If nixon had been tried, do you think that would have
moderated the actions of Bush?
 

Truth and Reconciliation Commissions - their essence is a reconciliation between victims and oppressors within a given polity. For US torture, we simply do not have that.

9/11 style commissions - their essence is to hide the truth. Part of what is in the 9/11 report is information gotten by torture and, of course, we have the stories about the tapes of the Al-Qahtani torture that were not handed over to the commission because they did not use "the right magic words" for a dodgy administration.

criminal prosecution - the roles of having a public record as well as criminal prosecution are two hallmarks of this type of process. I have to disagree with Jack Balkin on this.

As to the irredentists on torture that may be in our midst, well they are like the segregationists - to hell with them. As to debates by two Americans about the merits of torture - those remind me of the merits of debates among white people about segregation. From the point of view of the tortured or the black person there really was not a question there. Not that those views would have any value since the essence of persons in both places in that period is that their human dignity is simply devalued by those with power over them. At least until countervailing forces externally of the Cold War period or today operate as well as internal countervailing forces through citizen action to move the political classes to action.
Best,
Ben
 

Well Jack, it was an interesting conversation with a lot more to discuss than I can handle when I'm as tired as I am right now, but there was one point that came up a couple of times that just makes me cringe -- the proposition that if there is another attack on a US city that everything will change / whatever / fill in the blanks.

As it stands another attack is virtually a dead certainty, and when it happens it won't necessarily say anything about surveillance, the law, our "toughness", or the effectiveness of out policies. And I'm really amazed to hear two distinguished law professors who presumably have more than a passing acquaintance with logic, falling prey to such a fallacious mindset.

There is no such thing as a perfect defense, any defense can be defeated, and "he who defends everything defends nothing". This is problem of crime, not war, and it's idiocy to pretend otherwise. Facts are just facts, and misrepresenting them isn't like to result in a sound understanding of them.

Dig it:

The most likely objective of the 911 attack was to provoke exactly the response that it got from the Bush administration. The most likely objective of the next attack will be to provoke even worse excesses.

And the worst damage from 911 resulted from the secondary effects of the Bush administration's outrageous overreaction: all the terrorists did was push the button, the worst damage was self-inflicted -- including even the body count. Bush has murdered more American citizens in Iraq and Afghanistan than the number that were killed on 911 -- and he murdered them for the sake of making a bad situation WORSE.

And here we are, more vulnerable than we were in 2001, mostly because people like Jack Balkin and Eric Posner can't see reality clearly enough to understand that the single most effective thing we could do to fight terrorism is to prosecute Bush Cheney, Addington, and Yoo for their crimes.

They are the best weapons Al Qaeda has -- not because they are loyal to Al Qaeda, but because they are predictable fanatics who are easy to manipulate, have a completely delusional view of reality, and are predisposed to subvert the laws of the United States for criminal purposes on the theory that letting demented fools like Bush and Cheney wield absolute power is just a good idea.

This is stuff that you and Eric Posner should be a lot less confused about than you appear to be, and it's time to get very, very real about it, because the kind of stupidity the Bush administration has been practicing the last seven years is pure poison, and the Constitution is not a suicide pact... Remember?

This is why we have laws, this is why we have a Constitution. They aren't worth a damn if they aren't enforced or obeyed.
 

I have read Eric Posner's essay in the new Cato Supreme Court Review (available online). His fear (and/or distaste) of "cosmopolitan" jurisprudence that actually suggests non-citizens have rights and respecting the opinions of foreign law suggests the extremes we have to deal with here.

Thus, some "middle ground" stance (note the second and third comments) is still not acceptable. The fact a significant minority of the nation was able to be scared into thinking that a possible expression of it (aka the Obama Administration) was so scary notwithstanding.

Happy Thanksgiving, and here's to continuing making life here worth being thankful for. Or, more so.
 

If one looks at Eric Posner's CV Eric Posner Curriculum Vitae, it seems to be the case that, apart from a one-year stint in the Office of Legal Counsel, he has never actually had to cope with a real live client sitting on the other side of the desk, never personally cross-examined a police officer or a government official, never actually participated in the discovery process, never had to devise a solution for a client and never had to take professional responsibility for his advice either to the client, or to the Court or to his professional indemnity insurers.

In the UK a law degree is the beginning, not the end of qualification as a lawyer. There is then the common professional examination and two years practice under supervision before one is let loose on the unsuspecting public.

Absence of real world experience is true of a vast number of academic lawyers. One hesitates to have recourse to the old saw "those who can do, those who can't teach".

In the UK, some effort is made to encourage academics to sit as part-time judges. The most common such appointment is as a "Recorder" - an appointment for which an applicant must hold a 10 year Crown Court or 10 year County Court qualification within the meaning of s.71 of the Courts and Legal Services Act 1990 and effectively, that means that those who have practised for 10 years as a barrister or solicitor for 10 years, can sit as a part-time judge. Recorders do not get to try the most serious cases, but such part time appointments do enable academics to keep in contact with the real world.

