLEAR mandate of the Convention Against Torture (were CIA agents forbidden to read the CAT?):

              the term "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 . . . information or a confession

              There's not a lot of gray area there.  And, last time I looked, when we DO these to our troops, they have the option to say UNCLE!, nicht wahr? I don't think that option was available to our tortured customers.

              by bobdevo on Fri Apr 17, 2009 at 08:00:46 AM PDT

              •  I would agree

                that those who beat prisoners to death deserve to be prosecuted. For one thing, it would be very difficult to cause death whilst remaining within the "authorized" "techniques".

                The whole point of the OLC memos is that they play games with the word "severe", and really obscene games with the words "pain" and "suffering". They reach a conclusion through those games that the methods do not meet a legal definition of "severe pain or suffering".

                by sullivanst on Fri Apr 17, 2009 at 08:14:25 AM PDT

                •  Outside

                  Actually, the main fiction of the Bush administration was to try to place prisoners outside the boundaries of Geneva by creating a new classification of "enemy combatants" that wasn't explicitly covered by rules of POWs or civilians. Then they could write their own rules on what was and was not torture, since Geneva is fairly comprehensive, prohibiting even the use of mental torture or threats to third parties as coercive measures (as in "We will rape your daughter in front of you if you don't tell us where the atomic bomb is hidden, Abdul!")

                  by darrelplant on Fri Apr 17, 2009 at 09:07:05 AM PDT

                  •  The Geneva thing

                    Actually, Al Qaeda, and terrorists in general, since they are not regular forces, do not wear a distinctive uniform, do not have a command structure wherein superiors take responsibility for the actions of their subordinates, and do not abide by the laws and customs of warfare, are not covered by the Geneva conventions.

                    The fiction was inventing an excuse to detain them outside of any other legal framework. We have laws against terrorism - they should have been prosecuted under those laws.

                    Torture is prohibited universally by UNCAT, so that is where we should look, not the Geneva Conventions, which do not apply to Al Qaeda.

                    by sullivanst on Fri Apr 17, 2009 at 09:38:49 AM PDT

                    •  Two points.

                      First, I believe you misstate what conventions apply.  It is my understanding all detainees enjoy certain protections under Geneva Conventions, as Media Matters points out here. Don't believe the bullshit spin otherwise.

                      Second, the much more recent Convention Against Torture, signed by Mr. Teflon hisself Ronald-fucking-Reagan in 1988 and ratified by Congress applies at every instant relevant herein.

                      by bobdevo on Fri Apr 17, 2009 at 09:45:57 AM PDT

                    •  Geneva

                      That's just so much Bush administration legal mumbo-jumbo.

                      Many of the detainees from Afghanistan and elsewhere were never even proved to be associated with terrorists of any stripe. Those who were associated with the Taliban were the de facto military forces of Afghanistan, and they made up the bulk of the detainees there.

                      In Iraq, the Geneva Conventions certainly did apply to the tens of thousands of people swept up in raids and imprisoned and tortured. We started a war in that country, and we were supposedly bound to observe Geneva in the execution of that war. Far worse war crimes than torture took place there.

                      The legalistic term "enemy combatant" never existed before the Bush administration started using it as a loophole to circumvent the Geneva Conventions.

                      by darrelplant on Fri Apr 17, 2009 at 10:50:33 AM PDT

              •  What's saddest, I think,

                is that the torture apologists here are the ones most likely to bring about the next monster.

                That is why it is that there can be no grey area on this issue.  Torture is always torture.  "They told me it was legal" is morally the same as "I was only following orders" and thus must also be legally equivalent.  As soon as you acquiesce to the belief that there is any grey area on torture, all manner of atrocities become not only likely, but inevitable.

                by costello7 on Fri Apr 17, 2009 at 08:25:12 AM PDT

    •  The Milgram experiment on steroids

      It is impossible that anyone didn't realize it was torture. The methods were specifically designed not to leave lasting physical scars.

      by lgcap on Fri Apr 17, 2009 at 06:44:19 AM PDT

  •  It may be the gov's burdent to prove:

    It may be necessary for the prosecution to prove beyond a reasonable doubt that the defendant had a specific intent to violate the law, and not just an intent to commit the act.  For most laws, ignorance of the law is no excuse.  But some laws actually require knowledge of the law and an intent to break it.

    by Inland on Fri Apr 17, 2009 at 06:54:36 AM PDT

  •  Flies in the face of the specific language of

    the Convention Against Torture:

    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.

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

    A 12 year old could have destroyed the pathetically reasoned legal theories of the cadre of hack lawyers assembled to justify obvious violations of the law.

    by bobdevo on Fri Apr 17, 2009 at 06:57:13 AM PDT

    •  Two points...

      1. This defense isn't "I was ordered to do it", which would be invalid, it is "I was ordered to do it and provided with assurance that it was legal".

      2. It's very unlikely that the agents carrying out the torture got to see the text of the memos. Far more likely is that they were told the memos exist, and that the conclusion of the memos was that the techniques did not amount to torture. It's very unlikely that the torturers ever got to see Bybee's opinion that waterboarding is not torture because anything that doesn't cause permanent harm must therefore cause no pain, which is such a blatantly absurd, completely unsupportable claim that in my mind it conclusively proves criminal intent behind the memo.

      by sullivanst on Fri Apr 17, 2009 at 07:38:07 AM PDT

      •  Before cutting a blanket Get Out of Jail Free

        card, then, how about we get to SEE the nature of the assurances provided to fledgling torturers-to-be, and whether or not they were any more compelling than Dylan's tell the judge I said it was all right!

        Well, look it here buddy
        You want to be like me
        Pull out your six-shooter
        And rob every bank you can see
        Tell the judge I said it was all right

        And while we're at it, could we see the memos from HR on the recruitments ads used to enlist these hale fellows and well met?

        by bobdevo on Fri Apr 17, 2009 at 08:54:40 AM PDT

•  Virtual exoneration

  That's what it looks like right now with a failure to aggressively investigate and prosecute those involved at all levels in torture.

  There is no confusion about whether Bush's flimsy DOJ memos legalized acts that have longstanding histories as torture. There is no 'good faith' position with respect to waterboarding.

  We have law breaking of the most serious and nationally damaging sort being given a legal pass, as far as can be determined, and when crimes such as these happen without consequence you know that they will happen again.

  Further, in the statement following the release of the torture memos, the president subscribes to the national security claims Bushco made.

  Going forward, it is my strong belief that the United States has a solemn duty to vigorously maintain the classified nature of certain activities and information related to national security. This is an extraordinarily important responsibility of the presidency, and it is one that I will carry out assertively irrespective of any political concern. Consequently, the exceptional circumstances surrounding these memos should not be viewed as an erosion of the strong legal basis for maintaining the classified nature of secret activities. I will always do whatever is necessary to protect the national security of the United States.

  Is America a paternalist national security state in which rampant surveillance rules and the elite aren't held accountable for their crimes or is it a democracy in which the law is applied to the Cabinet as it is to the average person?

  Which is it President Obama?

  by TNThorpe on Fri Apr 17, 2009 at 06:12:45 AM PDT

  •  Is there any situation where you think

    the President is correct in maintaining classified information?

    by nickrud on Fri Apr 17, 2009 at 01:55:25 PM PDT

    •  It's important to view your question in

      historical context, first, and then to ask what situations generate the need to develop "classified information."

      Take for example the long standing practice of gov't surveillance on domestic 'left' groups. Was it really necessary for the executive branch to have massive, secret dossiers on MLK Jr.? Or on Quaker peace groups?

      Take the broad data mining programs that are the present subject of attempts at litigation. Is it really valuable to have such programs and to shield them from scrutiny by claiming state secrets privilege?

      I think that your question has different answers depending on whether one believes the gov't is acting in accord with the law and in good faith, on whether the situation that creates the need for secrecy is genuine and not manufactured for the purpose of preventing oversight into possible illegalities and gov't overreach.

      I'm not generally in favor of secret gov't actions. They breed contempt for law and generally are a prime means of expanding the power of the executive. Fundamentally, a gov't that continually avails itself of secrecy is a threat to its people.

      by TNThorpe on Fri Apr 17, 2009 at 07:56:22 PM PDT

      •  In the cases you site specifically I agree

        wholeheartedly. However, that doesn't answer the question. I'll make it a bit simpler. Is there any past situation where you agree that the government was correct to keep secret for a time? (since we wouldn't know about it if it hadn't expired)

        by nickrud on Sat Apr 18, 2009 at 07:24:09 AM PDT

        •  How about this?

          It sounds as if you have some ideas about how the question can be answered.

          I've laid out my general response.

          I should also  point out that "secret" can mean many things: keeping military plans away from enemy knowledge (generally a good thing) to Dick Cheney refusing to divulge the participant list in his energy policy meetings in the White House (a bad and possibly dangerous thing). Even secret gov't programs can have some Congressional oversight while not being publicized.

          by TNThorpe on Sat Apr 18, 2009 at 08:45:55 AM PDT

•  I don't know what to do for this diary

  other than recommend it.

  by Knarfc on Fri Apr 17, 2009 at 06:13:44 AM PDT

•  Isn't this a hypothetical?

  Reading Spain and America's torture stances together, we can't prosecute the top officials who devised and blessed torture because they "weren't there," but we can't prosecute the CIA officials who carried it out because they were just following orders.

  Isn't it irrelevant that put together, the torturers and those that ordered them are being exonerated by the US and Spain, respectively?  Doesn't the US still reserve the right to prosecute the high-level people and Spain the torturers themselves?

  Not that we have a guarantee of either actually happening (I'm not optimistic), but to say definitively that they all got away with it is a bit of a reach to me.

  by stunzeed on Fri Apr 17, 2009 at 06:23:50 AM PDT

•  Don't know how this will all turn out, but

  I hope they get past the "few bad apples" nonsense of Abu Grahib and realize, as Zimbardo put it, that the entire barrel (systemic) was bad.

  There were plenty of war criminals, both Axis and Allies that got away with their crimes during WWII and it's aftermath, all in the interest of putting the past behind them to rebuild and manage Germany and to put up a buffer against the Soviets. But this involves our own country and our own citizens and will not be put to rest until all of those responsible from the very top are put on trial.

  I don't know if the door has been completely shut on that possibility, but from what I have heard so far I too am very disappointed. And I have tended to cut POTUS slack because he has had a lot on his plate.

  by gereiztkind on Fri Apr 17, 2009 at 06:25:24 AM PDT

•  Personally, I think

  That legal liability should go all the way up and down the line: from the people who actually carried out the torture, to the people who ordered it used in specific cases, to the people who gave general orders for its use, to the people who created the policy under which those general orders could be given.

  I understand that the defense and intelligence communities have vast powers that could topple a President, and that accordingly a President is going to be very careful about stepping on their toes.  

  Nonetheless, as a national community, we have the right to know who these people are who committed these acts.  We put child molesters on sex offender lists, and inform communities if they are living in them, and warn potential employers against them.  Torturing is certainly as bad as child molestation; shouldn't we have a "torturer list" to warn us who these people are?  Do you really want a torturer living in your community, maybe working at a hospital or with children or in an old folks' home?

  Torture should be stigmatized, and torturers should not be allowed anonymity.  Child molesters are primarily a threat to children; torturers are a threat to all of us.

  by WIds on Fri Apr 17, 2009 at 06:30:09 AM PDT

•  Here it is in a nutshell- Catch 22

  There was only one catch and that was Catch-22, which specified that a concern for one's safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane he had to fly them. If he flew them he was crazy and didn't have to; but if he didn't want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.
  "That's some catch, that Catch-22," Yossarian observed.
  "It's the best there is," Doc Daneeka agreed.

  Absolved because you were ordered to torture by those who are absolved because they were not there.

  A brilliant piece of twisted dark logic that renders justice not only blind but impotent.

  by crystal eyes on Fri Apr 17, 2009 at 06:34:34 AM PDT

  •  Beautifully put, crystal eyes.

    I put your last two lines in the intro.  I would be glad to identify you by your pseudonym or otherwise if you want.

    by Jesselyn Radack on Fri Apr 17, 2009 at 06:47:43 AM PDT

    •  Thanks-( no attribution needed).

      I'm so concerned about our collective national sanity these days.
      Texas is talking about succeeding, and a bright  progressive law professor from Harvard is pretending he does not understand the law.

      by crystal eyes on Fri Apr 17, 2009 at 06:56:46 AM PDT

•  If we read Spain and America's responses together

  Why would we do that?  They're two different countries.  We're not bound in any way by Spain's decision, and President Obama most certainly did not expand his promise not to prosecute low-level operatives who acted according to this legal advice in good faith to the people who gave the orders.

  I, for one, am glad that there will be no "a few bad apples" prosecutions to sweep this under the rug.

  by joe from Lowell on Fri Apr 17, 2009 at 06:44:40 AM PDT

  •  Spain

    MADRID (Reuters) - Spain's attorney general said on Thursday he would not recommend a criminal investigation into six former Bush administration officials over torture at Guantanamo Bay, reducing the chances the probe will go ahead.

    ...

    Obama said he had not had direct contact with the Spanish government about the case but "my team has been in communications with them."

    And what, exactly, do you think Obama's team said to the Spanish AG?

    by catnip on Fri Apr 17, 2009 at 03:00:36 PM PDT

•  Vicarious Liability

  ...is banned in just about every legal system except the United States and the United Kingdom.

  Even in those two localities, it is pretty tightly restricted to what it applies to.

  by MGross on Fri Apr 17, 2009 at 06:44:55 AM PDT

  •  Vicarious liability is also a civil law concept.

    Rarely found in criminal law, which is the subject of this diary.  From Wiki:

    The general rule in the criminal law is that there is no vicarious liability. This reflects the general principle that a crime is composed of both an actus reus (the Latin tag for "guilty act") and a mens rea (the Latin tag for "guilty mind") and that a person should only be convicted if he, she or it is directly responsible for causing both elements to occur at the same time (see concurrence). Thus, the practice of holding one person liable for the actions of another is the exception and not the rule in criminal law.

    HERE.    Not applicable.

    by DC Scott on Fri Apr 17, 2009 at 08:10:32 AM PDT

    •  However, both the CAT and US law hold those

      involved in a conspiracy to torture liable to the same penalties (excluding death).

      by skrekk on Fri Apr 17, 2009 at 09:33:11 AM PDT

      •  Thanks for info!

        That's the great thing about law.  There's usually another way to do things.  What's CAT and US law of which you speak?    

        by DC Scott on Sat Apr 18, 2009 at 04:31:35 AM PDT

•  "A brilliant piece...

  of twisted dark logic that renders justice not only blind but impotent."

  Thanks alot, crystal eyes.  Now even I am going off to have a good cry....
  

  by ohmyheck on Fri Apr 17, 2009 at 06:47:10 AM PDT

  •  I agree. I put crystal eyes in the Intro.

    by Jesselyn Radack on Fri Apr 17, 2009 at 06:49:03 AM PDT

    •  Great idea!

      But the hunger strike?  I hope you nix that idea.  It really doesn't sound like much fun.  We all give you a big virtual hug, k?  Yes, MUCH better!

      by ohmyheck on Fri Apr 17, 2009 at 06:51:37 AM PDT

•  You misstate the Nuremberg Defense.

  Many defendants were acquitted, or never charged, precisely because they were "just following orders."

  The Nuremberg Tribunal rejected the "just following orders" defense for people WHO WERE GIVING THE ORDERS.  Privates who shot where they were told to shoot actually were let go at Nuremberg because they were just following orders; it's the officers who gave them those orders who were not allowed to turn around and say that they were just following orders.

  by joe from Lowell on Fri Apr 17, 2009 at 06:48:19 AM PDT

  •  Nuremberg Defense

    My understanding is that the Nuremberg Defense is a legal defense, which basically states that the defendant was "only following orders" and is therefore not responsible for his crimes (Befehl ist Befehl, translates to "order is order.")

    Under nuremberg Principle IV, "defense of superior orders" is not a defense for war crimes, althoughit might influence a sentencing authority to lessen the penalty, indicating that it was asserted by low-level defendants, too:

    The fact that a person acted pursuant to order of his Gorernment or of a superior does not relieve him from responsibility under international law . . .

    by Jesselyn Radack on Fri Apr 17, 2009 at 06:55:34 AM PDT

  •  Convention Against Torture addresses that issue

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

    by bobdevo on Fri Apr 17, 2009 at 07:08:33 AM PDT

    •  The Convention is different from Nuremberg.

