Jack,

I would make one caveat about your prediction (which btw, I intellectually share, but wish otherwise):

If there seems to be sufficient political capital to be "acquired" from the voting public, in prosecuting these Republican malefactors, then a Democratic Administration, with an even stronger Democratic Congress (as a likely result of the 08 election), will find the time, the energy, the motivation, and all the evidence they need.

I'm not saying that this is the likely outcome. I'm merely saying that at this very moment, the political tea leaves are a bit muddy.

"Vengeance" has served many a politician well in the history of our species...as it has also many times served us ill.
 

The question is not war crimes prosecutions in the United States. It's war crimes prosecutions of American policy makers in foreign courts. This is not conjecture since the preparatory investigations for those proceedings has been underway for almost two years now, and we will shortly be seeing in major media an interview with one of the examining magistrates. The guidelines are also fairly simple. There will be no formal actions taken before Jan. 20, 2009, and after that date it's unlikely that matters will proceed too aggressively unless one of the targets makes the foolish decision to use his passport for travel beyond America's borders.

Now the other issue is of course whether some of the war criminals lied to Congress or committed other more mundane crimes. It appears very clear that four of them did lie to Congress, and a case may very well be constructed against them in a new Justice Department. We can call that "Ersatz War Crimes."
 

I'm inclined to agree, but I do think there's a chance. The mistake would be starting high on the food chain. Such prosecutions will succeed only if they first target lower level perpetrators and those who are likely to be unsympathetic targets (John Yoo or other lawyers).

It will then be essential to build not just a legal case, but a political case for prosecution. This can be done by a careful investigation which uncovers as much evidence as possible, followed by public disclosure. Early guilty pleas of lower level operatives within the CIA would help, as would fingering those who gave them the go-ahead.

In short, I think it can be done if the political will is there. Unfortunately, I don't expect Hillary or Obama to be seeking my advice on this.
 

Such a rich fantasy life.

Anyone want to wager a month's pay on whether the EU or DOJ will prosecute any member of the Bush Administration for "war crimes?"
 

JB: I'm sure you'd agree there are other types of justice. I believe that in the next decade or two, President Bush's insistence "that history will judge" his administration will take on a bitter irony as a trickle of leaked documents become a steady flow of damaging corroboration of the lawlessness and disregard for human rights in his two terms.

It may not be in the interest of future administrations to have war crimes trials here or in other countries, but the release of damning documents will serve both the interest of law and politics.
 

Such a rich fantasy life.

Anyone want to wager a month's pay on whether the EU or DOJ will prosecute any member of the Bush Administration for "war crimes?"

# posted by Bart DePalma

Torture is defined in law as being a war crime, and includes such as waterboarding, Bart. Torture is a war crime and cannot be made legal, not even by the holier-than-everyone-but themselves (or perhaps even themselves) "Christian" "family values" crowd. You know that, Bart. And we know you'll tell any lie against the rule of law, and (therefore) against the interests of our country, to protect the depraved, rancid Bushit criminal enterprise from the rule of law, and thus the prescribed consequences of their crimes.

Got that, Bart? Torture is a war crime that cannot be made legal; and actions approved by the Bushit criminal enterprise are defined in law as being torture.

There's no way around those facts, Bart, except by lying in behalf of crime against the rule of law.
 

Prof. Balkin:

Why would an Obama or Clinton Administration waste precious political capital early on with a politically divisive prosecution of former government officials?

Because they're war criminals that would make Stalin's NKVD/KGB look mundane?

Cheers,
 

As I have posted elsewhere, just about every country which has signed up to the Torture Convention potentially has jurisdiction to start proceedings against US officials who come within their jurisdiction.

Quite a number will turn a blind eye – the most probable candidates for taking jurisdiction are those who have had nationals or residents subjected to “extraordinary rendition” (aka kidnapping), unlawful detention at Bagram, the various secret locations or Guantanamo Bay.

EU criminal justice systems are all resource starved (like everywhere!). The potential costs of investigation and trial are horrendous. Were an examining magistrate to actually get a present or former official under arrest and start proceedings, my guess is the government concerned would seek to pressure the US administration to investigate and bring charges and then seek to persuade the court to surrender the individual on forum conveniens grounds.

Therefore I think the next administration will be under pressure to avoid any unpleasantness by (for example) appointing an independent prosecutor of unquestionable standing – preferably a Republican.

But what if the Toxic Texan signs a whole bunch of pardons before he leaves office ? Doesn’t that nullify any prospect of prosecution in the USA ? Then what ?
 

Well Jack, I have a fairly unique perspective here: I've literally been investigating the Bush administration's war crimes more than full-time since 2001.11.13, the date on which Mr. Bush issued his so-called "Presidential Military Order" on detentions etc. I did so because I understood that the only purpose of that document was to provide cover for violations of the IMT Charter used to prosecute German and Japanese war criminals after WW2. Nothing I've learned since then has altered that assesment.

From the start of my project, it was clear to me that the toughest part of it would come after the political tide had turned and a Democratic administration took office, for much the reasons you state here. Yet at the same time, I never once doubted that the project was worth the effort or that anything less than CONVICTIONS for these crimes would be a satisfactory result -- even if it took twenty years or more.

These people have spent the last six years subverting the law itself into an instrument with which to commit crimes. We will either expose and punish their crimes or their political decendents will expand on them in the future. If the United States is in fact a democracy and a nation of laws, not men, then we have to prove it. If we fail, then our children and grandchildren will pay for our deriliction and cowardice.

It's just that simple. How good the chances are is beside the point: this is literally a war for human reason itself. I have no illusions about it, but humanity has progressed over the last few thousand years, and I'll be damned if I'll go along with standing still or moving backwards.

And I don't want them prosecuted in a foreign court, I want them prosecuted in our own courts under our laws becausue that is what the Geneva Conventions and 18 USC 2441 require of us, and I don't want us to betray the legacy of everyone who fought, suffered, or died in WW2.

