I agree with Fried's first sentence -- there's no point in talking to him. I'll charitably assume that he took this position because it was assigned to him.

Making the same assumption, I don't really understand the position you defend. Speaking generally, when we want to give a lesson to future law-breakers, we prosecute the present ones. Failing to prosecute has the unfortunate effect of sending precisely the opposite message, viz. "you too can get away with it".

I agree that the criminal process faces hurdles; we can't just barge into it. We do need a careful and thorough investigation before we charge anyone, complete with gathering all the evidence. Once that evidence is available, we need to proceed with due prosecutorial discretion and make the legal arguments against the anticipated defenses. I expect that the legal principles we establish will themselves be critical in the message we send to future generations.

That message, by the way, is this: Never Again.
 

It seems possible that a Truth commission could, by aggregating a sufficient mass of evidence, arouse an appetite for prosecution which doesn't currently exist.
 

It seems possible that a Truth commission could, by aggregating a sufficient mass of evidence, arouse an appetite for prosecution which doesn't currently exist.

The South African model involves dosing out blanket immunities for participating, however.
 

Option 4: Imitation is the sincerest form of flattery. Mr. Obama has already voted to ratify the TSP and is reportedly opposed to statutes outlawing the CIA coercive interrogation program. More to the point, Team Obama has already made it abundantly clear to the press that they want no part in witch hunts.
 

I think that Mark Field and Prof. Levinson are taking us into banana republic territory, in which the legislature cowers before the executive and acquiesces in whatever it does, until a new man, a strong man, a real leader comes along, who rescues us from the unbearable evil of the previous administration, reveals that the previous administration was actually an enemy of the people, and puts on criminal trials of the previous administration. Then, when things go wrong again (like, say, another terrorist attack), a new administration comes in, reveals that the Obama administration was actually composed of enemies of the people, and has a new set of trials. And so it goes.

If you want that sort of country, go live in one. In our country, we have a remedy for executive abuse, called impeachment. If the legislature doesn't want to exercise that remedy, let's not start down the road of lurching from presidente to presidente, each one a savior from the last.
 

On Fried's excerpted remark, it is fairly tempered compared to other political speech at the time deprecatory of any calls for scrutiny. Yet, rallying round the flag is standard in modern nations, as it was in more atavistic times. Indeed, in a more widely anthropologic view, the very clash itself which triggered the series of wars, represented some ancient disagreements about how to preserve our best social and intrapersonal processes, including learning, as well as self preservation.

On the Lithwick imagery, I would adhere to its yearning for sanctions of the negative sort, if the penalties were to be atypical, like forcing the millionaires among the plotters to live near the poverty line instead of siphoning investment annuities after leaving government service.

On the JB truth seeking, I think it resembles a bill HR104, introduced recently in the 111th congress, which suggests a nongovernmental populated board to investigate, kind of like the panel of experts that plumbed the depths of what occurred when the submarine Thrasher wrecked. My American impression of the events which included so many transgressions was it represents a kind of metaphoric hardening of the arteries of our system of government. Too much fastfood, and a plethora of media facilitated obfuscations, politics being what it is.

I am not sure any castigatory course is appropriate at this time, but understanding what occurred and working to restructure government to prevent imbalance when faced with international conspiracies will be important to build strength and integrity of our institutions. A beginning could be a rollcall in congress on a new constitutional reassertive amendment setting forth our purpose to adhere to a humane presence in the world community by renouncing torture outside the arguably inevitable 'atrocities' which occur on battlefields. It is a long time since the code of Hammurabi, or seemed like Western civilization had embarked on something more nurturing. It definitely is a time now of test, whether we really rounded that point several millenia ago. I think a rollcall might be revelatory in a way to define better that 'we'.
 

Under Art. I, Sec. 3, cl. 7, impeachment does not foreclose any criminal conviction: "Judgement in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgement and punishment, according to law."

It's therefore unclear why impeachment should be advocated as the sole remedy.

I would further note that the salient feature of a banana republic is precisely the lawless behavior of the executive, extending to arbitrary imprisonment and torture.
 

What makes you say, Jack, that the opinions of the OLC give rise to a strong defense for violations of jus cogens and 18 USC 2340A, or other arguably applicable criminal statutes? As a former professor of criminal law, and a criminal appellate practitioner for some 30 years, it is my understanding that "advice of counsel" is a rather narrow defense and not one which would necessarily apply.
 

I didn't advocate impeachment as the sole remedy. What I said is, where the legislature is too cowed to even propose impeachment, electing a new strong man to punish the enemies of the people in the previous administration is not the road to a healthy political culture.

If the Congress had impeached (and convicted) anyone, I wouldn't be opposed to subsequent criminal prosecution. But when Congress hasn't acted, it's time to move on. If the Levinson/Field program became established, the obvious consequence would be that outgoing administrations would issue blanket pardons, further degrading our political culture.
 

My views on the subject are mixed. On the one hand, the Church Committee was a sort of Truth and Reconciliation Commission, exposing government wrongs but not prosecuting them. We've seen by now how well that worked. The other flaw in the South Africa model, as Prof. Balkin points out, is that in South Africa there were offenses to be forgiven on both sides, so each side had an incentive to forgive in exchange for forgiveness.

As for criminal prosecution, the problem is that it is simply not politically sustainable. "Respectable" opinion ranges from the view that torture is a mere "policy difference," not a criminal matter to the view that any attempt to outlaw torture is completely beyond the reasonable pale. Sean's comments on the cravenness of the legislature are certainly apt, though his belief that torture is a only a crime in banana republics seems, well, typical of "respectable" opinion these days. The practical upshot of which is that, like so many banana republics transitioning to democracy, we can't prosecute because the anti-democratic faction has too much power.

I would love to see a truth commission exposing enough dirty laundry to awaken an appetite for prosecution, but it seems most unlikely.
 

Sean notes: "In our country, we have a remedy for executive abuse, called impeachment."

At issue here is more than "executive abuse," and impeachment is merely a civil measure involving removal from office and perhaps (it is not mandatory) inability to serve again. In fact, a removed judge later served in Congress.

The current governor of Illinois will likely be removed via impeachment. This will not be the end of things. He will also be liable to criminal judgment.

Likewise, Nixon was pushed out, impeachment in the cards. He was not criminally punished because of a pardon. As with Reagan and company (various underlinings pardoned), removal from office was not enough.

The "strong man" talk doesn't work. The matter was a process involving change in control of Congress and then further removal of party members deemed pro-Bush. Likewise, the "strong leader" business doesn't work either.

Anyway, I'm with MF. But, too many who will influence Obama think certain types of lawbreaking, involving crimes against humanity and all nefarious acts, can be unpunished. It is not like punishing foreigners for the same crime or your run of the mill drug crime or tax invasion.

Here punishment can be waived. This should be treated with cynicism, including by law breakers. As with those here who want to give Yoo a pass, even ignore serious discussions on why we need to seriously investigate, it is a bit hard sometimes to talk to them too.

Anyway, with the "let's look to the future" rhetoric, even T&R seems like an uphill battle. Depressing.
 

Lithwick makes a compelling case. If laws are not enforced, there is little point in having them. If some are above the law, there is little point in having them. If Dubya and his ilk broke no laws, let the investigation so find. Either there is law or there isn't. Let us proceed on the former assumption. If we fail, let civilized and lawful peoples and nations do it for us, and let us pass into the little-regretted history of fools and savages, where we belong.
 

Aye, aye, Mr. Field. I am in complete agreement with you on both of your comments above.
 

As to JB, the first thought that came to my mind was Jack Nicholson's "You can't handle the truth!" line in "A Few Good Men" related to (drum roll) Guantanamo.

As to Fried, I thought of the current financial crises and "Too big to fail [or jail]."

As to Lithwick, the law is too important to ignore and failure to enforce the law may encourage others, especially those in power, to defy the law. (Consider that Nixon made sort of a comeback.)

I don't see a Church Committee in the offing with the current political climate both domestic and foreign. I see a huge rug over a mountain of sweepings. It's sad.
 

"The other flaw in the South Africa model, as Prof. Balkin points out, is that in South Africa there were offenses to be forgiven on both sides,"

And in our case, the side currently in power has no interest at all in admitting that it's ever committed offenses.
 

In all likelihood, there will be no investigations because Bush kept the relevant Congressional committees fully apprised of what he was doing, and they approved. Democratic complicity would be exposed by investigations.
 

This comment has been removed by the author.
 

Sean: Congress did not see a "crime," but declined to impeach. Rather, the bipartisan congressional leadership affirmatively or passively ratified Mr. Bush's intelligence gathering.

Mark: Who do you propose will criminally prosecute these alleged "crimes?" DoJ signed off on all of them.

The problem with your "lawless behavior of the executive" is that the capture and interrogation of a wartime enemy is hardly lawless and Congress supported the intelligence gathering every step of the way.

Peter: Presuming the actual existence of a "crime," the defense is not advise of counsel, which is not a defense at all. The defense is that a prosecutor who advised a defendant that an act was legal cannot later prosecute the defendant for a crime arising from that act. Thus, DoJ could not prosecute the people they advised the intelligence gathering was legal.

jpk: Courts do not perform investigations and bring criminal prosecutions, Congress and DoJ do. They both determined that the intelligence gathering to which you object was lawful or ratified it by active or passive support.

If you believe that the People and your Dem Party actually opposes this intelligence gathering against al Qaeda and its allies, then the obvious choice in a democracy would be to call for the Dem Congress to disclose these programs to the enemy and enact laws prohibiting them.

The reason that many of you are calling for action outside the democratic system, a rogue executive prosecution if you will, is because you know that your Congress and the People to which it answers do not see "crimes."

Indeed, most folks rather support such intelligence gathering as they watch the new season of 24 begin tonight. Where you see our men and women as cartoon Nazis and Latin American death squads, most folks see Jack Bauer. Indeed, 24 briefly indulges your fantasies about bringing the Jack Bauers of the world to "justice" by having him arrested after rescuing African orphans to appear before a Senate committee of clueless self righteous asses. That nonsense does not last long before a newly elected Dem President calls Jack back to duty to once again save our collective asses.

While both the proposed prosecution of the real life Jack Bauers and the series 24 are both fantasies, guess which fantasy the vast majority of the people like to entertain? That is why your Dem Congress will not enact any laws leashing Jack Bauer and your new President will call on his Jack Bauers, if not proactively, then after we are attacked again.
 

Any criminal investigation or prosecution regarding interrogation, surveillance or other intelligence-gathering activities would have to begin with the people who actually committed the allegedly criminal acts. This would mean that a large number of CIA, NSA and other national security professionals would be either potential defendants or witnesses in these matters.