      You could say it's more Nuremberg than Nuremberg.

      by joe from Lowell on Fri Apr 17, 2009 at 09:14:36 AM PDT

      •  And, more importantly, is operative US law in

        and and all territory under our de facto control, i.e., Gitmo, Bagram, black CIA sites, etc.

        by bobdevo on Fri Apr 17, 2009 at 09:47:41 AM PDT

•  What I don't understand ...

  ... is it even the President's decision whether someone has to face criminal prosecution or not?

  I am not an American citizen, but in Germany, for example, the Federal Chancellor would never be able to order a criminal prosecution to be closed. Government official do of course sometimes try to exert political pressure on state prosecutors responsible for cases of political interest, but this can very well backfire (and often has in the past), especially if the prosecutor comes from the opposite end of the political spectrum and wants to make a statement.

  In any case, there is no straightforward legal way for top government officials to shut down a criminal investigation just like that. Does the President have that authority in the US? That seems like a rather monarchical power to me ...

  by RWeede on Fri Apr 17, 2009 at 06:53:07 AM PDT

  •  It is NOT up to the president. It's the AG's call

    altho unlikely lapdog Holder would be so bold as to actually enforce the law.

    by bobdevo on Fri Apr 17, 2009 at 07:09:31 AM PDT

•  Knowing How Republicans Think

  What's to stop them, when the time is right, to go after Holder for not following the law by not prosecuting the ones who broke the law?  When the statute of limitations is over, they'll go after Obama and Holder in a heartbeat.  What a sight, trying to impeach a president for not following the law by not doing anything about a president who broke the law.

  Classic republicanism.

  by Hear Our Voices on Fri Apr 17, 2009 at 06:53:39 AM PDT

•  Please

  read Glenn Greenwald's piece today at Salon. He continues to hold the president responsible but does an excellent job explaining how difficult and risky it was for Obama to release these memo's.

  I am just so fucking pissed that our new President has to deal with this filthy mess that the Bush monsters left behind.

  Greenwald highly praises Obama for the courage it took to release these memo's and so do I.

  by IndyRobin on Fri Apr 17, 2009 at 06:54:11 AM PDT

  •  I praise Obama for releasing the memos,

    but not for the balance he struck.

    by Jesselyn Radack on Fri Apr 17, 2009 at 06:56:26 AM PDT

  •  I praise Obama for transparency,

    but not giving a pass to wrongdoers, in contravention of the Convention Against Torture, Geneva Conventions, the Charter of the International Trubunal at Nuremberg (Article 8), and the U.S. Constitution (Article VI).

    by Jesselyn Radack on Fri Apr 17, 2009 at 07:08:44 AM PDT

    •  well

      He didn't have much of a choice but to release the memos in accordance with the ACLU lawsuit, did he?

      by catnip on Fri Apr 17, 2009 at 03:03:41 PM PDT

  •  Hard Work

    As the former president said, "presidentin's hard work."

    But it's not as if Obama couldn't have been aware that this mess was waiting for him when he got into office. The debate over torture began almost immediately after the invasion of Afghanistan in October 2001. The existence of these memos has been known for years. The facts that there were CIA black sites and that torture of innocent men swept up in the dragnet of the war on terror took place aren't new news. The guy who approved the torture techniques within the CIA under the Bush administration is still working there in the same position for the Obama administration.

    So I'm kind of embarrassed and disgusted that this seems to be the best he can come up with in terms of a response. Saying that he can't manage to deal with a criminal enterprise within his own government is truly pathetic.

    by darrelplant on Fri Apr 17, 2009 at 09:16:50 AM PDT

•  Spain's decision is disappointing

  Expecting the Obama Administration to shoulder the entire burden is unfair, though, unless it's OK that he spend the next 3.5 years mired in this, and only this, because that is what will happen. It's a booby-trap that Bushco left for him. It sucks, but that's reality.

  It's not a walk and chew gum argument, either. If Obama goes after the former President, all hell breaks loose and everyone involved goes nuclear. Say goodbye to new banking regulations and retooled budget priorities. If you want to give up on health care, high-speed rail, education - then fine. I can respect an opinion that says the moral duty to prosecute these crimes trumps everything else, even though I don't agree.

  It's up to Congress, now. They can spread the burden, but I admit I don't know what kind of jurisdiction they would have, and I imagine many of them are accomplices in the crimes.

  Again, it sucks, but a sternly worded letter might be all that comes of this.

  by Giles Goat Boy on Fri Apr 17, 2009 at 06:57:29 AM PDT

  •  Bush lawlessness

    As Glenn Greenwald notes, the notion that the law can and should be ignored whenever we think doing so would produce good results or would constitute good policy was the engine that drove Bush lawlessness.

    by Jesselyn Radack on Fri Apr 17, 2009 at 07:05:17 AM PDT

    •  That's why I hate Bush

      I don't hate many people, but I thoroughly hate Bush.

      I think, sadly, he'll get away with it, but I hope that by slowly releasing more of these documents over time, the new president will show the nation how thoroughly corrupt and evil Bush and Cheney were. I think that's our only chance to get them prosecuted - the American people have to overwhelmingly demand it. It must become a mandate. Obama is not going to do it alone - nor should he.

      This is on America. Our system placed Bush in power. We must make amends as a nation. Congress must impeach and prosecute Bush and Cheney, even if it's after the fact.

      by Giles Goat Boy on Fri Apr 17, 2009 at 07:15:25 AM PDT

  •  Spain has made no decision -- just recommendation

    The actual decision in this case is made by famed and crusading Judge Baltasar Garzon.  He is not required to follow the prosecutors' recommendations, and has often ruled contrary to the prosecutors.

    Judge Garzon may still decide to prosecute this case.  The prosecutors don't like Judge Garzon, and he doesn't like them, either, mainly because he's completely independent, and in the European system, judges may open and pursue investigations, they do not have to follow the Spanish equivalent of the AG's office.

    by el cid on Fri Apr 17, 2009 at 07:36:51 AM PDT

    •  Thank you for clarifying

      I missed that. I hope the judge pushes forward.

      by Giles Goat Boy on Fri Apr 17, 2009 at 08:44:51 AM PDT

•  So, Obama's afraid of angering..

  ..the intelligence community? The community that had one of its own agents outed in political retribution by the past administration?

  I'm thinking the CIA guys who committed torture were right wing true believers, because nobody else would have been stupid or cruel enough.

  by rhetoricus on Fri Apr 17, 2009 at 07:06:13 AM PDT

  •  The intell community didn't out Valerie Plame.

    The White House did.

    These people were given orders and they were told that the orders were vetted by attorneys and that their actions were legal.  Under our system of justice, is it fair to come back years later and say that we've changed our minds, the orders are illegal, and they'll be prosecuted for following them?

    by psychodrew on Fri Apr 17, 2009 at 09:41:59 AM PDT

    •  No, I know

      My point was, W had no fear whatsoever of the intelligence community--in fact, he attacked them ruthlessly.

      The folks who participated in torture are very few, and everyone knows torture is illegal. Everyone. Especially CIA folks.

      The law was firmly in place before W came in, and he does not have the power to change the law. And CIA folks know that too. They aren't stupid. They take an oath to uphold the Constitution, and to behave in congruence with the law. And they knew the law.

      by rhetoricus on Fri Apr 17, 2009 at 10:06:16 AM PDT

•  Russ Feingold's Reaction

  The president has stated that it is not his administration's intention to prosecute those who acted reasonably and relied in good faith upon legal advice from the Department of Justice.  As I understand it, his decision does not mean that anyone who engaged in activities that the Department had not approved, those who gave improper legal advice or those who authorized the program could not be prosecuted.  The details made public in these memos paint a horrifying picture and reveal how the Bush administration's lawyers and top officials were complicit in torture.  The so-called enhanced interrogation program was a violation of our core principles as a nation and those responsible should be held accountable."

  http://politics.theatlantic.com/...

  excerpt ACLU letter to Holder 4 17 09:

  The application of the "advice of counsel" statutory defense depends on the facts of any possible charge against a particular defendant. While the OLC opinions and the statutory defense may be an effective defense for some potential defendants, the OLC opinions and the statutory defense will be less effective, or completely ineffective, for other potential defendants. In particular, persons who might not be covered by the "advice of counsel" defense include: persons who engaged in torture or abuse prior to the issuance of the OLC opinions; persons who did not rely on the OLC opinions; persons who knew the OLC opinions did not accurately reflect the law; persons who are lawyers or were trained as interrogators on applicable law; persons who acted outside the scope of the OLC opinions; or any persons who ordered the OLC opinions drafted specifically for the purpose of providing a defense. The determination of the likely effect of the statutory defense would depend on the facts of a particular instance of alleged torture and abuse.

  http://www.aclu.org/...

  fwiw

  (my bold)

  by Sybil Liberty on Fri Apr 17, 2009 at 07:06:39 AM PDT

•  Understand prosecutorial discretion...

  It is not an endorsement of the Nuremberg defense. It is the judgment that there are higher needs to be served, and that prosecuting those who might have had reason to trust in the legal opinions would not be in the country's best interest. It's not the same as accepting this as a legal defense -- it's merely a judgment that this provides some basis for not prosecuting. You can disagree with that judgment, but it is unfair to call it an endorsement of the Nuremberg defense.

  by FischFry on Fri Apr 17, 2009 at 07:09:11 AM PDT

  •  Higher needs than preventing torture & murder?

    Like . . . re-election?

    by bobdevo on Fri Apr 17, 2009 at 07:10:38 AM PDT

    •  Poltical expediency

      and we are still a year away from midterm elections.

      I do not find this comforting.  

      by Fabian on Fri Apr 17, 2009 at 07:20:23 AM PDT

•  Very well done Jesse.

  Thank you for this.  We have lost our soul indeed.  It is a dark day in America and the forecast is continued darkness.  What a pity.

  Save the Internet!

  by One Pissed Off Liberal on Fri Apr 17, 2009 at 07:09:48 AM PDT

•  Wait -- you mean they were absent?

  This "not present" voodoo sounds very suspicious to me.

  On its face, it is absurd. Those guys were totally present, that is, on the job in their appointed duty stations, when the torture occurred.

  It sounds to me as if covert pressure was applied by the White House to shitcan the prosecution, and this was the best rationalization they could come up with.

  I'm not really criticizing Obama for it--I understand how disruptive and harmful those kinds of prosecutions can be, and I also understand that the law is far from clear about how individually responsible the people involved in the torture chain of command should be/actually are. This is his call, I think.

  Be that as it may, the "absent" logic strikes me as very (ahem!) tortured.

  Greg Shenaut

  by gshenaut on Fri Apr 17, 2009 at 07:10:22 AM PDT

•  Interesting how quickly and predictably Spain

  changed its view, shortly after Obama's trip to Europe and the administration admits it asked the Spaniards to reconsider but without threat or pressure. In any event, Chile's Pinochet was not there personally throwing students out of helicopters, but Spain managed to prosecute him. What's the distinction, Jessalyn? Oh and by the way, in the interests of consistency, I would hope it will no longer be necessary to extradite former Nazi prison camp guards (even though their number is growing slim through age attrition) for their crimes, as the Nuremburg defense has now been revived along with the Spanish Inquisition.

  by Arctor on Fri Apr 17, 2009 at 07:23:58 AM PDT

•  Nuremberg defense

  is not quite what you say it is.

  The defense was advanced by the top leaders of the Reich on the theory that they all swore loyalty to Hitler and ha dto carry out his orders.  That was rejected because they ran the state.  Leaders were convicted, inter alia, of waging illegal warfare.  However, no regular German soldier or officer was convicted of that, because as army men and as such are required to follow orders of the chain of command.  While some SS line-men were prosecuted, the reason for such prosecution was (in part) the fact that you had to volunteer for such duty.  Waffen-SS (i.e., battle-field SS) were not prosecuted.

  Further, when someone iterrogates a prisoner, he is allowed to do what is legal.  At the same time, you cannot expect a regular CIA officer to know the bounds of legality as it is unlikely that that CIA officer is a trained attorney.  So he needs to ask an official government opinion of what is or is not legal.  Once he gets that opinion, you can hardly blame him for following it.

  by Drgrishka1 on Fri Apr 17, 2009 at 07:24:10 AM PDT

  •  CIA and military interrogators are presumably

    trained both in the specifics of Geneva and the CAT.  If nothing else, the CIA knew enough to request a get out of jail free card.

    by skrekk on Fri Apr 17, 2009 at 09:35:44 AM PDT

    •  Yes, but they still

      needed to know if particular techniques are in or out of line.  That's what they asked the DOJ.

      by Drgrishka1 on Fri Apr 17, 2009 at 10:33:58 AM PDT

      •  Yeah - waterboarding clearly isn't torture.

        Nor is putting someone in a coffin-sized box with insects, in order to evoke profound fear in someone known to have a phobia of insects and confined spaces.  That's what we do everyday, in the ordinary course of law enforcement - any idiot knows that.

        Everyone knew this was torture: the lawyers, the President, and the CIA.  Why do you think the CIA destroyed the video evidence?  Why do you think the CIA sought a legal opinion after abuses had already occurred?

        by skrekk on Fri Apr 17, 2009 at 11:28:49 AM PDT

        •  Fear is not necessarily torture

          It was reported in early days of the war that some captured terrorists were threatened with being turned over to Israel and even were exposed to people in Israeli uniform (who in reality were US personnel).  That apparently elicited fear and caused subjects to cooperate.

          Yet others, were purposefully disoriented as to time and place and then brought into a room where there was a flag of NYC and people dressed as NYC police.  That apparently also elicited fear of imminent retribution and was effective.

          After WW2, detainees were brought into a room where uniformed US officers sat at a table with a candle and a crucifix in front of them.  Apparently, that caused fear in many Germans thinking that they are about to be sentenced to death (hence the crucifix).  That induced cooperation.

          All of these techniques elicited fear, yet none of these amount to torture.  Psychological pressure is perfectly permissible.  

          by Drgrishka1 on Fri Apr 17, 2009 at 11:50:43 AM PDT

          •  So you'd be comfortable with the US routinely

            burying shoplifting suspects alive (with an air supply) in a constrictive box filled with insects?  I'm just trying to find the parameters of the discussion.  Remember, at least 2/3rds of those the US held at Guantanamo were either innocent or ultimately released without charge.

            That apparently elicited fear and caused subjects to cooperate.

            So is your objection based on the meaning of "severe", or in your opinion, do confessions justify any abuse?  Quoting from the CAT:

            Article 1.1: For the purposes of this Convention, 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 an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

            by skrekk on Fri Apr 17, 2009 at 12:41:20 PM PDT

            •  My point is that not all fear

              is necessarily torture.  Even severe fears.  Using subject's psychological weaknesses to elicit information is perfectly permissible.

              And don't confuse information needed and used for prosecution and information needed and used for military intellegence. Different rules apply.  (As the most obvious example, there is no Miranda or a right to a lawyer in the context of military intel interrogation).

              by Drgrishka1 on Fri Apr 17, 2009 at 12:44:03 PM PDT

              •  Actually, different rules don't apply under

                the CAT:

                Article 2.2: No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

                by skrekk on Fri Apr 17, 2009 at 01:45:45 PM PDT

                •  Once again, that is not

                  the point.

                  Different rules do apply to military intelligence interrogation and criminal interrogation.  There is no right to a lawyer, or to Miranda, or to remain silent, etc. in the former context.  Yes, torture is fobidden in both contexts, but different rules do apply.

                  by Drgrishka1 on Fri Apr 17, 2009 at 01:59:46 PM PDT

                  •  This thread and diary concern torture,

                    not the right to an attorney.  Different rules do not apply concerning torture.

                    by skrekk on Fri Apr 17, 2009 at 02:04:05 PM PDT

                    •  You asked if we could treat

                      shoplifters the same way we treat detainees for military intellegence if that helps us get a confession.  I said that different rules apply.

                      You can keep questioning a military detainee even when he doesn't wish to talk.  You can threaten him with "turning him over to Israel," etc.  You can't do that to a shoplifter (at least if you want that confession to stand up in court).

                      by Drgrishka1 on Fri Apr 17, 2009 at 02:15:33 PM PDT

                      •  Yes, but exactly the same rules apply regarding

                        torture.  It's always prohibited under the CAT.

