Balkinization  

Tuesday, March 17, 2009

Why There Must Be A Criminal Investigation of the Bush Administration

Brian Tamanaha

There is a lot of debate about what the rule of law means. But everyone agrees, at a minimum, that it means the government is bound by the law, and that government officials are accountable to the law. The essence of the rule of law is that no one is above the law.

An already substantial and growing body of credible evidence (the latest here) suggests that high level officials in the Bush Administration directed actions that involved a violation of domestic and international laws prohibting torture. The International Committee of the Red Cross has concluded that we have tortured prisoners. Dick Cheney and John Yoo have openly stated that the Bush Administration ordered that selected prisoners be waterboarded. The CIA has destroyed 92 hours of tapes of interrogations.

This is all well known. Yet people who assert that there should be a criminal investigation of the Bush Administration are shouted down by the right, painted as leftist political extremists out for revenge. Even many liberals shy away from the prospect of a criminal investigation, opting instead for a truth commission, out of fear that the inevitable political backlash will destroy the Obama Administration.

Until recently, I was one of the latter, with no stomach for pursuing criminal actions against the Bush Administration. A criminal investigation into these matters strikes me as equivalent to walking to the lip of a volcanic crater ominously frothing with lava. There is a real possibility that our past President, Vice-President, Secretary of Defense, Director of the CIA, Secretary of State, Attorney General, and OLC lawyers, among others, engaged in criminal actions. Only a fanatic would embrace the prospect of opening this up to possible prosecution.

Now it appears we have no choice about the matter--not, anyway, if we are committed to the rule of law. Nixon's Watergate, Reagan's Iran-Contra, and Clinton's perjury, were all criminally investigated for this reason.

The only discernible difference here is that the illegal conduct at the highest levels of government, if proven true, might be worse in degree and extent than other recent examples. But that is an affirmative reason to investigate, not a reason to take a pass.

Those who suggest that such an investigation would be political have matters exactly upside-down: given the ample credible evidence that the law has been violated, it would be political to decide to not conduct a criminal investigation.

To avoid the appearance of politics, the criminal investigation should be run outside the Department of Justice (as in the case of Scooter Libby), and the prosecutor appointed to manage it should be a Republican. Many career prosecutors are committed to upholding the law.

This is gut check time for America and our commitment to the rule of law.





Comments:

Why wait for public prosecution? Get one of the detainees who was tortured to bring a private lawsuit. I taught qualified immunity from civil lawsuits in Remedies yesterday using a lawsuit against Bybee, et al as a hypothetical. The upshot is that everyone below the President (and perhaps the Vice President) has only qualified immunity. The standard is not good faith. Rather it is whether the conduct "violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known." The OLC opinion probably does not provide a defense to lower level actors who relied on it. This is the upshot of some fascinating cases involving officers who acted pursuant to warrants they believed were valid but clearly were not. Whether the positions taken in the torture memos violates this standard I cannot say. From what I have read, it seems arguable. One point to be taken away from the cases is that a right may be "clearly established" in principle even if there is no authority directly on point regarding the specific conduct. Another point to be taken away from the cases is that a court should decide whether the conduct was a violation of rights before deciding the immunity issue. That is, even if the defendants are immune the lawsuit can be used to establish that what was done was a wrong.
 

There are already civil actions pending. Binyan Mohammed has, Maher Arar has, I believe Jose Padilla has. Sadly, the courts and the Administration (even the new one) have conspired to block them.
 

Nobody in the Obama Admin has got the stones to go after the Busheviks.

Not only would it be played (mightily), by both the Pukes in Congress and their trained, complaint lap-dogs in the SCUM (SoCalledUnbiasedMedia), but it would open the Obamanauts to similar treatment upon their (sooner or later) own departure.

Yes I know. Rule of law and all that.

Which, as we all know has been a joke at LEAST since December, 2000.

The law always functions best to insulate the Rulers from the insolence of the unruly. I fergit who said it...
 

During most of George W. Bush's presidency we were governed by secret laws typified by memoranda issued by the Justice Department's Office of Legal Counsel. The leaked report that Mark Danner has written about was a secret document produced by the International Committee of the Red Cross. Although the Bush administration had this Red Cross report two years ago, the rest of the American public did not learn about it until this week. Another characteristic of the rule of law is transparency. In a democratic form of government the public must know what its government is doing to give any informed consent to the government's actions. Secret laws and secret documents are not badges of transparency.

Asserting authority as the Commander-in-Chief of the military during wartime, George W. Bush and Dick Cheney claimed the authority to ignore the Bill of Rights and many of the constitutional prerogatives exclusively reserved for Congress. That the Bush administration engaged in a wide-ranging torture conspiracy, contrary to clear federal criminal statutes, is only one of the ways George W. Bush and Dick Cheney violated their oaths of office. We now know from recently released documents that their expansive assertion of wartime authority edged us close to a military dictatorship. The only pageantry missing from such a dictatorship was the spectacle of seeing our President and Vice President dressed in military uniforms.

We cannot hold these former leaders accountable for every wrongful act they committed because some of these acts will appear more as political/policy questions and less as criminal matters. We can hold Bush, Cheney, and others of their top appointees accountable for torture conspiracy. The evidence of this criminal policy is substantial and growing. Both George W. Bush and Dick Cheney essentially have confessed to their roles in the torture conspiracy in recent television interviews.

In the long run, this is not about whatever injustice may have been done to detainees held in U.S. custody. We already know that some of these detainees are despicable characters who need to be brought to justice. We also know that we tortured some innocent detainees to death. This really is about whether any U.S. president has the authority to ignore his or her oath of office and commit all manner of human rights abuses around the planet in the name of U.S. national security. During the Bush era thousands of Muslims were illegally rounded up in the United States, held without access to lawyers and shuttled from one location to another without a word to their families.

The next president who wants to do this undoubtedly will pick a different group that is unpopular for the day. Maybe you. Maybe me.

If the top policy makers of the past administration are not prosecuted under the federal anti-torture laws, future presidents will not be deterred from torturing again. What they were willing to do in secret sites abroad may happen right here in United States. Even used sparingly, this is a very intimidating power. Do we really want our leaders to have torture as an available instrument in their national security toolkits?

There are torture apologists and people praising torture all over the blogs and reader comment sections these days. Their goal is to derail any prosecutions against the former Bush administration officials. The cause they serve approves of the expanded wartime powers claimed by George W. Bush and Dick Cheney. Those unlawfully seeking to change our form of government without a Constitutional Convention have lost the most recent elections, but they are only one rigged election from being back in power. We must all insist that our former leaders who violated federal criminal statutes be held accountable in criminal trials. Nobody is above the law. Not even a president.
 

The issue of a criminal investigation is a very tough issue. There really is a legitimate fear that even though this investigation would be legitimate, there would be retaliatory and future investigations that would not be. (That's sort of the wisdom, if there was any, behind Ford's pardon of Nixon. Put the thing behind us rather than having a chain reaction of investigations of each party's shenanigans.)

That said, there's two avenues that I think might be fruitful:

1. We really should have a truth commission. A truth commission is what you do when somebody in the government does something terribly wrong but in the interests of reconciliation you don't want to prosecute it. Let's get all the information out on the table about the actual tactics we used. Let's end all the arguments about how we really didn't do any of this stuff and the Al Qaeda folks are just lying about their treatment. A lot of folks in the conservative movement are getting away with spewing continual BS on this topic because the actual actions of the government have been classified. Time to declassify. Let them defend what they actually did, not hide behind euphamisms. And yes, I don't mind that truth commission exposing any leads or benefits that resulted from abusive interrogations either. Let it all come out in the wash.

2. At some point, someone's going to pull a Baltazar Garzon and arrest a Bush administration official. It's only a matter of time. And if a foreign government takes the responsibility of trying such an official, it will, to some extent, prevent the domestic repercussions of a criminal investigation.
 

Not only will Obama Admin. not pursue prosecution (and would almost surely fight international indictments such as from the ICC), but where does this stop? Obama's future "war crimes"? Clinton's past Kosovo "war crimes"? Bush41's Kuwait/Iraq "war crimes"? Reagan's Nicaguara "war crimes"? Truman's Japanese "war crimes"? Lincoln's American "war crimes"? Gen. Washington's Valley Forge "war crimes"?
 

There really is a legitimate fear that even though this investigation would be legitimate, there would be retaliatory and future investigations that would not be. (That's sort of the wisdom, if there was any, behind Ford's pardon of Nixon. Put the thing behind us rather than having a chain reaction of investigations of each party's shenanigans.)

I was at least partly seduced by this argument when Ford made it. In Nixon's case, as you suggest would be true with a commission, the facts were pretty much out there and the only thing remaining was punishment.

BUT, I then lived through Iran-Contra, where the same set of people violated much more important laws than Nixon had, and they got away with it. Worse yet, I then lived through Bush, where the behavior was truly despicable and unconscionable. And it was the same set of criminals yet again, at least in part.

I've now decided that the combination of the horrific nature of the crimes and the recidivist criminals makes prosecution absolutely essential.
 

Dilan:

1. The major problems I have with a "truth" commission is that someone will eventually be made a scapegoat, even if not "formally" prosecuted, and exposing any leads or benefits that resulted from alleged "torture" could still allow terrorists the opportunity to become more effective down the line and modify their strategies.

2. Assuming for argument's sake that "prosecutions" will take place in some foreign court, if that official is extradited and NOT convicted, when he (or she) is released and returns to the U.S., what will prevent the Democrats from prosecuting?

As my previous post points out, Obama will never let this happen.
 

Mark Field:

Better yet, if some renegade federal prosecutor indicts Bush or Cheney, I'd bet that Obama would issue the same type of Nixon pardon.
 