Would this be in the interest of President-elect Obama? Obviously not. First, consider the impact on the performance of these agencies. The people directly involved would be hiring lawyers and would be distracted from performing their duties. Their friends and colleagues would be angry and demoralized. Everyone would be worried about future criminal liability for any official actions they might take.

Now I understand that some of you think that these agencies are worthless or worse, and that the country would be better off if they didn’t exist. This, however, is presumably not Obama’s view. Even if it were, though, Obama knows that if he were to permit criminal investigations of these agencies, any future intelligence failure (real or imagined) could be blamed on him. Not to mention the fact that he would be creating a large group of enemies who could leak embarrassing information about the activities of his administration.

Second, any criminal investigation will have to reach conclusions about what is and isn’t legal. This creates the possibility that activities Obama decides to continue will be deemed illegal. This might effectively foreclose him from authorizing activities that he believes are legal, but the prosecutor does not (note that I am not making any judgments about who is “correct” in this hypothetical dispute). Worse, from Obama’s perspective, his own administration might now be under criminal investigation for undertaking such activities.

Third, what happens if and when the investigation expands to more senior officials who were aware of or authorized the allegedly illegal activities? Then Obama may face uncomfortable questions about whether he should fire senior officials in his own administration (say CIA Deputy Director Steve Kappes). What about political appointees like John Brennan who have defended the allegedly illegal activities? What about senior members of Congress who were aware of and allegedly signed off on these activities? Surely it is not in Obama’s interest to be dealing with any of these questions.

Fourth, as Professor Balkin notes, how does one deal with activities that have been blessed by OLC? Does Obama want to set the precedent that government officials cannot rely on OLC’s advice? Suppose the Obama OLC says that a particular intelligence activity is legal and the agency says thanks but our lawyers say that to be on the safe side we shouldn’t do it anyway?

Fifth, what about the potential exposure of OLC lawyers themselves? Professor Dawn Johnsen may advocate legal accountability for bad OLC advice, but I wonder whether Assistant Attorney General Johnsen will feel the same way. Of course, Johnsen would never advocate harming people based on flimsy legal reasoning (she might advocate defining them as not being people so that they can be harmed, see Roe v. Wade, but that is totally different). Still, you can never be too careful.

Finally, suppose the investigation reaches the level of Bush, Cheney and/or senior officials in the Bush White House. Does Obama want to be the first president to prosecute his predecessor? Is this a precedent he wants around when he leaves office? Does he want to face questions about whether he should pardon Bush like Gerald Ford pardoned Nixon? Does he want to be asked whether Clinton should be (or should have been) prosecuted for intelligence activities like extraordinary renditions (not to mention perjury in the Lewinsky matter)?

These considerations demonstrate that it is overwhelmingly against Obama’s interests to have general criminal investigations or prosecutions of the Bush administration’s national security activities. Therefore, this simply will not happen, regardless of whether Dahlia Lithwick or anyone else thinks it is a good idea.
 

In all likelihood, there will be no investigations because Bush kept the relevant Congressional committees fully apprised of what he was doing, and they approved. Democratic complicity would be exposed by investigations.

And in my view it should be exposed. But this is perhaps the single biggest obstacle to either a commission or prosecution. JMHO, but I believe this consideration led to Obama's vote in favor of the telecom immunity bill last summer, which probably gives a clue that his attitude here will be the same.

There are, however, significant political costs to the failure to act:

1. A good many people even within the Bush Administration opposed the torture regime. They may feel betrayed if the torturers remain unpunished.

2. America's foreign policy has been substantially hampered by images of Guantanamo and Abu Ghraib. It will be very difficult to restore that image without some tangible response beyond simply closing them down and saying "oops".

3. Failure to prosecute domestically means that other countries retain jus cogens jurisdiction over the crimes. This could create serious diplomatic problems in the future, as well as personal hardship for the individuals. Just to give one example of the latter, John Yoo may prefer an American jury to one he'd get in, say, Spain or Italy or somewhere else. Note that a Commission actually increases this problem because it exposes the evidence to the world at large.

4. Obama has the benefit now of a great deal of idealism in his supporters. That will be lost if they see him as failing to address an issue like this. The same holds true on a lesser scale for those like Dawn Johnson.
 

The text of HR 104 - Conyer's proposal for a commission of investigation - is up here and here. is main weakness is lack of political support, but public pressure can change this. It is also incredibly vague about the purpose of the exercise.
On one point perhaps we can agree: stop talking about reconciliation. A serious American effort at "truth and repudiation", in JB's excellent words, is a precondition for restoring the prestige and credibility of the country and mending fences with the Muslim world, and it could offer victims confrontation and catharsis. But it can't conceivably be described as a rite of reconciliation.
 

"these agencies are worthless or worse, and that the country would be better off if they didn’t exist"

I'd like to hear of the "some" here who think the agencies overall are "worthless" and how they should "not exist." Also, does this include the presidency overall?

I guess shots about Roe (which dismiss many who find abortion in many cases morally distasteful at best, but still recognize two month embryos or the like aren't full fledged legal "persons") suggest a certain disdain that don't expect a response.

The overall sentiment that there are many enablers who are guilty as well does help explain the lack of will in certain quarters. MF covers the problem with that path. But, it is far from atypical in a situation of this sort.

Fried appears not to think the Nuremberg trials were illegitimate. You know, since the crimes there were of a different magnitude. But, they only targeted certain leaders, including in lower echelons. The guilt went much further. All or nil?

If Obama's website is any sign, the people as a whole want a serious investigation with some real consequences. True enough our leaders failed us for too long. This doesn't justify continuing it. Likewise, this includes the parade of horrible mls discusses.

Full of end justifying means that shunts the rule of law etc. to the wayside. Rule of law is not oh so simple. It is hard sometimes. When this involves certain groups, like perhaps a struggling worker, drug user/thief or whatever, one has to tough it out.

For others, the rules are different. "The president (or OLC) said it, so it's okay." And, when bad things occur yet again, we will be so sorry, and wonder why.

Oh, and self-fulfilling prophecies are easier when the alternative is doing something hard.
 

While both the proposed prosecution of the real life Jack Bauers and the series 24 are both fantasies, guess which fantasy the vast majority of the people like to entertain? That is why your Dem Congress will not enact any laws leashing Jack Bauer and your new President will call on his Jack Bauers, if not proactively, then after we are attacked again.

# posted by Bart DePalma : 10:21 AM

Baghdad, why is the person who screams the loudest about Hamas war crimes also the most enthusiastic about excusing our war crimes?
 

Now I understand that some of you think that these agencies are worthless or worse, and that the country would be better off if they didn’t exist.

I'd like to know how you arrived at this "understanding?" I'd place my money on pre-conceived ideas & prejudice, which I've seen a lot of coming from conservatives towards liberals.
 

Even if it were, though, Obama knows that if he were to permit criminal investigations of these agencies, any future intelligence failure (real or imagined) could be blamed on him. Not to mention the fact that he would be creating a large group of enemies who could leak embarrassing information about the activities of his administration.

mls, do you really think the CIA/NSA is full of criminals who would blackmail their boss?
 

Failure to deal with lawless behavior decisively under the law can only convince more people that the law is an arbitrary and capricious club used to maintain a particular power structure. I would have thought that lawyers would venerate the principle that nobody is above the law.

Repudiation has already taken place, but the rule of law requires more, else what's the point of law?

This isn't Obama's decision, although he would be wise to participate (and hence have some control over it), nor should it be left to the (possibly complicit) legislative leadership, as that would produce a lengthy and inconclusive result.
 

Democratic complicity would be exposed by investigations . . .

in my view it should be exposed.

Exactly. Of course. Complicity to crime, accessory to, conspiracy, do not reduce crime; they increase it. They are all valid subjects for investigation.

Not to investigate is to enable further future crime. Mark Field put it handsomely, so I won't repeat it.
 

My own preference is for a Truth search along the lines suggested by Jack, followed by prosecutions, as Lithwick argues for.

I don't buy Fried's suggestion that crimes against humanity are more appropriately forgotten than crimes of 'self-interest.' That Cheney is not Hitler [etc.] is hardly to the point. Fried seems to think that the motivation is what makes the crimes of Bush et allia forgettable, so differences in 'magnitude' of crimes is not pertinent. On the other hand, if it is motive that matters, then it should be relevant only to excusing or mitigating culpability - but not a basis for simply ignoring the criminality altogether.

Beyond that, I have questions for two of the commenters:

Mark Fields wrote "Failure to prosecute domestically means that other countries retain jus cogens jurisdiction over the crimes. This could create serious diplomatic problems in the future, as well as personal hardship for the individuals. Just to give one example of the latter, John Yoo may prefer an American jury to one he'd get in, say, Spain or Italy or somewhere else. Note that a Commission actually increases this problem because it exposes the evidence to the world at large."
I'm not sure this is a reason for doing or not doing anything. I don't care where Yoo would prefer to be prosecuted; in fact, I rather like the picture of Yoo, Gonzales, Bush, Cheney and crew hiding out in the U.S for the rest of their lives.

Bart DePalma wrote, "Presuming the actual existence of a "crime," the defense is not advise of counsel, which is not a defense at all. The defense is that a prosecutor who advised a defendant that an act was legal cannot later prosecute the defendant for a crime arising from that act. Thus, DoJ could not prosecute the people they advised the intelligence gathering was legal."
I'm not sure I understand this. Is the claim that if any DoJ officials or any AG 'approves' of some conduct, then that conduct or the specific actors are forever immune to prosecution? I don't see why an institution or an office becomes identified with individuals who work in that institution or occupy that office. Would any instance of the conduct be forever immune [absent an official edict in the meantime] because one person or group of persons deemed it so at a previous time?
I'm not trying to be difficult, here. I simply don't understand the scope of the immunity DePalma sees as conferred by DoJ or AG approval.
 

"Would any instance of the conduct be forever immune [absent an official edict in the meantime] because one person or group of persons deemed it so at a previous time?"

No, clearly not; Only acts up to the time when the Justice department retracted it's advice that the conduct was legal.

Oh, and while I doubt there are a lot of people in the CIA and NSA who'd blackmail a President, both agencies are certainly not lacking in people who'd deliberately frustrate a President's policies. The Plame case, if you recall, involved such conduct.
 

both agencies are certainly not lacking in people who'd deliberately frustrate a President's policies. The Plame case, if you recall, involved such conduct.