                        by skrekk on Fri Apr 17, 2009 at 08:02:01 PM PDT

                        •  True. However, making someone

                          fearful is not necessarily torture (as in examples cited supra).

                          by Drgrishka1 on Fri Apr 17, 2009 at 08:48:51 PM PDT

          •  No.

            One, psychological pressure is NOT permissible under the 3rd Geneva Convention.  Article 17 states, in pertinent part:

            No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.

            Two, the UN Convention Against Torture prohibits "any act" that causes "severe pain or suffering, whether physical or mental".

            Whatever way you may parse the above language, there is a world of difference between placing a crucifix on a table and nailing a man shut inside a coffin.

            by Simian on Fri Apr 17, 2009 at 12:56:33 PM PDT

            •  That is because prisoners

              of war have certain protected status.  They are allowed to refuse to give any information other than name, rank, and serial number.  Irregular combatants are not covered under the Convention and do not enjoy the aformentioned right.

              Further, the Convention does not require us to change our standards of behavior because detainees find them objectionable.  Simply because detainee feels mental anguish over the fact that he is being questioned by a woman (because he feels women should be subordinate to men) is not a cause for us to change our practices and only allow men to deal with the detainees.

              by Drgrishka1 on Fri Apr 17, 2009 at 02:02:38 PM PDT

  •  The question isn't asked in good faith.

    No one can doubt whether the acts were torture. And no one can doubt that torture is illegal under U.S. law.

    So "asking a government opinion" is not a question asked in good faith. It is nothing more that a request for a get out of jail free card.

    Every one of those agents had the opportunity to refuse to torture their prisoners.

    by expatjourno on Fri Apr 17, 2009 at 09:41:11 AM PDT

  •  exactly

    can I save your comment and just link to it from now on? Because it captures exactly what many here are missing and it does so with out insult and attacks.

    by drache on Fri Apr 17, 2009 at 09:58:41 AM PDT

  •  Wrong, wrong, wrong. Read the treaty.

    Once again, Greenwald has it.

    Convention Against Torture -- signed by Reagan in 1988, ratified in 1994 by Senate:

    Each State Party shall ensure that all acts of torture are offences under its criminal law (Article 4) . . . . The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

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

    by expatjourno on Fri Apr 17, 2009 at 10:11:55 AM PDT

    •  That is not the point

      The point is that the CIA asked if what they were doing constituted torture, and they were told it did not.

      Further, just last month, our own Supreme Court (Kennedy, J.) stated that being a torturer abroad, so long as you were doing it under compulsion, does not bar you from asylum in the U.S.  So the Convention is actually not interpreted as broadly as it's language seems to require.  

      by Drgrishka1 on Fri Apr 17, 2009 at 10:37:46 AM PDT

      •  That question was not asked in good faith. n/t

        by expatjourno on Fri Apr 17, 2009 at 10:42:53 AM PDT

        •  The question,

          as I understand it, was asked rather broadly, i.e., what is permissible.  I fail to see how that is not in good faith.

          by Drgrishka1 on Fri Apr 17, 2009 at 10:54:06 AM PDT

          •  Because it is simply asking for a piece of paper.

            A get out of jail free card. Everyone knows what torture is, especially when they are doing it, and everyone knows what the law says.

            Would it be permissable for me to murder you if a lawyer at DOJ signed a memo saying it was OK? DOJ can't just offer absolution like that or none of our laws have any meaning whatever. Why have a legislature in that case? Why sign treaties?

            In your world, any law can be overridden on the say-so of one DOJ lawyer.

            by expatjourno on Fri Apr 17, 2009 at 11:57:07 AM PDT

•  No, actually, the Nuremberg defense, in using

  the word "just" implied an admission that the acts were known to be wrong by their perpetrators.

  The Bush/Cheney gang came up with an improvement.  By making obedience the first and only commandment, they turned taking and carrying out orders into a virtue.

  Their location of the source of law in the ruler helped.  To the argument that no man is above the law, they simply answer that the president IS the law and the Congress merely its inscribers.  Sadly, this interpretation was validated by the Congressional failure to object to the multitude of signing statements detailing how specific acts did not measure up to the ruler's demands.  In part that's because the Bush/Cheney gang also presume that the absence of an objection is the same as approval.  In part it's also because the application of the rule of law to public officials, as opposed to individuals, was reversed.  Bush/Cheney acted on the principle that anything not prohibited is permitted when, in fact, all government action needs to be authorized.

  That said, it's likely that the Spanish pull-back is in consequence of the fact that they don't have the equivalent of RICO.  Which might not be applicable anyway because the perpetrators derived no personal benefit or salacious satisfaction from their actions.  What they got was benefits (pay, status and pensions) for work (protect the Constitution) that they didn't actually do.  Which is why it might be useful to look into the "theft of services" charges that were levied against Don Siegelman and Paul Minor and resulted in their convictions and prison sentences.

  by hannah on Fri Apr 17, 2009 at 07:26:50 AM PDT

•  It is no comfort,

  But with the publication of these memos the Bush administration is proving to have been fully as criminal as many of us had feared.  

  And Obama should worry about his own reputation in granting immunity from prosecution to members of the CIA.

  by Thomas Twinnings on Fri Apr 17, 2009 at 07:26:58 AM PDT

•  Deathbed Lawyers

  All I need is a lawyer on his deathbed to sign an opinion that it's legal for me in my particular situation to steal. Then, when I'm caught, I'll tell the judge that my "office of legal counsel" advised me to proceed according to that strict protocol, and I did "in good faith". Sure, the lawyer, who wrote that crooked opinion that we both could tell at first glance was cooked up BS, would catch all kinds of hell for being the one to blame. But since they're dead by my trial date, that hell better be literal.

  In fact I see a growth industry for retired lawyers boosting their estates with these faithy "indulgences". Thanks, Mr Obama!

  by DocGonzo on Fri Apr 17, 2009 at 07:27:17 AM PDT

•  I feel like I'm the victim of a crime...

  That the police will not investigate.  It's like we had a break in but, let's just sweep up the damage and let it go.  

  Or perhaps, it's like we've been raped by someone we know but, we're not going to the police.  We'll just take a shower and maybe a self defense class and hope it never happens again.

  by StephanM on Fri Apr 17, 2009 at 07:30:17 AM PDT

•  You forget that an Nurenburg....

  Germany LOST the war. Losing the War is the big crime here, and without that, none of the others make any sense.

  That's the thing about what happened with Fujimori in Peru. The implicit message is that the other side should have one.

  by notwisconsin on Fri Apr 17, 2009 at 07:31:10 AM PDT

  •  History does indicate that, doesn't it?

    There are exceptions, but generally the victors get to write the points of reference.

    by shpilk on Fri Apr 17, 2009 at 09:21:06 AM PDT

•  Love hate relationship

  I am deeply troubled by my President's decision not to prosecute. I am like a child who adores his Mother and is faced with a moral delima when he realizes she is a total racist. You see this happened to me. I just don't know how to feel about Obama now that he has apparently bought into the idea of America's exceptionalism. He knows exactly what he is doing! He is betraying his Oath of office. His grandfather fought in europe against the Nazis. Surely he knows that the "I was only following orders" defense in no defense. So what is he doing? In my eyes he has made a clear choice that Americans will by in large accept his decision, that because "We" as a nation under attack, did these things in good faith, the normal rules of law should not apply to us because those who were Torturing were doing so based on orders from above. This is truly evidence of his insecurity in his ability to deal with National security issues. He is either intimidated by the NSA and the CIA or he truly agrees with them. I only hope we can have to B-lls to really put pressure on him to reverse course. When my President is wrong I believe, especially for something as important as this I must be able to Call him out on it whilst still considering myself a strong supporter too! I am not a mindless Repuglican like the teabagers we witnessed yesterday. I stood up against my moms racism while I was still able to Love her dearly till the day she died.

  by eddieb061345 on Fri Apr 17, 2009 at 07:32:11 AM PDT

  •  maybe you "just don't know how to feel

    about Obama..."

    because this hasn't even begun to play itself out?

    http://www.whitehouse.gov/...

    [e-mail].

    http://intelligence.senate.gov/...

    https://secure.aclu.org/...

    In the end game, this is ours to do.

    by Sybil Liberty on Fri Apr 17, 2009 at 07:49:23 AM PDT

    •  Letters rather than bitching? What a good idea!

      I've written and now I'm going to call.

      Thanks for these links!  Doesn't do any good to sit on every diary complaining.  Let's do the democratic thing and write our Reps. And call our reps.  Because? ... Because I believe that's exactly what President Obama wants us to do.

      Let's get the attention of Congress, Holder and President Obama!

      by KayCeSF on Fri Apr 17, 2009 at 08:48:29 AM PDT

•  The Spanish position is facially ridiculous

  They can't seriously mean it, because it flies in the face of the doctrine of "command responsibility," which anyone with the faintest familiarity with the law of war and human rights knows makes those who order or facilitate the commission of human rights and war crimes criminally responsible. Otherwise, there would be no legal basis to prosecute dictators (Milosevic, Pinochet), generals (Radic) and other higher-ups for crimes committed by units under their command. None of them "were there," either, yet the law holds them fully responsible.

  Obviously, this is something someone desperate to avoid a political confrontation has blurted out in an attempt to rationalize a politically expedient decision against enforcing the law.

  All of it reminds me of Ghandi's response to a reporter who asked him what he thought of Western civilization: "I would be all for it" (paraphrasing).

  by scorponic on Fri Apr 17, 2009 at 07:34:26 AM PDT

•  It is up to Judge Garzon, not Spain's prosecutors

  The decision to be made on whether or not to prosecute actually rests with Spain's crusading investigative Judge Baltasar Garzon, and not with the prosecutors' office.

  On many occasions (Pinochet, Argentinian and Guatemalan human rights abusers) the Spanish prosecutors have toed government lines and recommended against prosecution, while Judge Garzon instead went ahead.

  The same may happen this time.  Garzon may not decide for several weeks.

  by el cid on Fri Apr 17, 2009 at 07:34:49 AM PDT

•  We need to prosecute the criminals

  And we have to stop saying that it’s the past and we have to go forward and pass that. Why? Because it is not the past, it is the current and the future. It is the right of all those who were tortured and those who may be tortured in the future. It is the Human Right to prevail and act. On behalf of all those who went through that horrible past, I say on what base you did that and said "so help me God"???????

  by dibsa on Fri Apr 17, 2009 at 07:35:53 AM PDT

•  Right on, sister.

  Great column.

  by DtheV on Fri Apr 17, 2009 at 07:38:00 AM PDT

•  A point brought up on the Stephanie Miller show-

  Yes, people should be prosecuted. But while Spain may not prosecute the "Bush Six", that doesn't mean we won't. Eventually. Obama's statement did leave open this possibility. In fact, the very reason he may not be pressing the issue against the CIA agents who carried out the torture is that he may have already obtained a promise from them to testify in exchange for immunity. Also remember- after the whole lead-up to the war in Iraq, Bush lost a lot of allies in the intelligence community, so

  As it stands, Obama still needs the CIA. Prosecuting or threatening to prosecute will gain him no friends- and people pleading the 5th do not testify against their superiors.

  As to the "Nuremberg defense", there's apparently legal precidence- at least in the US, where some of the people involved in the Watergate break-ins had their cases dismissed under the reasoning that they were told that what they were doing was vital to national security. Unfortunate, but true.

  by EsnRedshirt on Fri Apr 17, 2009 at 07:38:15 AM PDT

•  As a veteran, I am absolutely disgusted

  We were all trained to follow the Geneva Conventions...period. The rules were clear and it was clear when you broke the law. The muddying of the waters by the Bush administration is probably the greatest assault against the military by any president. Not only do the rules exist to protect soldiers from prosecution, but they protect the military in general from being tortured when captured by other countries. To ignore that is a slap in the face to every American who has ever worn the uniform.

  That being said, the Nurenberg defense has been rejected time and time again. History is filled with torturers saying "I was just following orders," but they still went to prison or were hanged. Even if you are ordered to torture, it is still wrong, and the military is not bound to follow illegal orders. There has to be a limit in the CIA as well as to what constitutes a lawful order or not. If there is not any type of line the CIA agents cannot cross, then wholesale reform is needed to put limits on their power.

  by legendmn on Fri Apr 17, 2009 at 07:39:48 AM PDT

  •  I can't agree

    more.  The bush administration assaulted the military and anyone who opposed them, I will never forget nor forgive them for what they did until they pay for it.

    by FreeTradeIsYourEpitaph on Fri Apr 17, 2009 at 08:15:37 AM PDT

  •  The military's function is to defend us while

    following orders and the law.  The CIA's function, on the other hand, is to provide an agency that breaks the rules in such a way that the president's responsibility can be denied.

    Perhaps it was necessary to have such an agency in the Cold War and (in the case of the CIA's OSS predecessor) in World War Two.  I'm not at all sure about that, but it can be argued.  But why do we need such an agency 20 years after the end of the Cold War?  Moslem extremists, if they are a threat at all, are a much lesser threat, on the order of the threats this country faced during the 150+ years when this country got along without any such agency.

    by lysias on Fri Apr 17, 2009 at 09:44:18 AM PDT

    •  The CIA's job should be intelligence

      Any other job than intelligence collection and analysis should not be the job of the CIA, IMO. There are still needs for covert operations, but the military could handle those kinds of operations very well. I agree that the CIA has been used too often when the President doesn't want to get his hands dirty, but then so has special ops in the military.

      My point is that there should be a consistant standard across the board. Why should the CIA receive special treatment that the military doesn't get? There was obviously a lot of political pressure to protect the CIA and its dirty secrets from ever setting foot in a courtroom, but that is exactly what needs to happen to cleanse our soul as a nation. "I was just following orders" doesn't cut it.

      by legendmn on Fri Apr 17, 2009 at 10:28:28 AM PDT

•  Hypocracy, thy name is Obama

  "Rules must be binding. Violations must be punished. Words must mean something."

  These were the words of President Obama as delivered in Prague on April 5th.

  by BOHICA on Fri Apr 17, 2009 at 07:44:49 AM PDT

  •  you should spellcheck your needless taunting n/t

    by ericlewis0 on Fri Apr 17, 2009 at 09:35:09 AM PDT

    •  Boo hoo

      by BOHICA on Fri Apr 17, 2009 at 09:41:22 AM PDT

•  Usually when politicans...

  ...do stupid things, or makes really stupid statements, they are pandering to a demographic in order to win votes.

  Therefore I can't figure out what demographic Obama thinks he is pandering to when he refuses to pursue war criminals for war crimes.

  Republicans are going to attack him no matter what he does, so he's not pandering to Republicans.

  There is but a small minority of Democrats who think Obama is doing the right thing here, so it gains him nothing with Democrats.

  So will somebody please tell me what demographic Obama is targeting with all his "looking forward" bullshit.

  by wyvern on Fri Apr 17, 2009 at 07:51:18 AM PDT

  •  There was a caller on the Stephanie Miller

    show this morning who thought that perhaps Obama felt his own security was in danger if he pisses off the intel community.  The caller said, "There's not much he can do from a coffin."  That's a chilling thought.

    I don't know what he's thinking on this, but I would bet a lot his administration had a lot of influence on the Spanish A.G.  :(

    by Crabby Abbey on Fri Apr 17, 2009 at 08:35:59 AM PDT

    •  Actually, there's a lot you can do from a coffin.

      Martyrs have a lot of moral authority.

      by lysias on Fri Apr 17, 2009 at 09:38:21 AM PDT

•  Just a though:

  "To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public."
   Theodore Roosevelt
   

  by lyvwyr101 on Fri Apr 17, 2009 at 07:54:59 AM PDT

•  Mark Twain:

  "Loyalty to the country always. Loyalty to the government when it deserves it." Mark Twain

  by lyvwyr101 on Fri Apr 17, 2009 at 07:57:21 AM PDT

•  Stupid to compare CIA ops to Nazi war criminals

  Personally, I'd rather the ones who ordered the torture to be prosecuted than the ones who followed orders and carried it out.  

  by Texas Lefty on Fri Apr 17, 2009 at 08:00:06 AM PDT

  •  I see

    so it's ok to torture and murder Arabs but not Jews. I really don't see much difference.

    by Phil In Denver on Fri Apr 17, 2009 at 08:05:19 AM PDT

    •  I think it's more that American exceptionalism

      absolves us of responsibility for anything we do.  If we do it, it can't be torture.  But that doesn't mean that it isn't torture if anybody else does it.