As you have pointed out, the courts and the Obama Admin. have already "conspired" to block civil suits.
 

The major problems I have with a "truth" commission is that someone will eventually be made a scapegoat, even if not "formally" prosecuted, and exposing any leads or benefits that resulted from alleged "torture" could still allow terrorists the opportunity to become more effective down the line and modify their strategies.

I can only tell you that this isn't really a big danger. First, we aren't going to use these tactics again. They are quite discredited. Even within the Republican Party, there are a lot of sane voices like McCain and Hagel who are horrified by this sort of thing. So the terrorists are going to be "training" for something that isn't going to happen again.

Second, if the Red Cross Report is close to accurate, there's no way that even SERE training would work to establish resistance to these methods. The methods were such brutal torture that anyone subjected them would confess to anything in order to end them. The idea that terrorists could successfully train themselves to resist them is fanciful.

Third, they didn't really work. I know, I can't say that with certainty. But the reality of torture is that it produces huge amounts of information, of which huge amounts are false. We have thousands of years of experience with this. So the idea we are compromising a program that produces actionable intelligence is also fanciful. It produces wild goose chases.

So, why, exactly, should we protect the secrecy of a program whose details have already leaked out anyway, which won't be used again, which can't be of any benefit to terrorists if it is leaked, and which didn't yield actionable intelligence of the type that would justify classification of the methods of collection? Especially since keeping the program secret only serves to allow its advocates to lie about what was actually done and what was actually produced?

This is, as Cheney said in a different context, a no brainer. We should just air it all out.
 

From afar in time, I too am sympathetic to the Ford pardon of Nixon, though Nixonites later on (including Iran/Contra sorts popping up to screw us over once again -- keeping such miscreants out Pete Rose style is a major point of the impeachment process) makes it harder to defend.

But, Nixon was something of a special case in that the guy actually resigned. As he told Frost, he in effect impeached himself. Other major Nixonites actually went to jail. There was an actual impeachment process, if one truncated by his resignation. And so forth.

Bush did not resign. Cheney is out there bashing the Obama Administration, while reporter lackeys (see Glenn Greenwald) whine when Obama's press secretary makes a mild jab at it. Obama, as Mark Field notes, is defending Bushies in state secrets cases, the Padilla litigation, and so on.

You get the idea. Meanwhile, Bush will soon go to Canada to give a speech, and a movement is afoot to try to get the Canadian gov't (as shown in the Arar case, at times more serious about its human rights obligations than us) to do something to stop him.

A symbolic action at the end of the day, surely, but not because the protest doesn't have a leg to stand on. It does. It just is that the PTB don't want to admit it.
 

Dilian:

Some heretofore undisclosed tactic could provide a "training" opportunity. But, even if we don't use any of the same tactics, you really think that letting the terrorists know which planned attacks have been compromised is a good thing?! That would be my biggest concern about something slipping out that indeed CAUSES American deaths. You may not be so worried about that, but I suspect that "torture" has indeed yielded actionable intelligence that prevented actual attacks.
 

Keep in mind also that the reporter to whom this "secret" report was leaked has a clear agenda as well: Mark Danner is also the author of "The Road to Illegitimacy: One Reporter's Travels through the 2000 Florida Recount".
 

I read these persons who are fearful about some terrorists learning something from a criminal prosecution about what happened in the past administration when they tortured people.

This is essentially to permit betrayal of fundamental values of the United States out of fear of some unknowable potential risk that might arise. I think that is absurd.

These are crimes, crimes of the highest order done by people at the highest level. If we do not prosecute we are accepting that they are United States crimes - not just crimes of these few renegade persons.

That's the rub for each American - I can not accept that my leaders can get away with torturing by saying it was in my name. It was not in my name and they need to go to jail for it.

There is a prosecutor in place that Mukasey put in place for the part concerning the destruction of the AlQahtani torture tapes since January 14 or so of this year. So there is a prosecutor who - with expansion of his remit - could get to all of this. Just a question on showing the will to let him follow the facts where they lead.
 

This comment has been removed by the author.
 

Prof. Tamanaha:

Now it appears we have no choice about the matter--not, anyway, if we are committed to the rule of law. Nixon's Watergate, Reagan's Iran-Contra, and Clinton's perjury, were all criminally investigated for this reason.

Please. "Clinton's alleged perjury". The others were crimes (and people went to jail after being properly convicted for them). If Clinton had gone to an actual trial, any competent defence lawyer would have made mincemeat out of any such perjury charges (the House is not bound by the law in their decision to bring charges, and the Senate is not bound by the law in their decision to convict ... but the Senate had the good sense here not to).

Cheers,
 

Joe:

You get the idea. Meanwhile, Bush will soon go to Canada to give a speech, and a movement is afoot to try to get the Canadian gov't (as shown in the Arar case, at times more serious about its human rights obligations than us) to do something to stop him.

If they can't stop Dubya from coming, can they file suit against the people that invited him and that are paying for him to come?

Cheers,
 

Benjamin Davis:

Obama is never going to let that happen (if, for no other reason, than the same witch-hunt will come after him someday). Perhaps you are unaware that bin Laden stopped using his satellite phone after it came out that we were monitoring it during the New York criminal trial of the first WTC boming?

Instead of helping the terrorists, I think terrorists qualify for special treatment such as GTMO. All 14 in Danner's story were no doubt TERRORISTS. John Kiriakou, the CIA officer who witnessed part of Zubaydah's interrogation, described to Brian Ross of ABC News what happened after Zubaydah was waterboarded:

"He resisted. He was able to withstand the water boarding for quite some time. And by that I mean probably 30, 35 seconds .... And a short time afterwards, in the next day or so, he told his interrogator that Allah had visited him in his cell during the night and told him to cooperate because his cooperation would make it easier on the other brothers who had been captured. And from that day on he answered every question just like I'm sitting here speaking to you .... The threat information that he provided disrupted a number of attacks, maybe dozens of attacks."

That's a much better approach IMHO.
 

Benjamin Davis:

I read these persons who are fearful about some terrorists learning something from a criminal prosecution about what happened in the past administration when they tortured people....

Kind of like disclosing in court how evidence was obtained, that wiretaps were done, and how ballistics tests were used to match the gun that was carelessly discarded, in a normal criminal prosecution. Yes, we perhaps teach (some) criminals how to "hide their tracks". SFW?

Cheers,
 

Dilan wrote: Let it all come out in the wash.

That's the only way to go.
 

Arne Langsetmo:

You are conveniently forgetting that Bill Clinton agreed to a PLEA BARGAIN, fine and turned in his law license, which prevented any further criminal investigation (regardless of whether you think you could have gotten him off or not; perhaps Nixon could have beat any charges against him too, but we will never know).
 

mattski:

Even if that directly contributes to another 9/11 attack? No thanks.
 

I see the speech has taken place.
 

P.S. does anyone other than Professor Tamanaha think that Scooter Libby's investigation / prosecution avoided the appearance of politics when Richard Armitage got off without so much as a mention?
 

Joe:

Correct/ And, what was the big headline?

"Bush Declines to Criticize Obama"
 

Allow me to quote Woody (Tokin Librul/Rogue Scholar/ Helluvafella!) : 2:38 PM

"Nobody in the Obama Admin has got the stones to go after the Busheviks."

LOL
 

Charles,

You have missed my point: if the rule of law means anything, it means that when there is credible evidence that government officials have violated the law there must be a criminal investigation.

It seems to me that conservatives and liberals can agree that the rule of law is essential to our society. If not, much of what we say about the law is b.s.

All the "realistic" talk about politics--your angle on this--does not answer the point.

Brian
 

Politics is reality, Professor.
 

Prof. Tamanaha:

I know it sounds silly coming from me (but I've been on good behaviour lately, particularly in this case): Please don't feed the troll. He's bad enough as it is. And ignoring him is quite possible and quite effective. Thanks. Same to everyone else.

Cheers,
 

Charles,

To state that politics is reality--obviously true--is not to say that law lacks its own value and consequences.

There are lawless governments and legal systems around the world where politics ultimately controls.

Our system, infused as it is with politics, is not one of these unfortunate systems, which are "legal" in name only. Lucky for us.

But this is an achievement that cannot be taken for granted. And once we give up this aspiration, this commitment--that law cannot be reduced to politics--law will be lost.

Cynicism can be a self-fulling prophesy.

You are obviously an intelligent person, so I am not telling you anything you don't already know. I am merely urging you to take the longer, broader view.

Brian
 

Professor Tamanaha:

If there's anything I've posted here that is out of bounds, please advise and I will gladly refrain from any such posts. I don't believe that my simple questions warrant personal attacks.
 

I will also try to take the longer, broader view.
 

I have to say, Professor, that while I appreciate your coming on board I find your reasoning somewhat maddening. Your prior refusal to call for full investigation was, in light of your post, predicated on the notion that we did not truly know that the Bush Administration had tortured. (Otherwise, you would already have been compelled to get off the fence, as you've done here.)

Well, to be blunt: did you really have any credible doubt left before the Red Cross report that the Administration had authorized, promoted, and covered up torture? I had no doubt left at all, which is why I've apparently been several years ahead of you in calling for criminal investigations, yet I've enjoyed a couple of years of beign thought intemperate for that belief.

All I can say that if this was really what was holding you back all of this time, it was morally incumbent on you to call -- daily -- for investigations that would have shut up the likes of me had they turned out otherwise.

This uncertainty should not have been allowed to fester so long, with the rest of the world (and those of us paying attention here at home) believing that the U.S. had indeed tortured. Anyone who thought this disclosure was as important as you seem to think it is should have been at the forefront of those calling for full investigation.