What is worrying about Professor Posner (and much more so about a whole collection of others) is that they impart a view of constitutional rights and of international law which is at odds with that held in most of the rest of the English-speaking world so that instead of being a part of the great Anglo-Norman consensus, the law as now taught in many law schools in the USA is gradually withering into some kind of museum of the law as it was thought to be in the UK in 1950, 1850 or even 1750.
 

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"...the law as now taught in many law schools in the USA is gradually withering into some kind of museum of the law as it was thought to be in the UK in 1950, 1850 or even 1750."

Gee Mourad, I've never been to law school myself but I have to say...

If that were true, it might actually be a an improvement.

But I don't really think this is nearly so simple, and also know that there are plenty of very experienced people who fall prey to what seems more like cloistered conventional wisdom than ignorance or inexperience.

Eric Posner is obviously a very experienced and well-educated guy, and just how much experience can any of us pack into a year?

I figure just about one year's worth. Seems to me this is more a matter of reasoning than experience. People have a lot of blind spots, distractions, and conflicting interests.

How is it that libertarians can align themselves politically with racists and religious bigots and wind up acting a lot like fascists, for example?

Easy -- it's the only way they can hope to command a political majority, never mind the hypocrisy involved.
 

Charles:

Experience is a funny thing. Lots of lawyers hold them out as having, say, 25 years' experience, but when one gets to deal with them, one finds that what they really have is one year's experience 25 times.

One of the things I have noted in relation to the Guantanamo Bay cases is that very many members of the different JAG Corps - whether as Military Judges, Prosecutors or as Defense Counsel - have shown far more regard for due process than I thought possible in the flawed Military Commissions system - and I suspect that comes from a commitment to due process and real world experience of what must be done to achieve it.

Would that some of the federal judiciary had taken a much less deferential approach to the executive.
 

hmmm.. in my ignorance as a non-lawyer i think glenn greenwald captured this issue rather well last wednesday ..

http://www.salon.com/opinion/greenwald/2008/11/26/torture/index.html
 

Truth and reconciliation commissions v. criminal prosecutions?

As Ben pointed out, truth and reconciliation commissions involve a government oppressing its citizenry. None of that here.

Criminal prosecutions require crimes. The actual war crimes have been criminally investigated and prosecuted where a perp could be identified and evidence produced. The acts (coercive interrogation and ignoring FISA) some here wish to be considered crimes have all been signed off on by the President, Congress and DOJ. Who is going to perform the prosecutions?

The new Obama Administration? Reportedly, Ben's "irredentists on torture" will soon include the new Obama Administration, which is declining to restrict CIA to the military's non-coercive interrogation methods. The Obama DOJ will simply issue another set of memos decrying "torture," but muddying up the definition to allow the CIA coercive program minus perhaps waterboarding.

There are going to be a number of bitterly disappointed people here, although I doubt any of them will call Mr. Obama a war criminal. That label is reserved for members of the opposite party.

Perhaps, a mock trial at a law school is in order. I wonder if Professor Yoo would accept an invitation to play himself?
 

Well Garth, I really don't discount experience, but I can't help being conscious that...

1) A great many very experienced people got caught with their pants down by the events following 911 and are still pretty much running around in circles without much of a faint clue.

2) What normally counts for experience isn't necessarily of much use in such situations, while much that is useful is often ignored or discounted by those with vested interests in the status quo.

3) Nobody has a patent on thinking, and sometimes experienced people can be a little blind to things outside their professional routine.

Michael Mukasey and David Addington have plenty of experience -- what they lack is honesty and human decency. OTOH, I've gotten to know a lot of JAGs over the last seven years, and what Mourad observes about them is largely true, precisely because a JAG gets all sorts of experience by the nature of the job: they judge, prosecute, defend, litigate civil matters, and they get to do all of it a lot, ranging from the mundane to multi-billion dollar national programs.

And yet, though I've gotten to know so many JAGs and ex-JAGs who I'd count among the finest people I know, I've also seen some of the JAGs assigned to prosecute in the Gitmo cases do some really vile things. Maybe, and I guess probably, that's mostly zeal -- lawyers trained to represent their clients interests without regard for their personal views etc. Yet there are still ethical, legal, and moral constraints on professional zeal... And I think we're in a situation where the legal profession as a whole has mostly fallen flat on it's face.

How is that John Yoo is still licensed to practice law and is a tenured professor at one of our best universities?

According to his Dean, it's because he hasn't been convicted of a crime. Yet here we have a thread by two very well regarded law professors which pooh-poohs the notion of even charging him let alone convicting him. There is something very wrong here. and I have a hard time thinking that experince has much to do with it.
 

"Bart" DeBugblatter:

The acts (coercive interrogation and ignoring FISA) some here wish to be considered crimes have all been signed off on by the President, Congress and DOJ....

SFW? Either we have laws, or people just do what think is right whenever they think it right.