NEVER AGAIN was what I heard growing up, and I can tell you exactly why the next administration not only should, but MUST, prosecute these crimes:

Becasue it is their sworn duty to do so.

And I would say the same to every member of the bar who is actually fit for that high calling, as well as every citizen of the United States who ever said the pledge of allegience and actually meant what they said.
 

Just maybe a Simon Wiesenthal may come along in years ahead to track down perpetrators of war crimes for whom South America would not be attractive and protective.
 

scott horton said...

The question is not war crimes prosecutions in the United States. It's war crimes prosecutions of American policy makers in foreign courts. This is not conjecture since the preparatory investigations for those proceedings has been underway for almost two years now, and we will shortly be seeing in major media an interview with one of the examining magistrates. The guidelines are also fairly simple. There will be no formal actions taken before Jan. 20, 2009, and after that date it's unlikely that matters will proceed too aggressively unless one of the targets makes the foolish decision to use his passport for travel beyond America's borders.

I am curious...

Why does a foreign magistrate have to wait until Jan. 20, 2009 to bring a prosecution?

Do they figure that Barrack Obama will roll over and allow a foreign magistrate to run a universal jurisdiction "war crime trial" of an American citizen while Mr. Bush would not? Why?

Will this change if John McCain is elected over Barrack Obama?

Have any of these magistrates consulted with and received the green light from their national governments to proceed with such a prosecution or are they operating independently to create an international incident?

Care to identify the names or at least the countries of these magistrates?
 

Have any of these [foreign] magistrates consulted with and received the green light from their national governments to proceed with such a prosecution or are they operating independently to create an international incident?

Good question. Do other countries also support freedom and independence for the judiciary? Which ones?

Over here, we've come up with the cute idea of "judges" under the direct order of the preznit....

Cheers,
 

arne:

Criminal prosecution is traditionally a matter of executive discretion. One would think that the EU country's chief executive would like to be consulted before some local magistrate created something between an international incident and an act of war with the United States.
 

And thus does Professor Balkin become morally complicit in the war crimes of the Bush Administration. Acknowledging the deeply unjust world in which we live is not enough. You really ought to go re-read "Letter from a Birmingham Jail". Your colleague Mr. Horton published some salient excerpts recently. Injustice anywhere is a threat to justice everywhere.

We can't rely on others to punish our war criminals. Our job now is to change the political calculus to match the moral calculus.
 

And thus does Professor Balkin become morally complicit in the war crimes of the Bush Administration

Oh, come *on*, dude. It's not like Balkin gets to press criminal charges himself.

He's predicting what will or won't happen, not endorsing it.
 

"Bart" DePalma:

Criminal prosecution is traditionally a matter of executive discretion.

That is largely true in the United States, where we have an adversarial court system. It is not always the case in other countries.

But what does that have to do with judicial independence? I'd note that here, for instance, Article III courts can (and do) toss prosecutions, regardless of the entreaties of the executive.

Cheers,
 

arne:

We are talking about initiating not tossing criminal prosecutions.

The independence of the judiciary is premised on the need to maintain an impartial judiciary. Any magistrate which has initiated a criminal prosecution has become an advocate and is by definition no longer impartial. In that case, the concept of an independent judiciary no longer applies.
 

"Bart" DePalma:

We are talking about initiating not tossing criminal prosecutions.

It was you that brought up "independence":

["Bart"]: "Have any of these magistrates consulted with and received the green light from their national governments to proceed with such a prosecution or are they operating independently to create an international incident?"

I pointed out that the Article III courts here have the "independence" to toss cases (they have only very limited ability to "initiate" such).

I also pointed out that not all countries have our adversarial system, and those with an inquisitorial system may allow courts to mount their own inquiries and proceedings.

Is that clear now? Or do you need it spelled out in small words?

The independence of the judiciary is premised on the need to maintain an impartial judiciary. Any magistrate which has initiated a criminal prosecution has become an advocate and is by definition no longer impartial. In that case, the concept of an independent judiciary no longer applies.

IOW, "Blah, blah, blah..." I know the theory, "Bart" (as does pretty much everyone here). Obviously, others disagree with our own choices, and think that such systems offer benefits to offset said lack of "impartiality" (note that such is not a synonym for "independence").

But then what do make of the situation where the preznit (or his flunkies) are cop, jailor, judge, jury, prosecutor, defence attorney, prison warden, and executioner? See any issues there?

Cheers,
 

Under the Geneva conventions article 142, it is not permissible for the U.S. to change it's ratification status without notice. It can be argued that since the MCA immunizes what were known grave breaches by the Bush administration officials, it also violates article 129, which requires that perpetrators of grave breaches be brought to justice. The MCA of 2006 is therefore more than a trip wire for foreign investigation (which it is), it is itself a violation -- in and of itself. It's also a violation of CATCIDT articles 13-16, and every day that passes without prosecutions after General Hayden's admissions of waterboarding are violations of CATCIDT article 12.
By doing nothing, the Congress is becoming complicit. Maybe they all need to cancel travel plans as well.
 

ondellette:

The President and Congress have the constitutional power to withdraw from a treaty at will. The treaty itself does not amend the Constitution and abridge that power.

For the purposes of US law, Congress through the MCA has defined the obligations of the United States under the Geneva Conventions.

That is why several posters are engaged in the fantasy of some EU magistrate arresting and trying our citizens for "war crimes."
 

Bart,

Please reread your GC:

Art 131. No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article.

And that preceding Article is....

Art 130. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.

When we signed the GCs, we agreed to their terms, including (amazingly enough), this one. Which means that while one (you, Bush, et al) can claim that one is not a war criminal, and pass a law saying that one is not a war criminal, in the end, its not your call, because....

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.

Luckily for those who supported, endorsed, and committed torture that the GCs forbid it and other maltreatment of those captured and tried for violating its Articles.

Bolded sections cover claimed crimes of this administration. Re: wilful killing, IIRC over 80 detainees who died while in custody and while undergoing enhanced interrogation had their deaths ruled as homicides.
 

fraud guy:

Once again, we are not interpreting the text of the GC.