# posted by Brett : 1:15 PM

No, I don't recall that it involved any such conduct. I recall that our president lied his way into a war, and that rigthwingnuts outed Plame as a CIA agant because her husband tried to expose Bush's lies.
 

I don't care where Yoo would prefer to be prosecuted; in fact, I rather like the picture of Yoo, Gonzales, Bush, Cheney and crew hiding out in the U.S for the rest of their lives.

Perhaps, though this just takes us back to the original question of whether it's better to prosecute or simply expose.

I have some sympathy for the suggestion that exposure could make prosecution more likely. The downside of that is the Oliver North scenario, in which the guilty walk away because of immunity grants essential to the process of exposure. If there is to be a "truth and repudiation" commission, I think it has to be conducted in such a way that doesn't foreclose prosecution.

Is the claim that if any DoJ officials or any AG 'approves' of some conduct, then that conduct or the specific actors are forever immune to prosecution?

The general argument for immunity on the basis of prosecutorial approval is based on estoppel.* That's clear enough in the usual case, where the prosecutor and the defendant are separate and distinct.

However, imagine a case in which a US Attorney tells his associate that it's ok to murder someone. Surely nobody thinks that this gives immunity to the culprit. Still less plausible would be a situation in which the USA gives such advice to himself. In that case, there's not even a separate person who could "reasonably" rely on the advice.

A similar problem exists within the Executive Branch as a whole, made more acute by the unitary executive theory. If all employees of the Executive Branch are simply carrying out the commands of the President, then in essence we had a situation in which the President, through the OLC, was giving advice to himself, in the CIA, to torture someone. There aren't two distinct actors here, so there's no basis for any estoppel, just as there wouldn't be if the USA gave the advice to himself.

There are additional issues to consider as well, such as whether reliance on the Yoo memos was reasonable (probably depends on who we're talking about), and whether the memos themselves were written as part of a conspiracy to violate the law. There are lots of tricky legal issues here, which reinforces the need for a very careful investigation.

*For any non-lawyers, estoppel is a legal concept which says, simplifying, that nobody can take advantage when someone else relies on his statements. For example, if I tell you that it's ok to do X, I can't then turn around and sue you for doing X, assuming you reasonably relied on my assurance that doing X was ok.
 

Joe and mattski- As I recall, several commenters here have expressed the view that the CIA, at least, should be dismantled. I was just trying to make clear that my point was independent of one’s personal views about the efficacy of these agencies.

With regard to Mark Field’s points, there may or may not be former Bush officials who would like to see torture prosecutions, but didn’t Jack Goldsmith come out squarely against them? I doubt this is going to have much of an impact on Obama, anyway.

With regard to America’s international image, Obama will look to get the most symbolism for the lowest cost. Closing Gitmo, which Obama has already promised to do, would have a much higher payoff than starting a criminal investigation. Several people have already been prosecuted for their roles in Abu Ghraib; is the possibility of more prosecutions going to make that much difference with regard to international opinion?

As for his liberal base, Obama doesn’t seem to be all that fussed. After all, he is giving John Brennan a major national security role despite complaints from liberal bloggers that Brennan is implicated in allegedly illegal activities.

The point about the potential impact on international prosecutions seems way too hypothetical to have much impact on Obama’s thinking. I don’t see Obama as the kind of guy who is going to take on the certain headache of a domestic criminal investigation to forestall the speculative possibility of foreign prosecutions down the road. Certainly he won’t do it for John Yoo’s benefit.

So while I don’t discount Mark’s points entirely, there is virtually zero possibility that they will outweigh the countervailing considerations that I laid out.
 

"Bart" DeClueless:

Mark: Who do you propose will criminally prosecute these alleged "crimes?" DoJ signed off on all of them.

Oh, I don't know. Maybe the same folks as prosecuted and convicted AG John Mitchell....

Why you think there's any difficulty is beyond me. But then again, IANAL. ;-)

Cheers,
 

"Bart" DeTorquemada:

The problem with your "lawless behavior of the executive" is that the capture and interrogation of a wartime enemy is hardly lawless ....

... but the torture (and even murder) of such is.

... and Congress supported the intelligence gathering every step of the way.

As I have repeatedly pointed out (and you have ignored), the (alleged) "support" or acquiescence of Congress is relevant legally only as to their potential culpability in covering up or failing to report a felony. The opinions of four or eight Senators do not constitute law.

Cheers,
 

"Where you see our men and women as cartoon Nazis and Latin American death squads [which actually existed], most folks see Jack Bauer [who is a fictional creation]."

Uh-huh. And what to you deduce from this, my dear Dr. Watson?

Cheers,
 

Bartbuster said...

BD: While both the proposed prosecution of the real life Jack Bauers and the series 24 are both fantasies, guess which fantasy the vast majority of the people like to entertain? That is why your Dem Congress will not enact any laws leashing Jack Bauer and your new President will call on his Jack Bauers, if not proactively, then after we are attacked again.

Baghdad, why is the person who screams the loudest about Hamas war crimes also the most enthusiastic about excusing our war crimes?

Most folks with a lick of common sense can distinguish between the United States waterboarding three top al Qaeda officers for less than four minutes to stop the murder of hundreds of civilians and the Hamas war crimes of murdering Israeli civilians and causing the death of hundreds of additional Palestinians being used as human shields.

In fact, the calls for prosecuting our own war fighters for "war crimes" seem petty and nonsensical when compared to real war crimes being perpetrated daily by Hamas, al Qaeda and other terrorist gangs.
 

chris said...

Bart DePalma wrote, "Presuming the actual existence of a "crime," the defense is not [advice] of counsel, which is not a defense at all. The defense is that a prosecutor who advised a defendant that an act was legal cannot later prosecute the defendant for a crime arising from that act. Thus, DoJ could not prosecute the people they advised the intelligence gathering was legal."

I'm not sure I understand this. Is the claim that if any DoJ officials or any AG 'approves' of some conduct, then that conduct or the specific actors are forever immune to prosecution?

In additional to committing the wrongful act, criminal law generally requires added proof of some level of criminal intent or mens rea by the accused.

This is the basis for the defense of entrapment. When a government agent convinces the accused to perform a criminal act that he would not have otherwise committed, the accused can offer the defense of entrapment against the mens rea element of the offense. This defense also serves the equitable purpose of discouraging law enforcement from creating their own crimes by encouraging the accused to commit criminal acts.

The defense I outlined above is a species of entrapment. The DoJ instructed the accused that an act is not criminal, causing the accused to commit the act without criminal intent. The defense also serves the equitable purpose of discouraging prosecutors from creating their own crimes by encouraging the accused to commit criminal acts.
 

"... your new President will call on his Jack Bauers,...

I was kind of hoping for Spider Man, and maybe the Justice League of America. They have neater costumes.

May I suggest to all concerned that it's people like "Bart" here that are directly responsible for the big fustercluck we're in....

Cheers,
 

ROFLMAO!!!!!

["Bart" DeTotallyConfoozed]: The defense I outlined above is a species of entrapment. The DoJ instructed the accused that an act is not criminal, causing the accused to commit the act without criminal intent. The defense also serves the equitable purpose of discouraging prosecutors from creating their own crimes by encouraging the accused to commit criminal acts.

OIC. So the higher-ups in the Dubya maladministration tricked these underlings into committing what they knew were crimes so they could arrest them and prosecute them and get them out of gummint.... Yeah. That's the ticket. The Dubya maladministration was just doing us all a favour keeping riff-raff out of government....

This has to be one of the lamest excuses (not to mention most idiotic) that "Bart" has ever come up with...

Cheers,
 

Most folks with a lick of common sense Most folks with a lick of common sense can distinguish between the United States waterboarding three top al Qaeda officers for less than four minutes to stop the murder of hundreds of civilians and the Hamas war crimes of murdering Israeli civilians and causing the death of hundreds of additional Palestinians being used as human shields.

Baghdad, most people with "a lick of common sense" understand that waterboarding is a war crime. Period. Your excusing those war crimes leaves you no room to whine about Hamas war crimes.
 

In fact, the calls for prosecuting our own war fighters for "war crimes" seem petty and nonsensical when compared to real war crimes being perpetrated daily by Hamas, al Qaeda and other terrorist gangs.

Actually, the Hamas war crimes are petty when compared to Tokyo, Hiroshima, Nagasaki, and Dresden. We've burned entire cities to the ground. Stop your fucking whining.
 

Friday in Florida Charles Taylor was setenced to 97 years in jail for torture in Africa.

Torture........tried in the United States..............need we say anything else.
 

Ok; I'm going out on a limb here [legal philosopher, not lawyer, so forgive any obvious ignorance in advance]. Bart sees the obstruction to prosecution as lack of mes rea on the part of the possible defendants. Mark and Brett both seem to see it as a matter of estoppel.

I can't buy this as a reasonable entrapment claim,for reasons suggested by Arne. But, I can see that lack of mens rea could be a problem for conviction. On the other hand, that is something to be determined in court, is it not?

As to the estoppel argument, I'm still flummoxed by the odd hall-of-mirrors identity implications. An official, A, of the DoJ tells someone, B, - possibly someone else in the DoJ that 'X' is legal. Let's suppose that B is so trusting and unquestioning as to buy this judgment, however controversial. So, B goes out and does X. I get the B might have a claim of estoppel. But what about A? Does A's judgment immunize him/herself?
I take it this is what Mark was getting at more broadly about the 'unity of the executive' ... story. But, isn't this a fairly strange claim under any conception of the unity/disunity of the executive? It's like Nixon's saying "It's not wrong if the President says it's ok; so, it's ok that I did it."

Tell me what I'm missing - and be gentle.
 

Is there anything to prevent Bush from pardoning the entire population of the US?
 

Chris:

Mark and Brett are probably more correct in calling the prosecutorial advice defense equitable estoppel. The mens rea elements of equitable estoppel are the ones which I discussed above - ignorance of the actual state of the law (i.e. the law is ambiguous) and reliance upon the representations of the prosecutor as to the state of the law.

However, there is an additional element in equitable estoppel that I did not discuss - an intent by the prosecutor or actions indicating intent that the defendant rely upon the prosecutor's representation of law. That element should be satisfied because the OLC opinions were expressly intended to provide advice to policy makers and war fighters.

I do not see a conflict between the unified executive theory (to which I subscribe) and the prosecutorial advice equitable estoppel defense. There is only a problem if the President knew that Act X was torture and ordered his subordinate in the OLC to draft a false opinion finding that Act X was not torture in order to create a false equitable estoppel defense. In that case, the President could not claim that he was ignorant as to the actual state of the law and prove the equitable estoppel defense.
 