      It's basically, might makes right.  I have no idea to what extent the people who argue this way are cynical, and to what extent they're stupid.

      by lysias on Fri Apr 17, 2009 at 09:33:15 AM PDT

      •  I wonder what this will do about our membership

        in the Committee Against Torture, and what the ramifications are for our responsibilities under the CAT.  Certainly the US no longer has any credibility on this issue.

        by skrekk on Fri Apr 17, 2009 at 09:40:13 AM PDT

•  Wow!

  "Absolved because you were ordered to torture by those who are absolved because they were not there."

  'A brilliant piece of twisted dark logic that renders justice not only blind but impotent.'

  "Brilliant and twisted dark logic." Perfect description, Jesselyn.

  by lyvwyr101 on Fri Apr 17, 2009 at 08:00:34 AM PDT

  •  Credit to commenter crystal eyes.

    by Jesselyn Radack on Fri Apr 17, 2009 at 08:23:44 AM PDT

  •  Much like the logic that says the govt can only

    be sued for the warrantless eavesdropping by people who can show they were eavesdropped upon but that any such evidence is an inadmissible state secret.

    Lewis Carroll justice.

    by lysias on Fri Apr 17, 2009 at 09:30:27 AM PDT

•  Obama and Bush

  Is the Obama Administration going to pardon or otherwise excuse those convicted of torture in Abu Ghraib, and if not how does the logic of excusing the CIA operatives but not excusing the low level military personnel work?

  by salmo on Fri Apr 17, 2009 at 08:02:21 AM PDT

•  This can not end well for Obama

  He is dealing with the world stage on this, not just the domestic stage. The US can not and will not be able to stop foreign prosecutions. If we fail to extradite or if we defend our CIA operatives in foreign courts, US hypocrisy will be laid open for all the world to see.

  It might win Obama a few points with moderate conservatives here, but it will alienate virtually everyone else both here and abroad. This along with Afghanistan will become like cinder blocks around his neck. A credible primary challenge could surface in 2012.

  by Phil In Denver on Fri Apr 17, 2009 at 08:03:22 AM PDT

  •  the fact

    that kissinger is still walking around collecting paychecks is a crime in and of itself.

    by FreeTradeIsYourEpitaph on Fri Apr 17, 2009 at 08:16:41 AM PDT

  •  Who is it going to alienate?

    Only 39% of Democrats identify as liberals.  And Obama won with Democrats plus moderates, so the number is even more diluted.  I just don't hear a groundswell of masses of citizenry calling for the prosecution of war crimes committed by the Bush Administration.  The liberal base alone can't make this happen.  Only getting moderates to join in demanding such action plus at least some Republicans will create what is needed to move Holder, Obama, and Congress into action.  I wish there was such a sentiment, and certainly if you can point to polls where a majority of Americans want this (and not mildly, but with passion) I will correct, but at least the circles for which I travel, most didn't even care that much about Abu Ghraib, and were angry at ABC for showing it.

    On the international front, I agree with you that this is a big deal.

    by beachmom on Fri Apr 17, 2009 at 08:25:35 AM PDT

    •  OK how about this one

      http://www.commondreams.org/...

      or this one
      http://www.cnn.com/...

      I don't know what "circles" you travel in, but a clear and very large majority of Americans outside of your personal circle have repeatedly confirmed quite emphatically how they feel about this, and these sure don't side with Obama on this issue.

      by Phil In Denver on Fri Apr 17, 2009 at 08:47:32 AM PDT

      •  But that is not enough of a true passion

        to mean really demanding officials be prosecuted.  58 - 40 think it should not be used.  40% think we should waterboard??????  But that refers only to waterboarding.  I wonder how other techniques would fare.  The circles I travel in is suburbia.  Perhaps they should do a new poll asking people if Bush officials should be prosecuted for authorizing torture.  

        by beachmom on Fri Apr 17, 2009 at 09:42:31 AM PDT

        •  You are thinking entirely domestically

          this is NOT a domestic issue. I don't have the figures but I'm pretty sure that outside the US at least 70% believe in prosecution for these war crimes.

          There is far more at stake here than a single president's electability. This is our standing as a nation. We could find ourselves as a pariah nation with a status similar to that of North Korea or Iran.

          Foreign nations will not trust us and many may refuse to deal with us whenever they have the option of doing so. All of our recently regained global good will shall be squandered by this. Our diplomats would find it difficult if not impossible to credibly represent our agenda in global matters.

          Besides that, an 18 point margin is absolutely HUGE. Obama only beat McCain by about 7 points. If Obama alienates the 10% or so of his base that is most offended by this it could easily make the difference.

          by Phil In Denver on Fri Apr 17, 2009 at 10:30:48 AM PDT

•  What I love...

  What I love about this is the fact that a corrupt justice department hand picked to let torture happen and to always uphold the political agenda of the Bush Administration gives the advice to hand picked CIA departments that were politicized by the Vice President that certain outlawed torture tactics were legal, when many in the DOJ, who ultimately were ostracized and many resigned, completely disagreed with the analysis.

  It's kinda like relying on the tobacco industry doctor to come to the conclusion that cigarettes are good for your health.  

  It's not like anyone thought there was really anything other than results-oriented legal memos being generated.  So the thought that agents were seeking the advice of the DOJ, really, was not what was happening.  They were merely providing CYA letters.

  by TexasDemocrat on Fri Apr 17, 2009 at 08:08:17 AM PDT

  •  The true...

    The true defense that is getting solidified is the idea of plausible deniability, and the idea that the Presidency, unless you're a Democrat, is above the law.

    by TexasDemocrat on Fri Apr 17, 2009 at 08:11:31 AM PDT

•  Hi Jesselyn! Long time no see.

  I was thinking of you when reading through those horrible torture memos, and remembering what you did when you stood up for the law and got burned for it big time.

  I also read Greenwald's post and he talked about the role of citizens in getting justice served.  Sadly, I do not think the citizenry of America is up for the task.  Too many don't have a problem with torture.  The 24 mentality seems to be the rule, not the exception, for most people.  Just because a lot of people changed from voting for Bush to voting for Obama does not mean they have changed their minds about torture and other extreme measures employed by the Bush administration.  They simply switched gears and voted on economic issues instead of war issues.

  So, in short, I am very pessimistic about anything real happening.  I think Obama and Holder would not mind at all being "made" to do something on this.  But they are not going to move in front of the people.  Until the people rise up and feel that this is important (and not just us -- we are too small a minority) demanding their government to take action, the perpetrators of these crimes will remain scott free and not held accountable.  It pains me to say all this, but I think this is the reality we, and President Obama, face.

  by beachmom on Fri Apr 17, 2009 at 08:18:42 AM PDT

  •  Hi. I agree.

    by Jesselyn Radack on Fri Apr 17, 2009 at 08:41:07 AM PDT

    •  Tipped and rec'd, Jesselyn.

      And I have a question.

      What about the power of citizens on Grand Juries bringing charges on their own initiative, through a presentment?

      In which jurisdiction(s) might such a thing be possible?  There has GOT to be some alternative that the People have, along these lines, if nothing is pursued on this OTHERwise, and I understand that this has been a traditional means to investigate corrupt public officials.

      by Prognosticator on Fri Apr 17, 2009 at 09:04:23 AM PDT

  •  People who believe strongly in the rule of law

    may be a minority of the public, but they are a hefty majority of American lawyers.  And the opinion of the legal community has a strong effect on what the courts do.

    by lysias on Fri Apr 17, 2009 at 08:57:55 AM PDT

•  You should do a little more research!

  Here's what Russ Feingold had to say: "The president has stated that it is not his administration's intention to prosecute those who acted reasonably and relied in good faith upon legal advice from the Department of Justice.  As I understand it, his decision does not mean that anyone who engaged in activities that the Department had not approved, those who gave improper legal advice or those who authorized the program could not be prosecuted.  The details made public in these memos paint a horrifying picture and reveal how the Bush administration's lawyers and top officials were complicit in torture.  The so-called enhanced interrogation program was a violation of our core principles as a nation and those responsible should be held accountable."

  by martybee on Fri Apr 17, 2009 at 08:23:07 AM PDT

•  having

  experienced torture myself many years ago (deliberate measured drowning), if Obama passes the buck on prosecution, he will be categorized as an enabler of torture in my book for the rest of my life.  No political correctness or 'support the president' nonsense will change my sentiments about the topic.

  by FreeTradeIsYourEpitaph on Fri Apr 17, 2009 at 08:24:29 AM PDT

•  Being Americans

  means, in the end, believing that might always makes right.  "Yeah we tortured, and are weaseling around on whether we're still torturing or not.  What you gonna do about it?  You and what army?  Bwahahahaha!"

  by ActivistGuy on Fri Apr 17, 2009 at 08:26:40 AM PDT

•  I am not a Reagan fan. I thought he was

  an effective spokesman for 20 mule team borax but he was a nasty, bigoted politician.  I like Obama, I voted for him, but I wouldn't do it again.  Hillary would have made a better president.

  But Reagan and Obama have one thing in common: they both think the law is something to be used to their political advantage.  Obama forgives torturers and Reagan breaks unions.  You might remember that at the start of his administration he fired all the air traffic controllers who were on strike.  They were acting illegally and Reagan knew that it would do him a world of political good so he fired them, no matter the danger it put the flying public in.  Obama sees that prosecuting torturers would do him more political harm than good so he give them a pass.  Both presidents acted despicably.

  by hestal on Fri Apr 17, 2009 at 08:35:31 AM PDT

•  But Rummy, et al, said it was just a few "dead-

  enders" and low lifes in the bottom of the food chain of our military right?
  Fucking unbelievable assholes, and the MSM bought it hook, line, and sinker of course because it was the Bush Administration and a Republican Congress.
  Now what do the panty wearing Liberals about the Rule of Law?  That's what all of the Repugs will say from here on out.

  by jdmorg on Fri Apr 17, 2009 at 08:39:37 AM PDT

  •  meant 'do' about the Rule of Law. This fries my..

    ass. Sorry for the language, really.

    by jdmorg on Fri Apr 17, 2009 at 08:45:34 AM PDT

  •  Yup. It was just partisan posturing.

    Bush derangement. Democrats never cared about torture. They just made a big deal about it to embarrass Bush.

    What else can one conclude?

    by expatjourno on Fri Apr 17, 2009 at 09:45:51 AM PDT

•  This legal and moral FAILURE by Obama

  is in NO WAY mitigated by the release of the memos.  Quite the contrary, the release magnifies both the crime and Obama/Holder's gutless hypocrisy.

  by bigchin on Fri Apr 17, 2009 at 08:40:30 AM PDT

  •  Wanting justice="the forces that divide us."

    Obama:

    We must resist the forces that divide us, and instead come together on behalf of our common future.

    Translation: We must resist the moral imperative to prosecute, and instead collectively blind ourselves to what happened.

    by Jesselyn Radack on Fri Apr 17, 2009 at 08:44:30 AM PDT

    •  Are you sure?

      Obama:

      We must resist the forces that divide us, and instead come together on behalf of our common future.

      You:

      Translation: We must resist the moral imperative to prosecute, and instead collectively blind ourselves to what happened.

      My translation: America, come together AND MAKE ME DO IT!!!

      by PurpleMyst on Fri Apr 17, 2009 at 10:19:35 AM PDT

  •  Aw, tell me the truth. Do you really hate

    Obama that much?

    by Wildthumb on Fri Apr 17, 2009 at 09:49:47 AM PDT

•  Two questions

  one, release torture memos.

  Obama did exactly the right thing.

  two, prosecute those who broke the law

  Obama, waffles on prosecution looks the other way.

  
  "Those who believe that the rule of law should be applied to the powerful as well as to ordinary citizens are demonized as the "forces that divide us."

  Glenn Greenwald

  Contrast the fate of those Whistle blowers to the Smug McConnell or Mukasey editorializing in the Wall Street Journal.  Link found in Glenn's article.

  Again FireDogLake's has a petition for a Special Prosecutor

  Articulate well reasoned diary.

  by IngeniousGirl on Fri Apr 17, 2009 at 08:41:50 AM PDT

  •  Thanks for these links.

    by Jesselyn Radack on Fri Apr 17, 2009 at 08:45:48 AM PDT

  •  Why were the soldiers who hooked up the electrode

    to the prisoners nuts sent to prison?  Why was the female soldier who ended up pregnant (what was her name Lindsay?) with the sexual intimadation prosecuted?  Why aren't any of the top bananas gonna go down for this?  It defies reason.

    by jdmorg on Fri Apr 17, 2009 at 08:56:06 AM PDT

    •  Sorry her name was Lynndie England & Darby. n/t

      by jdmorg on Fri Apr 17, 2009 at 08:58:59 AM PDT

    •  Standard Operating Procedure

      This is a documentary of Abu Ghraib done by Errol Morris, of Fog of War fame. It is probably as close as we will come to the truth of what happened, and the subsequent cover-up.

      As it turns out, Lynndie England, the "great villianess" was just a stupid, impressionable girl who liked to have her picture taken. This was her crime, as well as some of the others who found themselves swept up in the scandel.

      by LaFajita on Fri Apr 17, 2009 at 12:05:09 PM PDT

  •  I felt such pride when I voted for Obama.

    And his election was so moving that there wasn't a dry eye in our house. What a night that was. And what a nightmare this is.

    It will be a cold day in hell before I vote for Obama again. I do not care what else he achieves. He has normalized torture and he has demonized people who want to see torturers brought to justice as nothing more than partisan dividers. He is beneath contempt.

    by expatjourno on Fri Apr 17, 2009 at 09:50:29 AM PDT

    •  Well....

      I could probably buy into this comment a little easier if it were not for little things like this diary.  But if this one issue is so important to you, more important than the economy, the environment, energy, healthcare, ending the Iraq war, etc. then by all means vote your conscience.

      by Tx LIberal on Fri Apr 17, 2009 at 11:18:15 AM PDT

      •  I understand the sentiment.

        If you vote for someone who tortures you legitimise both them and their actions, and if people refuse I understand perfectly.

        I would still vote for Obama. But just barely.

        by Dauphin on Fri Apr 17, 2009 at 11:23:28 AM PDT

      •  What does that have to do with my comment?

        The election was in November. The diary was written after he began to prove a huge disappointment. There is no contradiction there. My antipathy even goes back before that diary. I didn't bother to watch the inauguration because of Rick Warren. And the FISA vote and his dishonest rationalization for it almost made me not bother to vote.

        But if you want to go back farther, you can see my comment history taking Obama's side against Hillary Clinton. At one point, I couldn't watch the "Yes we can" video without weeping. God, I was hopeful.

        But Obama, as president has very little resemblance to the man who defeated Hillary Clinton for the nomination. Turns out she was right. It was all a bunch of slick packaging and good speechifying.