To jump on the bus only when Obama comes to office is, I am sorry to say, too easy. I got laughed out of a job interview for taking this position based on already available evidence; perhaps I was the equivalent of a "premature anti-Fascist."
 

There is a real possibility that our past President, Vice-President, Secretary of Defense, Director of the CIA, Secretary of State, Attorney General, and OLC lawyers, among others, engaged in criminal actions. Only a fanatic would embrace the prospect of opening this up to possible prosecution.

I guess you would have to call me a fanatic, then. If these people committed crimes (and some of them have already admitted to things which a reasonable person would consider criminal), why shouldn’t it be opened up to prosecution?

Either we really believe that no one is above the law, or we don’t. President Obama has said several times that no one is above the law, but he doesn’t say it as though he really believes it.
 

Charles,

To be clear: nothing in my comments should be taken as a personal attack. That's not my style (Perhaps you are responding to Arne's advice?)

I am taking you seriously and responding directly to your position in the hope that you are genuinely willing to engage. It's a two-way street, of course. I have learned a great deal through dialogue with principled conservatives. The fact that we see things differently does not mean we cannot understand and learn from one another.

Brian
 

For those who said "politics is reality" it reminds me of a discussion with the Legal Assistant of Senator Kennedy when I was once trying to change a law and he said, "That's the law." I said, "well don't you folks down here change the law, isn't that your job? I am hear to change the law." So I will again say that if we insist that Obama prosecute he will prosecute - if we don't he won't. Those who don't want to do it based on all the stories that are thrown out by clever people who committed these crimes, it is that you have decided that the better way to go is to acquiesce to the torture by your government because (fill in the blank for the rationalization). You either acquiesce to torture or you resist it. If you are resisting it, you prosecute it when the government does it in your name. And you encourage that others do the same for others who torture. Otherwise, you are craven.
Best,
Ben

Best,
Ben
 

Greg,

You make a good point. I have put up dozens of posts over the past several years (which you can find on the torture archives) raising these issues.

This is the first time I have explicitly called for a criminal investigation, however.

What pushed me over this edge is not that the ICRC report was in itself authoritative. Rather, it is another solid (independent) addition to a growing mountain of evidence.

In my view, conducting a criminal investigation of our entire top level of government officials is not to be undertaken lightly. Indeed, because of the gravity of the potential consequences, it should not be undertaken unless the evidence is absolutely compelling.

We are now at that point, in my estimation. Of course there was enough information out there for others to reach this conclusion much earlier.

Brian
 

For those who suggest we avoid pursuing prosecution of Bush administration officials for fear this will give birth in future to recriminatory and politically motivated criminal investigations against succeeding administrations, you're hoping in vain to prevent that which has already occurred. From the moment the Clintons--of whom I am no fan, to be sure--took residence in the White House, a "vast right wing conspiracy," as it was accurately termed by Mrs. Clinton, spared no expense or energy to persecute the President for mere suggestions of wrongdoing, none of which were ever confirmed. These same radicals on the right, who would subvert our nation's laws, have wasted no time in ascribing our current economic calamity to Obama, (of whom I am also no great fan and for whom I did not vote), who has been in office for mere weeks.

They've already shown their readiness and eagerness and lack of decency in mounting scorched earth partisan attacks against their foes, so, even if trying to avoid inflaming them from pursuing such payback in future against future presidents were sufficient reason to avoid investigations and prosecutions now--and it's NOT sufficient reason--we have no reason to think they will restrain themselves in any case.

As for fears that investigations would be opened into the war crimes of administrations extending both into the future and the past...well, so be it. No administration can be allowed to violate the law, and if fear of such overarching investigations will inhibit future presidents from acting upon Nixon's Dictum, that's all to the good.

But, everything else aside, it appears the Bush administration committed grievous crimes large and small, domestically and internationally, and we fail to investigate and, where evidence suffices, to prosecute the perpetrators at certain risk of loss of our Constitutional republic.
 

"Please. "Clinton's alleged perjury""

Please, Arne: Clinton's actual perjury. Along with his actual obstruction of justice, actual witness tampering, and, ultimately, his actual blackmailing Congress into letting him off the hook.

Reality based community, indeed.

Prosecute them all, and let the trials sort the guilty from the innocent. It will be fun when Bush responds by proving the Democratic leadership were fully complicit.
 

Criminal anti-torture laws serve a purpose, they permit the prosecution of rogue officers who torture on their own authority, and in so doing have put themselves in conflict with the states policy. But when torture is done at the personal direction of the highest authorities of the government, it is not in conflict with but aligned with government policy, and therefore the behavior should be condemned politically as outside the boundaries of permissible policy. For this reason, I think the proper response to state-sponsored torture is impeachment, where the court and judgment are political voices of the country. Certainly the House Judiciary Committee can serve as a truth commission, has subpoena power, and is not restricted by the Fifth Amendment. I think it was a terrible mistake that the Iran-Contra conspirators were sent to criminal court for punishment (where of course the committee proceedings were held to violate the Fifth Amendment) rather than impeached. (We would have been spared the second coming of Admiral Poindexter among others.) We are still under the influence of Profiles in Courage which lauded LQC Lamar for resisting the impeachment of Andrew Johnson, on the grounds that it saved Presidential government from Parliamentary government, when in reality it permitted the frustation of the national will to have a Union free of slavery. Would that our national will to reject torture were as strong as theirs, but were it so, we would not be slow to put impeachment in its service.
 

Prof. Tamanaha:

To be clear: nothing in my comments should be taken as a personal attack. That's not my style (Perhaps you are responding to Arne's advice?)

It was not an attack. I was simply stating the obvious; engaging certain people results in lots of noise and thread degeneration. They clearly post just for the reaction, and with superficialities that are not worth responding to. You can judge by simple counts by author to see what's happening. They keep posting more and more until they get a response. This doesn't mean they never make a substantial comment; just that they seldom do so, and that encouraging even that just encourages the bad behaviour as well, and detracts more than it helps. This is simply a fact.

Cheers,
 

Arne,

You usually manage a nice blend of serious commentary with friendly banter (veering occasionally into insults). That's fine and often entertaining.

I like to engage on the merits, and extend the benefit of the doubt that there is value in discussion, at least until it appears pointless. Agree with him or not, Charles (and Bart) has points to make.

Brian
 

Professor Tamanaha:

Thank you (I did not believe you made a personal attack). It's a shame that Arne and Ben -- who have each posted here more than I have -- don't value a two-way street in the marketplace of ideas as you do.
 

"It will be fun when Bush responds by proving the Democratic leadership were fully complicit."

I'm not sure what "fully complicit" means in this context, though I'm all for totally airing things out. So, I'm glad you support prosecutions.

The leadership did not execute the policy. They apparently didn't get some fundamental details of what was occurring, one cited Pelosi meeting, e.g., noted by her to be about what might be done.

When CIA interrogators got ongoing instructions on how to "question" people, did Congress "fully" join with the CIA higher-ups, et. al., to do so? Nope.

Congress was "complicit," but the direct action that is most actionable by the law here was done by the executive officers.

Hope this doesn't lessen the "fun" you get from what has already been done here repeatedly -- underlining congressional dems and republicans enabled wrongdoing in various respects.
 

R. Friedman wrote:

"For this reason, I think the proper response to state-sponsored torture is impeachment, where the court and judgment are political voices of the country."

I disagree. The torture definition found at 18 USC 2340(1) states: "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."

Aren't the two biggest rationalizations for Bush's authority to engage in torture that: (1) he was the Commander-in-Chief of the military during wartime; and (2) he had legal opinions from the Justice Department saying the type of interrogation intended was legal? The foregoing reasons identify George W. Bush as "a person acting under color of law." The greater the official claims legal authority to engage in torture, the more applicable this anti-torture statute.

We asked for impeachment years ago and the Speaker of the House ruled that option "off the table." It is too late for impeachment (except for Appeals Court Judge Jay Bybee), but criminal prosecution is still very much on the table.
 

You can still impeach GWB.
 

Prof. Tamanaha,

Thanks for the reply. I appreciate your previous work on the issue; I simply don't see how even the desire not to take the prospect of investigations lightly could have outweighed the need for them before now.

After the Bush Administration, I no longer know what the Constitution allows the President to do. Do you? Does anyone? Without prosecutions, we may never know.
 

Rf seems to be saying that when torture is not "rogue" it isn't criminal. No, sometimes torture etc. IS policy. It still is illegal.

Impeachment is a civil act to remove people from power (executive or judicial, an early precedent suggesting it isn't applicable to legislative) and (if desired) keep them from U.S. office again.

But, this in no way means you cannot criminally target those involved, for various reasons.

As to impeaching people once they left office, this has been debated. Seems the judgment is on the side of "no," but obviously nothing conclusive. When a member Grant's cabinet who was targeted for impeachment resigned, Congress ended the process. Various judges also resigned in lieu of impeachment.

Thus, no "removal" is open, though you still can bar them from future office. This doesn't include legislative office, but yeah, Bush might get some other federal job at some point (some are rather trivial), who knows.

Thus, Charles' scenario is theoretically conceivable, but rather unlikely.
 

Prosecution of Bush is rather unlikely as well.
 

"I'm not sure what "fully complicit" means in this context,"

Means they were kept apprised of everything through intelligence briefings, and signed off on it. Torture was official government policy, after all, not the result of rogue elements getting their jollies.

"though I'm all for totally airing things out. So, I'm glad you support prosecutions."

Oh, yeah, I support prosecutions. We've gone WAY too far down the road of making high government officials above the law.

But there almost certainly won't be. We have gone down that road, and what one administration gets away with becomes SOP in the next. Clinton got away with everything, Bush will, too.

Because Obama wants to, also. And the people who think he's clean as the driven snow are smoking something.
 