Prof Fried's argument is predicated on a false equivalence-hitler,stalin and mao were war criminals and genocidal dictators, and trials for war crimes implies that the crimes of the current lot of people are equivalent to the crimes of these three dictators. It is remarkably shoddy grounds for the case he makes, given that he is a lawyer.

As has been pointed out numerous times, by several people, intent does not matter in the prosecution of a crime. I am sure Mr. Fried is aware of this. Prosecutors don't try to ascertain whether a murderer commits murder for apparently noble reasons. Similarly, the U.S has prosecuted Japanese and members of the US military for crimes of torture. I am sure at least some of those prosecuted committed their crimes for similarly noble motives.

Finally, the right place for any arguments which offer extenuating circumstances is in a court of law, for a judge and jury to weigh and decide, not in editorials and opinion pieces which use such arguments to prevent any criminal investigation.

I can only think that Mr. Fried is being dishonest in the service of ideology (unless he, like Mr. Goldsmith probably also fears a potential criminal investigation).

I don't think a truth commission is appropriate here. The crimes committed are not of a nature that their exposure and prosecutuion threaten civil order and society. The grounds for truth commissions in South Africa (or Rwanda) don't exist in the United States. Such commisions will only have the effect of salving a few consciences while allowing the perpetrators to go unpunished.
Torture and violations of the law must be prosecuted and punished harshly. This is how the law works for ordinary Americans, why should it be any different for these people (who otherwise preach ever harsher punishments for even minor offenses)? This is a question that I think is never satisfactorily addressed by the proponents of truth commissions.
 

Bartbuster said...

Actually, the Hamas war crimes are petty when compared to Tokyo, Hiroshima, Nagasaki, and Dresden. We've burned entire cities to the ground.

I will defer to the Dems here as to whether FDR and Truman were worse war criminals than Hamas (not to mention al Qaeda) for fire bombing and nuking German and Japanese cities.
 

Most folks with a lick of common sense can distinguish between the United States waterboarding three top al Qaeda officers for less than four minutes to stop the murder of hundreds of civilians and the Hamas war crimes of murdering Israeli civilians and causing the death of hundreds of additional Palestinians being used as human shields.

In fact, the calls for prosecuting our own war fighters for "war crimes" seem petty and nonsensical when compared to real war crimes being perpetrated daily by Hamas, al Qaeda and other terrorist gangs.

Bart, I believe you have acknowledged that our war fighter have committed war crimes at Abu Ghraib and Bagram. Right now you are in the mode of denying that there was any higher-level complicity in those war crimes, or that anything improper happened in GTMO or in our secret "black sites." (I am not clear about your views on "extrordinary rendition.")

I do not see a conflict between the unified executive theory (to which I subscribe) and the prosecutorial advice equitable estoppel defense. There is only a problem if the President knew that Act X was torture and ordered his subordinate in the OLC to draft a false opinion finding that Act X was not torture in order to create a false equitable estoppel defense. In that case, the President could not claim that he was ignorant as to the actual state of the law and prove the equitable estoppel defense.

Well, yes, that's the whole problem with the unitary executive theory, isn't it. If the entire executive branch's role is to do what the President says and no part of it has any institutional independence, they why can't the President tell the OLC to rubber stamp his actions and why isn't it the OLC's role to do just that?
 

I will defer to the Dems here as to whether FDR and Truman were worse war criminals than Hamas (not to mention al Qaeda) for fire bombing and nuking German and Japanese cities.

# posted by Bart DePalma : 7:12 PM


It's called Victor's Justice. Truman and FDR won. You assholes lost.
 

Enlightened Layperson said...

Bart, I believe you have acknowledged that our war fighter have committed war crimes at Abu Ghraib and Bagram...

I am not contending that US personnel have never committed criminal acts during the current war. However, I believe that the "misdeeds" to which this thread refers are those that have not been previously investigated and prosecuted like Abu Ghraib and Bagram.

BD: I do not see a conflict between the unified executive theory (to which I subscribe) and the prosecutorial advice equitable estoppel defense. There is only a problem if the President knew that Act X was torture and ordered his subordinate in the OLC to draft a false opinion finding that Act X was not torture in order to create a false equitable estoppel defense. In that case, the President could not claim that he was ignorant as to the actual state of the law and prove the equitable estoppel defense.

Well, yes, that's the whole problem with the unitary executive theory, isn't it. If the entire executive branch's role is to do what the President says and no part of it has any institutional independence, they why can't the President tell the OLC to rubber stamp his actions and why isn't it the OLC's role to do just that?

This is why foreign policy disputes like these are better decided as political matters between Congress and the President than internal criminal prosecutions within the executive.

The repeated contention that it is up to a court to decide whether there was a violation of law ignores the fact that prosecutors within the Executive make the initial evaluation as to whether conduct is technically criminal and then whether the technical crime should equitably be prosecuted. When the alleged crime is committed by the President as sole executive, you get an unavoidable conflict of interest.

The Constitution provided the remedy of impeachment whereby the other elected branch who enacted the laws at issue to decide whether to prosecute a President. If Congress decides to impeach, convict and remove the President, then there is no conflict in the DoJ prosecuting the ex-President who is no longer its boss.

In this case, Congress' leadership briefed about the intelligence gathering did not consider them crimes and instead approved of them.
 

@ chris:

But, I can see that lack of mens rea could be a problem for conviction.

The level of scienter required for various crimes varies. And in fact, for such things as homicide, you don't really need to hate the person, want them dead, or anything else. Just an intent to do the act that results in their death is enough in most jurisdictions for most crimes. And for such as "felony murder", you might not even need that; the intent to murder is imputed legally by the commission of a felony in which a death occurs (even if you dearly didn't want anyone to get hurt). And then there's negligent homicide (such as drunk driving in many jurisdictions).

While the maladministration weaves their own "Just So Stories" about some purported need for a "specific intent" to cause "physical pain equivalent to organ failure or death", and pretends that an intent to do something else instead while knowing that the result -- even if perhaps achieving the other intended purpose -- will also result in teh severe physical pain in question, that really isn't how "specific intent" in crimes such as murder, etc. is interpreted (see above). Not to mention that the Torture Convention (whose language the U.S. torture acts followed) specifically denies that there is any legitimate purpose for torture.

A court would take the Yoo "specific intent" theory, rip up the brief, and chuck Yoo et al. out on their a$$es, followed by waves of derisive laughter, should they flog that defence in a criminal court.

Any intent to cause severe physical or mental pain (and what were they doing??? they were trying to torture out information by any means, and in their sick minds, the more pain, the better for achieving this...) in a recalcitrant detainee would be seen by any common-sense judge for what it was.

Cheers,
 

This is why foreign policy disputes like these are better decided as political matters between Congress and the President than internal criminal prosecutions within the executive.


Baghdad, your opinion on the "best" way to decide this doesn't mean a damned thing.
 

Someone (who claims to be a lawyer) is confoozed:

Mark and Brett are probably more correct in calling the prosecutorial advice defense equitable estoppel. The mens rea elements of equitable estoppel are the ones which I discussed above - ignorance of the actual state of the law (i.e. the law is ambiguous) and reliance upon the representations of the prosecutor as to the state of the law.

Estoppel is a civil law concept. It doesn't exist in criminal law (in part because the gummint does a pretty good job of telling you what they mean by passing laws; there's no bargaining, no possibility of "mistake", no one really that can say, "well, we have this law, but you're free to break it...").

You might choose to rely on prosecutorial discretion or non-enforcement, but that hardly constitutes a defence once they decide to prosecute.

Cheers,
 

Estoppel is a civil law concept. It doesn't exist in criminal law (in part because the gummint does a pretty good job of telling you what they mean by passing laws; there's no bargaining, no possibility of "mistake", no one really that can say, "well, we have this law, but you're free to break it...").

No, Arne, estoppel does exist in criminal law. As I suggested above, a defense of "the prosecutor told me it was ok" is a form of estoppel.

I take it this is what Mark was getting at more broadly about the 'unity of the executive' ... story. But, isn't this a fairly strange claim under any conception of the unity/disunity of the executive? It's like Nixon's saying "It's not wrong if the President says it's ok; so, it's ok that I did it."

Yes, pretty much any theory of the Executive, even the weak unitary executive theory most of us subscribe to, makes it problematic for members of that branch to claim reliance on their fellows' go-ahead to claim an estoppel.

Basically, an estoppel requires 2 separate and distinct people, one who gives the assurance and another who reasonably relies on it. As you suggest, when applied to the Executive, this amounts to "it's ok because I said it's ok". That can't be the law; at least it's not any form of estoppel.

As has been pointed out numerous times, by several people, intent does not matter in the prosecution of a crime.

Technically, intent does matter. The law distinguishes between "intent" and "motive". When people say that the torturers acted with the good of the country in mind, they're referring to their motives. Those are irrelevant in the law (generally speaking).

Two more points. I've seen mention of entrapment as a defense. I said that carefully -- it's a defense. This means the prosecution doesn't have to disprove it, the defendant has to prove it. Generally speaking, prosecutors don't give up on bringing charges just because the defendant might prove a defense, unless the defense is pretty much incontrovertible. That hardly seems likely here.

Lastly, chris mentioned mens rea. For the non-lawyers, this is the technical term for the state of mind a defendant must have as an element of a crime. For example, insane people and infants lack the necessary mental state to intend a crime, so we don't charge them.

I take it the idea here is that the torturers might claim they acted in reliance on, say, the Yoo memos, so they didn't think they were actually torturing people when they waterboarded them. This is a possible defense, but it depends on the circumstances. For example, some published accounts indicate that the waterboarding took place before the memos were written. Obviously they couldn't be a defense in that case. Also, the torturer would need to prove knowledge of the memo and reasonable reliance on it as well.

Note that while this might be a defense for the torturer, it might well not be for those who authorized the torture. It may very well be that they were cynical enough to understand that Yoo had constructed a legal Potemkin village, not an actual legal argument. It will all depend on the evidence. Yoo himself, of course, can't assert his own memo as a defense (he may have others).
 

Bart DePalma said...

Option 4: Imitation is the sincerest form of flattery. Mr. Obama has already voted to ratify the TSP and is reportedly opposed to statutes outlawing the CIA coercive interrogation program. More to the point, Team Obama has already made it abundantly clear to the press that they want no part in witch hunts.

Mr. Obama on ABC's "This Week" interviewed by George Stephanopoulos this morning:

STEPHANOPOULOS: The most popular question on your own website is related to this. On change.gov it comes from Bob Fertik of New York City and he asks, "Will you appoint a special prosecutor ideally Patrick Fitzgerald to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping."