        Change we can believe in, my ass.

        by expatjourno on Fri Apr 17, 2009 at 12:54:25 PM PDT

        •  And then there was an earlier one

          The election was in November and in December you were already writing this.
          IMO, between the two diaries, it just sounds like you were already "very disappointed" in Obama months before his decision on not to prosecute the CIA agents.  But OTOH, there are many here who would agree with you.
          To be honest he has made some decisions I disagreed with, including the worthless tax cuts in the stimulus bill, an overture to the "teabag party" which yielded him none of their votes in the House and only 3 in the Senate.  But every time he does something some disagree with, there is an eruption of of the same kind of "buyer's remorse" diaries and comments.  That was my only point.
          And if you're that upset now, hang on because we have a little over 43 months to go before the next election.  Who knows after that long I may even agree, but I don't believe in pulling the rug from under anyone unless it were for good reasons, none of which I've seen so far by a long shot.

          by Tx LIberal on Sat Apr 18, 2009 at 08:34:36 AM PDT

    •  Good

      Riddance. /Spit

      by FistJab on Fri Apr 17, 2009 at 02:20:56 PM PDT

•  Godwin's Law

  Can we stop hearing about Nuremberg?  This has nothing to do with Nuremberg.  The point is that it is a fundamental principle of Federal criminal law that for most crimes, a defendant cannot be convicted of a crime unless he or she acted with "specific intent" to violate the law.  This means that a defendant's good faith reliance upon legal advice as to the legality of his or her conduct is a valid defense.  The statute at issue, 18 USC Section 2340A, requires proof that the defendant acted with knowledge that his or her conduct constituted "torture" in violation of the law.  A CIA agent who acted in good faith reliance upon a legal opinion from the highest level of the Department of Justice that his or her conduct did not constitute torture as defined in the statute, would be entitled to raise this as a defense, and such an agent would almost certainly be acquitted.  The Department of Justice does not prosecute people - or at least, it is not supposed to - unless it believes that it has a reasonable likelihood of winning a conviction.  President Obama's decision with respect to the prosecution of these CIA agents, which I suspect is based on the the judgment of AG Holder, a long-time prosecutor highly familiar with the standards governing Federal prosecutions, is consistent with fundamental principles of US criminal law, and has nothing to do with the "Nuremberg defense."
  The people who gave the advice, however, are a different story.  I think that Bybee's status as a Federal Judge is the fact that ought to be causing outrage, and I think that the House Judiciary Committee ought to be giving very serious consideration to commencing an impeachment investigation.

  by Prince Nekhlyudov on Fri Apr 17, 2009 at 08:44:14 AM PDT

  •  If you're saying that the people convicted at

    Nuremberg were different because they did have a specific intent to violate the law, I'd say that's false for at least most of them.

    by lysias on Fri Apr 17, 2009 at 09:16:19 AM PDT

    •  Nuremberg,

      Was a very different situation.  Essentially, there was no pre-existing law.  So the issue of specific intent really didn't figure into it.  However, we are not talking about Nuremberg - we are talking about whether or not somebody should be prosecuted for violating a US criminal statute.  The defense of "I was just following orders from my superior" (the "Nuremberg defense") is not the same as the defense of "I received legal advice on which I relied in good faith that my conduct did not violate the law".  The latter is a well-established defense under US law, the former is not.

      by Prince Nekhlyudov on Fri Apr 17, 2009 at 09:24:38 AM PDT

      •  The legal writings of people like Carl Schmitt

        and Werner Best (much better lawyers, by the way, than Yoo et al.) could certainly have made German functionaries believe that they were acting legally in following their orders.

        by lysias on Fri Apr 17, 2009 at 09:35:46 AM PDT

        •  No Question

          That the Nuremberg defendants could have argued that they believed they were acting consistent with German law.  However, that wasn't the issue.  What the Nuremberg tribunals did was to establish an international standard of "crimes against humanity" superseding German law.  This was somewhat controversial at the time, as even some civil libertarians had some question as to whether or not this was an abuse of the legal process to disguise what always happens in warfare - the victors punish the losers.  I personally don't agree with that, but in any event, it really has nothing to do with the current issue.  Here, you do have a specific US law prohibiting torture.  You also have a legal opinion coming from the DOJ saying that certain conduct does not constitute "torture" as defined in that statute.  Obama is saying that any CIA agent who relied on that advice in good faith will not be prosecuted.  This has nothing to do with Nuremberg - it is simply a well-established application of basic principles of Federal criminal law.

          by Prince Nekhlyudov on Fri Apr 17, 2009 at 09:48:49 AM PDT

•  Sign the Petition! Demand that AG Holder assign

  a Special Prosecutor by signing the ACLU petition.

  Prejudice has attached, and the President of the United States has conferred blanket immunity to a select class of people in violation of CAT! (Geneva Convention, Common Article Three)

  Immunity can only work under the authority of our criminal justice system. Let the courts decide where the line can be drawn in protecting CIA and DoD.

  "Befehl ist Befehl" ("...orders are orders...") was the claim of Nazi SS officers at Nuremburg!

  This must not stand, or it will be a rank smear on our system of government just as bad as Bush-Cheney. It will have confirmed the worst elements of Bush-Cheney derogation of our Constitution in the name of their patriotism and "state security."

  What gets me most of all is that, while Bush couldn't run a laundromat with his MBA, President Obama is a Constitutional law professor who taught at the University of Chicago Law School, (not "Regent University.") He knows better than this. He knows that "values" and "beliefs" have nothing at all to do with this matter: IT IS A MATTER OF LAW.

  by ezdidit on Fri Apr 17, 2009 at 08:48:31 AM PDT

•  I think everyone is rushing...

  to conclusions...First of all, you can't take the Spanish statement and Obama's statement "together."  They are about different processes in different countries.  I also have to agree with Obama about prosecuting the low-level people who actually carried these heinous acts out.  We shouldn't be going after people who were doing what they were told to do by their boss who was backed up by the Department of Justice.  Do we really think CIA employees shoul have to worry about hiring their own lawyers regarding future decisions, etc., etc...

  We SHOULD be going after the people who GAVE the orders and the people who said the orders were legal - and Obama has NOT shut the door on that.  But he has to be careful...it can NOT look like a witchhunt and it can not look like democratic revenge on Bush.  It has to be an orderly, legal, and rational process with someone other than Obama or Pelosi in the lead.  Otherwise, it will be a Ken Starr/ impeachment-like circus all over again.  Obama is playing it JUST RIGHT...

  I can't count how many times over the past couple of years I've watched people on here (and everywhere else) doubt and rail at Obama...don't foget how smart he is and how many times he's surprised us.  This is not over...he knows what he's doing.

  by BJMS on Fri Apr 17, 2009 at 08:57:13 AM PDT

  •  Most agree, but ..

    "I also have to agree with Obama about prosecuting the low-level people who actually carried these heinous acts out.  We shouldn't be going after people who were doing what they were told to do by their boss who was backed up by the Department of Justice."

    Not there.

    People died while custody. People were subjected to violent sexual assault, physical and psychological torture that even the Bush Administration never spelled out as being acceptable.

    No way in hell is the Obama administration going to let people guilty of these crimes against humanity go free. And I think he makes that quite clear, as he qualifies the 'in good faith' part of his statement.

    Time will tell. I think we will see some prosecutions of those who are deemed to not have acted in 'good faith'.

    by shpilk on Fri Apr 17, 2009 at 09:18:03 AM PDT

•  How do we prosecute people like Valerie Plame?

  That's really the underlying question that I have.

  Secret trials are a no-no.  I think we're all in agreement on that one.

  But when Plame's name was leaked, the immediate fall-out was that her entire network of informants and assets (not to mention her corporate cover) was instantly compromised.  How do we openly prosecute people in similar situations?  And how do we conduct those trials without implicating international allies who may have allowed CIA black sites in the midst of the "you're with us or against us" furor?

  Basically, I don't see any way to prosecute operator-level agents without putting lives at risk.

  That said, I look at these memos and I see plenty of evidence that should, I daresay must, be used to prosecute George W. Bush.

  That's the prosecution that's most necessary, and least risky to national security.  His trial would be the most open and public one in the history of the world, and the rebuke it would provide would go far, far beyond anything that a prosecution of a person who couldn't be named for crimes that can't be detailed against persons unknown in places we can't say.

  by JR on Fri Apr 17, 2009 at 09:04:15 AM PDT

  •  There are ways to prosecute

    without revealing identities and protecting operational integrity of organizations like the CIA.

    It's difficult, but it has been done before.

    by shpilk on Fri Apr 17, 2009 at 09:31:39 AM PDT

    •  How? When?

      Specifically, when have we prosecuted overseas operatives for overseas actions without compromising overseas assets?  And how could we do it without conducting yet another secret trial where the names, details, and allegations are all shrouded?

      I've been thinking about it, but I can't come up with a workable system that ensures both a fair trial (one where we can all be confident in the result) and a minimal risk to national intelligence.

      But, as I noted, there would be no problems with prosecuting Bush for authorizing and ordering these techniques.  You don't have to go too deep into specifics, and accountability will rest where it's belonged all along.

      by JR on Fri Apr 17, 2009 at 09:46:19 AM PDT

•  I'm somewhat

  unclear I guess.. but as I recall when the President spoke yesterday- did he say that CIA employees were immune from prosecution?  Or did he say that they would be defended if prosecution was brought?  I find that language to be very different.  Also.. the FACT that he stated- employees of the CIA.. and did not mention either the attorneys or Bush Administration people- none of the authors, leaders or order givers- in his wording speaks as loudly to me as the words he did use.  
  Language is very important to lawyers.  What they omit is generally as important as what they include, I believe.  

  by sherijr on Fri Apr 17, 2009 at 09:06:34 AM PDT

  •  Okay well found it myself..

    heres what he did say:
    Those who carried out their duties relying on legal advice (from the Dept. of Justice)will not be subject to prosecution.

    I'm certainly no lawyer.. but again I'm thinking this language is very very specific and what is not said is as important as what is being said.  Conclusions are being brought based on this lack of language.

    by sherijr on Fri Apr 17, 2009 at 09:39:25 AM PDT

•  After hearing about this,

  I went on whitehouse.gov and asked the President if he was out of his fucking mind.  Which was the politest thing I could think of to say.

  I realize I don't know everything involved, but I think Keith Olbermann's Special Comment yesterday got it right.

  by loggersbrat on Fri Apr 17, 2009 at 09:10:00 AM PDT

  •  here's the key part

    "I realize I don't know everything involved" - I think none of us does, and the emotional gut reactions are just that.

    Emotional gut reactions, which may be satisfying to express but may be inaccurate.

    by shpilk on Fri Apr 17, 2009 at 09:30:19 AM PDT

    •  All of us know the law on torture.

      And all of us know what torture is.

      That is enough.

      by expatjourno on Fri Apr 17, 2009 at 09:52:40 AM PDT

  •  Maybe Obama should volunteer to be waterboarded.

    And walled. And put in stress positions. Then, if he still didn't wanted to let the CIA officers off the hook, he'd have a little more credibility.

    by expatjourno on Fri Apr 17, 2009 at 10:18:42 AM PDT

•  Usually agree with you Jess, but not this

  time. I think there is a substantial difference here, between the intent of Obama's statement and the leap to Nuremberg.

  In one of my very first acts as President, I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer. Enlisting our values in the protection of our people makes us stronger and more secure. A democracy as resilient as ours must reject the false choice between our security and our ideals, and that is why these methods of interrogation are already a thing of the past.

  In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

  I'm sorry, but I feel that the extreme responses here are I feel are unwarranted. I do not see this as a blanket pardon. The President qualified his statement clearly, and with a good reference point to work from.

  Over time, I think we will see prosecution of the most heinous aspects of torture, where the government does decide that that there are those who do did not carry out their duties relying in good faith. Torturing someone to death [and there are plenty of documented cases of this occurring] or serious permanent injury is not 'carrying out their duties in good faith'. I do not see Obama's administration failing to prosecute those who are found guilty of these actions.

  Give it time.

  I know, I have this 'faith' in the basic goodness of the current administration. I am ready to have to admit at a future time that maybe my faith in their goodness is unwarranted, too.

  As for those in the DOJ who allowed this all to happen, who made this 'wink and a nod' with their weasel worded adjudications to open the doors of Hell to the gross human violations and torture, it appears that our nation is not quite ready to come to terms with that.

  Let's be frankly honest here. Most nations torture; the Brits have their own cases related to Iraq, right now in their court system, and it appears that most of those perpetrators are being let go as well. It's not an excuse for our failure to lead, it's simply an observation that those who torture and history judges as the 'winner' in conflicts rarely take any corrective measures or punish those at the top of the command chain responsible for heinous actions taken under the rubric of 'fog of war', and other such nonsense.

  For every William Laws Calley, Jr. there's probably dozens more who are guilty of equivalent or worse crimes in positions of authority to command. The Winter Soldier testimony in the 1970s showed that systemic widespread abuse resulted in horrible human rights violations throughout the whole Vietnam experience.

  Yet, I think this reaction, and the comparison to Nuremberg is premature and divisive as it relates to Iraq and Afghanistan: we simply have not seen how this plays out.

  I do think the issue needs to be discussed and strong light continued to shine upon all aspects of this. Obama and his administration should not be allowed to sweep this under the rug.

  Can we drop the level of rhetoric a couple of notches in the meantime?

  by shpilk on Fri Apr 17, 2009 at 09:11:58 AM PDT

  •  "Give it time."

    As John Dean said last night, "This is not over yet."

    He commended Obama for revealing the memos, and said in so many words that the door is still open for prosecution(s).  IMHO he was telling Keith Olbermann we need to see what happens.

    I do believe Obama is hoping Congress will conduct investigations.  Unfortunately, Leahy et al. are dragging their feet.  That's why we need to write letters and call our reps to let them know we the people want an independent prosecutor to investigate and hold those who authorized torture accountable.

    See links to write letters here: (h/t Sybil Liberty)

    http://www.dailykos.com/...

    by KayCeSF on Fri Apr 17, 2009 at 09:22:10 AM PDT

    •  It's not going to be easy to cover this

      ground, but I feel that if Democrats remain in charge in Congress and the WH, ultimately some justice will be served.

      It may take many years.

      Meanwhile the rhetoric and invocations of Godwin are truly counterproductive.

      By all means, we must have as much transparency as possible in the process. That's what I look for, and hope for.

      by shpilk on Fri Apr 17, 2009 at 09:29:05 AM PDT

      •  Obama had to FIRST reveal the memos

        so that everyone in America can know exactly what torture has been perpetrated by the Bush administration, the CIA.  The documents give all of us fuel to request investigation and prosecution.  Obama does have method in this madness. He could have decided otherwise. He took a grand leap for democracy when he handed over those memos for public perusal.  

        Now it is up to us to force the issue.  But again, sitting here complaining and presenting ourselves as ugly as the rightwinger loons with castigations against our President isn't going to do anything positive to move this forward.  We must write letters and call our reps.
        And as I said above, I believe that's exactly what Obama wants us to do.

        by KayCeSF on Fri Apr 17, 2009 at 10:54:22 AM PDT

        •  I think he is hoping the Courts will also

          make some rulings: the actions by the DOJ related to finance as well seem to be deliberately pushing some of the core issues into Supreme Court decisions.

          I think a combination of legislative and precedent setting decisions is exactly what Obama wants to happen, not Presidential decrees.

          by shpilk on Fri Apr 17, 2009 at 05:08:50 PM PDT

          •  I agree.

            Did you see this? I'm confused, wondering if this is one of those cases O' deliberately wants the court to decide on.  Your thoughts?

               

            Judge Skeptical Of State Secrets Privilege For NSA/Charity Case

               The Obama administration suffered a bit of a legal setback this afternoon: a federal judge in California rejected the administration's assertion of the state secrets privilege in the civil suit brought by an Islamic charity that was allegedly subjected to illegal NSA surveillance. The order, in Al-Haramain v. Bush, requires the government to come up with a way to safeguard the classified information it plans to present in the NSA's defense by May 8. Judge Vaughn Walker noted that the government has elsewhere made provisions for the discussion of Top Secret/SCI information. It so happens that the plaintiffs attorneys have been cleared to that level. Walker crafted his order narrowly to prevent the government from appealing it immediately to the Ninth Circuit. On May 8, it will be interesting to see whether the administration presents a plan for safeguarding classified info -- or whether it re-asserts the state secrets privilege.

            http://politics.theatlantic.com/...

            by KayCeSF on Fri Apr 17, 2009 at 06:18:37 PM PDT

•  Obama has to run the mess while he changes it

  Our government has, in its post world war 2 imperial ambition, committed many crimes of power enforced by violence. The torture episode of the Bush administration was one aspect of absolute power corrupting absolutely. Multinational corporations and the military industrial complex have been at the heart of U.S. power and we have done many things that deserve prosecution.

  How is a new president going to change the arc of that story, that momentum. My answer would be very carefully, skillfully, and gradually, if I were the one with that responsibility.

  How many civilians did we kill in Iraq secondary to the Bush administration's decision to go to war? How many people will die because of our unwillingness to reverse our industrial activity that is destroying the ecosystem to which all people are adapted? Changing into this imperial force of power concentration didn't happen over night and it can't be reversed in short order. Prosecutions of the direct torturers and their immediate bosses while relying on them for security is a risky proposition. Prosecuting the Bush legal team is less risky, but still some increased mortality risk there, those folks are representatives of a powerful, wounded ruling class that has had their way and will not go down without a fight.