The point I was making is that Congress and the President have the power to withdraw from any treaty at will. No treaty including the GC can amend the Constitution to abridge that power. For the purposes of US law, it appears that Congress has withdrawn from Articles 130 & 131 and any other provision of the GCs to the extent that they require anything beyond that provided for in the MCA.

Of course, if some foreign court has the stones to attempt to impose their contrary reading of the GC on the United States, they are welcome to try.
 

Well, Bart, at least you have abandoned your pretense to advocating the rule of law, for your new Golden Rule:

"He who has the stones makes the rules."

The US has supported 131 against others, (Milosevic claimed that international law did not apply to him, and I'm sure Taylor feels the same way) but now I guess we should pardon Hussein posthumously because you effectively claim it does not apply to those who say they are immune.

Unless that defense is only valid for those who can beat up their accusers.
 

"Bart" DePalma:

The President and Congress have the constitutional power to withdraw from a treaty at will. The treaty itself does not amend the Constitution and abridge that power.

Where does it say in the Constitution that the preznit and Congress have the "power to withdraw from a treaty? ;-) Jes' tweaking you on your incoherency, "Bart"....

Did they "withdraw"? Or are they simply ignoring it?

For the purposes of US law, Congress through the MCA has defined the obligations of the United States under the Geneva Conventions.

So they get to "rewrite" treaties whose provisions have fallen into disfavour (or which have become annoying to their plans)?

I'd note that the "reservations" that the U.S. gummint put into the record on the CAT (which arguably the MCA endorses or supports) were at least made known on ratification. No such "reservations" were made WRT the GC. Claiming that the MCA enactment, now, can change treaty obligations to fit the wont of the U.S. gummint, is absurd.

So has the U.S. then, by refusing to abide by the provisions of the GC, withdrawn from the Geneva Conventions? That should be front-page news. And that might make a prudent soldier a bit worried....

Cheers,
 

It is true that justice is unlikely to occur in the U.S. As Nancy Pelosi demonstrated when she took impeachment off the table, and as HarryReid demonstrated when he decided the Senate had more important things to do than censure for abuse of power, illegal wiretapping and torture, the Democrats have no interest in right and wrong, the Constitution or justice.

Other countries might see things differently, in time. I agree with an earlier post that what may set things in motion is when one of the criminals steps off the plane in the wrong country. A Spanish judge and the British House of Lords set a precedent with Augusto Pinochet.
 

Fraud Guy:

"International law" is and will continue to be a legal fiction for the foreseeable future. The rule of law will apply to international law when a world government elected by the People enacts statutes. Until then, "international law" is simply a set of treaties and customs between governments which are only enforced when nation states use their hard power to do so.

So far as the United States goes, the GCs only have the force of law our elected Congress decides to give them. You are upset because a majority of the People and their elected representatives in Congress to not agree with you and the EU.
 

Care to identify the names or at least the countries of these magistrates?

I could see Baltazar Garzon doing it.

On the issue Arne and Bart are discussing about withdrawal from treaties, each of them are half right.

Bart is right that Congress clearly has at least an implied power to abrogate a treaty, in the sense that if it did so it would be a nonjusticiable political question under Goldwater v. Carter.

Bart is also right that the Military Commissions Act, if it is given full effect by the Courts (which may or may not happen), purports to construe the Geneva Conventions in a relatively narrow way that would immunize certain activities of the US government. Further, because Geneva was a likely a non-self-executing treaty, under Foster v. Nielson, Congress has the power to do this, at least with respect to domestic law.

But Arne is right that the Military Commissions Act does not constitute a withdrawal from the Geneva Conventions. There's a difference between withdrawing from or abrogating a treaty and simply violating it. To withdraw, Congress or the President would have to declare that the treaty was no longer binding on the US, the way that Bush, for instance, pulled out of the ABM treaty. In contrast, the MCA states expressly that the Geneva Conventions ARE binding on the US; it just purports to interpret them in a certain way under domestic law. And there's a reason this was done this way-- a bill to actually pull the US out of the Geneva Conventions would have been virulently opposed by the military and would have never cleared Congress.

If a nation-state declares itself bound by a treaty and then passes a law that is inconsistent with its provisions, that law isn't a treaty withdrawal, it is a treaty violation. Treaty violating laws are enforceable as domestic law, but they do not vitiate the international law obligation.
 

Bart De Palma enquired:

Why does a foreign magistrate have to wait until Jan. 20, 2009 to bring a prosecution? Do they figure that Barrack Obama will roll over and allow a foreign magistrate to run a universal jurisdiction "war crime trial" of an American citizen while Mr. Bush would not? Why?

Obvious, my dear chap, its not so much who the next President will be but the departure of the present incumbent and his accomplices - the foxes are still in charge of the hen-house.

Will this change if John McCain is elected over Barrack Obama?

You tell me, Surely neither's administration would sink to quite the depths of iniquity as the present crowd ?

Have any of these magistrates consulted with and received the green light from their national governments to proceed with such a prosecution or are they operating independently to create an international incident? Care to identify the names or at least the countries of these magistrates?

Second part first. I would put Spain and Italy, at the top of my list of civil law jurisdictions, the UK at the top of my list of common law systems.

Examining Magistrates and Public Prosecutors in civil law systems are career judges whose independence is guaranteed by law.

As you will be aware, the US systems (with the exception of Louisiana) are something of a museum of English procedure as it was 50 years ago (or more depending on jurisdiction).

Formerly the executive could stop any prosecution dead in its tracks by having the Attorney General entering what is known as a nolle prosequi in the proceedings. His decision was not appealable.

Nowadays, All such decisions are judicially reviewable.

The Administrative Court has today ruled on the halting of a Serious Fraud Office investigation into an arms deal with Saudi Arabia. The court was uncompromising on the independence of prosecutors from the executive. You might find it interesting reading: See Corner House Research & Campaign Against Arms Trade, R (on the application of) v Director of the Serious Fraud Office & Anor [2008] EWHC 714 (Admin) (10 April 2008) http://www.bailii.org/ew/cases/EWHC/Admin/2008/714.html

Bart, my dear Netherandal, I repeat what I have said elsewhere, I cannot imagine any court system wants to do what the US judicial process ought to be doing itself.

