Truth and Reconciliation Commission.
 

Many of you may have been following the progress of Ashcroft v. Iqbal (07-1015) in the Supreme Court on Scotusblog and elsewhere.

On 10th December 2008, Scotusblog reported on the oral argument before the Supreme Court thus:-

"While U.S. Solicitor General Gregory G. Garre insisted that Ashcroft and Mueller were not asking for any special burdens on lawyers trying to make a case against high-level officials, Garre did explicitly argue that “context does matter” in considering limits on such lawsuits– specifically, the context of efforts of top officials who had acted to “protect the effective functioning of our government” following a terrorist attack.

That argument got the most enthusiastic embrace from the Chief Justice, who repeatedly attempted to get a lawyer for a post-9/11 detainee to concede that there should be a more rigorous standard for making claims of wrongdoing against the Attorney General and the FBI director “in the wake of 9/11.” The duty to plead such a case in the formal claims that launch the lawsuit, Roberts went on, perhaps should be more demanding because context does matter.

When the counsel for detainee Javaid Iqdal, Alexander A. Reinert of Yonkers, N.Y., argued that the level of pleading required should be no higher when top government officials were being sued than when, say, a corporate president was the target, the Chief Justice seemed genuinely put off."

Ordinarily the Courts (not just in the USA but in the UK too) do afford a certain degree of deference to high government officials. Rightly so. In a democracy, the Courts are entitled to assume that High Officials will respect their Oaths of Office at least until cogent evidence to the contrary is forthcoming.

But over the months and years since 9-11, it has become increasingly plain that there has been wrongdoing and at a very high level too. That has become apparent, not only to the worldwide public, but also to the Courts of other jurisdictions and with that perception has come the feeling that the US Courts are being far too deferential to high officials of the Bush Administration.

As the habeas review cases have at long last begun to proceed at first instance there are small signs that first instance judges are beginning to get the message, but regrettably that reality does not yet seem to have permeated upwards to the rarified atmosphere of the Chambers of the Chief Justice of the United States.

Between now and that day in January 2009 when Hizzonour will have to grit his teeth, administer the Oath of Office to the President-elect and offer him the customary congratulations, your learned Chief Justice may care to reflect on the admonitory words of his new President while a Senator at the time of Hizzonour's confirmation:-

"The bottom line is this: I will be voting against John Roberts' nomination. I do so with considerable reticence. I hope that I am wrong. I hope that this reticence on my part proves unjustified and that Judge Roberts will show himself to not only be an outstanding legal thinker but also someone who upholds the Court's historic role as a check on the majoritarian impulses of the executive branch and the legislative branch. I hope that he will recognize who the weak are and who the strong are in our society. I hope that his jurisprudence is one that stands up to the bullies of all ideological stripes."

If nothing else, today's report from the Senate Armed Services Committee is something even the learned Chief Justice may recognise as providing the bones of a very respectable indictment for ius cogens crimes justiciable not only within the United States of America but world-wide.

It's about time the US Courts started to play their part in the process of rehabilitating the positive reputation the United States of America once held in the field of human rights.

And that will entail the Courts ceasing to be quite so deferential to thugs and bullies holding high office.
 

Mourad:

Ashcroft v. Iqbal involves an allegation that an immigration employee roughed up an illegal immigrant and poses the question of whether the illegal immigrant plaintiff should be able to sue officials several levels above the immigration employee without a scintilla of evidence that the official knew of the alleged abuse, nevertheless had any part in it.

In short, the case has no analogy to the Senate report on military interrogation of unlawful enemy combatants.

I am reserving my fire on the Senate report until whole report is released. The executive summary offers only conclusory statements and appears to be playing the innuendo game. We will see whether they have the evidence to back up the innuendo. I tend to doubt it.
 

Please keep in mind that criminal prosecutions have already occurred for low level people who have been convicted of crimes in court-martials and sentenced and are serving those sentences. Those who have been released from their sentences face the daunting task of making their way with things like dishonorable discharages. These are the persons who betrayed their oath doing the bidding of these high-level people.

So criminal prosecution has happened, the only question is whether that is going to be reserved to the poor or the rich and powerful are going to face a jury of their peers. It dismays me to see so many persons thinking the orchestrators of the torture can get away with it because they have the power to put the MCA in place (it does not grant immunity from prosecution) and they have the power to get an OLC to write crap filled legal opinions on which no reasonable reliance could be made (I have gone over the Yoo stuff months ago on Jurist - it is made from thin air).

Best,
Ben

"This report is the beginning of a necessary process of bringing to light repeated abuses condoned or encouraged at the very highest levels of government. I doubt that any of the top officials who encouraged or approved these practices will ever be criminally prosecuted, in part because of the immunity granted by the infamous Military Commissions Act of 2006 and in part because the Office of Legal Counsel was repeatedly employed to justify the Administration's detention and interrogation practices in the equally infamous Torture Memos. People relying on OLC advice will likely have strong defenses under the criminal law, even though the OLC's advice giving capacities were corrupted during the Bush Administration precisely to allow the Administration to do whatever it wanted in this area."
 

Ben:

These are the persons who betrayed their oath doing the bidding of these high-level people.

Do you have any actual evidence to back up that allegation?

The Abu Ghraib defendants offered argument at trial that they were acting on the orders or suggestions of others, but could offer no substantive evidence that this was the case.

The closest we get to your claim is the gross dereliction of duty by the general in nominal command of that zoo at Abu Ghraib, who apparently ever bothered to check on what her troops were doing. This also applies to her officer and NCO chain of command over the perps.

As a former platoon leader, it is incomprehensible to me how the Abu Ghraib platoon's officer had no idea what was going on. When we were deployed, I lived with my troops and was constantly training, inspecting, and in the off time, playing cards or sports with them. I suspect that the commander of the Abu Ghraib platoon was off at the officer billets rather than doing his or her job.
 

This report speaks perhaps most directly to our War Criminal in Chief's repeated assurances that Abu Ghraib was an aberration, that this is not America, that America does not torture.

Abu Ghraib was no aberration, this is who we are now: the land of the torturers and the home of the war criminals. That's America to me. That's what this report confirms.

Torture was no aberration, it wasn't just Lynndie England, it wasn't just a few troops who got out of control. It was policy. It was repeatedly authorized, ordered, even orchestrated by the highest levels of government.

So please let's not have any pretty expressions of regret in the style of a shocked, shocked, Dubya, that this is not America. This was once not America. Perhaps someday it will once again not be America. But today and for years now, this is America: we torture. We commit war crimes. That's who we are.
 

As a former platoon leader, it is incomprehensible to me how the Abu Ghraib platoon's officer had no idea what was going on.

It's the responsibility of everyone up the chain of command to know "what was going on". In this case, seeing as the maladministration had high-level talks about what should be done, the normal sentient conclusion is not only that they knew what was going on but also that they ordered it. "A few bad apples" indeed ... and I have the Tom Tomorrow t-shirt that explains who these rotten apples are (a t-shirt that gets appreciative comments even from the TSA folks at the airports....).

Cheers,


Cheers,
 

Jack,

The IMT Charter (London 1945) states:

Article 6. * * * The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

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.

Justice Robert Jackson, who headed the US delegation that negotiated it with the other allies, had this to say about it in his report on the conference:

"The most serious disagreement, and one on which the United States declined to recede from its position even if it meant the failure of the Conference, concerned the definition of crimes. The Soviet Delegation proposed and until the last meeting pressed a definition which, in our view, had the effect of declaring certain acts crimes only when committed by the Nazis. The United States contended that the criminal character of such acts could not depend on who committed them and that international crimes could only be defined in broad terms applicable to statesmen of any nation guilty of the proscribed conduct. At the final meeting the Soviet qualifications were dropped and agreement was reached on a generic definition acceptable to all."

See also Geneva 1949:

"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 [grave breaches of Geneva]."
Geneva III POWs art. 131, Geneva IV Civilians art. 148.

(more to follow)
 

"These are the persons who betrayed their oath doing the bidding of these high-level people."

"Do you have any actual evidence to back up that allegation?"

General Miller and his team that came to Abu Ghraib migrating techniques from Gitmo and Bagram and former BG Karpinski affidavit on his role presented in the first Rumsfeld case in Germany. Lots more, but that is for starters.

By the way putting in people with authority but not within the direct chain of command (Other Goverment Agencies types) etc so that you blur the role of the direct change of command is quite Rumsfeldian and Cheneyesque but, even in Toledo, we are not duped. So do not parse words on this.

Best,
Ben
 

Jack,

So then I have a few questions for you...

1) Have you actually analyzed the exact provisions of the MCA in relation to all of the criminal statutes that the Bush detainee policies have violated?

2) Have you analyzed the constitutionality of the MCA and DTA?