  Obama didn't just get a shit sandwich from Bush, he is having to live in a shit sandwich and try to turn it into a turkey dinner.

  by Bob Guyer on Fri Apr 17, 2009 at 09:20:27 AM PDT

  •  Thanks for pointing this out, it's pretty simple

    to always throw out the generic Nazi analogy, but a good thorough reading of history shows war crimes committed by both the US, it's allies, AND whomever they are fighting or have fought against.  

    And yes, the US did prosecute it's own during WWII, and I am talking the death penalty, but plenty of horrible acts did go unprosecuted to this day, from a number of nations, not just German citizens; Russia, Poland, France and the Czechs citizens. Two wrongs just don't make a right.  A lot of that was pushed under the rug for the sake of the Cold War.

    And of course who knows how many starved or died because of boycotts before the actual Iraq war.

    Again, I don't know how far the door is closed, and it might still be open, but this just can't be another Abu Ghraib where the people at the top got away, while a few at the bottom get sentenced. I just hope releasing the memos is not the end of it.

    by gereiztkind on Fri Apr 17, 2009 at 10:51:10 AM PDT

•  there is no "blanket immunity"

  jumping into this diary a bit late, but just wanted to point out obama only granted immunity to officers who acted "in good faith". anyone who acted in bad faith or stepped outside the memos can still be prosecuted. Now, i'm not quite sure what "bad faith" means in this instance, but still i think its important to get therecord straight.

  Senior administration officials  have made it clear to me: neither President Obama's statement nor Attorney General Holder's words were meant to foreclose the possibility of prosecuting CIA officers who did NOT act in good faith, or who did not act according to the guidelines spelled out by the OLC.
  So it's not correct to say that the administration granted blanket immunity to anyone.

  by freaktown on Fri Apr 17, 2009 at 09:27:32 AM PDT

  •  The law does not recognise this "good faith"

    This was made quite clear at the Nuremberg trials. As a part of the UCMJ it is drilled into every soldier and sailor in boot camp. Following an illegal order is illegal.

    The "guidelines" were clearly wrong and illegal and anyone who thinks he can justify himself for following them can do so from the defense table at the Hague. Either there is the rule of law or there is not. Unlike politics, the law is quite clear and primarily binary.

    by ReallyEvilCanine on Fri Apr 17, 2009 at 09:32:14 AM PDT

    •  They didn't think it WAS an illegal order.

      They were told to obey an order that they believed was lawful.  I don't think it's fair to tell them many years later, "Oh yeah, so I guess it's not a legal order.  You're going to jail."

      by psychodrew on Fri Apr 17, 2009 at 09:38:46 AM PDT

      •  Most of the Nazi officials thought they were

        following the law.

        by lysias on Fri Apr 17, 2009 at 09:51:04 AM PDT

    •  Not True

      Good faith belief that one's conduct is lawful, even if mistaken, is well-recognized as a valid defense under Federal criminal law.  Ratzlaf v. US, 510 US 135 (1994) (Justice Ginsburg).

      by Prince Nekhlyudov on Fri Apr 17, 2009 at 10:02:01 AM PDT

      •  US Federal, not Geneva.

        This is not a matter of US law except in accordance with the Constitution, Article II, that as a signatory to Geneva the US is bound by it AS IF it was a part of the Constitution.

        There is also no way in hell anyone committing such atrocities couldn't have known they constituted torture and were therefore morally inexcusable as well as illegal. If they believe otherwise they can just as well appear in front of the court as did so many Germans some sixty years ago.

        by ReallyEvilCanine on Fri Apr 17, 2009 at 10:10:41 AM PDT

        •  objection, your honor...

          There is also no way in hell anyone committing such atrocities couldn't have known they constituted torture and were therefore morally inexcusable as well as illegal.

          there is no way you can possibly know what anybody else knew or didn't know, or thought or didn't think, unless you were somehow INSIDE THEIR HEADS while this was going on.

          also, you should watch john dean on countdown last night. during watergate, a couple of the burglars had their cases dismissed because they believed they were acting "in good faith" because they were told they were undertaking a national security operation.

          so there IS legal precedent for this, like it or not.

          and like i pointed out above, anybody who acted outside the memos can still be prosecuted.

          by freaktown on Fri Apr 17, 2009 at 10:27:03 AM PDT

•  To state the obvious...

  the Obama administration has to be forced by public pressure to prosecute. Politically, there is just no way they can be seen as eager for vengeance against the Bush administration (which is the way it would be spun). They will have to be dragged into this kicking and screaming, and we are the ones with the power to do it.

  by rebop on Fri Apr 17, 2009 at 09:27:51 AM PDT

  •  Exactly. Let's roll.

    by Jesselyn Radack on Fri Apr 17, 2009 at 10:34:41 AM PDT

    •  Yep. Let's drudge up the torture pics...

      seems as though some have forgetton the horror of those images.

      Lindy England & her perv boyfriend? Nah. Where are the commanders?

      by Annalize5 on Fri Apr 17, 2009 at 03:03:28 PM PDT

  •  I agree, rebop

    I believe Obama is under tremendous pressure from forces in government and who know where else that we don't even know about, and that there has to be a huge uprising from those of us who are sickened by this outrageous immoral and evil "program."   Enormous public pressure is what it will take.

    by rlharry on Fri Apr 17, 2009 at 10:45:02 AM PDT

•  It's one of those things that really is simple:

  If people are not prosecuted and punished -- and I mean punished severely, severely in the way that future ordinary, non-criminal government officials faced with the same choices will stop and say, "if i do this now, well, eventually, someone else is going to be in power, and they are going to prosecute me, and my life is no longer going to be worth living." -- then we can be absolutely certain that a future administration will go the Bush administration One Worse.

  It's that simple.

  "To put it behind us," is, inevitably, to swing it back around and drop it right back in front of us.

  I'm not big on retribution. I'm not big on punishment. I'm not big on the philosophy of "deterrence," as espoused by Death Penalty advocates. But these concepts do have their place in jurisprudence, and this is the place.

  Ultimately, there is no hue and cry we can raise that will influence Obama on this. He is going to make his choices without regard to our arguments, our pleas, our frenzy, our desperation for justice. He is a thoughtful man, and supposing that he hasn't thought this through as completely as any of the rest of us is to deny him the respect that he has clearly earned. Some hold out hope that this is all part of a grand strategy to get the Big Guys. Maybe it is. Obama is certainly crafty, and rarely tips his hand. Maybe it isn't. We probably won't know for sure until the middle of his second term.

  But if it is not a grand strategy, and if he's really going to give these really, dramatically, horribly, despicably, indisputably, evil people a free pass, there isn't a damned thing we can do about it. We will never muster the necessary political power, for example, to amend the constitution to explicitly forbid this sort of evil.

  Sorry to be a downer.

  by UntimelyRippd on Fri Apr 17, 2009 at 09:29:03 AM PDT

  •  Obama has earned contempt, not respect.

    He is a thoughtful man, and supposing that he hasn't thought this through as completely as any of the rest of us is to deny him the respect that he has clearly earned.

    At best, he is a coward and an opportunist.

    by expatjourno on Fri Apr 17, 2009 at 09:54:54 AM PDT

    •  sure. whatever you say.

      by UntimelyRippd on Fri Apr 17, 2009 at 10:08:48 AM PDT

    •  I disagree

      Read Glen Greenwald's column this morning. It is highly illuminating. Let me see if I can work the linky. If I can't, waddle on over to Salon.

      by LaFajita on Fri Apr 17, 2009 at 12:10:05 PM PDT

  •  I can vote.

    by Jesselyn Radack on Fri Apr 17, 2009 at 10:33:57 AM PDT

    •  well, sure.

      but you're not going to get to vote for someone who promises to bring dick cheney to trial. (at least, not a major-party presidential nominee.)

      i'm not saying we should be silent.

      i'm not saying we should be happy.

      i am saying that we simply do not have the power -- that there will never be enough people who care enough about this to, for example, shut down the nation with a general strike.

      for some reason, i just find it ... i don't know, just ... self-deluding to structure our rhetoric in terms of demands, or requests, or suggestions, that the President do this or do that on this particular matter. we aren't going to change his mind, we aren't going to change his policy. we aren't, actually, going to change anything, other than the historical record: we are standing witness, so that when it happens the next time, that era's protesters will have a starting point, a foundation on which to stand.

      by UntimelyRippd on Fri Apr 17, 2009 at 10:48:00 AM PDT

•  Great Diary

  Listening to some talk radio and my hoping is that this is Obama’s logical way of putting the info out there and let it build up and then prosecute. If not, I cant justify Obama’s argument that he wants to move forward! Just like so many callers/bloggers have stated, if I committed a crime today, I will be charged tomorrow, future.

  by SChardonnay on Fri Apr 17, 2009 at 09:29:58 AM PDT

  •  Hope it's a Roosevelt-ish

    "Now make me do it" [in this case, prosecute] tactic on the part of Obama.

    by Jesselyn Radack on Fri Apr 17, 2009 at 10:31:24 AM PDT

•  Prosecuting organized crime takes time

  For example, prosecutors need to "flip" key witnesses on the inside and that requires a "boa constrictor" approach rather than a blitzkrieg approach.

  Also, offers of immunity to underlings can often extract valuable testimony against their superiors.

  by Bill White on Fri Apr 17, 2009 at 09:30:42 AM PDT

•  The diarist is dead wrong. Obama is NOT

  "appear[ING] to endorse the much-discredited 'Nuremberg defense,' popular with Nazi defendants, that they were 'just following orders' and are therefore not responsible for their crimes."

  Obama WAS and IS following the law.

  A criminal defendant is entitled to defense of a good faith reliance on the advice of lawyers.  The National Criminal Jury Instructions Compendium notes that:

  Generally, a defendant must establish that he or she: 1) made a complete disclosure to counsel; 2) requested counsel's advice on the lawfulness of the contemplated action; 3) received advice that it was lawful; 4) relied in good faith on that advice (see SEC v. Savoy Industries Inc. (D.C. 1981) 665 F2d 1310, 1314 n28); 5) counsel must have been competent (qualified and unbiased) to render the advice given; 6) the advice must have been sought before the action in question (see U.S. v. Polytarides (4th Cir. 1978) 584 F2d 1350, 1352); 7) only legal advice can form the basis for an advice-of-counsel defense; and 8) there must be actual advice given.

  The CIA operatives are certainly entitled to raise this defense, and Obama recognizes this.

  The CIA operatives are also entitled to raise the entrapment by estoppel defense.  That defense states that the government who tells an individual that his conduct was legal cannot later prosecute that defendant for a crime.

  It would be fundamentally unfair to prosecute the CIA operatives who acted in reliance on these memos.

  As progressives we should applaud Obama's adherence to the rule of law.

  Remember nothing in Obama's statements demonstrate that those who others and authorized the torture is immune or exempt from prosecution.  If Obama ultimately decides not to prosecute Bush-Cheney-Yoo, etc., we can have that discussion.

  But at this time, we all owe Obama a debt of gratitude for emphasizing that the law and its defenses are supreme.

  The diarist ought not allow her legitimite gripes that she was unfairly investigated color her view and exposition of the law.

  And the DailyKos commentators and diarist who trash Obama should review the law before spouting off ignorance that Obama is the same as Bush.

  There can be no better government than one who has a leader who follows the law and applies it evenly even to those persons that most in society find objectionable.

  One love.

  by pwr2thepeople on Fri Apr 17, 2009 at 09:39:10 AM PDT

  •  You should diary this.

    I have a further question, which is, does the law in question require specific intent to violate it? Rther than a defense as you set forth, it may be the burden of proof on the prosecutor to demostrate knowlege that the law was being broken,

    by Inland on Fri Apr 17, 2009 at 09:43:56 AM PDT

    •  Yes. The statute does require specific intent.

      Section 2340(1) of Title 18 of the United States Code defines torture:

      (1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control

      (Emphasis added)

      So Inland, you are right.  If I were a CIA operative's defense counsel, I would make a strong argument that the prosecution has to prove beyond a reasonable doubt the absence of reliance on the advice of lawyers, and the absence of entrapment by estoppel, during the government's case in chief.

      One love.

      by pwr2thepeople on Fri Apr 17, 2009 at 10:19:45 AM PDT

      •  That's exactly what Yoo and Bybee argued!

        18 USC § 2340] requires that a defendant act with the specific intent to inflict severe pain . .

        But the specific intent issue is evasive and unconvincing. Here is the key passage which reveals the question-begging character of the exercise:

        We do not believe it is useful to try to define the precise meaning of ‘specific intent’ in section 2340. In light of the President’s directive that the  United States does not engage in torture, it would not be appropriate to rely on parsing the specific intent element of the statute to approve as lawful conduct that might otherwise amount to torture.

        by Jesselyn Radack on Fri Apr 17, 2009 at 10:29:11 AM PDT

        •  Jesselyn, if the requirement of specific intent

          is "evasive and unconvincing" that is even more reason not to prosecute the CIA operatives.  

          Remember the criminal law must state clear lines as to what conduct is legal or illegal so that an individual can conform his conduct accordingly, and also to reduce the risk that prosecution will not be arbitrary or capricious.

          But if your argument is that the Yoo's and Bybee's arguments are evasive and unconvincing you are building a straw man to my comment.

          You are dead wrong to claim that my comment is exactly what Yoo and Bybee argued.  I have not defended Yoo and Bybee.

          I simply answered the question whether the statute requires specific intent.  The statute, by it clear language, does require specific intent.

          One love.  

          by pwr2thepeople on Fri Apr 17, 2009 at 11:00:31 AM PDT

  •  You forgot about 4)

    4. relied in good faith on that advice (see SEC v. Savoy Industries Inc. (D.C. 1981) 665 F2d 1310, 1314 n28);

    Let the agents try to establish that in their defense. In the case of something as obvious as torture, it's simply laughable. This is not some kind of esoteric insider trading case. It's whether you can torture and in some cases kil someone in your custody.

    by expatjourno on Fri Apr 17, 2009 at 09:58:53 AM PDT

    •  Expatjourno, I did not forget about 4. In fact

      I cited it.

      A defense is not "laughable" because you say it is.

      While I may agree with you as to what constitutes torture, that does not mean that it is or was obvious to the CIA operative conducting the interrogations.

      Am I not here to defend the CIA. Indeed I think, and always thought, that the CIA should be abolished given its crimes from Mossaddeg to Lumumba to Allende, etc., etc.

      But there can be no question that Obama followed the law in his statement that "it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution." (Emphasis added).

      The government cannot with it's left hand tell you that your actions are legal, and then later with its right hand send you to jail.

      Obama acted with fundamental fairness and followed the law.

      Too many of us, however, act with Salemic folly and prepare the stakes that will not only burn the CIA operatives but also extinguish the law.

      One love.

      by pwr2thepeople on Fri Apr 17, 2009 at 10:46:50 AM PDT

      •  Yes, it actually is obvious that slamming someone

        ...against a wall, or drowning them, or depriving them of sleep for 10 days or locking them in a small box with insects for 18 hours is torture. It's not obvious "because I say it is." And the defense is not laughable "because I say it is."

        I asked this in another comment, but I'll do it again. If the lawyer at the DOJ wrote a memo saying it was permissible for me to hack your head off with a machete, would that mean I couldn't be prosecuted for doing so?

        In your world, any law passed by any legislature and signed by the executive can be overridden by a DOJ lawyer. In your world, laws are meaningless.

        by expatjourno on Fri Apr 17, 2009 at 12:04:11 PM PDT

    •  That's the easiest one.

      You're thinking the reliance has to be reasonable.  All it says is good faith.  If there isn't a reasonableness requirement, all the person has to do is say he actually relied on the legal counsel and the president of the US.  That's not an incredible statement.

      by Inland on Fri Apr 17, 2009 at 05:17:13 PM PDT

  •  Response:

    1. The CIA operatives won't have to raise any kind of defense because Obama and Holder just gave them blanket immunity.

    2.  Most of the CIA operatives were not relying on this legal "advice," which was written after the fact to justify what the CIA had already done.

    3.  Progressives don't get to pick and choose which laws they follow.

    4. I believe that my exposition of the law is sound.

    5. It's very Bush-like for Obama to write off criticism as "retribution."

    6.  The "law":

    CONVENTION AGAINST TORTURE

    Each state Party shall ensure that all acts of torture are offences under its criminal law (Article 4) . . .The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

    GENEVA CONVENTIONS (Article 146)

    Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.