But as the Court today held the duty of prosecutors and judges is to proceed according to law and the consideration that there might be an incidental incident is not a relevant consideration.
 

Arne, how would a US soldier be worried if we pulled out of the GC? Do you think Al Qaeda is currently following the GC when it captures US soldiers, but would suddenly retaliate if we pulled out of the GC?

In no conflict since WWII has an enemy of the US followed the GC, so the US would lose exactly nothing.

BTW, the only way that the GC's are enforced is by retaliation - i.e., you don't treat our detainees well, we won't treat yours well. Seems to me that it is apparent that Al Qaeda and similar groups are not following the GC, therefore US retaliation is explicitly the only course of action for the US to take, or the GC will become a dead letter.

Retaliation by refusing to apply GC protections to violators' troops is the only enforcement mechanism available.
 

Dilan:

I basically agree with your take. You will note my limitation of the MCA to US law and statement that a foreign court is free to attempt to enforce its interpretation of the GCs on the United States.

However, I do not see a practical difference between viewing the MCA as a partial withdrawal from or a violation of the GCs where the MCA limits enforceable US law to something less than the plain meaning of the GC and no other country can realistically compel the United States to follow a broader reading of the GC than provided for under the MCA. Calling the MCA a violation of rather than a partial withdrawal from the GCs is a distinction without any real difference.

The fact that Congress chooses to maintain the fiction that it has not partially withdrawn from the GCs is neither here nor there. The MCA speaks for itself and most here understand what Congress was saying.
 

Bart:

"International law" is and will continue to be a legal fiction

And thus centuries of progress are flushed down the hole of power politics.

As for nom, Bart has covered your arguments, and lost the legal battle several posts ago.
 

The fact that Congress chooses to maintain the fiction that it has not partially withdrawn from the GCs is neither here nor there. The MCA speaks for itself and most here understand what Congress was saying.

But it does matter, Bart, because a withdrawal from the Geneva Conventions (and you'd also have to include the Torture Convention) might have conferred immunity in foreign courts as well. It might have also conferred immunity in the ICC (not really an issue for American policymakers, but a big issue for foreign contractors we worked with).

I am not saying it necessarily would have, but it might have.

The MCA is a classic legislative compromise, where Congress basically agreed to say that the GC's mean X for purposes of domestic immunities even if they mean Y for some international law purpose. And if X is different from Y, that's a treaty violation but it isn't a treaty withdrawal.
 

All of you folks make some very interesting and insightful arguments for and against prosecution happening. I'm sorry to say that I don't believe it will happen because the elites of this country, both Dems and Republicans, who are in fact the ones who run this country (It certainly isn't run by "Joe Average Citizen") are not about to cut their own throats. The only way it would happen is if the people of our country were to rise up and make it happen. That in itself is a pipe dream because we have been convinced that we are incapable of running our country so we let our elites tell us what we should do, when we should it, and how we should do it. As long as we have a reasonably good job,making decent money, and a nice middle class lifestyle we remain satisfied enough to let someone else do the work of running the country. I am as guilty of that as the next "Joe Average". There will be no war crimes prosecution
 

The political will to mount a criminal investigation would have to be linked to opposition to U.S. war aims, not just opposition to criminal conduct in pursuit of those aims. Although there is a progressive wing of the Democratic Party that views the actions of the Bush administration as criminal, neither Senator Clinton nor Senator Obama represents that wing. In fact, since they support the objectives of the "war on terror" and disagree with the Republicans only on strategy and tactics, they would be ill advised (from their policy perspective) to tolerate much talk of prosecutions.
 

fraud guy:

:::chuckle:::

International law IS (hard) power politics, nothing more and nothing less.

Treaties are only worth the paper on which they are written.

Signatories voluntarily follow treaties only if they are in the signatories' own self interest or if compelled to do so by the military hard power of other signatories.

The UN and other international organizations function at the pleasure of the great military powers and can only enforce international law if the great powers (generally the United States) agree to deploy their military power to do so.

Finally, there is no equal protection clause in international law. War crimes trials are the prerogative of the victors in wars. The conquered have to accept the "justice" dealt to them even when the victor perpetrated many of the same crimes.

That is why these fantasies of local EU magistrates criminally prosecuting the citizens of the world's preeminent military and economic power for what they consider to be "war crimes" are simply laughable.
 

"Bart" DePalma:

Until then, "international law" is simply a set of treaties and customs between governments which are only enforced when nation states use their hard power to do so.

"Domestic law" is simply a set of 'treaties' and 'customs' between people which are only enforced when the gummint uses their hard power to do so.

So far as the United States goes, the GCs only have the force of law our elected Congress decides to give them.

So far as the United States goes, the domestic laws only have the force of law our preznit and his hacks and thugs give them. See a problem there?

FWIW, when I suggested to Prof. Jesse Choper that comity and mutual respect between the branches is voluntary and unenforceable, and thus the preznit can do WTF he wants (including "say what the law is"), Choper said that this was a law course, that such discussions were predicated on people actually following the law for the most part, and that the alternative(s) to such an assumed situation was/were better discussed in some other course....

Cheers,
 

Nom:

BTW, the only way that the GC's are enforced is by retaliation - i.e., you don't treat our detainees well, we won't treat yours well. Seems to me that it is apparent that Al Qaeda and similar groups are not following the GC, therefore US retaliation is explicitly the only course of action for the US to take, or the GC will become a dead letter.

You have a curious ... and perhaps antiquated ... idea of "enforcement". Others might term that "discarding", "trashing", or worse....

Cheers,
 

Bart,

Although Arne responded better, I still have one riposte:

Treaties are only worth the paper on which they are written.