(I think they're both clearly unconstitutional myself.)

3) The bottom line on the DTA, MCA, and all of the OLC memos just couldn't be any more clear: they are prime evidence of the crimes. Defenses are for a judge and jury to decide.

These people willfully committed crimes that we executed Nazis for committing. Are you really so cynical and jaded about the legal profession that you don't think we can prosecute and convict the most disgraceful criminals in the history of our nation?

I'd sincerely like to hear your answer to those questions.

Regards,

Charly
 

i suggested a while ago that if the Obama administration wanted to do an end run round the immunity wall built by the Bushites, there's a possible workaround: ratify the ICC Rome statute. The US government would then be duty bound to cooperate with the ICC prosecutor's investigations, including arresting suspects charged with ICC crimes: and these investigations would not recognize any immunity firewalls.

I realize that it's very unlikely that Obama will choose to invest political capital in a proposal which would be filibustered to the limit. But technically, would it work?

I suppose Holder could cooperate with the ICC to a limited extent even without ratification.
 

I agree the Levin McCain report aggregates in a brief condensed document a depiction of a fairly cohesive and closely supervised project to engage in what Mayer has described aptly in many fora, though, as a commenter observed, the Levin site's report is a fragment not the entire report of the committee. It is a bit strange, congress would publish a report with its own headers and footers censored, an item whose first page is page 12 of the preface-summary, and which cites the fact a Bybee 2002 OLC memo remains withheld from the 'public', though the tone seems to be the two senators who author the report have reviewed that secret memo. Another writer in the thread reminds of the ICC definitions of 1998; a reading of that convention as ratified reveals weighty stakeholders have refused to sign, among these many of the currently feuding nations on the international stage, including the US. "Old Europe" nations all joined, the Low Countries signed, British Commonwealth nations' names appear. Countries in near anarchy are absent; Mayer's list of rendition countries uniformly are missing.

I agree it remains a worthwhile effort to chronicle the executive branch's leadership in its clearly cohesive effort to install torture as US policy. It appears true in the Scotus transcript in re Iqbal, sadly, a new exceptional executive immunity doctrine is well formed already, perhaps an oblique jurisprudential framing of the partial martial law the president saw fit not to declare, so, Iqbal remains a narrow case, but commenters such as LAT's Savage and others at Scotusblog are raising the new category of privilege as a shield against a Rome statute process, at least as currently configured. It should be interesting to see what Levin, McCain, and the rest of congress might do to restore some of the balances which had operated with an executive thumb on the scale for long enough to see the completion of the counteroffensive strategy of institutional torture and the exit of the administration which invented that response, now termed out of office by ballotbox processes.
 

Leaving aside the inevitable political opposition to the ratification of the ICC Treaty, it would be just the thing that the American justice system needs right now to gain back some credibility. The ICC has definitely not turned out to follow a radical path of usurpation of powers, but become a clear voice of reason and justice in the world.


In a perfect world, Bush, Cheney and Rumsfeld would be prosecuted by the ICC, but I won't hold my breath for that to happen.
 

Some relevent analysis from my own blog:

The Geneva Order

18 USC 2441

Boumediene and 28 USC 2241(e)2

See also my amicus briefs in Hamdi v. Rumsfeld (S.Ct. 2004) and In re Guantanamo Detainee Cases (DDC 2004).
 

Do you have any actual evidence to back up that allegation?

Couldn't you start with the senate report itself and find plenty of examples? I think Mora's threat to put his objection in writing leading to Rumsfeld's immediate recission of approval is indicative of a general state of affairs. We don't need Rumsfeld's fingerprints at Abu Graib to say that he encouraged a working environment that was conducive to such abuses.
 

I'm not sure I'd agree that the MCA and DTA provide immunity to Bush Administration officials responsible for U.S. interrogation policy. The relevant part of the DTA (as applied by the MCA) provides protection to personnel engaged in "specific operational practices, involving interrogation and detention" which had been "officially authorized." I interpret that language as protecting the personnel who actually carried out the detention and interrogation policy, not the Cabinet-level officials who created and authorized the policy to begin with.

Of course, there are several legal and practical reasons why it's extremely unlikely that any higher-level officials in the current administration would be prosecuted for alleged war crimes. But I don't think the MCA/DTA is one of them.
 

Benjamin Davis said...

"These are the persons who betrayed their oath doing the bidding of these high-level people."

BD: "Do you have any actual evidence to back up that allegation?"

General Miller and his team that came to Abu Ghraib migrating techniques from Gitmo and Bagram.

I have heard this inuendo before. There is evidence that Miller and his intelligence officers visited Abu Ghraib recommending that MPs prepare captured enemy for later interrogation by military intelligence. What is lacking is any evidence that Miller and his intel officers "migrated" to the Abu Ghraib perps any of the abuses for which they were convicted, nevertheless "bid" the perps to perform these abuses as you alleged.

BTW, preparation for interrogation usually involved playing loud music and changing the lighting, smells, temperatures and eating and sleeping schedules of the enemy to exhaust and disorient them prior to interrogation - not the sick sexual games and nude pyramids at Abu Ghraib. What went on at Abu Ghraib did not advance interrogation one iota.

...and former BG Karpinski affidavit on his role presented in the first Rumsfeld case in Germany.

BTW, Karpinski is a woman.

In any case, do you have a link to this affidavit because to my knowledge Karpinski claimed she knew nothing of the actual abuses by those under her command, nevertheless knowledge about Gen. Miller bidding her command to perform them as you allege.

y the way putting in people with authority but not within the direct chain of command (Other Goverment Agencies types) etc so that you blur the role of the direct change of command is quite Rumsfeldian and Cheneyesque but, even in Toledo, we are not duped. So do not parse words on this.

I was not parsing your words. Rather, I was placing the blame where it belongs under the military system

In the Army, the chain of command is responsible for supervising the conduct of their troops. The closer on the chain the officer or NCO is to the wrongdoing, the greater the responsibility.

While critics of the Administration like to go about 15 levels up the chain of command over to another hemisphere to blame their political opponents, I place the blame where it belongs - the officers and NCOs on the scene and directly responsible for this supervision. What I am pissed at is that not a single officer at Abu Ghraib was prosecuted for allowing an atrocity which arguably extended the Iraq War for a year or two.

Somehow, I suspect when some group of soldiers over in Afghanistan commits some war crime during the upcoming Obama Administration, I doubt that the Bush critics will be seeking to place the blame on The One.
 

PMS_Chicago said...

Benjamin Davis said... "[The Abu Ghraib perps] are the persons who betrayed their oath doing the bidding of these high-level people."

BD: "Do you have any actual evidence to back up that allegation?"

Couldn't you start with the senate report itself and find plenty of examples?

Such as? Conclusory statements by Senators are not evidence.
 

should be able to sue officials several levels above the immigration employee without a scintilla of evidence that the official knew of the alleged abuse, nevertheless had any part in it

No.

The issue doesn't have to do with "scintillas" of evidence, but rather with basic pleading rules and issues and the discovery that derives when a case is well enough pleaded to survive motions to dismiss.

Here, gov is arguing that even though the plaintiffs have pleadings that would survive a motion to dismiss and open the door to court supervised discovery, a new rule should be created and apply that would say that, after 9/11, pleadings involving the *very busy* AG (umm, EX-AG, let's make that now, 'kay?) and FBI director must reach some higher and diffferent level than what would be typicial for survival against a motion to dismiss against mere ordinary humans.

IOW - no discovery, even when there is a sustainable pleading, bc the AG and FBI Dir are busy (busy advocating torture and issueing hundreds and thousands of illegal NSLs etc. - but still, busy)

Gov's argument is that some previously unknown rule of "context" (which I guess is not supposed to include the retired status of Ashcroft) requires that the suits be deep sixed, rather than looking to the golden oldie rules - that District Courts can and do fashion discovery limitations all the time.

I guess if the context argument prevails, we'll need to decide how much the "context" of having AGs and FBI directors who embrace lies and lawbreaking should be given as well - - maybe we can just use "context" to avoid trial for that matter.

Or not.

Bush's DOJ can fit a lot of con into any font of text you pick, but the truth is that these cases were well pled and survive dismissal, but in the "context" of widespread criminal activity in the DOJ, the real argument here by DOJ is that they should be able to deny discovery related to the activities covered by the complaint bc they are so busy (apparently sharing American citizen's phone sex intercepts is time consuming).
 

This comment has been removed by the author.
 

general taguba .. the author of the army's report on prisoner abuse is on record as saying there is no doubt war crimes were committed and that the impetus for those crimes came from a systemic policy from the top down ..


see also "physicians for human rights report" and tagubas review of same
 

Mary:

My statement of the facts was accurate.

Seven of the justices during oral arguments appeared to be disturbed that high government officials could be harassed with up to a decade of spurious discovery demands.