Brett:

Add to that Obama KNOWS that anyone insisting that Bush be prosecuted ain't voting for the Republican candidate in 2012. This entire thread is as "theoretical" as Pelosi suddenly deciding to put impechment back on the table after the fact.

Joe:

If Nick had said "It is too late for impeachment AND REMOVAL" I would have had to agree with that statement. BTW: did you see the big headline out of Bush's speech in Canada?
 

"Means they were kept apprised of everything through intelligence briefings"

No, they haven't been. Again, I agree they were "complicit" in some fashion, the black box nature of things make it hard to determine HOW MUCH, but "fully complicit" exaggerates things.

Clinton btw actually -- as noted -- pled. Not only was he impeached, he had to pay a fine, plus loss his law license for a number of years. If only Bush et. al. got even that.

Many critics of Bush have been upset about Obama, have not deemed him "clean as snow." Polls also suggest the people want a real investigation, a significant number supporting criminal prosecutions too.

So, if one occurs, I don't fear the 2012 elections. As to what will happen, enough has changed over recent years to stop me from assuming "all will be the same."

BTW, congrats Sandy Levinson for being cited in the recent NYT piece on Heller.
 

Brett:

[zuch]: "Please. "Clinton's alleged perjury""

Please, Arne: Clinton's actual perjury. Along with his actual obstruction of justice, actual witness tampering, and, ultimately, his actual blackmailing Congress into letting him off the hook.


I will say this one more time (I've said it on Balkinization and other places before) and then encourage any further discussion be moved either to my blog or through e-mail.

Allegations are a dime a dozen, Brett, but you haven't even made a prima facie case. The house managers and Starr were preaching to the public, not to a judge. There's required elements of these crimes, and the managers just skipped over the ones that seemed troublesome, hoping that the public would think that perjury is "lying under oath" (or worse yet, "making a false statement under oath") when it is not -- and succeeding for the most part. Clinton's lawyers did a good job in their briefs and presentations in showing how threadbare the accusations were. In an actual court, Clinton would have been able to ask any honest and competent judge for a directed verdict or a dismissal.

Compare with all the actual felons in the Nixon and Reagan administrations (including, arguably, the ring-leaders in both cases).

And JOOC: How did Clinton "blackmail" Congress into letting him off the hook? And on which planet did he do this?

Cheers,
 

Nick Jackson:

It is too late for impeachment (except for Appeals Court Judge Jay Bybee), but criminal prosecution is still very much on the table.

I disagree. Because impeachment includes a bar from any subsequent office, it is not a dead letter WRT Dubya. And it would be interesting to see if we could yank SS protection for impeached preznits (this is legislatively enacted and can be legislatively removed), so that any competent and diligent peace officers in places like Canada or elsewhere then can do their job with no muss and fuss....

Cheers,
 

There's actual and substantiated SWORN TESTIMONY as to Clinton's perjury compared to unsubstantiated rumors of "torture". Of course, Presidents always accept plea bargains rather than fighting to clear their named.
 

Even if no one in the US has the clout or the balls to go after Cheney, Addington, Yoo et all in the US, I am comforted to hear, via Philippe Sands' "The Torture Team", that a certain European prosecutor has suggested that they might reconsider holidaying outside the continental United States.

In writing their own 'get out of jail free' cards, they have enabled foreign courts to go after them since there is now no expectation that they will be prosecuted in their own country. Remember Pinochet?
 

P.S. to Nick Jackson: I failed to explicitly answer your other question. Yes, I want the President to have the power to "torture" even kill, if necessary, to protect American lives.
 

Madeleine:

You are aware that Bush gave a speech outside the continental United States just yesterday, right? So much for your "theory" too.
 

Joe:

Clinton btw actually -- as noted -- pled.

He did no such thing (and obviously lawyers were involved, because he did no such thing).

What he admitted to was not a crime. But then again, what the house managers had alleged against him weren't crimes either....

Cheers,
 

Brian Tamanaha said...
This is the first time I have explicitly called for a criminal investigation, however.

What pushed me over this edge is not that the ICRC report was in itself authoritative. Rather, it is another solid (independent) addition to a growing mountain of evidence.


1) Do you possess a copy of this report which you have reviewed? So far, only about 3-4 pages of enemy allegations have been cherry picked and published out of a 47 page report. If the report actually provided a legal analysis, none of that was published.

2) The ICRC is hardly neutral. It has a broader concept of what human rights law requires than the United States has ever shared.

Tonight, I should have time to review the article to which you linked, but with a far more critical eye. The couple enemy claims which I have read range from physically improbable to impossible. The cross of these claims should not be difficult.
 

I can hardly wait for little Lisa's bro's review of the article through the wrong end of a telescope to come up with his myopic views, as he warns us:

"Tonight, I should have time to review the article to which you linked, but with a far more critical eye."

After little Lisa's bro asks Brian if he has the full report, he continues:

"2) The ICRC is hardly neutral."

Does little Lisa's bro have the full report to make this judgment of ICRC with respect to this report? How critical an eye may we accept if little Lisa's bro lacks the full report, since he seems to be taking Brian to task if Brian does not have the full report. I hope little Lisa's bro's cross-examining of that tree that hit his client's car doesn't exhaust him or drip too much sap upon him so he can regale us with legal acumen.
 

For anyone other than Arne, even John Edwards agreed that Bill Clinton entered into a plea agreement:

http://transcripts.cnn.com/TRANSCRIPTS/0101/19/cf.00.html
 

(From Paul Butler and Jamin Raskin at the time):

"The most unusual aspect of the deal is that Clinton reached a civil resolution with a criminal prosecutor.

The Clinton-Ray agreement occupies a legal space somewhere between a declination and a plea bargain. Ray declined to indict Clinton for criminal perjury (as in a declination), but he also struck a deal that requires Clinton to admit his evasions in the Jones proceedings and to pay a price (as in a plea bargain).

The deal brings in a third party, the Arkansas Supreme Court's Committee on Professional Conduct, which was considering disbarment of Clinton--a civil action--over his alleged perjury. How exactly the deal was brokered is not clear. But here's what it offers the three parties: Ray goes home knowing that Clinton received some punishment for his behavior. The Supreme Court's committee gets the same satisfaction. And Clinton frees himself from the clutches of a criminal prosecutor and from a civil proceeding in which he could have been disbarred."
 

Professor Tamanaha:

I guess you are now going to have to change your initial comments to Nixon's alleged obstruction of justice in Watergate and Reagan's alleged violation of the Boland Amendment(s) in Iran-Contra ; )
 

(From DOJ Criminal Resource Manual):

1745 Elements of Perjury—Federal Proceeding Under Oath
The first element of a perjury offense is that the defendant must be under oath during his testimony, declaration or certification, unless the perjurious statement is an unsworn declaration permitted by 28 U.S.C. § 1746. No specific form of oath is required. The oath must only be sufficiently clear that the declarant is aware that he or she is under oath and required to speak the truth. Proof of the competency and authority of the oath-giver may be required for prosecutions under section 1621. See, United States v. Debrow, 346 U.S. 374, 377 (1953) (indictments reinstated although government failed to allege name of oath administrator).

PRACTICE TIP: This element may be proven by the testimony of a person witnessing the defendant's false testimony or, for perjury before the grand jury, by the transcript of the defendant's grand jury testimony. United States v. Abroms, 947 F.2d 1241, 1247 (5th Cir. 1991), cert. denied, 505 U.S. 1204 (1992). The jury may review the transcript during their deliberations. United States v. Saget, 991 F.2d 702, 711 (11th Cir.), cert. denied, 510 U.S. 950 (1993).

PRACTICE TIP: Although case law once considered the oath-giver's authority a question of law, the United States Supreme Court held in United States v. Gaudin, 115 S.Ct. 2310 (1995)(18 U.S.C. § 1001 prosecution) that the jury must decide all elements of the offense. Therefore, each element of the offense should now be explicitly referenced in jury instructions. Thus, for section 1621 charges, a jury instruction should address the defendant being under a validly administered oath in a Federal proceeding while making the declaration at issue. Section 1623 does not require proof of the identity, authority and competence of the oath administrator, only that the defendant testified under oath.

1746 Elements of Perjury—Making of a False Statement
The second essential element of a perjury offense is that the defendant must have made a false statement. The indictment should set forth the precise falsehoods alleged and the factual basis of their falsity, such that the jury can determine their veracity, and also allow meaningful judicial review. United States v. Reilly, 33 F.3d 1396, 1417 (3d Cir. 1994). In determining the falsity of the defendant's statement, neither the court nor the trial jury must accept the defendant's interpretation; instead, the statement should be examined in context. Bronston v. United States, 409 U.S. 352, 355 (1973). Words clear on their face are to be understood in their common sense and usage unless the context makes it clear that a different sense or usage was intended. United States v. Fulbright, 804 F.2d 847, 851 (5th Cir. 1986). See also, United States v. Robbins, 997 F.2d 390, 395 (8th Cir.), cert. denied, 510 U.S. 948 (1993).

1747 Elements of Perjury—Specific Intent
The third element of a perjury offense is proof of specific intent, that is, that the defendant made the false statement with knowledge of its falsity, rather than as a result of confusion, mistake or faulty memory. United States v. Dunnigan, 507 U.S. 87, 94 (1993). Section 1621 requires that the defendant have acted "willfully"; the section 1623 requirement is to act "knowingly." In practice, these standards are virtually identical, although the government need not prove both willfulness and knowledge to sustain a section 1623 prosecution. United States v. Fornaro, 894 F.2d 508, 512 (2d Cir. 1990). Under either statute, the government must demonstrate the defendant voluntarily made the false statement with knowledge of its falsity. If the defendant believed his or her statement to be true when it was made, even though it was false, this essential element will not have been proven.