OBAMA: We're still evaluating how we're going to approach the whole issue of interrogations, detentions, and so forth. And obviously we're going to be looking at past practices and I don't believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering (ph).

STEPHANOPOULOS: So, no 9/11 commission with Independence subpoena power?

OBAMA: We have not made final decisions, but my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn't mean that if somebody has blatantly broken the law, that they are above the law. But my orientation's going to be to move forward.

STEPHANOPOULOS: So, let me just press that one more time. You're not ruling out prosecution, but will you tell your Justice Department to investigate these cases and follow the evidence wherever it leads?

OBAMA: What I -- I think my general view when it comes to my attorney general is he is the people's lawyer. Eric Holder's been nominated. His job is to uphold the Constitution and look after the interests of the American people, not to be swayed by my day-to-day politics. So, ultimately, he's going to be making some calls, but my general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed looking at what we got wrong in the past.

Translation: I have more important things to do than engage in witch hunts to satisfy my left base.
 

"As I recall, several commenters here have expressed the view that the CIA, at least, should be dismantled."

You spoke of "these agencies," and I do not recall there being a major sentiment at all that a great number of agencies should be done away with.

To the degree even the CIA should be "revamped," which was not a major concern either as I recall, the functions would still be carried out in some way.

Again, I don't recall this a major point at all, and with your Roe comment, and others in the past, it was needlessly confrontial and to some degree ad hominem.

mls decided to focus on some raw pragmatic concerns of Obama. Others focus on ideals and what significant numbers of the public want (the question posed today based on a popular sentiment on his own website). And, MF raises his own pragmatic concerns.

Closing Gitmo. The people won't disappear. The stories still will be told. Lawsuits will still be ongoing. A major group of supporters, including those useful in giving him legitimatcy will demand more.

People charged already. Right. The few bad apples. Scapegoats. Unsure if this will be enough crumbs for the int'l community et. al.

But, we are aware at the roadblocks to the right path. We all meet it on a daily basis. Somehow, we keep going, even when it seems it is pointless.

BTW, I find it amusing that some are using the "but, they said it was okay" line. That is, I was just following orders. Are we supposed to take that seriously?

Apparently so, especially since it's in the leader's interest.
 

joe- out of the many comments on this and other threads, you have spotted mine as "needlessly confrontational and to some degree ad hominem"? Seriously? Thats hilarious.

On a more serious note, the comments here should demonstrate at least one thing that we can all agree on- every nation (or non-state actor) that is engaged in armed conflict, and probably some that are not, can be plausibly charged with "war crimes" under someone's conception of the term. Israel, Hamas, Russia, Georgia, Pakistan, India, Iran,Iraq, Hezbollah, Al Qaeda, Britain, the US, Sri Lanka, Serbia, just to name a few. As Bartbuster notes, Roosevelt and Truman could be easily conceived of as gigantic war criminals if one is of a mind to do so.

This is just one more reason why Obama won't go down this path. The day he becomes president a lot of people sround the world will believe that he is a "war criminal" and that number will increase the longer he is in office.

Lets say, just for the sake of argument, that we all agree that Hamas is guilty of war crimes. Do we consider it very important that the leadership of Hamas be brought to justice for these crimes, or would we be more than happy to give them full immunity in exchange for an agreement that brought true peace to the Middle East? I assume that the answer is the latter.
 

The day he becomes president a lot of people sround the world will believe that he is a "war criminal" and that number will increase the longer he is in office.

# posted by mls : 11:07 PM

It is also entirely possible that Obama might decide that he can convince those people that he isn't a war criminal by throwing Bush and his enablers under the bus. If Baghdad Bart says that won't happen, you might want to bet your retirement fund that it will happen.
 

If this country has reached the point where only wild-eyed, crazy left wingers see anything wrong with indefinite detention, torture, secret prisons, outsourcing of torture, etc, then we are in big trouble.
 

[from the post]:

Here is Fried:

If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales, there may be no point in our talking. It is not just a difference of scale, but our leaders were defending their country and people — albeit with an insufficient sense of moral restraint — against a terrifying threat by ruthless attackers with no sense of moral restraint at all.

Our veneration of the rule of law makes us believe that courts and procedures and judges can put right every wrong. But we must remember: our leaders, ultimately, were chosen by us; their actions were often ratified by our representatives; we chose them again in 2004. Their repudiation this Nov. 4 and the public, historical memory of them is the aptest response to what they did.

This is nothing more than a gussied up "when the president does it, that means that it is not illegal". Perhaps with Nixon's famous legal exposition changed to "when our president...."

Everyone signed on (he alleges, despite the fact that most people didn't know what was happening, and still don't), so this ipso facto just changes the law. Of course, the founders would have been appalled at such a thought.... But when such was done in secrecy, there's even less of an 'argument' that popular ratification changes the laws.

Cheers,
 

BTW, anyone seen Prof. Lederman lately? Can we hope his absence is due to his deep involvement in the process of preparing indictments?

Cheers,
 

Mark Field:

No, Arne, estoppel does exist in criminal law. As I suggested above, a defense of "the prosecutor told me it was ok" is a form of estoppel.

Can you cite to any cases holding this? If the prosecutor says so, that may be a good indication you're free to go ahead, but that's because [s]he gets to make the decision as to whether to prosecute. But I'd suggest that they, or another prosecutor, may well change their minds.

As for collateral estoppel, this mean basically that an issue that has already been adjudicated and decided (a "final judgement " has been reached on the issue) can't be revisited. That hardly applies to the advice a prosecutor gives (in particular when the 'prosecutor' is one of your consiglieres). Estoppel applies to factual issue, not legal ones.

Promissory estoppel is the civil doctrine that, if a promise is made, the adverse party can't be held responsible (or made to pay) for relying on this promise. This really doesn't apply here; that's a civil law construct.

[Faizi]: As has been pointed out numerous times, by several people, intent does not matter in the prosecution of a crime.

[Mark Field]: Technically, intent does matter. The law distinguishes between "intent" and "motive". When people say that the torturers acted with the good of the country in mind, they're referring to their motives. Those are irrelevant in the law (generally speaking).

Which is kind of what I was trying to get at in saying that it is the "intent" to discharge the firearm, or to swing the axe, knowing that such would result in serious injury or death, that matters, not any specific hatred or desire that the person in question be killed. When we talk about "intent to kill", that [generally] covers any action where the foreseeable result of an act, regardless of the motivations for doing so, are that some person will be killed. Intent is inferred from the knowledge (or the knowledge a reasonable person should have) that such result might ensue, and the fact that the accused did the act anyway ... much as Yoo et al. would like to argue that such doesn't apply for the crime of torture, unlike pretty much every other malum in se crime.

Cheers,
 

"Bart" DeBabelfish:

OBAMA: ... "And obviously we're going to be looking at past practices and I don't believe that anybody is above the law..."

[...]

OBAMA: "That doesn't mean that if somebody has blatantly broken the law, that they are above the law."

["Bart"]: Translation: I have more important things to do than engage in witch hunts to satisfy my left base.

I think the fish is dead, "Bart". You need a new one.

Cheers,
 

mls:

On a more serious note, the comments here should demonstrate at least one thing that we can all agree on- every nation (or non-state actor) that is engaged in armed conflict, and probably some that are not, can be plausibly charged with "war crimes" under someone's conception of the term. Israel, Hamas, Russia, Georgia, Pakistan, India, Iran,Iraq, Hezbollah, Al Qaeda, Britain, the US, Sri Lanka, Serbia, just to name a few. As Bartbuster notes, Roosevelt and Truman could be easily conceived of as gigantic war criminals if one is of a mind to do so.

Perhaps. That might tell you something. The message is of course lost on "Bart"....

Cheers,
 

This comment has been removed by the author.
 

Arne (1:02) - the defense under discussion is generally called "entrapment-by-estoppel" and is reviewed with typical care and even-handed thoroughness by Professor LaFave in his standard treatise, Substantive Criminal Law (vol. 1, sec. 5.6(e)(3), at 415-18) (2d ed. 2003). He prefers to call the doctrine "Reasonable Reliance Upon an Official Interpretation." The Supreme Court applied it in US v Penna. Indus. Chem. Corp., 411 US 655 (1973), holding that the defendant company could rely as a defense to a criminal charge of water pollution on an official interpretation by the Corps of Engineers, as "the responsible administrative agency." This holding is akin to the due process holding overturning a conviction of M.L. King and others for parading "near" a courthouse, when they were at least as far away from the steps when arrested as the city police chief had told them they needed to be. Cox v Louisiana, 379 US 559 (1965). The most controversial and best-known problematic application of the doctrine was in US v Barker, 546 F2d 940 (D.C.Cir. 1976), overturning the convictions of Nixon's "plumbers" for the "national security" burglary of Daniel Ellsberg's psychiatrist's office, based on advice received from White House officials, even though these counselors were not legally authorized to interpret or enforce the law in question (federal criminal civil rights conspiracy provision). LaFave does not address the problem of advice which is not sought or not given in good faith, such as advice sought and/or given for the express purpose of manufacturing this very defense. Advice of that kind is often invoked (unsuccessfully) in "tax protester" trials in connection with the somewhat related defense of advice of private counsel. Some of those cases have involved "clients" of attorneys who offered "good faith reliance packages" for sale to anyone wanting them, containing letters "advising" that wages are not taxable under the Internal Revenue Code, and the like.
 

Mark Field,
Thanks for your comment. It was a nice clarification for this non-lawyer. (I meant motive when I used the word "intent").
 

"It is also entirely possible that Obama might decide that he can convince those people that he isn't a war criminal by throwing Bush and his enablers under the bus."

I seriously doubt that; While I don't much like many of Obama's policy preferences, I've little doubt that he isn't a moron.
 

I seriously doubt that; While I don't much like many of Obama's policy preferences, I've little doubt that he isn't a moron.

# posted by Brett : 6:12 AM

I'm not sure why you think that would make him a moron. You rightwingnuts are hated across most of the planet. Putting a few of you under the bus would be a great PR move.
 

out of the many comments on this and other threads, you have spotted mine

In the interest of debate and such, I questioned (as I did Howard recently) a problem I had with something the other side said. In a response, I noted that your entries at times are needlessly confrontial.

I have said this about other people. I don't think you are somehow unique.

can be plausibly charged with "war crimes" under someone's conception of the term.

Sure enough, especially since the group listed (not sure about "any" belligerent .. The Mouse That Roared, war criminal!) HAS committed serious war crimes in various cases.