The four conservatives felt that this type of harassment should be stopped before it began at the motion to dismiss stage, while a couple of the liberals seemed to want to rely upon the district court judge to stop spurious discovery. Of course, the problem with the latter approach is that it still runs up defense attorney's fees, costs and wastes the time of the defendants.

Only two of the justices indicated that they thought that the pled allegations might actually have some evidentiary merit.

The problem here is that Rule 11 has been gutted to the point that well pled civil claims without any evidentiary basis are routinely allowed to harass business into settlement. I only wish the justices were as appalled with the legal harassment of their hypothetical CEO of Coca Cola as they were government officials.
 

**I am reserving my fire on the Senate report until whole report is released. The executive summary offers only conclusory statements and appears to be playing the innuendo game. We will see whether they have the evidence to back up the innuendo. I tend to doubt it.

# posted by Bart DePalma : 9:29 AM **

piffle .. the report was approved unamiously.. and Sen. John Mc Cain was the minority signatory ..

delusions of grandeur and all that ..
 

Such as? Conclusory statements by Senators are not evidence.


Neither are blog comments, but I thought you were smart enough to follow a statement back to its source.

Apparently, I was wrong. ;)

If something appears in an executive summary, it comes from somewhere; partisan pipedreams aren't unanimously approved. Rather than hold your breath until the full report comes out, why not take one of the statements from the summary and see if it has any basis in fact?
 

"Bart" DeTorquemada:

[Benjamin Davis]: ...and former BG Karpinski affidavit on his role presented in the first Rumsfeld case in Germany.

BTW, Karpinski is a woman.

But Miller is not ... as far as we know.

In any case, do you have a link to this affidavit because to my knowledge Karpinski claimed she knew nothing of the actual abuses by those under her command, nevertheless knowledge about Gen. Miller bidding her command to perform them as you allege.

You're assuming that the abuses were the specific pranks done by England and Grainer, etc., and that only. While their twisted stuff was the height of newsrag prurience, it was other pictures that show the whole of the story (the dogs and the bleeding leg wound of one bitten detainee --which show the "use dogs" part of the guidelines as approved by Haynes, defended by Yoo, and ordered by Rummy -- not to mention that one picture of the corpse of one of the detainees who had been bludgeoned to death, not by England, but by the interrogators there).

[Benjamin Davis]: By the way putting in people with authority but not within the direct chain of command (Other Goverment Agencies types) etc so that you blur the role of the direct change of command is quite Rumsfeldian and Cheneyesque but, even in Toledo, we are not duped. So do not parse words on this.

I was not parsing your words. Rather, I was placing the blame where it belongs under the military system

In the Army, the chain of command is responsible for supervising the conduct of their troops. The closer on the chain the officer or NCO is to the wrongdoing, the greater the responsibility.

IOW, the folks at the top are always blameless. Let the little schlubs take the fall. That's the 'Murkan way!!!

While critics of the Administration like to go about 15 levels up the chain of command over to another hemisphere to blame their political opponents, I place the blame where it belongs - the officers and NCOs on the scene and directly responsible for this supervision....

I'd prefer if everyone involved in the planning and execution of war crimes be prosecuted to the full extent of the law. What's wrong with that?

... What I am pissed at is that not a single officer at Abu Ghraib was prosecuted for allowing an atrocity which arguably extended the Iraq War for a year or two.

Why, if the Iraq war was such a good thing, then wouldn't some more of it be even better?

Somehow, I suspect when some group of soldiers over in Afghanistan commits some war crime during the upcoming Obama Administration, I doubt that the Bush critics will be seeking to place the blame on The One.

If Obama's policies and command decisions played a part in it, I'd be calling for his head. Why would you think we'd feel otherwise? ... [looks up in thread] ... oh, right, nevermind: projection.

Cheers,
 

No, Bart, your statement that the case is about:

whether the illegal immigrant plaintiff should be able to sue officials several levels above the immigration employee without a scintilla of evidence that the official knew of the alleged abuse, nevertheless had any part in it

is not accurate (and I think that 'nevertheless' is not the word you meant to use, either)

The issue has nothing to do with scintillas of evidence. It has to do with whether or not a complaint which would survive Motions to Dismiss and continue to discovery against any normal citizen should be halted against the AG and FBI Director by creation of a new legal standard, i.e., that after 9/11 you dismiss lawsuits against "busy" gov officials based on the grounds of "busy-ness-ness"

It's ridiculous. Well pled lawsuits that state a cause of action based on the factual assertions of the complaint are not dismissed against Governors, against citizens who have a death in their family, against Katrina survivors or any of a whole realm of other people for whom "context" would create a cascade of categories.

You have absolutely no evidence whatsover that discovery requests would be or have been "spurious" but in any case, when you try to reposition your argument by saying,

Seven of the Justices appeared to be disturbed that high government officials could be harassed with up to a decade of spurious discovery demands

Well, um, so what?

I'm sure all 9 are concerned that anyone could be "harassed" by "spurious" discovery demands - that's why District Court judges have the ability, not just in cases involving post-9/11 suits against the AG and FBI Dir, but equally in suits by Phyllis Gadfly against her neighbor, Joe Schmoe.

No one has demonstrated harassing discovery - and the reason that the "busy AG" argument was the focus is that they are indeed asking for a completely different standard to suddenly be created out of whole cloth.

IOW - they are attempting to create a new immunity standard since the previously recognized ones are inapplicable.

Re: chain of command and upchain approvals, there's been quite a bit on that front.

Taguba certainly indicated that at the MP level there was direction to use the MPs to soften up prisoners:

http://www.newyorker.com/reporting/2007/06/25/070625fa_fact_hersh?printable=true

Reed then asked Taguba, “Was it clear from your reading of the [Miller] report that one of the major recommendations was to use guards to condition these prisoners?” Taguba replied, “Yes, sir. That was recommended on the report.”

At another point, after Taguba confirmed that military intelligence had taken control of the M.P.s ...


And Taguba over and over has said his investigation, which limited him to MPs and to officers lower ranking than himself, pointed out the need for a similar investigation of MI and higher ranking officers.

Mora's statements, JAG memoranda, the list of abuses set forth in Hayne's memo, the Beaver memorandum construct that it was fine to violate the UCMJ as long as there were orders from higher up as the rationale for the Haynes list (which clearly violated UCMJ), Samuel Provance's testimony to Congress etc. etc. etc. - including that little thing where Miller's - well, the headline read:

General Asserts Right Against Self Incrimination
http://www.washingtonpost.com/wp-dyn/content/article/2006/01/11/AR2006011102502_pf.html
 

Mary:

[to "Bart"]: (and I think that 'nevertheless' is not the word you meant to use, either)

His English is not ever gud sometimes ... particularly when he's been drinking. He really doesn't know he's bad grammering, so it's nice of you to help him.

Cheers,
 

Mary:

No one has demonstrated harassing discovery - and the reason that the "busy AG" argument was the focus is that they are indeed asking for a completely different standard to suddenly be created out of whole cloth.

IOW - they are attempting to create a new immunity standard since the previously recognized ones are inapplicable.

That's because the "state secrets privilege" may be soon rejected by the court (or withdrawn), and they need a new dodge. I'd suggest the Fifth; that's one that is not revocable (except under immunity, probably in return for turning on the folks higher up).

Cheers,
 

My solution is to do two things:

1. Extend pardons to anyone who wants it.
2. Pass a law that state that anyone receiving a presidential pardon can never serve in an un-elected, position in the US Government.

Once these two acts are accomplished, start an investigation. Those pardoned have no fifth amendment rights, and can be compelled to give testimony.

Also, those who receive pardons are guaranteed to not be prosecuted in the US, which makes international prosecutions possible. This makes travel difficult for those who receive pardons.
 

LSR Bart wrote:-

"Seven of the justices during oral arguments appeared to be disturbed that high government officials could be harassed with up to a decade of spurious discovery demands. The four conservatives felt that this type of harassment should be stopped before it began at the motion to dismiss stage, while a couple of the liberals seemed to want to rely upon the district court judge to stop spurious discovery. Of course, the problem with the latter approach is that it still runs up defense attorney's fees, costs and wastes the time of the defendants. Only two of the justices indicated that they thought that the pled allegations might actually have some evidentiary merit. The problem here is that Rule 11 has been gutted to the point that well pled civil claims without any evidentiary basis are routinely allowed to harass business into settlement. I only wish the justices were as appalled with the legal harassment of their hypothetical CEO of Coca Cola as they were government officials."

Ever since the Powell Memorandum, the Federalist Society and other advocates of the perceived interests of corporate America have been seeking to peddle the myth of "poor but honest and well-meaning US corporations" being prevented from selling excellent products to the public by frivolous lawsuits brought by "wicked, unscrupulous plaintiffs' lawyers" who abuse the rules of civil procedure "not for the benefit of the litigants they represent but to line their own pockets".