1748 Elements of Perjury—Materiality
The false statement must be material to the proceedings. A false statement is material if it has "a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed." Kungys v. United States, 485 U.S. 759, 770 (1988)(denaturalization proceeding). The testimony need not have actually influenced, misled or impeded the proceeding. For example, potential interference with the grand jury's line of inquiry suffices to establish materiality, because of the grand jury's broad investigative function. United States v. Williams, 993 F.2d 451, 455 (5th Cir. 1993); United States v. Gribben, 984 F.2d 47, 52 (2d Cir. 1993). The government need not prove the legitimacy of the grand jury's investigation which led to the testimony, only the pertinence of the particular testimony to the grand jury's investigation. United States v. Regan, 103 F.3d 1072 (2d Cir. 1997). A similarly broad construction of materiality is appropriate in the context of false declarations made in connection with civil depositions. United States v. Kross, 14 F.3d 751, 754 (2d Cir.), cert. denied, 115 S.Ct. 99 (1994); United States v. Holley, 942 F.2d 916, 924 (5th Cir. 1991), cert. denied, 510 U.S. 821 (1993). But see United States v. Adams, 870 F.2d 1140, 1146-48 (6th Cir. 1989)(false statement must tend to affect the outcome of the underlying civil suit for which the deposition was taken). The statement may be material to any proper matter of inquiry, including collateral matters that might influence the outcome of decisions before the tribunal, such as determining credibility issues. United States v. Kross, 14 F.3d at 755. Materiality is not negated merely because the tribunal did not believe the testimony or sought cumulative information. United States v. Reilly, 33 F.3d 1396, 1419 n.20 (3d Cir. 1994). Furthermore, testimony may be material even if it relates to events as to which the statute of limitations has run, since the grand jury may have legitimate reasons to inquire about such events aside from an expectation of returning an indictment charging those events as crimes. United States v. Chen, 933 F.2d 793, 797 (9th Cir. 1991); United States v. Nazzaro, 889 F.2d 1158, 1165-66 (1st Cir. 1989).

In United States v. Gaudin, 115 S.Ct. 2310, 2320 (1995), a unanimous United States Supreme Court held that in a prosecution under 18 U.S.C. § 1001 the jury must determine "beyond a reasonable doubt [the defendant's] guilt of every element of the crime with which he is charged." Previously, courts had interpreted dicta in Sinclair v. United States, 279 U.S. 263, 299 (1929), to classify materiality as a question of law decided by the court.

Following Gaudin, the better practice is to allow the jury to decide the issue. Appellate courts that have addressed materiality in perjury cases recently have extended Gaudin to require jury determinations of materiality. United States v. Waldemar, 98 F.3d 306, 313 (7th Cir. 1996); United States v. Keys, 95 F.3d 874, 880-81 (9th Cir. 1996)(en banc), petition for cert. filed, No. 96-1089 (Jan. 9, 1997); United States v. Littleton, 76 F.3d 614, 617 (4th Cir. 1996). One court, however, has upheld a post-Gaudin perjury conviction despite a failure to submit the materiality question to the jury, reasoning that it was not plain error. United States v. Kramer, 73 F.3d 1067, 1075 (11th Cir.), cert. denied, 117 S.Ct. 516 (1996).

NOTE: The United States Supreme Court granted certiorari in Johnson v. United States, 65 U.S.L.W. 3364 (No. 96-203)(ruling below United States v. Frost, 77 F.3d 1319 (11th Cir. 1996)), on the question of whether the United States Court of Appeals for the Eleventh Circuit correctly affirmed, under the plain error rule, Fed.R.Crim.P. 52(b), petitioner's perjury conviction in which the trial court, without objection, resolved the materiality issue and no reasonable jury could have found petitioner's false testimony to have been immaterial. The United States filed a petition for certiorari in Keys, supra, which reversed a perjury conviction for failure to instruct on materiality and held the issue preserved despite the defendant's failure to ask for such an instruction because such would have been futile given case law at the time.

1749 Comparison of Perjury Statutes—18 USC 1621 and 1623
While 18 USC 1621 covers perjuries committed in a wide variety of Federal proceedings, 18 USC 1623 defines false declarations more broadly but is limited to those perjuries in judicially related proceedings. Federal proceedings for purposes of Section 1621 prosecutions encompass those authorized by the Constitution and Federal statutes, as well as by Federal rules and regulations. United States v. Hvass, 355 U.S. 570, 575 (1958). In Dunn v. United States, 442 U.S. 100, 108 (1979), the United States Supreme Court acknowledged that Congress passed Section 1623 "to afford greater assurance that testimony obtained in grand jury and court proceedings will aid the cause of truth," citing S. Rep. No. 91-617, p. 59 (1969). The Court, however, held that a false affidavit submitted to a Federal court in support of a motion to dismiss could not be prosecuted under Section 1623 because the affidavit lacked the formality required of court proceedings or depositions. Dunn, 442 U.S. at 108. False affidavits submitted in Federal court proceedings can still be prosecuted under Section 1621, and prosecutions for false testimony or evidence submitted during Federal civil depositions may continue to be brought under section 1621 or 1623. United States v. Kross, 14 F.3d 751, 753 (2d Cir.), cert. denied, 115 S.Ct. 99 (1994); United States v. Markiewicz, 978 F.2d 786, 802 (2d Cir. 1992), cert. denied, 506 U.S. 1086 (1993).

Section 1621 requires that the oath be taken "before a competent tribunal, officer or person," while Section 1623 requires only that the statement be made "under oath." The Supreme Court overturned a section 1621 perjury conviction in Christoffel v. United States, 338 U.S. 84 (1949), because the congressional committee that heard the false testimony did not have a quorum at the time. The Supreme Court, however, later upheld a Section 1621 conviction in which the perjury occurred before a court later determined not to have jurisdiction. United States v. Williams, 341 U.S. 58 (1951).
 

Prof. Tamanaha:

Just to remind you, from here:

We have 72 of 139 entries from yours truly ... and you can see the quality of the large portion of them. While it's clear that BDP will continue with his more substantive (albeit legally and factually questionable) comments regardless, in the present instance, the perp is pretty clearly just a seeker of attention (as well as an obvious thread-jacker), and denying him that is the strongest dissuasive tool to prevent "repeat" (so to speak) behaviour. FWIW, I've encouraged BB privately to maintain "radio silence" as well ... and I hope he complies. And I'll leave it at that.

Cheers,
 

Arne:

It seems as if my 12:09 PM - 12:25 PM posts were not "substantive" enough for you, directly refuting YOUR claim that Bill Clinton is not guilty of perjury. As for who has the most TOTAL posts here at Balkinization, your name comes up on at least 242 threads:

http://www.google.com/search?hl=en&safe=off&q=site%3Abalkin.blogspot.com+%22Arne+Langsetmo%22

I'll be right back with more substance on federal perjury and obstruction of justice ...
 

For the record, there are actually only 66 of my posts (not 72 as ALLEGED) on that thread (out of 140 now), still less than 1/2, and much fewer than the TOTAL posts by Arne or Bartbuster.
 

I still have a long way to catch up with either of them.
 

Arne:

Don't look now, but Bartbuster has BROKEN "radio silence".

http://balkin.blogspot.com/2009/03/no-more-debate-about-whether-we.html
 

Cheers.
 

Dilan: First, we aren't going to use these tactics again. They are quite discredited.

Like they were after the Philippines insurgency? After the Phoenix program?

I'm on the fence b/t prosecutions and a commission, as there are good arguments on either side and I would be frankly amazed if EITHER happened ... but let's not get all optimistic that the U.S. is going to quit torturing people just because torture is "discredited." I mean, so is creationism.
 

P.S. to Nick Jackson: I failed to explicitly answer your other question. Yes, I want the President to have the power to "torture" even kill, if necessary, to protect American lives.

Charles, If there were ten prisoners and you knew that one of them had intelligence, but not which one, would you torture all?
 

Farris W:

(Assuming regular interrogation methods have failed and there's no more time) if I am the President of the United States, and I am sure that one has knowledge that will prevent another 9/11 terrorist attack but all ten are equally suspect of having said knowledge, yes.
 

At some point, obviously, the cost outweighs the benefit, e.g. if you have to torture more people than are threatened to be killed. Keep in mind that I don't believe waterboarding is necessarily "torture" either.

I am looking forward to President Bush's book detailing his 12 most-difficult decisions, hopefully outlining some newly-declassified information that he had to make said decisions based upon and why he made those decisions.
 

Harper's --

March 18, 2009
WHEN TORTURE IS "TORTURE"
by Scott Horton
 

Charles Gittings:

Is throwing someone in a pool (unbound, who knows how to swim) torture or even "torture"?
 

You seem to be willing to accept KNOWN TERRORISTS giving "virtually identical series of accounts of torture" (exactly what they are taught to do at terrorist school) over Bush/Cheney. Are you also aware that allegations of prisoner abuse have INCREASED since January 20, 2009? Who do you believe in that regard?

Lawyer says Guantanamo abuse worse since Obama

http://www.reuters.com/article/newsOne/idUSTRE51O3TB20090225?sp=true
 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

(excerpt)

"According to my clients, there has been a ramping up in abuse since President Obama was inaugurated," said Ghappour, a British-American lawyer with Reprieve, a legal charity that represents 31 detainees at Guantanamo.

"If one was to use one's imagination, (one) could say that these traumatized, and for lack of a better word barbaric, guards were just basically trying to get their kicks in right now for fear that they won't be able to later," he said.

"Certainly in my experience there have been many, many more reported incidents of abuse since the inauguration," added Ghappour, who has visited Guantanamo six times since late September and based his comments on his own observations and conversations with both prisoners and guards.