The implication by many is that ANY serious consequences, even monetary (e.g., loss of a professorship), is problematic. We saw this before, of course -- e.g., some opposed setting up compensation for those American citizens of a certain ancestry confined during WWII.

To the degree that you imply the term is too vacuous, a rather understandable implication, as a whole, we still accept that "war crimes" exist and in various cases warrant action. This is int'l law. As Mark Field notes, e.g., if we don't act, various actors here might wind up on int'l docks.

Thus, I'm not sure why the fact war crimes occur a lot and/or can mean various things by itself is a good reason for Obama not to act as some here wish him to.

As to the Israel/Palestinian conflict, some accounting probably would require some dealing with war criminals. All the same, there is no clear evidence here that "peace" here etc. will not result if some effort ala as put forth by Mark Field etc. is made.

Surely, there is pressure from some to continue as we did before. Inertia is a powerful thing. But, there also is some evidence of "change" in the air, which along with other matters can very well provide even the most hard pragmatist with concern for the path you suggest Obama would clearly take.
 

The day he becomes president a lot of people around the world will believe that he is a "war criminal" and that number will increase the longer he is in office.

So why try, since damn if he does/damn if he don't? A charming justification of inertia in many quarters.

Problematic though since not doing what some here want could very well only worsen such "beliefs" in part because it would be based on some sound evidence.
 

On a more serious note, the comments here should demonstrate at least one thing that we can all agree on- every nation (or non-state actor) that is engaged in armed conflict, and probably some that are not, can be plausibly charged with "war crimes" under someone's conception of the term.

Some war crimes are more criminal than others. For example, a disproportionate response to an attack surely is more subject to legitimate disagreement about proportionality than is setting up gas chambers and killing those you've already imprisoned.

Torture is a peculiarly and distinguishingly severe crime because it's imposed only on those who are, by definition, no longer able to harm us. It is, for that reason also, a more cold-blooded offense than, say, an immediate retaliation for an unprovoked attack (which might well be disproportionate in the heat of the moment -- to paraphrase Madison, revenge is seldom anything other than usurious). Finally, torture is distinguishable from legitimate military operations which might go wrong, in the same way that gas chambers are distinguishable from legitimate criminal procedures which might go wrong.
 

Peter G:

It does get a bit muddy, and there do seem to be some equitable (or just basic good sense "moral") principles involved.

As you hinted, it seems to sneak in primarily in administrative law and other malum prohibitum offences where the laws are obscure, unknown, and/or uncertain. And it becomes a bit the equivalent of a "reliance on counsel" defence. But "reliance on counsel" is most often not a legitimate defence, and only applies when there is a level of scienter required; that the person know that they were breaking the law (rather than just knowing or intending to perform the cats that broke the law).

I doubt you will find much in term of caselaw support for such a "reliance" defence in the case of malum in se laws, because any views the person had concerning the law are pretty much irrelevant in most of these, the intent that the bad act (or outcome) ensue is sufficient. We don't bother to ask whether the person thought that what he was doing was legal, because the very nature of a malum in se crime is that the offence is regarded as a "bad act" by any reasonable person.

I think the MLK thing is a bit of a outlier, with the courts not enthusiastic about the use of such laws for the purposes they were used by the southern states. To allow the prosecutors to engage in this sh*te would be unfair.

Cheers,
 

Brett:

[Bartbuster]: "It is also entirely possible that Obama might decide that he can convince those people that he isn't a war criminal by throwing Bush and his enablers under the bus."

I seriously doubt that; While I don't much like many of Obama's policy preferences, I've little doubt that he isn't a moron.

No. That would be Dubya.

On a more serious note, I fail to understand why prosecuting Dubya et al. under our existing criminal code would be a mistake. Could you please explain?

Cheers,
 

Re: Barker and the "mistake of law" defence (here):

The opinions by the majority deal with two substantial points raised on appeal. First, Appellants argue that the conviction under 18 U.S.C. § 241 must be reversed because the specific intent requirement of that statute has not been met. Barker and Martinez assert that the requisite specific intent is present only where the conspirators' predominant purpose is an act in violation of civil rights, and thus that it is lacking in this case where the primary objective was the inspection of Ellsberg's records rather than the burglary of Dr. Fielding's office. Citing Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974), the court unanimously rejects this argument on the basis that specific intent is present whether actions violating federal civil rights are a predominant or incidental objective of the conspiracy. (Wilkey op. at ---- - ---- of 178 U.S.App.D.C., at 948 of 546 F.2d, Merhige op. at --- of 178 U.S.App.D.C., at 954 of 546 F.2d, Leventhal op. at ---- - ---- of 178 U.S.App.D.C., at 970-971 of 546 F.2d).

This, of course, goes to Yoo's pathetic attempts to pretend that the "specific intent" of the torture laws require that the purpose of the torture be solely or primarily to inflict the "severe pain", rather than the less malevolent intent to gain information.

Second, Appellants challenge their convictions on the ground that the District Court's evidentiary rulings and jury instructions denied them the opportunity to prove a defense of good faith reliance on apparent authority. More specifically, Barker and Martinez complain: (1) that evidence was excluded as to the reasonableness of their belief in the authority of E. Howard Hunt, their White House superior, to order such an operation; and (2) that the District Court rejected a proposed jury instruction allowing a defense for reasonable, good faith reliance on apparent authority, and instructed instead that absent belief that a valid warrant had been obtained, any mistake as to the legality of the operation was no defense.

Judges Wilkey and Merhige conclude that the District Court erred in rejecting the possibility of a limited mistake of law defense. While both recognize the general rule that a mistake of law is no defense, they conclude that the District Court's refusal to recognize an exception to that doctrine possibly applicable to this case requires reversal of the convictions.

Judge Wilkey states that Appellants might have been able to bring themselves within an exception to the mistake of law doctrine relating to assistance of a governmental official in the performance of a governmental function. In order to establish such a defense they would have to prove (1) facts justifying their reasonable reliance on Hunt's apparent authority and (2) a plausible legal theory under which Hunt could in fact have such authority. He concludes that the facts justifying reliance might have been proven had the court admitted the evidence offered by Appellants, and that a plausible legal theory supporting such a defense is presented by the longstanding Justice Department view that the President may authorize warrantless searches related to foreign espionage or intelligence. (Wilkey op. at --- - --- of 178 U.S.App.D.C., at 949-953 of 546 F.2d).

Judge Merhige finds possibly applicable to Appellants an exception to the mistake of law rule for reasonable reliance upon official interpretations of the law. He states that the jury could have concluded that Assistant to the President, John Ehrlichman, had expressed or implied that the break-in was legal under a national security rationale, and that this view was relayed to Appellants by Hunt. Further, in view of the substantial power of the Executive Branch in the field of foreign affairs, a jury could further find that Appellants acted reasonably in relying on this interpretation of the law. (Merhige op. at ---- - ---- of 178 U.S.App.D.C., at 954-957 of 546 F.2d).

The convictions are accordingly REVERSED.

Note that neither judge stated that such a defence would have prevailed. They simply complained that the defence hadn't been able to even raise and pursue such a defence.

Note also that such a defence would have to be shown to fall under the exceptions to the general rule that "mistake of law" is no defence.

Judge Leventhal dissents on the ground that Appellants have failed to allege facts which might bring them within any established exception to the doctrine that a mistake of law is no defense.

Which may well be the case; the majority judges leave this possibility open; they just said "give them a chance at least."

FWIW, the case was remanded for a new trial. Anyone know how that retrial played out? Did the "mistake of law" defence actually prevail on retrial?

Cheers,
 

More from Barker on "specific intent":

"III. THE "SPECIFIC INTENT" REQUIREMENT OF 18 U.S.C. § 241

It is settled law that a conviction under this section requires proof that the offender acted with a "specific intent" to interfere with the federal rights in question.8 This does not mean that he must have acted with the subjective awareness that his action was unlawful. It is enough that he intentionally performed acts which, under the circumstances of the case, would have been clearly in violation of federal law, absent any other defense."

Cheers,
 

More Barker"

[from Leventhal's dissent, relating to "Bart"'s "entrapment" bloviating, and unrefuted by the other two judges]:

"A. Entrapment

The defense of entrapment, developed as a construction of legislative intent, has been evolved for the case of an otherwise innocent person who has been induced to commit a crime by a law enforcement agent whose purpose was prosecution. Recognition of the defense works as an estoppel on the government, preventing it from reaping the benefits of the prosecution and conviction it sought to obtain by unconscionable means.10

The entrapment rationale is wholly inapplicable to this case. In recruiting Barker and Martinez, Hunt was not acting as a law enforcement official seeking to induce their participation in order to have them prosecuted and punished. He instead sought their aid for other governmental ends which his unit judged best served by illegitimate invasion of the rights of others. The true entrapment defense seeks to prevent government officials from realizing benefits from unlawful inducement, and thereby to deter official illegality. Extension of the defense to reach Hunt's inducement of Barker would serve to reinforce the illegal conduct of the government agent, who could then delegate the "dirty work" to private citizens shielded from responsibility by the defense that they had been recruited by a government agent."

Cheers,
 

More from Leventhal's dissent in Barker:

"1. Claim of Good Faith Reliance on an Official's Authority

Appellants invoke the acceptance of good faith reliance defenses in the Model Penal Code. However, the American Law Institute carefully limited the sections cited to persons responding to a call for aid from a police officer making an unlawful arrest,34 and to obeying unlawful military orders,35 and specifically rejected the defense for other mistake of law contexts.36 In both instances, the A.L.I. recognizes limited curtailment of the doctrine excluding a mistake of law defense on the ground that the actor is under a duty to act37 to help a police officer in distress to make an arrest when called upon, or to obey military orders. In each case, society has no alternative means available to protect its interest short of imposing a duty to act without a correlative duty to inquire about the legality of the act.38 Punishing an individual for failure to inquire as to the lawful basis for the officer's request would frustrate the effective functioning of the duly constituted police (and military) force and in its operation on the individual would compel a choice between the whirlpool and the rock.39

There is no similar incapacity of the government to act to protect its ends when a citizen takes action when he is under no duty to do so. Thus under the Model Penal Code, a citizen who volunteers to assist another citizen, or volunteers to assist a police officer in making an unlawful arrest, cannot avail himself of the defense available to a person responding to an officer's call that he participated without making an inquiry as to whether the arrest was lawful. The volunteer is exculpated only if he believed that the arrest was lawful and believed in the "existence of facts which, if they existed, would render the arrest valid."40 Thus, even if private citizen intervention appears socially desirable in a particular case, the citizen's scope of action and protection in the event of mistakes are narrow, because, overall, forceful citizen enforcement of the law is susceptible of abuse41 and mischief.