This is all part and parcel of a concerted campaign which not only seeks the abolition of class actions, of punitive damages and "tort reform" (by which expression is meant placing further restrictions on the availability of causes of action in tort, shorter limitation periods etc), but which also seeks to emasculate the regulations under which
corporate America operates in terms of health and safety at work, product safety, protection of the environment and so forth.

In other words, corporate America wants to be freer to manufacture and market products which are or may be harmful to the consumer, the public at large, or their own workforce, without being held liable for the consequences.

Tobacco industry litigation may be the paradigm case but there are many others. Readers may have noticed an effort in the twilight days of the Bush Administration to crank out last-minute regulations which will make it easier for corporations to continue to pollute in the way they want to.

No legal system is perfect and there may always be a case to be made for reform of the civil justice process but one needs to recognise some of the FedSoc mythmaking for what it is.

Of course there has always been what one might term "nuisance" litigation. For example, in the average minor road traffic rear end shunt the drivers and passengers of the front vehicle may routinely make a personal injuries claim for the sequelae of whiplash trauma. Most such claims are settled in very modest amounts after a routine exchange of "fill in the blank" proforma pleadings.

The reason they are settled is because the claim may only be worth the cost of a day's work by a moderately competent lawyer and they are cheaper to settle than to fight.

I suppose LSR Bart may have some experience of litigation at that sort of level, but I doubt that LSR Bart will be able to cite a single major case in which he has acted where a "well pled civil claim without any evidentiary basis" has "harassed a corporation into settlement".

Having spent more than 30 years in moderately complex civil litigation, a good proportion of it multi jurisdictional, where practically no suit I handled was worth less than £5 millions in damages, I have never, ever come across a case where a corporation has been "harassed into settlement" by the pleadings.

Yes, there have been cases where settlement negotiations started as soon as the defence was filed, generally in cases where the defendant did not want to give discovery for fear of what it might reveal.

Far more common is the process of a corporate defendant and/or its insurers using financial muscle to delay and obstruct progress in the hope of compelling an impecunious plaintiff to settle for considerably less than the case is worth.

This can range from the old defendant lawyer's rule of never answering a letter until the third request, to those of burying the incriminating documents in half a ton of discovery knowing that the other side's money will have to be spent sorting the wheat from the chaff, or recruiting vast numbers of the best experts that money can buy.

I remember myself putting all the well-known English speaking experts in Egyptian mercantile law on retainer in a case just to make it hard for the plaintiff to find a good expert on what was likely to be a critical issue of foreign law in an English case. But that was in a case where both parties were equally resourced and I thought it was the other side's fault for not having moved to retain an expert promptly.

Even the "in terrorem" lawsuit brought by a corporation is not unknown - such as the McDonalds -v- Steel, Morris & Others UK litigation discussed in McGoliath v. David: The European Court of Human Rights Recent “Equality of Arms” Decision.

This was a defamation claim brought by the well-known fast food chain against some London Greenpeace campaigners who had distributed a leaflet attacking the quality of the chain's products in excessive (but not wholly unfounded) terms. As the article notes:

"It is estimated that McDonald’s spent over GPB 10 million on trial expenses. Steel and Morris quickly used up the GPB 40,000 raised by donation for them. After 20,000 pages of transcripts, 40,000 pages of documentary evidence, 130 witnesses, Judge Bell deliberated for six months, then delivered his 762 page judgment in June, 1997, ten years after the leaflet was distributed by Steel and Morris and seven years after McDonald’s had sought the writ."

In the end McDonalds were awarded just £60,000 in damages reduced on appeal to £40,000 - but still far beyond the means of the defendants.

Likewise quite a lot of patent and intellectual property litigation could well be entitled "Megagbucks Corporation -v- Impecunious Genius Inventor" and is aimed at stifling innovation rather than encouraging it (or at least at extorting part of the proceeds).

Thank goodness, the equality of arms principle in European human rights law now requires impecunious parties to be protected in some measure against this kind of corporate legal overkill.

So what concerns me is not that LSR Bart in his ignorance parrots these myths of the "poor corporatation" at the mercy of the US justice system.

What is of concern is that the conservative ideologues on the US Supreme Court have, it seems, bought into the same myths. If there were truth in them, the remedy is to amend the Rules of Civil Procedure. But from experience, there is far more need to protect the impecunious plaintiff than the corporate defendant - only the impecunious plaintiffs do not have the same degree of lobbying clout.

It seems that the conservatives on the Supreme Court bench and toying with the idea of misusing such myths to the point of not being willing to trust trial judges properly to manage their cases and possibly to fabricate a special level of protection for "high officials" who may very well not be entitled to that deference.

Whatever the ultimate merits in Ashcroft v. Iqbal (07-1015) there can be no doubt that in the aftermath of 9-11 there was a marked degree of official anti-Muslim overreaction, ranging from "flying while Muslim" being raised to almost a top category indictable office with aircraft being diverted in mid-flight so as to deny US entry to some highly respectable people who just happened to be Muslims to the obscenity of rendition to torture of the Arar v. Ashcroft federal lawsuit (now before the 2nd Circuit) challenging the rendition of a Canadian citizen to Syria, by the U.S. government, where he was tortured, forced to falsely confess, and released after one year without ever being charged.

One of the oldest principles of the common law is that the executive must answer for its actions in the Courts. Maybe there was indeed no concerted official conspiracy and this was just lower level official incompetence - but in that case there is merit in the argument that Justice should not only be done but should be seen to be done, which it will not be if the ordinary processes of justice are cut short in a misguided attempt to defer to the convenience of high officials who are entrusted with vast power, who delegate the execution of that power to others and then attempt not to have to answer personally for the actions carried out under their direction.
 

"Bart" DeTorquemada:

In short, the case has no analogy to the Senate report on military interrogation of unlawful enemy combatants.

You keep leaving out that "alleged" (or "so-called"). Why?

But you're simply wrong that the two situations are wholly disjoint (even though some of the detainees limbs were).

Cheers,
 

Mary:

I'm sure all 9 are concerned that anyone could be "harassed" by "spurious" discovery demands - that's why District Court judges have the ability, not just in cases involving post-9/11 suits against the AG and FBI Dir, but equally in suits by Phyllis Gadfly against her neighbor, Joe Schmoe.

And we have Clinton v. Jones and a very pliant Judge Wright -- who ignored FRE 412-414 (amongst others) and allowed abusive discovery under the assumption that the Arkansas Project was dealing in good faith-- to blame for that. But Clinton v. Jones still stands as law.

Cheers,
 

Mourad:

Tobacco industry litigation may be the paradigm case but there are many others.

IIRC, a number of the FedSoc luminaries cut their teeth on the tobacco litigations.

Cheers,
 

PMS_Chicago said...

If something appears in an executive summary, it comes from somewhere; partisan pipedreams aren't unanimously approved.

You cannot be this naive. Congressional statements are often purely political with little or no basis in actual evidence. In this case, the committee has been agreed on a certain policy outcome from the beginning.

Rather than hold your breath until the full report comes out, why not take one of the statements from the summary and see if it has any basis in fact?

The Abu Ghraib perps have already offered the defense of following orders at trial but were unable to offer any substantive evidence.

The various propaganda published or filmed on this subject also failed to offer evidence of your allegation that the Abu Ghraib perps were doing the bidding of their superiors.

You have failed to offer evidence of your allegation that the Abu Ghraib perps were doing the bidding of their superiors.

I was merely being polite by giving Congress the benefit of the doubt that they are making allegations supported by evidence.

However, I strongly suspect that they like you relied upon others playing the inuendo.
 

You cannot be this naive.

Neither can you. Reading the summary was like reading the Cliff's Notes to the books about torture we've seen over the past few years. All of this stuff is much better supported than any assertion you're making.

If you have ANY evidence that anything in the report summary is false, kindly share.
 

You keep leaving out that "alleged" (or "so-called"). Why?

And even more so, in the case of the Uighurs and the Albanians (and Kurnaz and el-Masri and Arar and ...) those who have been determined in various proceedings to NOT be combatants, much less enemy combatants, much less illegal enemy combatants.

Leaving out both the alleged and the "falsely" alleged. That possibility of false alelgations seems so important to Bart, what with his concern that no one should make assumptions about Miller and Rumsfeld and Haynes and Bush based on the mere mounds of information that have become available. I'm sure that, once you point it out, he will be equally concerned that those who have been judicially cleared of ever having been combatants at all should not be included in his offhand references to "illegal enemy combatants" and I'm sure he expects and advocates for the full weight of law to descend on those who would kidnap, torture and abuse non-combatant, non-enemy, non-illegal...