(end excerpt)

Will there be a thread four (or eight) years from now: "Why There Must Be A Criminal Investigation of the Obama Administration"?
 

Re: American torture, Darius Rejali finds most of the alleged tortures in the ICRC report pretty familiar.
 

No, Anderson, all that the leaked excerpts of the ICRC report (are we ever going to see the actual report rather than Danner's spin?) "puts to rest" is which kind of torture the terrorists claim that the CIA used.
 

Of course it sounds "pretty familiar" as that's exactly what they teach you to say at terrorist school if you are captured alive.
 

The factors working against an investigation in some forum are more political than legal.

In that context, I find Rich Lowry's comment today at The Corner to be a significant indicator. Lowry said, "I find the ICRC report on how we interrogated detainees at the black sites, reported on by Mark Danner ... deeply disturbing. I'm eager to hear what the other side of the story is—assuming there is one."
 

JaO:

Of course there's another side (CIA may choose to neither confirm nor deny the veracity of the claims). As Bart pointed out, above, only 3-4 pages of enemy allegations have been cherry picked and published out of a 47 page report. If the report actually provided a legal analysis, none of that was published. The ICRC is also hardly neutral, and I agree with Bart that it has a broader concept of what human rights law requires than the United States has ever shared.
 

Brian has suggested opening a criminal investigation based upon the allegations made by Mark Danner in his article "US Torture: Voices from the Black Sites. If we are going to open a formal criminal investigation on any White House, there damn well better be evidence to support of a prima facie case of actual criminal violations.

In order to determine whether there is a violation of law, it is helpful to start with the law - something with which ICRC and Danner could not be bothered.

18 USC 2340:

(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;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality...


Do any of the enemy allegations excerpted in the Danner article provide a prima facie case of a violation of 18 USC 2340?

I. PRELIMINARY MATTERS

Before we get to the facts alleged by the enemy, there are two big red flags for any prosecution here:

1) These excerpts are not actual quotes from the enemy.

None of the alleged enemy testimony excerpts from the Red Cross report are placed in quotes. Indeed, none of these passages use the religion laden and colloquial language that these al Qaeda leaders have used under other circumstances. Rather, these passages read like polished technical summaries of facts from an affidavit drafted by an attorney to support a brief or a motion.

Who drafted these passages?

Why wasn't the enemy quoted directly?

Are there transcripts or recordings of the actual conversations between the Red Cross reps and the enemy disclosing what Red Cross told the enemy, asked the enemy and what the enemy stated in response? If not, why not?

Did the Red Cross coordinate their visits with the enemy's attorneys? Did the attorneys visit the enemy prior to the ICRC visits? If so, we cannot know what the attorney's told the enemy because of the insane policy of permitting private meetings between outside parties and wartime enemy combatants.

2) Key allegations necessary to support a prosecution for torture are missing.

Fascinatingly, there are no allegations of imposition of severe pain or mind altering substances or the threat of death or the imposition of severe pain or mind altering substances. Quite to the contrary, KSM admitted that the CIA told him he would not be killed and the enemy noted various precautions to prevent severe pain or injury.

This leaves a big hole in any prosecution. While claims of severe pain by the enemy would not be dispositive under the reasonable person standard that would almost certainly be applied in a torture case, if the enemy themselves did not claim severe pain, a jury is unlikely to find any.

II. COMMON ALLEGATIONS OF FACT

The following allegations are categorically not torture: nudity, being strapped to a bed in a white room, being photographed, being shaved, wearing a diaper, wearing ear phones, being blind folded, being shackled, being fed Ensure, being placed in a box, varying the feeding schedule, playing music, playing static, or being kept awake - even if Danner considers these techniques "notorious."

Being kept in a cold room or splashed with water is not torture unless it causes severe pain or physical injury like hypothermia. There is no allegation of this.

Being slapped is not torture unless it causes severe pain or physical injury like hypothermia. There is no allegation of this.

Being slammed into a wall repeatedly is a completely new allegation that has not been previously reported to my knowledge. Prior descriptions of the CIA interrogation techniques never mentioned this and no prior detainees ever mentioned this. The photograph of the bedraggled KSM after interrogation do not show any marks or bruising consistent with being slammed against a wall repeatedly. Even if we take this allegation at face value, it appears that the enemy is admitting that steps were successfully taken to avoid inflicting severe pain and physical injury.

The descriptions of waterboarding appear to match the technique disclosed in the press.

However, the description does not resemble the forced introduction of water into the lungs and stomach imposed on our soldiers during SERE or in the water cure imposed by the Japanese during WWII, our troops in the Philippines or the Spanish Inquisition. This undercuts the claims of precedent that the CIA technique has been previously held to be torture.

Moreover, the enemy is obviously lying about withstanding the waterboarding for an entire hour (KSM) or repeatedly over days on end (Zubaydah). The panic imposed breaks everyone in a couple minutes or usually far less. The motivation for the enemy to exaggerate is that they do not want to admit breaking in moments or seconds and then spilling everything they knew.

We have debated at length whether waterboarding is torture. I will rely upon my previous arguments for the con position.

The descriptions of the long time standing technique also appear to largely match the technique disclosed in the press with the addition of handcuffing. Bin Attash allegedly claimed that he was placed in a standing position and had his hands handcuffed above is head so he could not sit down. Doctors examined him to ensure that his legs would not swell or the handcuffs would not cut into his wrists. When this happened, he was let down. This description does not indicate the imposition of severe pain or physical injury. Indeed, the enemy admitted that CIA doctors took pains to avoid those outcomes.

The enemy is again lying about the duration of the standing. Bin Attash claims to have stood for two weeks with only 2-3 breaks. His feet and legs would have swollen as the blood pooled after he had been standing for the first several hours as mine did standing in the turret of my Bradley during the Persian Gulf War. If doctors were measuring his legs to ensure swelling did not occur, he would have been rested every day to prevent swelling.

Likewise, bin Attash would have fallen asleep repeatedly during a two week period out of sheer exhaustion, causing the handcuffs to cut into his wrists. The doctors by the enemy's own admission would have had him brought down when this happened.

III. OTHER DISCREPANCIES

Both Zubaydah and KSM allege that the CIA informed them of interrogation strategies that were being applied to them. There is no way in hell CIA would be discussing this with top al Qaeda officers. Only in the movies does the antagonist discuss his plans with 007.

Rather, this suggests that the enemy's attorneys or the Red Cross were providing this information to Zubaydah and KSM. What other information was provided by the attorneys or the Red Cross prior to the statements offered by the enemy? Were these statements coordinated before hand through the enemy's attorneys?

KSM claims to have been "tortured" for a month. This would be completely contrary to all the previous reporting indicating that CIA needed and succeeded in breaking KSM quickly so they could exploit his knowledge of enemy identities and dispositions before the enemy moved. Indeed, we started rounding up other detainees around Pakistan about a week or two after KSM was captured.

These questionable allegations do not provide the basis for opening a formal criminal investigation. I might want to request that Red Cross provide all their information to see if there is more. If ICRC refused, I would drop the matter entirely.
 

I am looking forward to President Bush's book detailing his 12 most-difficult decisions, hopefully outlining some newly-declassified information that he had to make said decisions based upon and why he made those decisions.

10. 6 iron or 5 iron?
9. “Decider” or “Commander Guy”?
8. What does she mean, does this dress make me look fat?
7. You want fries with that?
6. How many hands have I shaked?
5. Hey! Who picked Cheney for me?
4. It’s not illegal if I do it, is it?
3. Paper or plastic?
2. Is our children learning?
1. Bud or Miller?
 

Hank (very funny NOT! In case you missed my question to you on the other thread):

Are you a pacifist, morally opposed to even WWII?
 

(Assuming regular interrogation methods have failed and there's no more time) if I am the President of the United States, and I am sure that one has knowledge that will prevent another 9/11 terrorist attack but all ten are equally suspect of having said knowledge, yes.
# posted by Charles : 3:55 PM

You are sure that one has knowledge, but you do not know what that knowledge is. Is this logical?
Is this possible?
 

Farris:

It's YOUR hypothetical! "If there were ten prisoners and you knew that one of them had intelligence, but not which one, would you torture all?" Of course it's possible e.g. the 10 prisoners in question were the only 10 in a certain place at a certain time, and you have confirmed intelligence that one of them placed a call ordering the detonation of a nuclear weapon in a major U.S. city but the connection was lost right when he said: "The code to disarm the bomb is ..."
 

Arne is apparently right -- I used "pled" loosely, and as noted here, a "plea" is where "a prosecutor accepts a guilty plea from the indicted in exchange for a lenient sentence."

He wasn't indicted. The article notes it actually is somewhat irregular (others who are familiar with this sort of thing can add to that), including that "Clinton reached a civil resolution with a criminal prosecutor."

It seems many did use the word "pled" in some form, but that doesn't seem to help me too much. Bottom line holds though -- Clinton agreed to a deal that is a lot more than many think Bushies will have to submit to.

My misuse of the word shouldn't hide this point.
 

Oh, come on, Joe. Clinton could not be indicted until after noon the next day.
 

But this is an achievement that cannot be taken for granted. And once we give up this aspiration, this commitment--that law cannot be reduced to politics--law will be lost.

Beautifully said and to the heart of the matter. Perhaps we would be 'safer' if the police could torture everyone they supsect of criminal activity. Perhaps we would be 'safer' if our homes were under surveillance, all phones tapped, all mail perused by officials before we receive it. Perhaps we would be 'safer' if we simply executed everyone convicted of any crime.

The people we regard as worthy of emulation have always known that there really are some things worse than insecurity, worse even than death: Socrates, Jesus, Ghandi, King, and more. Their examples may set the bar too high for the ordinary individual, but as a people we ought to have the courage of our convictions. At the least, we ought not to throw away what we most prize out of fear.