Barker and Martinez were under no tension of conflicting duties comparable to that experienced by a soldier or citizen responding to orders. They had and claim no obligation to aid Hunt. Nor did they have a belief of fact rendering their voluntary assistance lawful within § 3.07(4), supra note 33. Nor is there a compelling social interest to be served in allowing private citizens to undertake extra-legal activities, acting simply on the word of a government official. The purposes of the law in rejecting such a defense are underscored by the very kinds of extra-governmental, outside-normal-channels conduct that Barker and Martinez engaged in here. Government officials who claim to be seeking to implement the ends of government by bypassing the agencies and personnel normally responsible and accountable to the public transmit a danger signal. Barker and Martinez acted to help Hunt on his explanation that he sought their recruitment because the FBI's "hands were tied by Supreme Court decisions and the Central Intelligence Agency didn't have jurisdiction in certain matters."42 There is reason for the law to carve out limited exceptions to the doctrine negating defenses rooted in mistake of law, but the pertinent reasons have minimal weight, and face countervailing policies, when they are invoked for situations that on their face are outside the basic channels of law and government in this case, requests for surreptitious or, if necessary, forcible entry and clandestine files search. These are plainly crimes, malum in se, unless there is legal authority. Citizens may take action in such circumstances out of emotions and motives that they deem lofty, but they must take the risk that their trust was misplaced, and that they will have no absolution when there was no authority for the request and their response. If they are later to avoid the consequences of criminal responsibility, it must be as a matter of discretion. To make the defense a matter of right would enhance the resources available to individual officials bent on extra-legal government behavior. The purpose of the criminal law is to serve and not to distort the fundamental values of the society."

Cheers,
 

And yet more:

"To stretch the official misstatement of law exception for the facts of this case is to undercut the entire rationale for its recognition as an exception. The Model Penal Code hedges in the defense to permit reliance only on an "official interpretation of the public officer . . . charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense." (emphasis added). Certainly Hunt cannot sensibly be described as having been charged by law with responsibility for interpreting or enforcing either § 241, or the Constitution from which the violations of § 241 in this case sprang. Nor can it be said in any meaningful sense that he had the power to provide an official interpretation of the law. These restrictions on the applicability of the official statement exception did not arise haphazardly; they were deliberately drafted to allow, and indeed to promote, good faith reliance on official pronouncements with objective indicia of reliability those made by officials specifically charged with interpreting or enforcing the specific law defining the specific offense charged against the defendant. A defense so confined has values for the law: It avoids punishing those who rely on a crystallized position taken by the officer or body charged by statute with interpreting the law in a particular area.47a The officer's position in a channel of authority is readily identifiable; any mistakes he makes can be remedied by readily perceived and structured avenues of relief. There is no opening the door to justification for serious offenses based on unrecorded discourse from someone who has an undefined but high-sounding berth in the government.

The "official interpretation" defense thus structured is a functional analogue of the defenses of reliance on a statute, judicial decision or administrative order. It is justified by its twin underlying assumptions that the official is one to whom authority has been delegated to make pronouncements in a field of law, and that the authority can be held accountable by explicitly grounding it in the hands of an identifiable public official or agency. So grounded, the interest of both private citizens and government is served by protecting actions taken in reliance on that interpretative authority. But none of these safeguards of regularity is present in this case. A staff man or even a lower echelon official of the White House may be taken as a man of presumptive standing and even influence, but not seriously as a source of official interpretation of law, much less of such matters as the validity of a stealthy breaking and entering. Even cases postulating a national security exception for wiretaps have never suggested more than that the President or the Attorney General could have authority to evaluate and authorize an exception. No claim of Presidential or Attorney General authorization has been made in this case. The official misstatement of law defense embodies a fundamental requirement that the erroneous interpretation be made by an official in fact possessing the power to make a binding interpretation; it is wholly inapplicable to a case like this, of a claim of reliance on a government official in an area in which he has no power to interpret. And it is blatant incongruity to stretch an escape clause for mistakes of law arising in the innately public business of official interpretations of law to immunize a secret conference for planning a stealthy entry into a private home or office."

Note that in the present case, the exalted position of OLC as the definitive interpreter of the laws might be proffered as a reason to invoke this exception in the case of CIA or other government employees who "relied" on the OLC memos as legal CYA for their illegal actions. But the present case (and the egregious errors in the opinion of thug cum consigliere Yoo) might be cause to revisit this reasoning.

The general assumption is that the gummint as a whole is not an amoral and illegal mafiosi ronnuing rampant with illegal operations. But that assumption has been proven false.

Note also that the secretive nature of the Dubya administration, and the refusal to put its opinions out in the open where people may comment on, and dispute the conclusions, also detracts from its authority and any deferece owed it.

Cheers,
 

Mark- you say that torture is more serious than a disproportionate response to an attack. Who makes that decision? If we leave it up to “international opinion,” the converse seems to be true. There is far more popular outrage over Israel’s attacks in Gaza than there has ever been with regard to the waterboarding of detainees. In fact, it seems to me that while waterboarding is a big issue to liberal elites in the US and Western Europe, it doesn’t really move the outrage meter much among the Muslim masses and/or the governments and organizations that purport to speak for them. To them the biggest offenses seem to be, in this order, (1) perceived offenses against the religion (eg, the Danish cartoons, mistreatment of the Koran), (2) perceived humiliations of Muslims by non-Muslims (eg Abu Ghraib), (3) encroachment on Muslim lands by non-Muslims; (4) widespread infliction of civilian casualties by non-Muslims on Muslims and (5) sexual immorality (homosexuality, promiscuity, uncovered women). In contrast, I don’t recall hearing much, if anything, about Muslim reaction to the waterboarding of detainees.

None of that, of course, is the product of dispassionate (or possibly any) reasoning. Even if we try to be objective about it, though, your evaluation of the relative evils here is far from self-evident. For one thing, you seem to have stacked the moral deck by ignoring the reason for waterboarding (ie, to get information needed to stop terrorist attacks), while treating disproportionate responses as if they were committed in the heat of passion (very few would fall into that category, certainly not the Israeli action in Gaza). And you have not undertaken any evaluation of the relative harm caused, on the one hand, a handful of senior AQ operatives who suffered momentary pain and terror, but no permanent injury, versus, on the other, thousands of civilians killed or wounded (if we are speaking of the Gaza operation).

As I have indicated before, I do not think any good will come of pursuing war crimes prosecutions, whether here or abroad. But if we are interested in appeasing the Muslim world, we would probably be a lot better off throwing the Israelis under the bus.
 

Mark- you say that torture is more serious than a disproportionate response to an attack. Who makes that decision?

We do. That is to say, we have 250 years of reasonably civilized legal systems to draw from. During all that time, torture has been illegal. It's the subject of special UN Conventions and is one of the rare jus cogens offenses. Even in 1760 it was the pride of the English common law system that it had NEVER recognized torture as legitimate. The US Supreme Court has repeatedly held that torture is not allowed as a matter of due process, and the Constitution itself bars torture ("cruel and unusual punishments"). We have, as a nation, tried our own citizens and others for torture and imposed very serious penalties for it.

If you take away the current political dispute, this isn't even controversial. Torture has long been recognized as belonging in a special category of wrongs, wrongs which have a deeply emotional "ick" factor like rape and child molestation. The long-standing legal doctrines forbidding it reflect this horror at the practice.
 

There is far more popular outrage over Israel’s attacks in Gaza than there has ever been with regard to the waterboarding of detainees. In fact, it seems to me that while waterboarding is a big issue to liberal elites in the US and Western Europe, it doesn’t really move the outrage meter much among the Muslim masses and/or the governments and organizations that purport to speak for them.

I don't think most of us here are talking only about waterboarding of high ranking Al-Qaeda members, but about torture and abuse in general. That has stirred the outrage meter, as you acknowledge at Abu Ghraib. Abuses at GTMO have also raised quite a bit of outrage. It is true that there has been less of an uproar over what has gone on at our black sites, largely because the Bush Administration has largely been able to keep it a secret, and certainly there has not been anything really graphic released from them like, say the photographs from Abu Ghraib.

If the details ever do get out, I'm guessing there will be plenty of outrage, thank you.
 

mls' analysis of what the Muslim masses might warrant a reply from someone who might provide a different window into their sentiments.

Even a limited reading of what such "masses" think does not lead me to think Danish cartoons would be the very first thing listed by such an individual.

Then, again, outsiders looking at our media might think the harm to a select number of photogenic white women is what drives our thoughts.

Mark Field focuses where our concern should start. First and foremost, this is about our soul, symbolic or otherwise. Concern for what others think and how they will react is a factor. Surely. But, that's akin to not robbing only because you might get caught.

mls also has a suspect view of American masses. There has been a great deal of shock, including from those who are more supportive of Brett here on policy than me, on what has happened. But, we get lame canards about "liberal elites" concerning actions damned in medieval books as torture.

Putting aside waterboarding is at the end of the day symbolic. It stands for a principle; if we don't say "that is wrong," we are lost in hoping that is much more prevalent activity (activity that at times led to actual death, not the fear of it) could be similarly damned.

Continuance and looking the other way in this area is both pragmatically and ideally troublesome. Since Obama uses both, in large qualities, this might factor into his own analysis. Or should.
 

Enlightened Layperson:
It is true that there has been less of an uproar over what has gone on at our black sites, largely because the Bush Administration has largely been able to keep it a secret, and certainly there has not been anything really graphic released from them like, say the photographs from Abu Ghraib.

If the details ever do get out, I'm guessing there will be plenty of outrage, thank you.

Which is why the destroyed the videotapes, despite legal advice that they not be destroyed.

Cheers,
 

First and foremost, this is about our soul, symbolic or otherwise.

Exactly.
 

As we have seen in Congress' shameful involvement in the administration's misdeeds, people with a guilty secret are people who can be manipulated.

This applies to the intelligence agencies who participated in the operations based on flimsy legal rationalizations and it applies to Congress, the members of which at least turned a blind eye toward the operations.

As long as these secrets linger, those who participated cannot be trusted.
 

Here is a radical suggestion. Perhaps we should be less concerned with how our intelligence gathering plays on the "Muslim street" and the Muslim countries should far more concerned how Islamic terror plays on the "American street."
 

Here is a radical suggestion. Perhaps we should be less concerned with how our intelligence gathering plays on the "Muslim street" and the Muslim countries should far more concerned how Islamic terror plays on the "American street."