Signatories voluntarily follow treaties only if they are in the signatories' own self interest or if compelled to do so by the military hard power of other signatories.

I recall someone's treatment of another piece of paper with a similar dismissal.

You stopped arguing to the law a long time ago; now it is all about whatever you, and those you support, can take and hold.

And for some reason you see fit to chuckle about that....
 

Why would an Obama or Clinton Administration waste precious political capital early on with a politically divisive prosecution of former government officials?

What does high administration officials approving torture do to Ronald Reagan's idea of "America is a shining city upon a hill whose beacon light guides freedom-loving people everywhere."?

I can't think of a better use of political capital than to prosecute our own war criminals and regain the respect and or standing with the rest of the world.

If we allow high government officials who authorized such acts to go unpunished, how can we ever take the moral high ground against human rights abuses in other countries? They'll just look at criticism as the hypocrisy it will be.
 

"Bart" DePalma:

Treaties are only worth the paper on which they are written.

Signatories voluntarily follow treaties only if they are in the signatories' own self interest or if compelled to do so by the military hard power of other signatories.

Well, that is one view.

However, despite "Bart"'s insistence that treaties are so much fluff and all that matters in the real world is military force, the founders saw fit to put in the Constitution the proviso that such treaties are "the law of the land".

Then again, similar thoughts seem to pervade the jurisprudence of "Bart" -- and the maladministration -- concerning the effect of that very Constitution and the other laws made pursuant thereto. There be dragons.....

Cheers,
 

That is why these fantasies of local EU magistrates criminally prosecuting the citizens of the world's preeminent military and economic power for what they consider to be "war crimes" are simply laughable.

What?!? Must have been napping. What did China do now???

Cheers,
 

What are the odds of John Yoo and perhaps other lawyers being disbarred? That doesn't require any action by the next administration.
 

billposer:

The odds of John Yoo losing his position at Boalt are growing by the minute. Disbarrment doesn't seem too far behind.
 

Ondolette:

The odds of John Yoo losing his position at Boalt are growing by the minute. Disbarrment doesn't seem too far behind.

While, as a former law student there, I am appalled that Yoo is a professor at Boalt, I cannot go so far as to demand that Yoo be sacked.

If he can be pressured to resign voluntarily, great, and if everyone shuns his courses and derates him on evaluations if they're forced to attend his 1L classes, great.

But getting him sacked as a perfesser in an academic institution, supposed bastion of free speech and inquiry, just feeds the histrionic antics of such as David Horrorwitz.

I think there may be reason to disbar him. Certainly, given l'affaire Lewinsky, the standards (such as MRPC 8.4(c)) are pretty lax for this. But even this shouldn't disqualify him as a perfesser; I don't think that law perfessers need to be members of the bar to be able to teach. That said, there's nothing that I think I could learn from him.

Cheers,
 

There's no point in arguing with Bart. One day he'll argue international law to make his point; the next week he'll dismiss international law to make his point. He does not care.

This is the nature of authoritarian thinking. You are not in control of the authority's actions, you are only required to explain them. And if the authority is inconsistent, then you have to be inconsistent.
 

While, as a former law student there, I am appalled that Yoo is a professor at Boalt, I cannot go so far as to demand that Yoo be sacked.

I'm pretty sure that tenure takes care of the sacking part--

I do, however, reserve the right to continue writing "Fuck Yoo" in magic marker over the frequent importunities for donations directed my way by the school and returning same in the convenient pre paid envelope (not exactly striking a blow for international law here, but we do what we can...)
 

While, as a former law student there, I am appalled that Yoo is a professor at Boalt, I cannot go so far as to demand that Yoo be sacked.

If he can be pressured to resign voluntarily, great, and if everyone shuns his courses and derates him on evaluations if they're forced to attend his 1L classes, great.

But getting him sacked as a perfesser in an academic institution, supposed bastion of free speech and inquiry, just feeds the histrionic antics of such as David Horrorwitz.

I don't agree Arne. Yoo did not write an academic treatise, published openly, in which he argued for the legitimacy of torture. Had he done so, I'd support his right to stay on the faculty.

His memos, instead, should be seen as actions, not speech. They authorized a regime of barbaric conduct which Yoo both knew and intended would result. That's not academic freedom, that's Henry II demanding that someone rid him of a troublesome priest or shouting "get him" to an assembled lynch mob.

Even if you did believe that Yoo's memo fell into a protected category, the dishonesty of the legal analysis and the sheer incompetence exposed by his reasoning suggest that he has violated basic academic standards of performance. I don't know what the standards are at Berkeley, but I seriously doubt Yoo met them.
 

mark & co:

Care to cite which of the arguments in the Yoo memo are incorrect (nevertheless dishonest and incompetent), offer the correct law and actual legal authority to support your position?
 

I've posted a statement sent to the National Lawyers Guild regarding John Yoo's academic tenure at UC by Prof. Christopher Edley, Dean of the UC Berkeley Law School (Boalt Hall), on the PEGC web site:

THE TORTURE MEMOS AND ACADEMIC FREEDOM

Christopher Edley, Jr.

The Honorable William H. Orrick, Jr. Distinguished Chair and Dean

UC Berkeley Law School
 

"Care to cite which of the arguments in the Yoo memo are incorrect (nevertheless dishonest and incompetent), offer the correct law and actual legal authority to support your position?"

Oh, AS IF you are confused about the arguments Bart, or as if you would argue that 1 + 1 = 3 regardless. See e.g.:

Jordan J. Paust, "Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees", 43 Colum. J. Transnat'l L. 811 (2005), available HERE.

Evan J. Wallach, "The Logical Nexus Between the Decision to Deny Application of the Third Geneva Convention to the Taliban and Al Qaeda and the Mistreatment of Prisoners in Abu Ghraib", 36 Case W. Res. J. Int'L L. 537 (2005), available HERE.
 

As if you would NOT argue that 1 + 1 = 3 regardless.
 