Cheers and best wishes of the season back atcha
 

You have failed to offer evidence of your allegation that the Abu Ghraib perps were doing the bidding of their superiors.

Hang them all, underlings and superiors, including Cheney and Rumsfeld. If Cheney has another heart attack and dies before then, hang his corpse. The thought of Bush masturbating over interrogation videos is not something our children should have to learn about uncontested.
 

The various propaganda published or filmed on this subject also failed to offer evidence of your allegation that the Abu Ghraib perps were doing the bidding of their superiors.

Are you claiming to have watched and read the various "propaganda" to which you refer? Maybe you ought to be quite specific.

As I have remarked in the past, Bart would read (maybe 'skim' is a better word) a police report containing eyewitness testimony, lay it on the coffee table and ask, "So, where is the evidence?"
 

Awaiting transcripts or video of the December 4th, open forum, After Torture: A Forum on justice in the post-Bush era.

TPMtv caught Balkinization-contributor Scott Horton in the hall -- video link.

Horton: "We're going to discover when the investigation is concluded that the Department of Justice itself is a major crime scene."

_______________________


Scott Horton, Michael Ratner, and David Rivkin, with Laura Flanders on, Confronting Torture: Justice After Bush.

Note: At the 10:30 time mark in this discussion, Rivkin drops the pathetic, Big Lie:

"I don't think it's about torture. To the best of my knowledge, as far as authorized procedures that come close to the torture level, we talking about 2 or 3 individuals being waterboarded, which again, I've never supported, but that's, that's the, really, the degree, the amount of torture."

Straussian, please!

______________________________


Glenn Greenwald's Salon Radio interview: Scott Horton on war crimes prosecutions

______________________________


Bill Moyer's sits down with Glenn Greenwald who asks: Are we a nation ruled by men or by laws?

Video link, with transcript.

GG: "What we have, in the last eight years, is not merely a case of individual and isolated law breaking. It's a declaration of war on the whole idea of a law itself, on the idea that our political leaders are constrained in any way by the limitations of the American people imposed through our Congress. The rule of law has essentially ceased to exist."
 

Are there any trial attorneys here who actually apply the rules of evidence as part of their practice?

Here is the difference between allegations and evidence:

Ben: "These are the persons who betrayed their oath doing the bidding of these high-level people."

This is an allegation, not evidence.

BD: "Do you have any actual evidence to back up that allegation?"

Ben: General Miller and his team that came to Abu Ghraib migrating techniques from Gitmo

This is a further allegation posing as evidence to "prove" the first allegation.

This is what evidence proving Ben's first allegation would look like:

1) Staff Sergeant Ivan Frederick pled guilty on October 20, 2004 to conspiracy, dereliction of duty, maltreatment of detainees, assault and committing an indecent act in exchange for other charges being dropped. His abuses included making three prisoners masturbate. He also punched one prisoner so hard in the chest that he needed resuscitation. (Actual evidence).

2) SSG Frederick testified that General Miller and his team ordered him to beat and force prisoners to masturbate.

3) General Miller testified that Sec Def Rumsfeld issued him an oral and a written order authorizing prison guards to beat and force prisoners to masturbate.

4) The written order authorizing prison guards to beat and force prisoners to masturbate.

5) NSA Rice testifies that she personally witnessed Sec Def Rumsfeld order Gen. Miller to have prison guards beat and force prisoners to masturbate.

Of course, there is nothing even remotely like evidence examples 2-5 in this case.

In reality, the Abu Ghraib perps committed a variety of war crimes which nowhere appear on the leaked portions of the coercive interrogation orders authorized by DoD or CIA.

The reason why Rumsfeld has not been frog marched from his office to a paddy wagon to be tried for ordering the Abu Ghraib war crimes is because there is no evidence at all that he gave any such orders.

In reality, the critics' actual claim is that having MI and CIA officers waterboard three al Qaeda and use various lesser coercive techniques on dozens of other al Qaeda and Taliban high value targets in Gitmo and CIA locations in Pakistan and Eastern Europe somehow "migrated" by psychic osmosis to encourage others at Abu Ghraib and Bagtam to commit actual war crimes such as homicide, assault and sexual indecency.

This innuendo is ridiculous on its face.

This is similar to arguing that allowing our soldiers in Vietnam to kill VC in combat encouraged the My Lai massacre.

Now that we have cleared up what actual evidence consists of, either offer evidence with each allegation or stop making the baseless allegations (i.e slanders).
 

"Bart" DeTorquemada:

I was merely being polite by giving Congress the benefit of the doubt that they are making allegations supported by evidence.

Well, they (and by that, a bipartisan "they") had access to evidence and testimony that you don't have, "Bart". Just because they didn't show it to you doesn't mean it's not there. You're once again the kid with the hands over his eyes, thinking that no one can see him.

Not to mention, there's plenty of evidence of the policy in the Rummy papers, the Haynes memos, the reports of the meetings of the principals on the interrogations, etc.. (see, e.g., "The Torture Papers") Pretending it isn't there doesn't make it go away.

The Abu Ghraib perps have already offered the defense of following orders at trial but were unable to offer any substantive evidence.

[...]

[suggested evidence by "Bart": 4) The written order authorizing prison guards to beat and force prisoners to masturbate.

Personal testimony is not evidence?!?!? On what planet? (Note that I tend to think that documentary and forensic evidence may be more reliable than is personal testimony, but that's not how the courts operate currently.

I'd also note in passing that "Bart"'s moving the goal-posts here; as I pointed out earlier, but "Bart has ignored, the specific sexual humiliation that provided tabloid fodder, while degrading (that is to say, the prohibited "CIDT"), isn't torture. It is, however, one of the "techniques" covered by the Haynes memorandum.

Waterboarding is, as is pulpifiying someone's legs, and beating them until dead (both of which happened, but in neither of the last two cases was a torture (or war crimes) prosecution sought.

Cheers,
 

Someone's confoozed:

Are there any trial attorneys here who actually apply the rules of evidence as part of their practice?

Here is the difference between allegations and evidence:

[...]

This is what evidence proving Ben's first allegation would look like:

1) Staff Sergeant Ivan Frederick pled guilty on October 20, 2004 to conspiracy, dereliction of duty, maltreatment of detainees, assault and committing an indecent act in exchange for other charges being dropped. His abuses included making three prisoners masturbate. He also punched one prisoner so hard in the chest that he needed resuscitation. (Actual evidence).

Someone pleading guilty to lesser charges in exchange for other charges being dropped is hardly "evidence" of the truth of the charges.

In fact, in some jurisdictions, they have the Alford Doctrine, whereby a person can plead guilty while formally denying the truth of the allegations.

You'd think a "trial lawyer" like out LSR here would know that.....

Cheers,
 

IIRC, a number of the FedSoc luminaries cut their teeth on the tobacco litigations.

I'd love to hear more on this. Were they counsel for plaintiff or defendant? What were they known for? Names? Firms? Cases?

Thanks!
 

Are there any trial attorneys here who actually apply the rules of evidence as part of their practice?

Omigod, don't make me vomit all over my keyboard.

Conspiracy is ALMOST ALWAYS proved by circumstantial evidence. Few indeed are the conspirators who write out a documented headed "Our Criminal Conspiracy."

If you're going to condescend, don't do it in a way that makes you look so pathetically ignorant.
 

The Abu Ghraib perps have already offered the defense of following orders at trial but were unable to offer any substantive evidence.

"Will no one rid me of this meddlesome priest?"

Verbal orders rarely leave a paper trail, yet somehow the orders still get followed.
 

Arne Langsetmo:-

Do you suppose for one moment that our resident Loathsome Spotted Reptile sitting up in his mountain retreat just outside Colorado Springs is in the least bit interested in having a Court/Tribunal/Public Enquiry (or whatever process) ascertain the truth about the allegations that high officials of the Bush Administration were criminally complicit in egregious human rights abuses? Of course he isn't. In his delusional dreams, poor dear Bart has cast himself on this site in the role of star attorney for the defence and sees himself running a "stonewall" case. We all know the approach:

Defendant's Lawyer: "May it please Your Honour, my client's case can be summarised as follows. What the prosecution alleges does not constitute a crime. The legislator drafted the regulations badly and they are ultra vires the principal statute. In any event, my client wasn't there. If he was there, he didn't do it. If he did do it, it was an accident. If it wasn't an accident, my client was acting in self-defence, or under duress, or was provoked. Should the Jury not be satisfied as to any of those matters, then my client was not criminally responsible by reason of temporary insanity. In the alternative, my client will say he was drunk because some unknown person spiked his tomato juice with several shots of vodka and/or because he was taking prescribed medication which potentiated the effect of the alcohol which was something his doctor failed to warn him about. If we are wrong about all those matters, you should not impose a custodial sentence because he is a family man with a devoted wife, two beautiful children, one of whom is severely disabled and requires his constant care, a born-again Christian, a volunteer referee for community soccer teams, a fund-raiser for many good causes and a dog-lover.