At least you admit that Dubya "ignor[ed] FISA" (Republiocanese for "violated FISA"). Progress of a sort.

... Who is going to perform the prosecutions?

A new DoJ? I agree it's a problem asking the Dubya maladministration to prosecute themselves, but that's why there's recusals and a special prosecutor. but even these require the acquiescence of the Dubya thugs to such. Fortunately, we don't have to rely on that, because the Dubya thugs will be out on the street in a couple of months.

Cheers,
 

If one thinks about it, the mess, the unholy mess, resulting from the so-called "Bush Global War on Terrorism" which the Obama Administration will inherit in January next year has a number of complicating factors:-

1. At present, it is not known just how many detainees are held outside the criminal justice system, nor where they are now or have in the past been held. Although the number of detainees in Guantanamo Bay is reasonably certain, it is less certain how many persons are now or have in the past been held elsewhere, nor in what conditions.

2. There are persistent allegations that detainees were held (and abused) at Abu Ghraib and at Baghram, but also at sites in Europe and even on naval vessels off Diego Garcia. To what extent were other nations complicit in such arrangements? To what extent was the sovereignty of other nations abused?

3. Just how many detainees (present or past) were apprehended outside of Afghanistan and Iraq? To what extent were other nations complicit in such arrangements? To what extent was the sovereignty of other nations abused ?

4. How many detainees were "rendered to torture" in third countries? What has become of them?

5. How many detainees now in US custody have been the victims of torture and/or inhuman and degrading treatment?

Simply ascertaining the truth about these matters may not be that easy.

Then, there is the question of what position to take in the 250 or so habeas corpus applications for Guantanamo Bay detainees, 200 of which are now in case management before US Senior District Judge Thomas F. Hogan. It is sufficient to read the unclassified evidence filed by Deputy Secretary of Defense Gordon England, of Rear Admiral James McGarragh, Special Asssistant to the Deputy Asssistant Secretary of Defence for Detainee Affairs and Daniel Dell' Orto, Acting General Counsel for the Department of Defence, filed in an effort to gain more time and/or attenuate the reach of disclosure orders already made by Judge Hogan - available on Scotusblog here.

What one gets from this evidence is a confession that the governments records in relation to each detainee are in "shit order" - which is understandable given that the Administration never expected to have to justify its actions in a court of law, but only in the kangaroo system the Bush Administration had crafted.

Perhaps the difficulties of complying with disclosure obligations have been "played up" in an endeavour to kick all the cases into touch until the poisoned chalice is passed to the Obama Administration.

A poisoned chalice it most certainly is - and in just under 2 month's time, the incoming Administration is going to have to take control of this ongoing litigation and conduct it in the name of the people of the United States: 250 case files in "shit order" to review in 6 weeks!

Then there are some longer term issues:-

- What should be done about the 80 or so detainees the Bush Administration has said it wishes to try and for the very few whose trials before the flawed Military Commissions are imminent? I think there would be consensus that the Detainee Treatment Act and various Executive Orders need attention.

- What about the executive decisions which require to be taken to ensure no future torture or inhuman treatment? (Some such considerations apply in the ordinary criminal justice system too (when President-elect Obamas was a state senator in Illinois, he was involved with some good legislation relating to the tape-recording of confessions - which is something routine in the UK for all police interviews).

- What about the 42 judicial vacancies where there is an opportunity to re-balance the federal bench? - and now might be the time to look at the possibility of a Judicial Appointments Commission to advise on Federal Appointments.

Although there is impatience, it seems to me that there are some pressing practical issues to be resolved. Just two examples:-

There must be considerable doubts as to whether truthful answers to numbered questions 1-5 above will be forthcoming during the transition. I suspect there will have been a lot of shredding of records. It might be necessary to set up some kind of immunity programme for lower level whistleblowers in order to ascertain the full extent of past misconduct.

Then, if there were unlawful detentions in, for example, Europe, the impact of the truth coming out on a number of investigations started by European authorities will have to be considered.

So, all in all, I think the transition team must be given a chance to assemble the people who are going to have to grasp all these nettles, to formulate policy and to investigate. Instant answers before the transfer of power and investigation would be a mark of incompetence.

What I suggest the incoming administration is going to need is quite a team of very high-powered legal talent, particularly lawyers with a proven track record in the criminal justice system as persons who will work in the interests of justice without fear or favour. There may need to be some kind of arrangement for a temporary office to take over the conduct of detainee affairs litigation.

So I hope that the various Law Professors who lead this blog and others have been scouring the records of their past alumni and colleagues and have passed on to the transition team the names of all suitably qualified candidates.
 

Take a look at this folks from the Washington Post on Sunday. Gives you a further exampl of the damage of the torture regime.

AN INTERROGATOR SPEAKS
I'm Still Tortured by What I Saw in Iraq
http://www.washingtonpost.com/wp-dyn/content/article/2008/11/28/AR2008112802242.html?nav=hcmodule