Mr. Gittings:

You are welcome to your own opinions, but those opinions are hardly self evident nor do they prove that any opinion offered by Yoo in his recently released memo is in error nevertheless criminal. Indeed, the very fact that you consider anything arising from generally worded treaties and statutes offering subjective standards to be self evident speaks volumes as to the legitimacy of your opinions.

As to your cites, the Paust and Wallach articles are based almost entirely upon like minded opinions in the media and academic journals with a sprinkling of commentary from foreign sources, none of which is necessarily persuasive nevertheless binding on US courts.

Yoo cites more US law in the first few pages of his memorandum than do the over 100 pages produced by your commentary to Berkeley and the Paust and Wallach articles.

Thus, I repeat my challenge:

Cite precisely which of the arguments in the Yoo memo are incorrect, offer the correct law and actual legal authority to support your contrary position.

I would also ask you to support with the actual federal law elements of conspiracy, evidence and U.S. precedent your claim that "Yoo's memos written during his tenure at OLC represent criminal offenses pursuant to 18 USC 371 (conspiracy) regarding 18 USC 2441 (war crimes) and related statutes..."

I look forward to your submissions.
 

Bart,

Give me a break. You've been cited plenty of stuff and have ignored every bit of it. Everything anyone needs to know about John Yoo and the law is encapsulated in the first of his post-911 memos:

"In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

Memorandum (John Yoo), THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM, DOJ Office of Legal Counsel (2001.09.25).

The explicit claim there is that the President has absolute powers in the manner of Adolf Hitler, Joseph Stalin, Charles I of England, or a Roman Emperor -- that he could order a nuclear strike on Chicago, build a new Auschwitz, or roast a two-year-old girl alive and then eat her for dinner at will, without the least regard for the laws he is sworn to faithfully execute. It's idiotic, utterly dishonest, and criminally subversive.

And you can blather all the dishonest nonsense you want Bart, but 1 + 1 = 2, by definition.
 

Mark Field:

[Arne]: While, as a former law student there, I am appalled that Yoo is a professor at Boalt, I cannot go so far as to demand that Yoo be sacked.

If he can be pressured to resign voluntarily, great, and if everyone shuns his courses and derates him on evaluations if they're forced to attend his 1L classes, great.

But getting him sacked as a perfesser in an academic institution, supposed bastion of free speech and inquiry, just feeds the histrionic antics of such as David Horrorwitz.

[Mark Field]: I don't agree Arne. Yoo did not write an academic treatise, published openly, in which he argued for the legitimacy of torture. Had he done so, I'd support his right to stay on the faculty.

His memos, instead, should be seen as actions, not speech. They authorized a regime of barbaric conduct which Yoo both knew and intended would result. That's not academic freedom, that's Henry II demanding that someone rid him of a troublesome priest or shouting "get him" to an assembled lynch mob.

Even if you did believe that Yoo's memo fell into a protected category, the dishonesty of the legal analysis and the sheer incompetence exposed by his reasoning suggest that he has violated basic academic standards of performance. I don't know what the standards are at Berkeley, but I seriously doubt Yoo met them.

IC that Dean Edley's responded to the issue (see Prof. Balkin's post)

I pretty much agree with what Edley says. If Yooo has committed a criminal act, and that can be shown, this may be grounds for dismissal. I am of the opinion that Yoo has in fact engaged in conspiracy to commit crimes (including war crimes). But we'll have to wait until this maladministration is booted, because this maladministration will not prosecute itself (see also here).

His work at Boalt is independent of his work while on leave. What he teaches his students (I don't know; I avoided having him for a perfesser; I think he came the year after I was 1L) is different; if he espouses the same poor scholarship there, that might be grounds for discipline, but that would have to be established.

Cheers,
 

"Bart":

Just a start (in my own inimical fashion) here and here.

Cheers,
 

I think reno is correct to say it's pointless to argue with Bart. I don't think it is pointless to attempt to characterize the nature of Bart's schtick though, and indeed Fraud Guy turned a neat phrase just above.

I want to say that Bart offers a vision of social order which is simultaneously incoherent and utterly contemptuous of the the idea of human progress.

Looking at history, a rational person would conclude that the evolution of law is a direct reflection of the evolution of society. Humans cultivate law as a means to cultivate social order, which is to say, to improve their lot. Law is a check on the primitive impulse to take, in the passion of the moment, what one can regardless of the justness of the cause.

Bart's view of law, apparently, is no more complicated than slapping a badge on the largest and most aggressive gorilla.

In a word, Bart, you are arguing for darker times.
 

Charles:

BD: Cite precisely which of the arguments in the Yoo memo are incorrect, offer the correct law and actual legal authority to support your contrary position.

Everything anyone needs to know about John Yoo and the law is encapsulated in the first of his post-911 memos:

"In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

The explicit claim there is that the President has absolute powers in the manner of Adolf Hitler, Joseph Stalin, Charles I of England, or a Roman Emperor -- that he could order a nuclear strike on Chicago, build a new Auschwitz, or roast a two-year-old girl alive and then eat her for dinner at will, without the least regard for the laws he is sworn to faithfully execute. It's idiotic, utterly dishonest, and criminally subversive.

As I expected, you quoted a hornbook comment by Yoo and offered no contrary law whatsoever, probably because there is none.

Once again for the willfully obtuse, Article II expressly grants the President CiC power.

Intelligence evaluations of our nation's enemies and the size, locations and objectives of military deployments against our enemies is a traditional military command functions.

Articles I and II do not grant concurrent powers to the other tow branches.

Since day one, the President has exercised these powers without dispute.

The fact that the President has plenary authority in these limited areas is no more controversial than Congress exercising plenary power over the purse and the courts exercising plenary power over judicial review.

Your comparison of the rather limited powers of the President with absolute dictators of past eras is absurd on its face. The Congress and not the President is the strongest branch of our government. The fact that the President, like each of the other branches, has his or her own area of plenary authroity hardly makes the executive a dictatorship.

Get back to me when you can actually cite precisely which of the arguments in the Yoo memo are incorrect, offer the correct law and actual legal authority to support your contrary position
 

Bart,

Hornbook??