Judge: Is it perhaps your case that this insanity you referred to persists up to now so that your client could not give you proper instructions?

Defendant's Lawyer: No, Your Honour.

Judge: What a pity. Well, we'd better get on with empanelling a Jury."

Nor does it worry me that LSR Bart does not even concede that there is a case for investigation. There are still those of far more importance than a minor shill for the extreme right like Bart who are prepared in this day and age to deny salient features of the Holocaust - cf Irving v. Penguin Books Limited, Deborah E. Lipstat [2000] EWHC QB 115. And if there are those prepared to be Holocaust deniers, there will be many more who would like to believe that torture and inhuman and degrading treatment were never US policy - or worse, who believe that if they were, then those policies were justifiable.

I'm therefore more worried about the apparent approach of the SCOTUS conservative majority to the issue of deference to the executive which seems to come close to the Peter Cook: Entirely a Matter for You sketch. The passage I have in mind:

"One further point - you will probably have noticed that three of the defendants have very wisely chosen to exercise their inalienable right not to go into the witness box to answer a lot of impertinent questions. I will merely say that you are not to infer from this anything other than that they consider the evidence against them so flimsy that it was scarcely worth their while to rise from their seats and waste their breath denying these ludicrous charges."
 

Fraud Guy:

"Livarsi na petra di la scarpa!"
 

Anderson said...

Conspiracy is ALMOST ALWAYS proved by circumstantial evidence. Few indeed are the conspirators who write out a documented headed "Our Criminal Conspiracy."

Circumstantial evidence is usually used to fill in the blanks, not to prove an entire case.

For example, if you had testimony that Miller attended a meeting with Rumsfeld during which Rumsfled discussed the use of assault and forced masturbation, then Miller traveled to Abu Ghraib, then Abu Ghraib started to assault and impose forced masturbation on the prisoners, the sequence of events is circumstantial evidence that Rumsfeld ordered the Abu Ghraib assault and forced masturbation.

However, in reality, you do not even have circumstantial evidence to prove Ben's allegations that the chain of command bid/ordered the Abu Ghraib perps to commit the crimes for which they were convicted. The evidence of assault and forced masturbation begins and ends at Abu Ghraib.
 

Someone pretends to be a lawyer here, but completely ignores what type of proceedings we have at bar:

[Andersom]: Conspiracy is ALMOST ALWAYS proved by circumstantial evidence. Few indeed are the conspirators who write out a documented headed "Our Criminal Conspiracy."

["Bart" DeTorquemada]: Circumstantial evidence is usually used to fill in the blanks, not to prove an entire case.

For example, if you had testimony that Miller attended a meeting with Rumsfeld during which Rumsfled discussed the use of assault and forced masturbation, then Miller traveled to Abu Ghraib, then Abu Ghraib started to assault and impose forced masturbation on the prisoners, the sequence of events is circumstantial evidence that Rumsfeld ordered the Abu Ghraib assault and forced masturbation.

This may be true in a criminal prosecution (although "Bart" deliberately slights the evidence we do have, and what could be easily obtained were the prosecution not the suspects as well), but that is not the case at bar. Ashcroft v. Iqbal, as well as the Arar and el-Masri cases, were civil proceedings. In such cases, all you have to do is ask the people -- under oath -- what they did.

Cheers,
 

JPK:

[Arne]: IIRC, a number of the FedSoc luminaries cut their teeth on the tobacco litigations.

I'd love to hear more on this. Were they counsel for plaintiff or defendant? What were they known for? Names? Firms? Cases?

You could start here.

Cheers,
 

Mourad said...

Do you suppose for one moment that our resident Loathsome Spotted Reptile sitting up in his mountain retreat just outside Colorado Springs is in the least bit interested in having a Court/Tribunal/Public Enquiry (or whatever process) ascertain the truth about the allegations that high officials of the Bush Administration were criminally complicit in egregious human rights abuses?

The military has held several dozen criminal investigations, which then led to dozens of courts martials, where these defenses were frequently offered without supplying any substantive evidence.

Then Congress has launched multiple investigations taking testimony and receiving documented evidence over the past couple years in the armed services and intelligence committees.

Finally, much of the evidence concerning the coercive interrogation programs have been leaked into the public domain and fill hundreds of articles and books.

Your problem in failing to make an actual criminal case is a lack of evidence, not a lack of investigation.

Of course he isn't. In his delusional dreams, poor dear Bart has cast himself on this site in the role of star attorney for the defence and sees himself running a "stonewall" case. We all know the approach:

Defendant's Lawyer: "May it please Your Honour, my client's case can be summarised as follows. What the prosecution alleges does not constitute a crime. The legislator drafted the regulations badly and they are ultra vires the principal statute. In any event, my client wasn't there. If he was there, he didn't do it. If he did do it, it was an accident. If it wasn't an accident, my client was acting in self-defence, or under duress, or was provoked. Should the Jury not be satisfied as to any of those matters, then my client was not criminally responsible by reason of temporary insanity. In the alternative, my client will say he was drunk because some unknown person spiked his tomato juice with several shots of vodka and/or because he was taking prescribed medication which potentiated the effect of the alcohol which was something his doctor failed to warn him about. If we are wrong about all those matters, you should not impose a custodial sentence because he is a family man with a devoted wife, two beautiful children, one of whom is severely disabled and requires his constant care, a born-again Christian, a volunteer referee for community soccer teams, a fund-raiser for many good causes and a dog-lover.

You are obviously not a criminal defense attorney.

I would begin a defense with a motion to dismiss facially attacking the torture statute for vagueness. This may not succeed at the trial level, but it would be a great subject for appeal if necessary.

My trial strategy would hardly be your whiny milquetoast suggestion. I would constantly be on the offensive and enbrace the CIA coercive interrogation program on two levels - it worked to save lives and it did not amount to the infliction of severe physical or mental pain.

Ignoring for the moment that there is no chance in hell the the Obama Administration or any other is going to allow the agents who waterboarded and broke KSM and his two lieutenants to testify as to what they did and what they learned, the prosecution would bring these men to establish the actual act of waterboarding and I would cross them on the facts they they underwent waterboarding as part of their training and were not traumatized, that KSM did not cooperate until he was waterboarded and then have the agents describe the plots to commit further mass murder against Americans that KSM disclosed and that CIA and the military stopped based on that intelligence.

Then I would call KSM to the stand to testify as to the waterboarding. He is an arrogant, prideful man who would deny that the waterboarding traumatized him in the least. Then I would get KSM to brag about future attacks against the US and is role in the 9/11 attacks, especially the Pentagon and thwarted White House attacks near to the Wasington DC courtroom. If the prosecutor objects, I will make a big stink in front of the jury asking why they should not be able to hear about KSM's plans to murder Americans. I will be admonished, but the point will be made.

As to the infliction of severe pain, I would start in voir dire planting the seeds of how pain is subjective and how our soldiers undergo the same stress and pain as does the enemy under coercive interrogation.

Then we bring medical doctors who specialize in pain management to the stand to testify that it is scientifically impossible for them to objectively measure pain and that everyone has different pain thresholds of what they would consider to be severe. Then I would get them to agree with me that everyday activities of our soldiers in training and in combat provide comparable levels of discomfort to those experienced by al Qaeda undergoing various coercive techniques.

Then I will haul the reporters who have reported that the Obama Administration is adopting coercive interrogation to testify. There will be some tricky hearsay issues to deal with, but courts have admitted this kind of testimony in the past. That shoudl take care of partisan bias on a DC jury.

Of course, there is far more we could do on the defense. However, the point is that I will have the prosecutor on the defensive and on the side of al Qaeda.
 

That's a lovely fantasy trial, Bart. You sure were the star of it!

One think I noticed, you do have a talent for self-refutation:

I would constantly be on the offensive and enbrace the CIA coercive interrogation program on two levels - it worked to save lives and it did not amount to the infliction of severe physical or mental pain.

Then we bring medical doctors who specialize in pain management to the stand to testify that it is scientifically impossible for them to objectively measure pain and that everyone has different pain thresholds of what they would consider to be severe.

It's kind of difficult to reconcile those statements. Not to speak of the sentence which follows the latter quotation:

Then I would get them to agree with me that everyday activities of our soldiers in training and in combat provide comparable levels of discomfort to those experienced by al Qaeda undergoing various coercive techniques.

But you said pain cannot be measured... or are you saying that "pain" can't be measured, but "discomfort" can?!
 

In one of his other fantasies, Sarah Palin wins the 2012 election and names Bart her head of S&M and they play "interrogate the terrorist" in the Oval Office.
 