Our national integrity is at stake. We have been sullied by the criminal conduct of our highest officials - conduct that was grotesque and inhumane, not merely mala prohibita. If we do nothing, if we hope it will all be forgotten and never repeated, we do not deserve the freedoms we so loudly proclaim.
 

I guess I am grateful that you, Brian, and now many others, have shifted as a result of this report from opposed, or on the fence, to supporting criminal investigations for torture. They are required under international law for any credible allegation of torture, as no one needs to remind anyone here.

I sincerely hope it is not the graphic cruelty reported in the excerpts of the ICRC report that are causing the conversions, the documentation of slamming prisoners against walls, and cryptlike enclosures or stress positions held for long periods of time.

I hope that because various forms of clean torture (not my phrase, Darius Rejali's) have been used on a wider number of prisoners, and are cruel, inhuman, and in combination amount to torture without leaving scars, without seeming brutal, and without, apparently, arousing much concern in the American legal establishment.

When it comes time to review cases of deliberate incommunicado detention and enforced disappearance (moving prisoners beyond the law, and/or moving them beyond all monitoring), and cases of extreme isolation, sleep deprivation, noise, sensory deprivations, and other methods that leave no scars and contain no beatings, please be so kind as to read HRW "Locked Up Alone" or the work of Stuart Grassian, before ever again requiring express stories of brutal beatings to generate the necessary shock to the public conscience.

That being said, I am very glad that there is more support, and we are one step further on the 'long way to go.'
 

Bart DePalma said...

I might want to request that Red Cross provide all their information to see if there is more. If ICRC refused, I would drop the matter entirely.

If you had full, signed confessions from Bush, Cheney, and on down you’d want to drop the matter entirely.

How much evidence do you need? If you are in favor of torture, as Charles is, just say so.
 

Bart,
Thanks for your presentation. You do the kinds of things that a defense attorney would try to do namely raise questions to try to raise the reasonable doubt. That is what would happen at the trial. At the level of preliminary investigation there is enough here to open an investigation and have DOJ NSD decide after that preliminary investigation that whether to detail a criminal prosecutor to investigate and prosecute. On each question that you raise, no doubt such a criminal prosecutor would interview all of the relevant persons including those who were in CIA etc who actually did the interrogation (under penalty of perjury etc) to find the facts.

As to what you claim is not per se torture, the problem is that what you say does the old process of taking individual acts and making us think "that is not so bad". This is like the slowing of the tape in that Rodney King beating case by cops to focus on each blow and show that it was not so bad. It is a reasonable defense lawyer approach that the prosecution would of course have countered in its opening.

I would imagine that a prosecution would focus on the combination of the acts that occurred here to show that severe physical or mental pain was done.

As to WWII precedents the effort to distinguish them will miss one common denominator which is that all the methods are causing a person to have the reflexive reaction (out of their control) that they think they are drowning in the waterboarding. Of course, the fact that the torturer says he is not going to kill you assumes the fact that the torturer is telling you the truth. Not really a moment of great trust.

So there is plenty plenty plenty here to get that preliminary investigation started and get an Attorney General to go along with the National Security Division to get a prosecutor to investigate, grand jury indictment, prosecution etc.

Because of the credibility issues with the detainees, a careful prosecutor would get good old Americans or the contractors working for the Americans to come forward and detail what they did. Also, there would be the logs of what was done - unless those too have been destroyed like the AlQahtani tapes. Of course, then that gets us to the issues of obstruction of justice that are the usual way we nail people in this country.

In addition to torture, there are plenty of other federal statutes that can be used as grounds for the prosecution. In particular, conspiracy has no geographic limitation so that can pull in things hatched in the National Security Principals here that were done in these black sites around the world.

You are good Bart and maybe you could get them off, but you are still going to trial.

Unless, of course, your client would wish to do a plea deal in exchange for flipping on the other defendants.

As to Charles above and his views of the US narrow view on human rights law, Charles does not give any of us the history of why that was there. First, the US wanted to split off economic and social rights from civil and political rights in the Cold War setting. Second, even with regard to the human rights regimes the US was hesitant (under Eisenhower) to sign on to them because the Senators from the good old South were afraid that the treatment of blacks in the South would be viewed as human rights violations. Now, unless there are some nostalgia for pre-civil rights treatment of blacks in segregation among those reading this - which means you really are a troll - the point is that the narrowing had more to do with horrendous American practices trying to hide from the world. Overtime, as the civil rights movement succeeded more and more, the internal US situation came closer to the international standard and we have signed on. Of course, we have our Reservations, Understandings and Declaration on such treaties but we are not as barbaric as might be intimated by the actions of our government to which so many appear willing to acquiesce.

On torture - we have been very strong on that for a very long time as a country - whether or not we signed off on a human rights treaty on the subject. There are domestic and international tribunals where torture has been found by our courts or courts we helped create.

So please do not let the legacy of segregation and slavery mask for you the reality that - even with that - torture is not American. It belongs only to those who do it and those who acquiesce in it. Not me.

As to those who want their President to be able to torture people, that is a feeling that many countries have gone through at various moments. The premise is always that it is torture of the right people (i.e. the bad ones) and never the good ones. Unfortunately, it is perfectly predictable that torture will lead to all kinds of people being tortured. It is in the nature of the process. Read Darius Rejali's Torture and Democracy to get a lesson on that. The view being put forward is just another rationalization people use to mask what is essentially a bloodlust that is pre-civilized. We have seen that before in this country (lynching anyone?) and I am not part of that tradition. Go back into your holes.

Best,
Ben

Best,
Ben
 

Bart:

Don't bother with Hank. He won't answer questions.
 

Ben:

I already conceded that 9 innocent people may have to be tortured in order to save another 3,000 Americans or more. What more do you want?!
 

Best,
Charles

Best,
Charles
 

I share a recent comment that one hopes that we don't focus too much just on the most blatant cases of torture and abuse.

It is but of a piece. Slate recently had an important article on the history of many of the techniques used. Reminds as well Naomi Klein's article a few years back as well, including our support of the School of the Americas that helped torture in Latin America.

The troubling history made the further steps taken in the last few years easier. Anyway, it's okay to use waterboarding or a few of the more blatant cases as talismans. We do that all the time when focusing on broader things.

But, the abuse is clearly more systematic, though a few here desire to focus on a few trees, not the forest.
 

I already conceded that 9 innocent people may have to be tortured in order to save another 3,000 Americans or more. What more do you want?!
# posted by Charles : 1:32 AM

Would you really stop at 9? And would you guarantee
that 3,000, or any, would die if those 9 had not been
tortured?
 

And would it make a difference, Charles,
if you happened to be one of those 9?
 

Professor Davis,

Thanks for your insight on the sufficiency of evidence already assembled against the Bush administration's torture conspirators. There is far more evidence for indictment than Sol Wachlter's metaphoric "ham sandwich." In fact, there certainly is enough evidence for many convictions under the federal anti-torture statutes.

The big battleground of the moment is whether a federal criminal investigation should even begin. You can take all the logically inconsistent and morally indefensible arguments advanced by the trolls lurking about the blogosphere and crank them through an Occam's Razor analysis for a simple answer that explains everything: the trolls' mission is to derail or detour movement toward torture conspiracy indictments by any possible means.

The trolls have to know the truth to be able to spin out some of their clever lies. The stupid assertions they shamelessly and endlessly espouse today usually are allowed in court once -- to be followed by a judge's stern warning never to repeat. The nonsense we foolishly attempt to address today will be filtered away by proper indictments.

Today's pro-torture trolls are the functional equivalent of the Rabbi Baruch Korff of Richard Nixon's day. Multiplied by thousands.

How can somebody actually write that they favor torture and allow such an assertion to be associated with their name? The Eight Amendment prohibition against cruel and unusual punishment attempted to address some of the issues related to torture centuries before the federal anti-torture statutes were enacted. American jurisprudence has infused an aversion to torture into the Republic's DNA since its founding days.

But there have always been dark forces riding through the night promoting a different version of history. The burning crosses and lynching of yesteryear now morph into the polite "enhanced interrogations" of today. Here in the blogosphere's dirty trenches, we actually see people explicitly advocating illegal acts. Torture.

Those of us who spent the time and money to become lawyers know the oaths we took to support the Constitution will be vain if the dark forces win. It might have been enough to simply walk away from the Bush administration if its defenders had simply acknowledged their "errors." But we can handle the truth and the truth we confront is an unapologetic and unremorseful political class that wants an "enhanced presidency" supported by torture. However its beginning is rationalized, it will end with dictatorship.

Basically, its time to blow past the trolls and spend our energy on putting Attorney General Eric Holder on the spot. Make him say "yes" or "no" whether he is going to do his job and commence criminal investigations concerning the torture conspiracy committed by the Bush administration. Unlike other possible criminal investigations, the Attorney General does not have discretion in this matter. The United States has explicit treaty obligations to prosecute torturers found within its borders. Will the present U.S. Attorney General do his job, or will he obstruct justice as did the previous three U.S. Attorneys General?

If we lose heart in this matter we cannot call ourselves lawyers or citizens. Centuries of American civilizing development will have been squandered to save the legacy of a presidency that forgot all the important lessons of history. Did we come so far just to lose it all so cheaply?
 

Hank:

As a DA, I prosecuted the violations of a number of laws with which I disagreed - drug possession, firearm prohibitions and felony traffic offenses to name a couple. In contrast, I fully agree with the torture statute.

A prosecutor also has a duty to only pursue violations of the law as it is written and not how he or she wishes it was written. The torture statute prohibits intentional inflictions of severe pain, not all acts of coercion that you find personally distasteful.