Exactly what hornbook would that be?

Yoo's proposition in effect states that there is no law. Pick a statute -- they all contradict you.

As do the Hague and Geneva Conventions, the IMT Charter, and the US Constitution.

You're as phony as $3 bill Bart, and I'm not playing any games with you:

You can either explain why it's perfectly lawful for the President to roast a two-year-old girl for dinner (and show me a honrbook that says so) or get lost.
 

"In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

As far as it goes, that is unexceptionable, but the expression "military force" must be read as "lawful military force" so while the "amount" of military force is for the executive - subject to the power of the purse - the "nature" of the military force is reviewable. The executive has no power to authorise torture by its military or anyone else.
 

Bart: Once again for the willfully obtuse, Article II expressly grants the President CiC power.
Once again for the terminally stupid:
Article I expressly states: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." For the terminally stupid who don't understand what "legislative powers" means, this means that only Congress can make laws.
Article I expressly grants the Congress the power "To make rules for the government and regulation of the land and naval forces". Article II requires that the president "shall take care that the laws be faithfully executed".
For the terminally stupid, this means that only Congress can make laws and it can only make laws in areas where legislative powers are constitutionally granted. One of the areas of legislative power so granted is to make laws for the government and regulation of the armed forces.
If Congress says that the armed forces cannot be used for law enforcement in the US (it's called the Posse Comitatus Act of 1878), it is within its powers and the president cannot say that as commander-in-chief he can use the armed forces for any damn thing he pleases because Congress has made the law and the president is required by the Constitution to see that the law is faithfully executed.
If the Congress makes a law that says that the armed forces cannot torture prisoners or detainees, the president as commander-in-chief cannot disregard that law because Congress is the only source of law and the president is constitutionally required to see that the law is faithfully executed.
If Congress passes a law that says that the armed forces cannot be used to invade Iran or Bermuda or Oklahoma, the president cannot claim that only he (or she) as commander-in-chief can determine how the armed forces are to be used because the president has no power to make law governing the regulation of the armed force and is required by the Constitution to ensure that the law be faithfully executed.
 

The American people should know that George W. Bush is not only a war criminal: he is also a hate-crime criminal.

George W. Bush had better stop committing hate crimes.

“What did you think of that NAACP anti-Bush race-baiting ad in 2000? You know, the one that practically said Bush was responsible for the dragging-to-death-behind-a-truck murder of a black man just because he didn’t sign a hate crimes bill several years after the man’s death” (Posted by Aaron. Retrieved December 11, 2008, from metafilter.com).

ON THE TOPIC OF HATE CRIME(S):

“Sean Penn accuses Bush of ‘criminal negligence’” (Retrieved December 11, 2008, from deadlykatrina.com). Thus, Sean Penn believes that George W. Bush was at fault, criminally, relative to his response to Hurricane Katrina.

“Had the residents of New Orleans been white Republicans in a state that mattered politically, instead of poor blacks in city that didn’t, Bush’s response surely would have been different. Compare what happened when hurricanes Charley and Frances hit Florida in 2004. Though the damage from those storms was negligible in relation to Katrina’s, the reaction from the White House was instinctive, rapid, and generous to the point of profligacy. Bush visited hurricane victims four times in six weeks and delivered relief checks personally. Michael Brown of FEMA, now widely regarded as an incompetent political hack, was so responsive that local officials praised the agency’s performance.”

“The kind of constituency politics that results in a big life-preserver for whites in Florida and a tiny one for blacks in Louisiana may not be racist by design or intent. But the inevitable result is clear racial discrimination. It won’t change when Republicans care more about blacks. It will change when they have more reason to care.”

Jacob Weisberg. (2005, September 7). An Imperfect Storm . . . How race shaped Bush’s response to Katrina. Slate. Retrieved December 7, 2008, from slate.com

“And I’m sorry, but anyone who doesn’t think race has anything to do with the way things have gone down in New Orleans is really beyond help. Like my man Big Sexy said: ‘Do you think folks woulda been left out like that if this had happened in Vermont?’ A complete and utter disgrace” (Posted by Jackie Chiles. Retrieved December 7, 2008, from aofg.blogs.com).

Assuming that George W. Bush had in fact been criminally negligent relative to his response to Hurricane Katrina, would Bush be responsible for hate crime?

“One of those very least were George Bush’s personal complicity in the death (murder to be precise) of my friend Margie Schoedinger[,] [an African-American woman,] in September of 2003. Determining the exact whereabouts and contacts of [then] president-elect George Bush on September 21 thru 22, 2003, should be entirely lacking in difficulty” (Leola McConnell (Nevada Progressive Democratic candidate for U.S. Senate in 2010). Retrieved November 29, 2008, from leolaforussenate.blogspot.com).

Does George W. Bush’s murder of Margie Schoedinger constitute a hate crime?

“A woman in Texas who filed a lawsuit against the president for rape and torture[,] [Margie Schoedinger,] was found shot to death. It was ruled a suicide. No one is investigating. Bush reportedly dated the woman in high school and speculation is that he was using the woman as his sex slave because he is above the law” (John Kaminski (author of “America’s Autopsy Report,” a collection of his Internet essays published on hundreds of websites around the world). (No date listed). Why We Need Martial Law . . . Criminal government is destroying America; military must step in to restore Constitution. serendipity.li. Retrieved December 10, 2008, from serendipity.li).

Do George W. Bush’s rape and torture of Margie Schoedinger constitute hate crimes?

“I believe that George W. Bush hates black people. Through secret government machinations, he caused Hurricane Katrina to form and aimed it at New Orleans on purpose, just so he could wipe out lots of poor blacks. I also believe that before the hurricane hit, he snuck into New Orleans and stole the keys to every school bus in the city to make evacuation of poor people impossible” (Janet M. Stroble. (2006, April 12). Now I Believe. military.com. Retrieved November 26, 2008, from military.com).

If George W. Bush intentionally did what Janet M. Stroble indicated, would Bush have committed hate crimes against countless black people?