# posted by Bart DePalma : 10:33 AM

Actually, that is really more of an assinine suggestion than a radical one. What we're mostly concerned about is what a group of lawless thugs have done in our name.
 

Here is a radical suggestion. Perhaps we should be less concerned with how our intelligence gathering plays on the "Muslim street" and the Muslim countries should far more concerned how Islamic terror plays on the "American street."

... because -- by definition -- we're the Good Guys and they're the Bad Guys. A better explication of 'Merkun exceptionalism would be hard to come by.

With apologies to Erich Segal, "Empire means never having to say you're sorry."

Cheers,
 

the Muslim countries should far more concerned how Islamic terror plays on the "American street."

# posted by Bart DePalma : 10:33 AM


I'm kind of curious what you meant by this?
 

If you take away the current political dispute, this isn't even controversial

Actually, the worst part of it is the pretense that it is controversial.

It's like Big Tobacco's massive PR campaign that kept pretending "controversy" on smoking and disease. "It's controversial! Scientists disagree!" What led millions to their deaths wasn't the idea that smoking was safe, but the very cleverly sold idea that there was genuine scientific controversy on how bad smoking was.

Similarly, the administration's PR campaign gotten Americans to believe that some lawyers think torture is legal, some think it's illegal; it's controversial. Well, right there, enormous damage is already done. Millions of Americans have been led to believe it's unclear, when it's perfectly clear.

That seems to me another good reason for investigation, prosecution, and punishment of war crimes. It's a graphic demonstration to the public that it is not controversial, any more than rape, murder, child molestation: it is a crime.
 

Arne Langsetmo said...

BD: Here is a radical suggestion. Perhaps we should be less concerned with how our intelligence gathering plays on the "Muslim street" and the Muslim countries should far more concerned how Islamic terror plays on the "American street."

... because -- by definition -- we're the Good Guys and they're the Bad Guys. A better explication of 'Merkun exceptionalism would be hard to come by.

No, my argument does not rely upon ethical superiority, but rather simple bean counting.

The United States has the capability to take down any regime in the region giving shelter and/or support to terrorist groups in a matter of months. In contrast, rent-a-mobs on the "Muslim street" do not pose the same threat to the United States so long as we maintain proper intelligence gathering.

Thus, the regimes running Muslim countries need to be far more concerned about winning the hearts and minds on the "American street" than we need to care about the government approved riots on the "Muslim street."
 

The United States has the capability to take down any regime in the region giving shelter and/or support to terrorist groups in a matter of months.

# posted by Bart DePalma : 1:12 PM


Numbnuts, they all saw what heppened in Iraq, and they know there is no chance we're going to do something that idiotic again any time soon,
 

I'm almost afraid to keep dipping in here. However, may I take it, given Barker and normal mens rea requirements, that none of the upper echelon in the Bush DoJ has a reasonable claim to immunity?
I'm not asking about the wisdom of prosecuting.
 

P.S. IS the mens rea for 'torture' - for those who engage in the conduct, not those who pretended to redefine what counts as torture - intent to violate rights?
 

Truth commissions. So we're -- maybe -- going to finally get some truth out of an administration that avoided the truth as perhaps none other in our history.

And of course the wrongdoers will quickly produce documents they have never produced before; won't argue about executive privilege all the way to the Supreme Court, perhaps more than once; will testify without claiming they've forgotten everything they've ever known in the last eight years.

And of course they'll be willing to do all this, knowing that there is no threat of prison for their misdeeds, no reason for those lower down in the chain to turn on those higher up.

Prof. Balkin, you want too much to be the nice guy, the "voice of moderation" and reason. But I strongly suspect that very little truth is going to come out. And when it does, three to four years down the line, it is going to be thoroughly ignored by the press, and almost everybody else.

And further, if there are no consequences for the multitude of crimes committed by these people, there will be little disincentive in the future for other people to do the exact same thing. After all, this is a group of people for whom deterrence has more weight than for almost any other group of criminals you can name. Just look at the way the CIA, worried about whether what they were doing was legal, kept clamoring for a legal "get out of jail free" card.

Clinton also followed the nice guy route when he came in, refusing to pursue Iran-Contra any further -- just as we were learning that Bush Senior had -- beyond any question -- committed perjury during that investigation, claiming to be "out of the loop" when his diary, produced in 1992 or 1993, stated that he was in the middle of it all.

Further, there were no consequences for most of the other Iran-Contra criminals, and many ended up getting posts in this Administration.

Either we are a nation of laws or we're not. I know I'm a bit idealistic, but it is shocking to find a professor at one of our elite law schools who is willing to apply a double standard of justice. Rob a bank, do some minor embezzlement, go to jail. Violate our constitutional rights, knowingly and intentionally violate statutes, authorize torture -- be forced before a "truth commission." Wow, such equal accountability.

Ross Taylor

Bush is the man who ran on the platform of accountability -- and ever since has been fleeing it.
 

IS the mens rea for 'torture' - for those who engage in the conduct, not those who pretended to redefine what counts as torture - intent to violate rights?

I'm not able to look it up right now, but I'd assume torture is a general intent crime.

may I take it, given Barker and normal mens rea requirements, that none of the upper echelon in the Bush DoJ has a reasonable claim to immunity?

I think it depends on the facts, and perhaps the exact wording of the MCA. They have two basic arguments, one based on the Yoo memos, one based on the MCA. That's why a thorough investigation is essential.
 

An footnote on this thread's discussion occurred on NPR in a moderated debate between law prof Fried (Harvard, Columbia) and law prof Turley (George Washington U) January 12, 2009.
 

Chris:

18 USC § 2340. Definitions

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

The mens rea element in the crime of torture is the specific intent to inflict severe physical or mental pain.
 

"Bart" DeStrangelove:

The United States has the capability to take down any regime in the region giving shelter and/or support to terrorist groups in a matter of months.

Nuclear bombs explode within milliseconds.

Cheers,
 

"Bart" DeTorquemada says:

Chris:

18 USC § 2340. Definitions

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

The mens rea element in the crime of torture is the specific intent to inflict severe physical or mental pain.

He leaves out the dishonest and indefencible 'interpretation' that John Yoo claimed (and that "Bart" seems to adhere to as well) that the "specific intent" must be to cause the severe pain (and nothing else, or at the very least as the primary motive). But the Torture statute is not the Sadism statute. This confuses "motive" and "intent" as described above, and ignores the commentary in Barker cited above. The Brilliant Idea of John Yoo was to essentially 'legalise' the "ends justify the means" defence, and claim that a 'good' motive (extracting information) is some kind of defence to a charge of torture. It is not (as I also explained above).

A FYI. Torture that results in death is subject to the death penalty under U.S. law ... and conspiracy to torture is subject to life imprisonment. 18 USC § 2340A.

Cheers,
 

I guess I should add that assault, mayhem, and other such crimes have no severely cribbed definitions of "specific intent" either ... and most tortures involve such acts.

Cheers,
 

Back to estoppel. Why is the prosecutor's intent important?
Gangster A agrees to cooperate with a criminal investigation of a gang he belongs to. An assistant district attorney B persuades him, in exchange for a promise of a minor charge, to wear a wire to a drugs payoff during which he transports the drugs. The payoff takes place and A is arrested. Meanwhile district attorney B has been replaced by C, who prosecutes A for the maximum charge. At the trial, A claims estoppel. Shouldn't this work, regardless of B's and C's intentions?
 

James Wimberley said...

Back to estoppel. Why is the prosecutor's intent important?

Equitable estoppel is an affirmative defense used against the Government essentially claiming that the Government forfeited its case against the defendant by giving him or her false guidance.

In order to prevent the Defendant from claiming that some inadvertent or unrelated statement constituted a Government legal instruction to the Defendant, the courts require proof that the Government actually intended to instruct the Defendant or its actions indicated such an intent.
 

James Wimberly:

Back to estoppel. Why is the prosecutor's intent important?

Gangster A agrees to cooperate with a criminal investigation of a gang he belongs to. An assistant district attorney B persuades him, in exchange for a promise of a minor charge, to wear a wire to a drugs payoff during which he transports the drugs. The payoff takes place and A is arrested. Meanwhile district attorney B has been replaced by C, who prosecutes A for the maximum charge. At the trial, A claims estoppel. Shouldn't this work, regardless of B's and C's intentions?

Who said that the prosecutor's intentions were important?

But if the prosecutor (or similar authority) gives legal "advice" that is unreasonable (or for impermissible purposes, such as giving a "only following orders" defence to a known illegal act), such may play out WRT usign such a defence.

Cheers,
 

"Bart" DePalma:

Equitable estoppel is an affirmative defense used against the Government essentially claiming that the Government forfeited its case against the defendant by giving him or her false guidance.

No. In fact, the worse the advice given, or the more unreasonable the advice, the less likely it woujld be accepted. This estoppel is not a penalty on the gummint for bad behaviour; rather it is an equitable principle that says that we need to give (primarily government) actors some leeway to rely on their superiors (despite the Dubya maladministration having cast doubt on the wisdom of such) so that they're not afraid to do their jobs.

I'd note that Nürnberg has established that such a defence cannot be recognised for (at the very least) jus cogens crimes.

Cheers,
 

Hey, here's an EASY question:

How the heck do I use the html tags? My usual 'CTRL+' system seems to open some strange window rather than applying the tags.
 

P.S. Thanks to Mark, especially, for helpful responses.
 

You're very welcome. Now let's see if I can solve the html problem.

If you want, say, to bold text, simply type in [b]the word(s) you want bolded[/b]. Now replace all the [ with < and all the ] with >.

Same principle for italics (use i instead of b) or underlining (use u instead of b) or striking (use s instead of b).
 

Mark Field:

You're very welcome. Now let's see if I can solve the html problem.

If you want, say, to bold text, simply type in [b]the word(s) you want bolded[/b]. Now replace all the [ with < and all the ] with >.

Same principle for italics (use i instead of b) or underlining (use u instead of b) or striking (use s instead of b).

No reason to be coy. Do:

<i>[text to be italicised]</i> to get text in italics

and

<b>[text to be bolded]</b> to get text in bold text.

And a FYI: Do "&lt;" to get a left-angle-bracket in without interpretation, and "&gt;" to get a right-angle-bracket in.

That's the general format for special characters in HTML, so that if you need an acute "a", for ... say, ... Guantánamo, you put in "Guant&aacute;namo". Here's HTML character codes.

Word of warning: If you use "preview", for many web page processors, it tends to swallow the HTML codes and you won't get what you intended.

HTH.

Cheers,
 

Thank you, Mark and Arne!