    CHARTER OF INTERNATIONAL TRIBUNAL AT NUREMBERG

    The fact that the Defendant acted pursuant to order of his Government or a superior shall not free him from responsibility, but may be considered in mitigation of punishment.

    U.S. CONSTITUTION

    All Treaties made, or which shall be made, under Authority of the United States, shall be the supreme Law of the Land.

    by Jesselyn Radack on Fri Apr 17, 2009 at 10:15:18 AM PDT

    •  You Make Up Stuff A Lot

      And considering that you claim to be a "civil libertarian", you display a pretty cavalier disregard for some basic principles of constitutional law.  One of the most basic principles is that no one can be convicted of a crime except on the basis of some clear and specific statute defining the criminal conduct at issue.  Thus, the citations to International Conventions are largely irrelevant to the question at issue - the criminal prosecution of certain CIA agents.  The criminal statute at issue is 18 USC Section 2340A.  To the extent the agents relied in good faith on legal advice from the DOJ that their conduct did not violate the law, they have a valid defense to a criminal prosecution.  All Obama said is that the DOJ in his administration intends to respect the law concerning such a defense by not bringing any prosecution against such agents.  You make blanket statements that "most" agents did not rely on that advice, but if those agents are to be prosecuted, that will require proof - not the hyperbolic statements of a blogger.  Your statements would have more credibility if you were serious about not wanting to pick and choose which laws to follow.  CIA agents have constitutional rights, and I would assume that "progressives" want those to be respected.

      by Prince Nekhlyudov on Fri Apr 17, 2009 at 10:44:41 AM PDT

      •  Prince, you said what I was going to say.

        Only you said it better.

        Thanks for saving me the time.

        One love.

        by pwr2thepeople on Fri Apr 17, 2009 at 10:48:40 AM PDT

•  Catch 22

  This makes me so angry.  The culprits should not go free, especially those at the top who sanctioned these horrendous acts using specious legalese.  Indict Feith, Gonzalez, Abbington and the rest of the slime balls.

  by powwow500 on Fri Apr 17, 2009 at 09:40:07 AM PDT

•  So, Nuremberg was "victors' justice" after all.

  by wigwam on Fri Apr 17, 2009 at 09:45:42 AM PDT

•  How many people died in custody?

  The "I handled SERE training and it was no big deal" and "I survived my frat initiation  ... so what" rationalizers of torture are on their face idiots but more precisely a failr large number of folks detained by the US died so those being tortured could not rely on assurances that the torture would only lead to their being inducted into a club.

  In this case, and only in this case, would I agree with the Shakespeare quore "Let's kill all the lawyers."  Shakespeare meant it ironically becuase his view was that the lawyers borught order to scoeity;  in the case at hand the lawyers brought sickness and disorder into our govenrment and pain and suffering to may people (incluidng CIA employees).

  by ProduceMan on Fri Apr 17, 2009 at 09:46:26 AM PDT

  •  Don't forget the human rights lawyers

    (myself included) who objected to torture.

    by Jesselyn Radack on Fri Apr 17, 2009 at 10:01:02 AM PDT

    •  I know - It's like knokcing all the doctors

      because of Mengele.  But in the case of the criminal conspiracy which this torture was the most culpable people are the lawyers who sought to normalize torture and who in the process violated their oaths and professional standards.

      by ProduceMan on Fri Apr 17, 2009 at 10:18:00 AM PDT

  •  We don't know yet.

    Somewhere between 2-8 that I know of.

    by Jesselyn Radack on Fri Apr 17, 2009 at 10:19:48 AM PDT

    •  Thom Hartmann

      said on his radio program this morning that at least 30 people have died of torture under Bush/Cheney et al.

      by rlharry on Fri Apr 17, 2009 at 10:24:25 AM PDT

      •  There is an 80 number out there

        but that could also include wounded detainees who were in bad shape when they were captured.

        by ProduceMan on Fri Apr 17, 2009 at 10:52:55 AM PDT

  •  Not only CIA employees...

    Who knows what the hell the Blackwater Boys accomplished?

    They, after all, were not accountable to the regular military.

    Talk about unaccountable.

    This is a nightmare.

    by Annalize5 on Fri Apr 17, 2009 at 03:00:12 PM PDT

•  A. Sullivan has a compelling article

  The Banality of Evil
  http://andrewsullivan.theatlantic.com/

  This paragraph:

  It is this professionalism and bureaucratic mastery that chills in the end. Not the brutality of "the program," but the modernity and banality of the apparatus around it. As Orwell predicted, the English language had to disappear first. The president referred to waterboarding prisoners as "asking them questions." Bringing prisoners' temperatures down to hypothermia levels was simply an "alternative set of procedures." The entire process is "enhanced interrogation." Even the press has to find a way to call it merely "harsh", a term now changed to "brutal" in the NYT, even though nothing we found out yesterday was more brutal than anything we knew about before.

  It brings to my mind The Wanasee Conference. The words "professionalism and bureaucratic mastery."

  I recommend the movie for an example of the banality of evil.

  by Agathena on Fri Apr 17, 2009 at 09:51:13 AM PDT

  •  Euphemism translations:

    "Sensory deprivation"-being locked in a dark box for days

    "Dietary manipulation"-being fed only "Ensure" for weeks

    "Stress positions" - being shackled standing with hands affixed to the ceiling

    "waterboarding" (sounds like we're talking about surfing)-simulated drowning

    "Enhanced interrogation techniques"-torture

    by Jesselyn Radack on Fri Apr 17, 2009 at 09:57:26 AM PDT

    •  Ensure?

      I'm sure these nefarious bastards were feeding them nothing but Activia.

      by ThatsNotFunny on Fri Apr 17, 2009 at 10:42:49 AM PDT

    •  Christendom just marked Jesus' death a week ago

      … while hanging from some wooden beams in one of the Roman Empire's favorite "stress positions." And if I recall correctly, Jesus was our 43rd president's favorite philosopher.

      Chris Floyd's take on this is here.

      by lotlizard on Fri Apr 17, 2009 at 12:45:33 PM PDT

•  CAT

  Opps, some CIA blokes must have missed the class.

  Article 10

  1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.

  2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such persons.

  by BOHICA on Fri Apr 17, 2009 at 09:52:54 AM PDT

•  The fact that people stand on the same side as

  the Nazi's (Godwin forgive me) and yet still may not go to jail amazes and disgusts me.

  investigate, then prosecute

  WTF?

  by MinistryOfTruth on Fri Apr 17, 2009 at 10:04:14 AM PDT

•  Oy

  Really not as blanket as the statement seems.  "Good Faith" requires intent to rely on the memos.  If any interrogators did things not included in the memos or if they acted prior to the memos or in other circumstances in which they didn't rely on the memos for interpretation, these folks are still liable.  

  Secondly, repeat, it does not cover Bush Admin folks not from the CIA.  

  by calchala on Fri Apr 17, 2009 at 10:19:16 AM PDT

•  My assessment

  There is nothing to trust if he doesn't
  take it all the way. The Neocons are
  already spinning this to make him look bad.
  This is just like bringing in some dead bodies
  and saying I didn't do it. My friends didn't do it,
  but we are going to make sure it never happens
  again. How? If you don't prosecute the ones
  who killed them? Dead Bodies Representing the
  Constitution and Values of America

  by Vetwife on Fri Apr 17, 2009 at 10:21:26 AM PDT

•  Entrapment

  It would be entrapment for a law enforcement agency to tell someone that a particular action is legal, then charge that person with a crime for taking that action.  "Rule of law" is a term tossed about around here as a debate-ender.  Well under "rule of law", the accused has rights, and that includes not being held liable for crimes or civil violations that were committed in entrapment scenarios.  Therefore it would be unjust to charge the CIA interrogators with crimes (unless they did things outside the bounds of the DOJ memos).  I would think that even K.O. and Jonathan Turley (whom I can't stand for his role in Clinton's impeachment) should be able to understand that.

  by Escamillo on Fri Apr 17, 2009 at 10:28:17 AM PDT

  •  Try actually reading the law.

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

    That's from the convention against torture, a treaty signed by reagan and ratified by the U.S. Senate. Are you really going to argue that you can legally beat someone to death if the DOJ writes a memo saying it's OK?

    And not only that, but your rather superficial argument could be used to overturn any law. Just get a note from the DOJ and it doesn't matter what laws the legislature passes, you don't have to obey them.

    Again, we are not talking about nuanced legalisms surrounding some sort of complex derivative insider trading scheme. Torture is pretty obvious. No one tortures someone without knowing full well that it is torture.

    by expatjourno on Fri Apr 17, 2009 at 10:41:40 AM PDT

  •  Glad To See

    Somebody call-out that phoney Turley.  IMO, he's another Dershowitz - a loud-mouthed self-promoter who likes to see himself on TV.

    by Prince Nekhlyudov on Fri Apr 17, 2009 at 11:06:12 AM PDT

•  Question, Jesselyn:

  Do you think that President Obama's seemingly illogical and irrational decision is due to something more nefarious than we know?  Powerful forces that could bring down his presidency--or even worse-- should he proceed with investigations?

  by rlharry on Fri Apr 17, 2009 at 10:36:02 AM PDT

•  What About The Ones Who Gave The Orders?

  Will he prosecute the ones who gave the orders?  Not all were just following orders.  

  by rssrai on Fri Apr 17, 2009 at 10:39:42 AM PDT

  •  that's the goal

    first he needs to bring those who actually did the torturing and get them to testify. Usually you need to compel testimony by bringing charges but offering immunity in exchange for cooperation. Then work your way up the Cheney.

    by cacamp on Fri Apr 17, 2009 at 11:38:52 AM PDT

•  Law abiding civilisations...

  of which the USA is slipping out of...so sad.

  by Jazzenterprises on Fri Apr 17, 2009 at 10:46:47 AM PDT

•  I don't understand how you vilify the action,

  but not the actors.

  How screwed up is this nation and our politics that we will not "investigate, let alone prosecute" these people?  They should all be let go, at least.  Instead, we have to worry about their morale?"

  What country do I live in?

  by YallaDog on Fri Apr 17, 2009 at 10:54:22 AM PDT

•  "The more things change...

  ...the more they stay the same..."
  Don't get it wrong, I still think Obama is/will be a great President, but this decision to "not prosecute" is FUCKING BULLSHIT !!!

  by Overnite on Fri Apr 17, 2009 at 10:56:08 AM PDT

•  Can we please stop mentioning Nuremburg

  when referencing CIA operatives?  It really is apples and oranges.  Nuremburg was a trial of the 22 HIGHEST captured Nazis.  Many more were in custody including oven and gas chamber operators.  Why weren't they tried at Nuremburg?  If this is investigated, it has to target the top and the top only.  Putting CIA operatives on trial will do nothing to stop the practice if it was or is condoned by the top.  These CIA operatives NEED to be protected in my opinion.  The truly heinous crime was the approval.  Everything else is easily predicted once the tactics are approved by an administration in power (legally or not).

  by woobie on Fri Apr 17, 2009 at 11:02:19 AM PDT

  •  LOTS more than just the 22 highest Nazis

    See Wikipedia -- there was more than one Nuremburg trial:

    The first and best known of these trials was the Trial of the Major War Criminals before the International Military Tribunal (IMT), which tried 22 of the most important captured leaders of Nazi Germany. It was held from 21 November 1945, to 1 October 1946. The second set of trials of lesser war criminals was conducted under Control Council Law No. 10 at the U.S. Nuremberg Military Tribunals (NMT); among them included the Doctors' Trial and the Judges' Trial.

    by Aranfell on Fri Apr 17, 2009 at 11:29:42 AM PDT

    •  oops

      my bad.  didn't mean to misinterpret.  Totally applies.  Forget I even brought it up.  thanks for the correction.

      by woobie on Fri Apr 17, 2009 at 12:51:32 PM PDT

      •  You weren't so far off.

        The salient thing is that Nuremburg tried the top criminals first. If you try the underlings first the big guys get away.

        by catfood on Fri Apr 17, 2009 at 03:05:49 PM PDT

  •  here it's different

    to get to the top we need the testimony of the lower ranking people who did the hands on waterboarding and other torturing. The guys with actual blood on their hands. Once they testify justice can take its course with clemency or immunity for testifying.

    by cacamp on Fri Apr 17, 2009 at 11:34:28 AM PDT

•  The US prosecuted and executed...

  Spanish officers in the Philippines for torturing American soldiers, Japanese and German officers in WW II for torturing Americans, but we won't even investigate or prosecute the Bush era criminals?   A sad day, indeed.

  by CT yanqui on Fri Apr 17, 2009 at 11:05:29 AM PDT

•  investigate war crimes before drug crimes n/t

  by washunate on Fri Apr 17, 2009 at 11:11:12 AM PDT

•  NOW we've lost our soul?

  That's a bit hyperbolic, given our actions in Vietnam and other parts of the world.  Given the way this country has often treated its own citizens; remember how many civil rights workers were treated (tortured, murdered), and many of those perpetrators have never had to answer. Also, this country's government hasn't been above doing various undercover experiments on its own citizens (radiation and syphillis come to mind).

  The handwringing over Obama's failure to prosecute torturers right now feels really disingenuous.  Especially since it doesn't preclude future prosecutions of those who directed the policy in the first place.

  Plus, do you really want a torture fight right now?  Really?  Seems a bit irresponsible to go for this now.  Because, know what?  Timing is everything, and our current President usually has damn good timing.

  Outrage is fine.  But if you're really that upset, what are you going to do about it?  Because, trust me, the wing nuts are just itching for a fight to unite them and destroy this president.

  So go for it.  Give the wingnuts EXACTLY what they want.

  by Dailyfare on Fri Apr 17, 2009 at 11:21:20 AM PDT

  •  If not now... then when

    Is there ever a good time to confront failings such as this?  It is true that many other similar issues have not been confronted but these only serve to illustrate the damage done by failing to have true accountability.

    Obama has stated that

    those who carried out their duties relying in good faith upon legal advice from the Department of Justice will not be subject to prosecution.

    What definition of "good faith" would apply to torture?

    good faith
    n. honest intent to act without taking an unfair advantage over another person or to fulfill a promise to act, even when some legal technicality is not fulfilled. The term is applied to all kinds of transactions.

    good faith
    n. Compliance with standards of decency and honesty: bargained in good faith.

    For me, not truly addressing this whole can of worms is an even greater tragedy because it makes what happened acceptable.  

    by mary13L on Fri Apr 17, 2009 at 11:39:48 AM PDT

•  I'm tired of this bullshit.

  If you investigate and prosecute, then you condone. I don't care what is said its actions that count.

  by LaFeminista on Fri Apr 17, 2009 at 11:33:08 AM PDT

•  Rule of Law

  Once again, I am very impressed by the fact that Obama is totally serious about using the rule of law to guide his administration.  On the one hand, Obama turned over the memos because the law requires their disclosure, resisting some heavy lobbying from the CIA in doing so.  I note that this Diarist predicted a couple of days ago that Obama would cave to that pressure and would withhold the memos.  Fortunately, the Diarist was wrong and Obama followed the law in making them public.  On the other hand, Obama said that his DOJ would not prosecute CIA agents who relied in good faith on prior DOJ legal advice as to whether or not the interrogations constituted torture as defined in the statute.  That decision too is entirely consistent with adherence to the rule of law - good faith reliance on legal advice is a well-established defense in a criminal prosecution and while prosecuting these CIA agents might make the liberal base feel good, it really would be a legal travesty.  Following the rule of law is hard, and not always good politics, but I am very proud to have a President who genuinely seems to respect it.

  by Prince Nekhlyudov on Fri Apr 17, 2009 at 11:37:09 AM PDT

  •  wrong big time

    there is no "rule of law" that you quote for "just following orders" defense. The fact of the bogus torture memos doen't mean anyone can engage in law breaking and be immune from prosecution. You made that up. It can mitigate but is no way a "well estabilished defense" where did you get that law degree?