Oh, the neocon fantasy is that at trial the judge would take seriously the word games that John Yoo thinks constitute law. Thus somehow the client would walk because counsel could redefine his crime out of existence. You'd think that at least some neocons know better, and in fact I bet some do, yet you hear this fantasy with some regularity.

My fantasy is a little different. Lincoln said "whenever I hear anyone defending slavery I feel a powerful impulse to see it tried on him personally". That's where my fantasy heads for those who believe they can play word games with "torture".
 

Baghdad, as part of your fantasy trial, would you offer to be waterboarded to prove your point? Because that is a trial I would love to see. Especially if I'm the one who gets to waterboard you.
 

"Bart" DeTorquemada:

The military has held several dozen criminal investigations, which then led to dozens of courts martials, where these defenses were frequently offered without supplying any substantive evidence.

And none of these courts martial have convicted any of the low-level grunts of murder, despite this being exactly what happened in a number of cases. Yet Khadr is on trial in Guantánamo right now for allegedly killing a U.S. soldier with a hand grenade in an actual combat situation, while the murders of the detainees have occurred while the detainees were in complete custody and control of the U.S. personnel far from the battleground. I guess it helps to be on the "right side"....

And no one has followed up the line of command; it's always a "few bad apples" at the bottom while the folks at the top are fresh and sweet. With the Dubya maladministration, the little guys get tossed under the bus when push comes to shove and someone's got to take the fall. Want to bet that thelittle guys were told to not make waves and to cop a plea; that as long as they were silent, they'd get off lightly themselves? That's bass-ackwards from a normal plea-bargain where the low guys get turned, but that's what comes of having the prosecutors be the same bunch as the suspects, and more interested in saving their own bacon than they are in justice.

Dozens of murders of detainees is not an aberration, it's a policy. It's time for that to stop.

Cheers,
 

"Bart" DeTorquemada:

Finally, much of the evidence concerning the coercive interrogation programs have been leaked into the public domain and fill hundreds of articles and books.

Yes. Which "Bart" has not read (or see) and ignores:

Your problem in failing to make an actual criminal case is a lack of evidence, not a lack of investigation.

No, it's lack of an honest prosecutor. The evidence is there, but the Dubya maladministration will not prosecute itself.

Cheers,
 

"Bart" DeTorquemada:

I would begin a defense with a motion to dismiss facially attacking the torture statute for vagueness. This may not succeed at the trial level, but it would be a great subject for appeal if necessary.

It may receive an appreciative ear from the likes of Clarence Thomas, but thinking people know better. It's absurd to say the torture statutes are any more "void for vagueness" than are any of the common criminal statutes (and in fact may be more precise than most), and the only ones that say anything different are those that reach such absurd conclusions in pursuit of the results they desire and in flagrant disregard of any common sense.

My trial strategy would hardly be your whiny milquetoast suggestion. I would constantly be on the offensive and enbrace the CIA coercive interrogation program on two levels - it worked to save lives ...

Unfortunately for you, that's not a defence. You might try that in asking for leniency, but it is of no consequences WRT whether there was a crime committed.

... and it did not amount to the infliction of severe physical or mental pain.

Yoo's absurd parsing was rejected even by the Dubya maladministration's later OLC lawyers.

Cheers,
 

"Bart" DeTorquermada:

[to Mourad]: You are obviously not a criminal defense attorney.

[and later]

I would cross them [the agents] on the facts they they underwent waterboarding as part of their training and were not traumatized, that KSM did not cooperate until he was waterboarded and then have the agents describe the plots to commit further mass murder against Americans that KSM disclosed and that CIA and the military stopped based on that intelligence.

Ummm, stupido, in this scenario these are your [imaginary] clients. Why would you want to "cross" them?

Cheers,
 

LSR Bart wrote of me: "You are obviously not a criminal defense attorney."

Absolutely. Whether LRS Bart meant by his ambiguous phrase to refer to (i) defence lawyers who are also criminals; (ii) lawyers who specialise in defending criminals; or
(iii) lawyers who appear for the defence in criminal trials; or even just lawyers who are criminally negligent in the conduct of their work, I operate on the basis that crime does not pay - at least not on UK legal aid rates.

As I understand it in 2008 a US Federal Judge at trial level gets US$169,300 pa while a UK High Court Judge gets £165,900 (US$248,136) and a Circuit Judge at trial level £133,100 (US$199,077). I don't know about the USA but in the UK most lawyers have to take a very, very considerable drop in earnings on accepting a judicial appointment. I think my cousin dropped about 65% when he went on the bench, which would be about average, but he likes the lower workload - and the inflation proof-judicial pension is not to be sniffed at - particularly since the provider is the state and less likely to fail in these troubled times.

LSR Bart's fantasy defence was a - huge laugh - perhaps the poor chap has a sense of humour after all - or perhaps his neurotransmitter medication is playing up.

Meanwhile back in the real world The BBC has video of Bush being invested with the Order of the Footwear in Baghdad
 

"I think we will be greeted as liberators" -- a neocon fantasy that comes to mind as Bush is shown the sentiment of Iraq after six years of "liberation".

Keep in mind this was (yet another) unannounced visit before a screened audience. Had Bush made a scheduled appearance before a real representative sampling of Iraq, it would have been more than shoes.

It's so good to "liberate" isn't it?
 

Arne Langsetmo said...

My trial strategy would hardly be your whiny milquetoast suggestion. I would constantly be on the offensive and enbrace the CIA coercive interrogation program on two levels - it worked to save lives ...

Unfortunately for you, that's not a defense. You might try that in asking for leniency, but it is of no consequences WRT whether there was a crime committed.

:::chuckle:::

arne, if a case of torture gets beyond a motion to dismiss, the crime is completely subjective and becomes whatever the jury wants it to be. There is no objective definition for "severe pain." Thus the objective becomes working to have the jury define severe pain upward based upon the context of the war.

If I can show a jury that this interrogation saved lives, perhaps their lives if one of the aborted al Qaeda ops was aimed at DC, I guarantee 9 out of 10 juries will define severe pain up past that inflicted by the rack under those circumstances.

I would cross them [the agents] on the facts they they underwent waterboarding as part of their training and were not traumatized, that KSM did not cooperate until he was waterboarded and then have the agents describe the plots to commit further mass murder against Americans that KSM disclosed and that CIA and the military stopped based on that intelligence.

Ummm, stupido, in this scenario these are your [imaginary] clients. Why would you want to "cross" them?

Hero, how precisely does the government prove that coercive interrogation was used against a certain person at a certain time and place without an eye witness? There is no physical evidence of which I am aware. That means the government needs to come up with an actual eye witness.

There are two possibilities for a witness - a CIA interrogator or the interrogated al Qaeda. There is the possibility that the government could rely upon KSM as his star witness. Good heavens, how I would enjoy being the defense attorney in that circumstance. Thus, the government needs to flip a CIA interrogator to testify.

Second, the only thing better than having a sympathetic CIA interrogator as my witness would be to have him as the government witness so I can pose directed questions and get precisely the evidence I want before the jury.

This is trial practice 101. I guess you never got that far before quitting law school.
 

JPK:

Muntazer al-Zaidi is an employee of the Egyptian owned, anti-American al- Baghdadiya satellite television station.

It was a stunt for which the Iraqi reporters present apologized to our President.
 

There is no physical evidence of which I am aware.

There is tape of the torture. If that isn't enough, they could tape me torturing you to get an idea what happened.
 

"Bart" DeBugblatter:

arne, if a case of torture gets beyond a motion to dismiss, the crime is completely subjective and becomes whatever the jury wants it to be....

Hey, stupido: That's the gravamen of your motion to dismiss. That's a legal question (if it's in fact questionable at all, which everyone here except you denies), and not for the jury to decide.

... There is no objective definition for "severe pain." Thus the objective becomes working to have the jury define severe pain upward based upon the context of the war.

Your clam that there has to be an "objective definition" of "severe pain" is mistaken ... leaving apart the fact that such objective definition is just as possible as is any definitions in any criminal law.

Those crimes that are malum prohibitum may be more amenable to an objection that it is not possible to know what behaviour is prohibited and thus such laws are "void for vagueness", but the torture law is not a malum prohibitum law but rather, like most criminal law, a law prohibiting malum in se. But we've been through this already, and you're just as clueless now as you were back then. As I've repeatedly said, most criminal laws are just as "subjective" -- if not more -- than the torture statutes, yet all jurisdictions across the country have no difficulty in convicting people of such crimes.

If I can show a jury that this interrogation saved lives, perhaps their lives if one of the aborted al Qaeda ops was aimed at DC, I guarantee 9 out of 10 juries will define severe pain up past that inflicted by the rack under those circumstances.