“I believe that George W. Bush hates Moslems. All that garbage about freedom, democracy, and the right to vote is a pollution of their culture. I believe that George W. Bush hates immigrants. There were a lot of immigrants working in the World Trade Center and George W. Bush didn’t warn them ahead of time” (Janet M. Stroble. (2006, April 12). Now I Believe. military.com. Retrieved November 26, 2008, from military.com).

In that George W. Bush hates immigrants and deliberately failed to warn them ahead of time as indicated by Janet M. Stroble: would Bush accordingly be responsible for hate crimes relative to racial minorities who were harmed?

“Did Kanye West[’]s [comment], [‘]George Bush Hates Black People[’][,] get his mother killed?” (Retrieved October 18, 2008, from abovetopsecret.com).

There is a discussion at abovetopsecret.com relating to whether President George W. Bush murdered Kanye West’s mother—Ms. Donda West.

Did President George W. Bush, who hates black people, murder Kanye West’s mother in the heat of raging racism? Somebody indicated that although the president of the United States is monitored by the Secret Service, he certainly can meet with one or more persons where his conversations are not intercepted and secretly “order a hit” on someone or order the murder of someone.

If George W. Bush did murder Kanye West’s mother, would it constitute a hate crime?

GEORGE W. BUSH MURDERED A JEW!

“George W. Bush murdered Senator Paul Wellstone” (Retrieved December 10, 2008, from andrewyu-jenwang.blogspot.com). This Internet site has a lot of information indicating that George W. Bush murdered Wellstone.

The information in this paragraph indicates that Senator Paul Wellstone was a Jew. “Senator Wellstone briefly considered running for president in 2000, but called off the campaign, joking to reporters, ‘I’m short, I’m Jewish, and I’m a liberal’” (Retrieved December 10, 2008, from accuracyproject.org). “‘I’m the son of a Jewish immigrant from the Ukraine. My father fled persecution.’ United States Senator Paul Wellstone” (Retrieved December 10, 2008, from artukraine.com). “Paul Wellstone … Former U.S. Senator, Minnesota … Born/Died[:] July 21, 1944 – October 25, 2002 … Spouse[:] Sheila Wellstone … Religion[:] Jewish” (Retrieved December 10, 2008, from dkosopedia.com). “Paul [Wellstone] was a short, Jewish professor at Carleton College in rural Minnesota” (Paul Hogarth. (2006, October 25). Preserving Paul Wellstone’s Legacy. BeyondChron. Retrieved December 10, 2008, from beyondchron.org).

“Bush’s visit to Israel is under the guise of Middle East peace. You gotta be kidding me! Bush is THE MASTER ARCHITECT of Middle East war, not peace. . . . Bush didn’t go to Israel because he likes Israelis or like Jews, nope, he went there because he hates them. He went there to spread his message of doom, war, pain and death” (Storm Bear. (2008, January 10). PROOF: George W Bush Is An Anti-Semite! bitsofnews.com. Retrieved November 23, 2008, from bitsofnews.com).

“‘We have a president who was selected rather than elected. He stole the presidency through family ties, arrogance and intimidation, employing Republican operatives to exercise the tactics of voter fraud by disenfranchising thousands of blacks, elderly Jews and other minorities’” (Barbra Streisand at BarbraStreisand.com. Retrieved November 26, 2008, from mindprod.com).

“A new book out today quotes George W. Bush back in 1993 as saying: ‘You know what I’m gonna tell those Jews when I get to Israel, don’t you Herman? I’m telling ‘em they’re all going to hell’” (Posted by Terry Olson. (2006, September 5). The anti-Semite and the agnostic: George W. Bush and Karl Rove. OlsonOnline. Retrieved November 23, 2008, from joesschool.blogs.com).

“It’s now official: the Bush family wealth is linked to the Jewish Holocaust” (Retrieved November 2, 2008, from hubpages.com).

“Bush Family Are Nazi” (Retrieved November 2, 2008, from blog.myspace.com).

“How the Bush Family Helped Hitler Kill 6 Million Jews” (Retrieved November 2, 2008, from groups.google.com).

“But now the multibillion dollar legal action for damages by two Holocaust survivors against the Bush family, and the imminent publication of three books on the subject are threatening to make Prescott Bush’s business history an uncomfortable issue for his grandson, George W. . . .” (Retrieved November 2, 2008, from sci.tech-archive.net).

Assuming that George W. Bush did in fact murder the Jewish former Senator—Paul Wellstone, would Bush have committed a hate crime? Bush would have “purposefully” (criminal-law terminology) murdered Wellstone. Wellstone’s Jewish wife and Jewish daughter also died in the plane crash. Bush would have “knowingly” (criminal-law terminology) murdered Wellstone’s wife and daughter. However, would Bush’s murders of Wellstone’s Jewish wife and Jewish daughter also have constituted hate crimes?

Submitted by Andrew Yu-Jen Wang
B.S., Summa Cum Laude, 1996
Messiah College, Grantham, PA
Lower Merion High School, Ardmore, PA, 1993

Retrieved December 12, 2008, from http://andrewyu-jenwang.blogspot.com/2008/12/what-did-you-think-of-that-naacp-anti.html

Comment by Andrew Yu-Jen Wang — December 12, 2008 @ 6:03 pm

Filed under: Impeachment News — Mikael @ 10:44 am. (2008, December 12). Senate Report: Rumsfeld, others in Bush Administration are War Criminals. http://impeachforpeace.org/. Retrieved December 12, 2008, from http://impeachforpeace.org/impeach_bush_blog/?p=5873

Submitted by Andrew Yu-Jen Wang
B.S., Summa Cum Laude, 1996
Messiah College, Grantham, PA
Lower Merion High School, Ardmore, PA, 1993
 

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Fortunately, the most likely prosecution for war crimes will not occur in the United States as there are certainly plenty of people outside this country who probably would like to try Bush Administration officials for war crimes. In this situation, our writing services will be of use!