    You can put down "liburls" like the other wingnuts but making up law is wrong.

    by cacamp on Fri Apr 17, 2009 at 11:48:36 AM PDT

    •  Ratzlaf v. US

      510 US 135 (1994).  (I studied constitutional law, since you asked, with Justice Ginsburg, the author of the Ratzlaf decision).  Good faith reliance upon legal advice that one's conduct does not violate the law - even if the advice is incorrect - is a well-established defense in a criminal prosecution.  See, e.g., United States v. Walters, 913 F.2d 388 (7th Cir. 1990).  Indeed, the burden is on the prosecution to prove lack of good faith.  See, e.g., Sand, et al., Modern Federal Jury Instructions, No. 59-8.  This is different from the "just following orders" defense.  If the CIA agents were simply ordered to do the interrogations and were not given advice that the interrogations were legal, then they would have no defense, and in fact, there is nothing in Obama's or Holder's statements suggesting that agents who engaged in torture and did not rely in good faith on legal advice from the DOJ will not be prosecuted.  However, if they did rely on legal advice in good faith, they have a perfectly valid defense and they should not be prosecuted.
      We "libruls" should be commending President Obama for trying to follow the law, including by respecting the constitutional rights of CIA agents.
      I do agree with you that the memos were incorrect statements of the law regarding torture (that is also apparently President Obama's position).  However, the people who should be sanctioned for that are their authors, including current Judge Bybee.  Instead of attacking Obama, I'd like to see progressives focus more on the possibility of initiating an impeachment investigation of Judge Bybee.  

      by Prince Nekhlyudov on Fri Apr 17, 2009 at 12:06:21 PM PDT

      •  but since impeachment will simply not happen,

        for political reasons, EVERYONE is off the hook. Happy now?

        by nils o on Fri Apr 17, 2009 at 12:56:18 PM PDT

•  Why must DOJ always defend the lawbreakers?

  The administration argues that it should provide a legal defense for lawbreakers because it doesn't want to punish employees for doing their 'jobs.'  However, the part of their job that matters most is the part for which they are required to take an oath:  to preserve, protect and defend the Constitution.   In contrast, federal employees who actually DO that - preserve, protect and defend the Constitution - are  forced to pay their own legal defense (at enormous cost) against those on the government payroll who violate the Constitution who threaten them with a laundry list of abuses that also includes, ironically, psychological abuses, violations of their due process, abusive investigations and threats.  Of course, DOJ can't defend both sides when they come into conflict.  But, why is it always the wrongdoers it chooses to defend?

  The administration should be held to its argument and required to provide a legal defense (or fund one) for federal employees who really ARE doing their jobs - people like Jess Radack and Thomas Tamm who, unlike the CIA crowd, had no difficulty understanding when to say "no."

  by Deep Harm on Fri Apr 17, 2009 at 11:37:19 AM PDT

•  was Hassan Ghul tortured to death?

  I guess the CIA forgot to redact his name from their torture memo. But he seems to be missing after his rounds of horror. Could it be he has been interrogated to death?

  From propublica...

  Among the OLC memos released today [1], one appears to inadvertently reveal that a top al-Qaida suspect captured in northern Iraq in January 2004 was held by the CIA in a secret prison.

  After Hassan Ghul was arrested in early 2004, President Bush told reporters [2]: "Just last week we made further progress in making America more secure when a fellow named Hassan Ghul was captured in Iraq. Hassan Ghul reported directly to Khalid Sheik Mohammad, who was the mastermind of the September 11 attacks. He was captured in Iraq, where he was helping al Qaeda to put pressure on our troops."

  snip...

  According to the memo, Ghul was one of 28 CIA detainees at the time who had been subjected to the agency’s "enhanced interrogation techniques." Specifically, the memo says he was subjected to "facial hold," "facial slap," "stress positions," "sleep deprivation," a technique called "walling," in which a detainee’s shoulders are repeatedly smashed against a wall, and the "attention grasp [8]," in which the detainee is placed in a choke-hold and slapped.

  So it appears we now have evidence Ghul was in a CIA prison. Where he is today is still a mystery.

  http://www.propublica.org/...

  http://www.propublica.org/...
  http://www.propublica.org/...

  by cacamp on Fri Apr 17, 2009 at 11:54:38 AM PDT

  •  sorry about the links

    I tried..

    by cacamp on Fri Apr 17, 2009 at 11:56:50 AM PDT

  •  Here's one of your links (I think):

    http://www.propublica.org/...

    by lotlizard on Fri Apr 17, 2009 at 12:32:44 PM PDT

•  Democracy Now

  and another show just before it on 88.5 in Tampa was talking about this today... I'm sure someone else in the 600+ comments above has mentioned this but I thought I'd say what I heard just because it was very interesting.

  The move by the Spanish prosecutors was deemed by the guest on DM as a political move by the Spanish administration in order to (appease isn't the right word, but close... I can't really think of another word right now) appease the Obama administration. The Spanish court system is such that the judge who is investigating this case can ignore the prosecutors, just as he has in the past. Remember, this is the man who helped prosecute Pinochet.

  So, the Spanish investigation will probably continue given this judge's track record.

  That is what I heard on Democracy Now!

  And yes, I believe that the "Nuremberg Defense" does not apply here just as it didn't work for the Nazis.

  Torture is torture. Investigate, prosecute, incarcerate for life with no parole. Ever. No chances. I'd be for the death penalty if enough evidence arises that demonstrates that these prisoners were killed from torture. But I would be more than happy with life in prison with no chance of parole.

  oh- and is anyone else sick and tired of seeing torture in quotes as if this wasn't torture? If these are the same techinques the Nazis used and we prosecuted them for, then it is torture! It is not "so called" or "torture."

  Unless, of course, we want to exonerate posthumously the Nazis that we executed for the crimes that we are too pansy to prosecute now.

  Talk about lack of will or calling things what they are not...

  by FinchJ on Fri Apr 17, 2009 at 12:07:26 PM PDT

•  :-(

  I am so sad and disappointed in Pres. Obama.

  by cbyoung on Fri Apr 17, 2009 at 12:10:36 PM PDT

•  Sign the FDL petition to AG Holder

  http://action.firedoglake.com/...

  President Obama released four memoranda from the Bush Justice Department that sets forth in graphic detail the torture techniques that were authorized and ordered by the highest officials in our government.  These techniques are indisputably crimes, and the U.S., in the past, has prosecuted leaders of other countries for using them.  The rule of law demands that our leaders not be above the law.

  Petition language:
  Given the seriousness of these crimes, we the undersigned call for Attorney General Eric Holder to immediately appoint a special prosecutor to determine if criminal proceedings are warranted for Justice Department lawyers who legalized these crimes, and the high level executive branch officials who ordered them.

  by mrobinson on Fri Apr 17, 2009 at 12:11:42 PM PDT

  •  I just signed it and I posted earlier I think the

    link to sign at ACLU site. Please go there and sign also. We cannot allow this to continue down this dark road. We have got to get our country back.

    by allenjo on Fri Apr 17, 2009 at 03:07:26 PM PDT

•  Nuremburg Defense: "Befehl ist befehl"

  "...orders are orders," they said...

  President Obama knows it didn't work in 1949, and it certainly won't work now - only sixty years later.

  But, if we're going to have to prosecute CIA & DoD, agents & their "subcontractors", we are going to have to offer some absolute and universal whistleblower protections. They will have to extend to all military personnel and those acting at their behest, in theaters of battle, theaters of war - what part of the word "universal" really needs to be defined?

  by ezdidit on Fri Apr 17, 2009 at 12:18:06 PM PDT

•  Let the legal hair-splitting begin.

  Unfortunately, there are always enough law types (even on the Democratic side of the aisle) who are willing to provide legal cover for even the most flagrant war crimes and human rights violations.

  by lotlizard on Fri Apr 17, 2009 at 12:29:14 PM PDT

•  The topic is gone off the front pages of all the

  major news websites.  Doesn't that strike you as a bit odd?  

  Go to CNN, FOX, MSNBC etc...

  by CentralMass on Fri Apr 17, 2009 at 12:34:18 PM PDT

  •  Not really

    They were talking about it on Hardball and Countdown....

    by freakofsociety on Fri Apr 17, 2009 at 07:34:40 PM PDT

•  Obama, Bush and Ann Richards

  This business of Obama triangulating and worrying about what the public would think about enforcing the law reminds me of why we ended up with George Bush for President.
      Ann Richards won the governorship of Texas.  She did it with a core group of reasonable progressive Democrats.  Then in her first term she was asked to deal with a few issues like gun control and capital punishment,  we were told that would be handled in her second term.
   Well she did not get a second term. G. Bush won that election and then on to the White House.  
    Don't  get me wrong. I voted for Ann Richards both times and she was the best choice, but triangulating after a while gets the base voters kinda pissed.

  by tidewatcher249 on Fri Apr 17, 2009 at 12:48:53 PM PDT

•  The US remains a rogue state,

  oblivious as to its responsibilities under international law and even its own laws.

  as it has been for a very long time.

  Status Quo We Can Believe In.

  by Tom J on Fri Apr 17, 2009 at 12:50:43 PM PDT

•  Rep Jerrold Nadler Calls for Special Prosecutor

  Congressman Jerrold Nadler Calls for a Special Prosecutor for Torture

  http://www.afterdowningstreet.org/...

  by Sybil Liberty on Fri Apr 17, 2009 at 12:59:26 PM PDT

  •  Interestingly,

    Nadler said the following:

    This investigation should not be a witch-hunt to punish those rank-and-file C.I.A. operatives who acted in good faith on Justice Department instructions.

    That is exactly the same thing that Obama and Holder said, and which caused the Diarist and other posters to castigate Obama for supposedly approving a "Nuremberg Defense."  I don't see the point of a Special Prosecutor.  There is no reason to think that the Holder DOJ is incapable of conducting a competent, thorough and professional investigation that will lead to the prosecution of anyone who did not act in good faith.

    by Prince Nekhlyudov on Fri Apr 17, 2009 at 02:32:10 PM PDT

    •  good faith

      Contrary to Holder's position, there is no good faith here. We all know torture is wrong, is against the law, against all this nation believed in some time back.

      Just because an administration has it's lawyers issue a legal opinion doesn't make it lawful.

      It is wrong, and if you do it anyway, you should stand trial.

      I have lost faith that Holder is capable of conducting the investigation and potential prosecutions needed, after yesterday.

      So we don't have the president, we don't have the doj, all that is left is Congress. So I guess we wait. Or as a nation, we begin to accept that criminal acts will go unpunished if the president says so.

      by allenjo on Fri Apr 17, 2009 at 02:59:08 PM PDT

      •  Without Looking It Up,

        Can you recite the definition of "torture" under 18 USC Section 2340A?  In our constitutional system, we don't prosecute people for crimes based on what "we all know", but based on specific provisions of law.  A CIA agent would have a valid defense that he or she relied on a legal opinion that his or her conduct did not constitute "torture" under the specific language of the statute.  Even if that legal opinion was incorrect - and I believe it was - good faith reliance on that opinion is still a valid defense.  The outrage should be focused on people like Bybee - now a Federal Judge - who wrote the opinions, and not on Obama and Holder, who merely said that they do not want to prosecute CIA agents who have a valid legal defense to prosecution.

        by Prince Nekhlyudov on Fri Apr 17, 2009 at 03:14:40 PM PDT

    •  I'm not concerned with the competence

      of the Holder DOJ conducting a professional investigation so much as I'm concerned with what would seem the political advantage of the administration not being hammered with "retribution" for the next 4 years by the right - even tho it appears it's what some progressives desire - having less to do with seeing justice and far more to do with getting 'just-desserts'.

      by Sybil Liberty on Fri Apr 17, 2009 at 03:04:11 PM PDT

      •  That concerns me too Sybil Liberty n/t

        by freakofsociety on Fri Apr 17, 2009 at 07:36:02 PM PDT

  •  I am going to go read now, Dare I hope?

    We have just a bunch of cowards in Congress. We have been waiting on them for years.

    by allenjo on Fri Apr 17, 2009 at 03:09:21 PM PDT

    •  I really can't say

      ...you dare or you do not

      :)

      by Sybil Liberty on Fri Apr 17, 2009 at 03:13:23 PM PDT

•  There shouldn't be a Conundrum

  Torture is against the Law.  People who participate in Torture should be prosecuted.  If we don't do that, we have set a precedent.  Future administrations who torture will think they're off the hook for prosecution.

  by Trial Lawyer Richard on Fri Apr 17, 2009 at 01:08:15 PM PDT

  •  will think they're off the hook

    Based on Obama's decision yesterday, in the future they will KNOW they are off the hook for prosecution.

    by allenjo on Fri Apr 17, 2009 at 02:48:22 PM PDT

•  China finds us guilty of war crimes.

  China Null and voids our copyright and intellectual property laws.
  Bye bye Miss American Pie.
  Because fire is the devils only friend.

  by ghett on Fri Apr 17, 2009 at 01:39:29 PM PDT

•  I'm sure I'll be labeled an "apologist ...

  for torture, but so be it.  As I understand it, nobody is saying the operatives shouldn't be prosecuted because they were following order.  Instead, it seems to me that the argument would be that they were assured by their superiors, based on an analysis by what were supposedly some of the best lawyers in the country, that what they were doing WASN'T torture, and that it therefore wasn't illegal.

  If what they had been doing had been slowly dismenberibg prisoners to get them to talk, that would be a defense, since anybody of ordinary intelligence knows that's torture, regardless of how many lawyers say it isn't.  But while I think that what was authorized crossed the line, and while it CERTAINLY crossed the line of what I want to see being done in my name and the name of my country, it's not quite as clear-cut as something like dismemberment or some of the other cruelly diabolical methods of torture than have been used elsewhere.

  I'm far less upset with the CIA operatives than I am with the lawyers who, in my personal view, prostituted themselves and their status as members of the bar to tell the top levels of our government what they obviousl wanted to hear, and who, by doing so, put the CIA operatives in the position where many people are suggesting that they should be prosecuted.

  by leevank on Fri Apr 17, 2009 at 01:49:01 PM PDT

  •  See My Comments Above

    In particular, see my comment about Rep. Nadler, who while advocating a Special Prosecutor (which strikes me as unnecessary) says exactly the same thing that Obama and Holder said about not wanting to prosecute CIA agents who acted in good faith reliance upon DOJ advice.

    by Prince Nekhlyudov on Fri Apr 17, 2009 at 02:36:32 PM PDT

  •  First, these memos

    are younger than the first hints on torture (waterboarding). These memos were at least for some important cases an a posteriori justification at all.

    Second, while I usually think good faith can be a good excuse, the described techniques are very clearly torture, despite not the most brutal thinkable kind of. It is still clearly torture. You don't need a legal memo for that. If somebody gives you a legal memo, that the earth is flat, are you going to believe it? The degree of brutality can still be taken into account by the court. It is not a reason not to prosecute at all.

    Third, the Bush administration has fired an Acting Assistant Attorney General for declaring waterbording to be torture. Latestly at that moment, every involved person should have known, that the memos are politicised.

    Fourth, following orders is a much better excuse than relying on legal memos. In a constitutionless dictatorship, order == law, especially after years of indoctrination, styling the dictator as nearly god like. But maybe as important, NOT following an order can mean death penalty. Actually Hitler executed one of his best friends for assumed illoyality. And even then, simply because if everybody refuses to do war crimes, no war crimes will be done, under the geneva conventions this is not an excuse. But those CIA agents were not in such a situation. In the worst case, they would have faced an end to their career. In Guantanamo unlike in AbuGhraib, there are as well no extreme conditions for these agents and torturers, that could give them kind of madness excuse. Miss World described Guantanmo as a very nice place as far as I know.

    You are right, getting the lawyers is more important. But there is no good reason, to let the torturerers in Guantanamo come away easily. You are already much too much biased by the normative reality. Comments above mention police brutality, conditions in prisons, etc. But the brutalisation of the whole society isn't a reason not to act, it is a reason to act.

    by Guest from EU on Fri Apr 17, 2009 at 05:14:38 PM PDT

•   Barack needs to show the world

  that we are a great nation led by the rule of law, not just a faultering enterprise that has retained an elegant lawyer.

  by Tony McArthur on Fri Apr 17, 2009 at 02:04:52 PM PDT

  •  The world really doesn't care 1/100th as

    much as the liberal blogosphere.

    by Geekesque on Fri Apr 17, 2009 at 06:09:28 PM PDT

    •  Perhaps

      but a trial of Dick Cheney and Donald Rumsfeld would have  global audience.  It could be sponsored by KFC and maybe get Wendy's a foothold in Europe.

      by Tony McArthur on Sat Apr 18, 2009 at 01:20:52 PM PDT

•  I'm not sure folks are reading the source docs