You're asking for "jury nullification"? I'd guess from your fantasy "courtroom appearance" above --complete with efforts to sway the jury with stuff that even you admit will not be admitted -- that this would be your approach. Well and fine, but don't pretend that such is law.

["Bart"]: I would cross them [the agents] on the facts they they underwent waterboarding as part of their training and were not traumatized, that KSM did not cooperate until he was waterboarded and then have the agents describe the plots to commit further mass murder against Americans that KSM disclosed and that CIA and the military stopped based on that intelligence.

[Arne]: Ummm, stupido, in this scenario these are your [imaginary] clients. Why would you want to "cross" them?

["Bart"]: Hero, how precisely does the government prove that coercive interrogation was used against a certain person at a certain time and place without an eye witness?...

What does that have to do with the price of tea in Sri Lanka? I was pointing out that you want to "cross" [presumably "-examine"] your own defendants here. The judge would laugh at you ... and then ask to see your bar license.

There are two possibilities for a witness - a CIA interrogator or the interrogated al Qaeda. There is the possibility that the government could rely upon KSM as his star witness. Good heavens, how I would enjoy being the defense attorney in that circumstance. Thus, the government needs to flip a CIA interrogator to testify.

Yes, if he's the defendant. That would be my recommendation. If he then becomes a prosecution witness for the prosecution of higher-ups, you might "cross" him were you to be defending, umm, let's say, Addington. But if that happens, then what the agent has to say is that he was ordered to use these techniques. Getting him to say that he had been subjected to these techniques himself is irrelevant, because it's not his judgement and state of mind that is at issue then, but rather what he can say about what the highers-up told him to do.

Second, the only thing better than having a sympathetic CIA interrogator as my witness would be to have him as the government witness so I can pose directed questions and get precisely the evidence I want before the jury.

Huh? WTF are you talking about?!?!? Don't you think you ought to avoid heavy alcohol intake before posting? Or is the Haldol perhaps a smidge underprescribed....

Clue fer ya, though, you 'experienced' lawyer you: You get to "direct" your own witnesses, and you only get to "cross" the other side's. That was the point I was making, but it still seems to elude you ... 'practised criminal defence lawyer' that you are....

This is trial practice 101. I guess you never got that far before quitting law school.

"Bart": I'm not the one that miscites Brown II, the Pentagon Papers case, and other famous cases. I'm not the one that misstates when a SJ motion is appropriate. I'm not the one totally confoozed here as to who's my witness, who's the prosecution witness, and which ones I cross. As some have speculated, there's a growing doubt as to who it was that took your bar exam. With your acumen, pro bono may well be too expensive. Even an amateur's read of Nolo Press publications would seem more efficacious than retaining you ... even for free.

Cheers,
 

Enough fantasy trials, take a look at the en banc argument in Arar v. Ashcroft from C-SPAN on Saturday night, available on their site. Arar is the Syrian-born Canadian citizen who was changing planes in New York on his way back to Canada from Zurich when, due to false information that he was al Qaeda, he was seized by US officials and sent off to Syria to be tortured for a year. He is now sueing John Ashcroft and a number of his minions.

The Second Circuit is entirely dysfunctional. Chief Judge Dennis Jacobs is a doughnut, although without the powdered sugar, so nobody pays the least attention to him. The heavy is Jose Cabranes, who insists on characterizing this as nothing more than a summary removal. Reena Raggi is the heavily botoxed Lady Macbeth of the court. Sonya Sotomayor, who as a Spanish-surnamed woman has been bandied about as a potential Obama Supreme Court candidate, is a slow-talking questioner who feels she has to explain her questions, and then the explanations of her questions, which leads her to a restatement of her question. Guido Calabresi likes to hear himself talk, although at least he talks interestingly. Let's just say there is more intelligence and wit in a 15 minute argument before the 9th circuit than this 2-1/2 hour argument before the 2nd.

Government counsel is Deputy AG Jonathan "Roy" Cohn, a true Bushie married to another true Bushie who was head of the Office of Legal Counsel but has left to raise their little shrub. Not only does he contend that this is a matter of international affairs and national security so as to render (no pun intended) it not justiciable, he insists that Arar waived his rights under the Convention Against Torture by not raising them in his removal proceeding (held from 9 pm to 2 am on a Saturday night without notice to the lawyer who had finally gotten to see him at 5 pm that afternoon) or appealing his removal (notice of which was given to him as he was being put on the plane to Syria) or filing a habeas corpus case in district court (patriot act notwithstanding) or mandamus petition the court of appeals (protecting its jurisdiction). This guy has clearly spent too much time practicing before the FISA court.

He also argues qualified immunity (which seems to be coming up more and more in 12(b)(6) motions rather than summary judgment, although it is an affirmative defense, and the arguments about it seem more and more unrooted, even as civil rights plaintiffs plead with greater and greater particularity to try to overcome it), and takes the John Roberts position that a right cannot be clearly established if a federalist society fabulist can raise enough rhetorical questions about it. I mean, if it's cruel and unusual to hold someone in a cell the size of a tomb, it's just as cruel and unusual to hand Arar over to the Syrians knowing that he will be held in such a tomb.

That Cohn takes these positions shows that the hard core of torturers expect to get out of this administration with pardons and rise again from exile, like John Poindexter or Elliot Abrams, in a future administration. It is not enough to lock the closet door, these vampires must be swept out into the light and exposed as the anti-constitutional traitors they are.
 

With your acumen, pro bono may well be too expensive.

You rule, Arne.
 

r.friedman:

That Cohn takes these positions shows that the hard core of torturers expect to get out of this administration with pardons and rise again from exile, like John Poindexter or Elliot Abrams, in a future administration. It is not enough to lock the closet door, these vampires must be swept out into the light and exposed as the anti-constitutional traitors they are.

This is why I feel that heads on pikes is a more permanent --and not reviewable -- outcome.

BTW, we need a constitutional amendment that anyone convicted of a felony for crimes committed while serving in a government position should be barred from ever holding any government office (L,E or J) ever again, any pardons notwithstanding. Why the Rethuglicans seem to deem such an essential qualification for the job is beyond me....

Cheers,
 

Some of the comments reminds me of "The Tyrannicide Brief" by Geoffrey Robertson, though John Cooke didn't have a pretty end for his patriotism.

Ah well. No apparent stomachache for a John Cooke at the moment. It's off the table.
 

JohnLopresti wrote:

Another writer in the thread reminds of the ICC definitions of 1998; a reading of that convention as ratified reveals weighty stakeholders have refused to sign [...]. Countries in near anarchy are absent; Mayer's list of rendition countries uniformly are missing.

Some suspected "black site" countries are present, though: Poland, Romania, Afghanistan. Plus the first two may be liable under the European human rights convention?
 

Obviously Bart looked through the history books, decided somehow that there was a dearth of torture apologists, and decided to join their ranks.
 

Muntazer al-Zaidi is an employee of the Egyptian owned, anti-American al- Baghdadiya satellite television station. It was a stunt

Yes, that explains why he got the shit beaten out of him shortly thereafter. Because he was just doing the employee thing, getting in good with the boss, making as if he were anti-American. Actually he loves us. All Iraqis love us. So this guy was just pretending not to like us to get his next raise. Oh wait; he's rotting in jail right now.

Neocon twaddle just keeps getting thicker. Inconvenient reality check: his station didn't send him to do this. Nor do they have the power to get him out of hot water right now. Duh.
 

a dearth of torture apologists

Good point! It's so hard to have a debate when you can't find someone to take the pro side. We are fortunate in our day to have torture apologists, not to mention enablers, enablers, and enthusiasts, who will take the pro side for the torture debate.

Torture will be given a vigorous defense today.

At the sidelines a cheer squad will jump and shout. Tee oh are tee you are ee! Torture us to victory! Gooooh torture

The team will then take the field, get up on their hind feet and say "it wasn't torture, yet somehow it was also OK to torture because it saved lives" If that logic seems tortured to you, hey, that works!

The cheer squad will then return. Torture, torture, torture, tort; it's not actually torture if there is no mort! Cheney, Cheney, he's the man; if he can't torture, no one can!

Yes, I think we've produced a supply of torture apologists well sufficient to the need.
 

Exactly. Every point of view needs good advocacy and "balance". When someone does a news short about a group of cannibals being found somewhere, someone should present the upside of cannibalism. Conservation of nutrients, how marrow and brain provide critical fats during famines. Perhaps even a few recipes can be provided.

Psychologists that aided in the torture of prisoners in Guantanamo weren't actually torturing either. They were merely doing research into the minds of torturers, analyzing why some people still think torture is a good idea, and finding out how if someone wanted to enhance a program of torture how preying on a person's insecurities might be advantageous. All in the name of good science of course.
 

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