Finally, believe it or not, prosecutors have to weigh the likelihood of prevailing in a case. Brian's suggested prosecution would be a nightmare to try:

1) The prosecutor's only witnesses are mass murdering terrorists belonging to a group that trains its members to lie about torture and whom have personal histories of lying.

2) The testimony has physical impossibilities calling into further question the veracity of the witnesses.

3) KSM and others have a long history of lying about their accomplishments and are unlikely to admit in public court that they broke in short order and gave one another up to the CIA.

4) The jury pool will be far less than sympathetic and prone to a jury pardon. Polls have indicated that a substantial cross section of the population have no problem at torturing the enemy to stop mass murder. Remember that Jack Bauer is the hero of a very popular show even though he is most certainly guilty of true torture. What the CIA did is weak tea in comparison.

5) The jury pool can be turned from unfriendly into outright hostile in pretty sort order:

a) Based on the far less than perfect witnesses, the prosecutor will need to blow the covers of the participating CIA agents, compromising and getting their sources and contacts killed. Apart from the moral problems this would present, the news will be all over the media poisoning the jury pool.

b) The CIA can be expected to fight back and there will be a series of leaks to the media describing the various plots that were foiled and the various cells rolled up with the intelligence gathered from these witnesses. The prosecution will in short order be on the public's sh!t list.

c) The defense should be all over the television with experts talking about the strategy of lawfare and how the prosecution is acting as dupes to advance the goals of al Qaeda.

I would love to serve as defense counsel in such a prosecution. Not only would my clients be not guilty of the charges as the evidence stands today, but I can tie the prosecution to the hip of al Qaeda's worst mass murderers. This would be a dream defense.
 

Little Lisa's bro has a dream, a real wet one:

"I would love to serve as defense counsel in such a prosecution. Not only would my clients be not guilty of the charges as the evidence stands today, but I can tie the prosecution to the hip of al Qaeda's worst mass murderers. This would be a dream defense."

Solicitation? Wishful thinking? Pro bono? Perhaps he hopes to scare the prosecution pre-emptively with his wet dream. A poker player, letting all see his hand. Ah, the delusional power of this NOAGN. When he awakens from his dream, his hand won't be holding the cards - EL FOLDO!
 

Have Baghdad Bart and Lionel "law talking guy" Hutz ever been seen in the same room together?
 

Shag:

DoJ hardly needs any prodding from this humble attorney. The Obama Administration immediately ran away from prosecution demands because any fool can see this is radioactive.
 

Charles seems to have ethics-class hypos confused with actual law enforcement and national defense.

Lowry said, "I find the ICRC report on how we interrogated detainees at the black sites, reported on by Mark Danner ... deeply disturbing. I'm eager to hear what the other side of the story is—assuming there is one."

Good for him -- that's quite a surprise.
 

I might add that Charles's reservations are best addressed to his senators or representative.

Congress has spoken on the policy issue of torture, and the answer was "absolutely not, under no circumstances."

Whatever future legislation Charles may wish to propose, the law during the Bush administration was that torture was a felony.
 

ondolette:

I hope that because various forms of clean torture (not my phrase, Darius Rejali's) have been used on a wider number of prisoners, and are cruel, inhuman, and in combination amount to torture without leaving scars, without seeming brutal, and without, apparently, arousing much concern in the American legal establishment.

I agree. The (purported) motives and the faux 'consideration' for humane norms don't exonerate the perps, they indict them. The desire to "leave no marks" (while still not changing the purpose of the treatment) is just an indication of mens rea. It's kind of like asking: "Isn't there some way we can legally steal the money?" There is no such thing as "a kinder, gentler torture".

Cheers,
 

Hank Gillette [to Bart]:

If you had full, signed confessions from Bush, Cheney, and on down you’d want to drop the matter entirely.

How much evidence do you need? If you are in favor of torture, as Charles is, just say so.


He is. He's a big fan of "arguing in the alternative"; something that suffuses Yoo's memos as well, and clearly shows an adversarial or advocatory approach, rather than an attempt to present the law as it is.

Cheers.
 

Farris W:

Perhaps you are forgetting that YOU asked the "10 Prisoner" hypothetical? If it is not logical, that's not MY fault. If you are making the hypo even more illogical to include me as both the person in charge of the torture AND one of the prisoners, of course I wouldn't torture myself (as I already know I'm not the terrorist). The other 9 are fair game, as stated above.
 

Benjamin Davis:

Of course, the fact that the torturer says he is not going to kill you assumes the fact that the torturer is telling you the truth. Not really a moment of great trust.

The reason they want to use waterboarding is because it 'works' (by all accounts very effectively). The fact that it's one of the least used practises (at least from public reports) indicates that the people doing it know that it is an extreme measure; one of 'last resort'. Pretending that it's just a bath (or "fraternity hazing" or whatever) is simply not supported by the facts. If people reasonably believed Yoo's (and Bart's) dissembling here that it's not torture and perfectly legal, they'd be waterboarding everyone and doing it first.

Cheers,
 

Arne:

What part of "I fully agree with the torture statute" are you having trouble understanding?
 

Does little Lisa’s bro make a confession with this statement?

“DoJ hardly needs any prodding from this humble attorney.”

humble: 1. having or showing a consciousness of one’s defects or shortcomings; not proud; not self-assertive; modest 2. low in condition, rank, or position; unpretentious

Has a new little Lisa’s bro emerged perhaps from his backpack of lies, finally with some truth? Hallelujah!
 

Anderson:

I have no doubt that the law during the Bush Administration was that torture was a felony.
 

Farris W [to Chuckles on the "TTB"]:

And would it make a difference, Charles,
if you happened to be one of those 9?


More accurately, would it make a difference if the person doing the torturing/killing was one of the "innocents" to lose their lives as well? I think if you ask than 9 "innocents" lose their lives for 'The Cause', there ought not be any problem with that tenth person also losing their life, when that tenth person is the torturer, and is post hoc convicted of war crimes and hanged. The deed is done and the purpose effected. And they'd have no grounds for remorse or complaint, having done their 'public service' in saving so many lives, even though some "innocents" (including, unfortunately, themselves, but hey that's the way it goes...) had to die.

Cheers,
 

Nick Jackson:

The Eight Amendment prohibition against cruel and unusual punishment attempted to address some of the issues related to torture centuries before the federal anti-torture statutes were enacted.

According to Nino Scalia, the Eight Amendment only prohibits treatment intended to punish (rather than other less malign purposes), and that only to those convicted of a crime, post conviction.

You may not torture people convicted of the most heinous crimes, but everyone else (including women, infants, and children) is fair game....

This is obviously what the founders had in mind.

Cheers,
 

"Bart":

Hank:

As a DA, I prosecuted...


You were never a "DA".

Cheers,
 

Though treatment in confinement can clearly raise 8A claims, Justice Thomas notwithstanding, it is surely not the only bar against torture in the Bill of Rights. Scalia, as usual, was selective in his snarky comments.

The self-incrimination clause (as suggested in a good book by Alan Dershowitz) is a primary source. Concern about torture while questioning was an important matter here, even if the literal meaning of the provision might not suggest as much.

The Due Process Clause is also a primary concern, the "shocks the conscience" test and so forth arising from it. Keeping people from being locked into "mental hospitals" ala Soviet Russia is not a 8A concern as such either.

Humane treatment also reflects rights of persons per the 9th and 14th Amendments. Not "citizens" or "residents," "persons."

And so on. The 8A in fact might be a bad tack to take in various situations, especially given the current state of the law.
 

An investigation is necessary; without one there can be no informed decision as to the culpability or innocence of those currently being pilloried by politically motivated media pundits and partisans. Republicans and Bush loyalists should embrace the opportunity for vindication. Citizens need to know whether we are in fact a nation of laws, not men. The mere existence of a legal opinion does not provide an advice of counsel defense. Extensive investigation and analysis of facts revealed through investigation is required to reach an informed conclusion on the existence of an a-o-c defense. the mere existence of an opinion blessing a prosepective course of conduct points to a number of possible conclusions two of which are: 1.) the attorney who rendered the opinion and his client were acting in good faith and neither are criminally culpable, and 2.) the attorney and his client were engaged in a cynical attempt to provide legal cover for a course of conduct which they both well understood to be criminal and are both indictable as coconspirators. Without an investigation we can never know; Bush Administration actors will be condemned to trial by politically motivated pundits and the American people will be justifiably insecure as to whether we are truly a nation of laws, not men.
 

Joe:

When did foreign wartime enemies detained as POWs overseas suddenly begin to enjoy the 8th Amendment rights of domestic civilian criminal defendants?
 

As a DA, I prosecuted the violations of a number of laws with which I disagreed - drug possession, firearm prohibitions and felony traffic offenses to name a couple. In contrast, I fully agree with the torture statute....

"... as I interpret it. Kind of like I had a different interpretation of the Second Amendment, which led to disagreement on whether to prosecute firearms prohibitions crimes."

Just to make things clear.

But we have plenty of documentary evidence from previous conversations that "Bart"'s an aficionado of what we call torture; he's a bit of a utilitarian/situational-ethicist, not disposed to think the detainees deserving of any recognition of humanity (or alternatively, to have surrendered any human rights they had by dint of being labeled "enemy combatants" who allegedly have committed war crimes themselves), and believes in the TTB fallacy.

Cheers,
 

Bart:

So now they are POWs? Jeebus, you are an attorney and you know you have to precise in the language...make up your mind.

Charles:

So what's the ratio when it's permissible to torture? 100 to save 3,000? 200? 2,999? Does it matter if they are all US citizens?
 

TTB = Alcohol and Tobacco Tax and Trade Bureau
 

Brian's suggested prosecution would be a nightmare to try:

1) The prosecutor's only witnesses are mass murdering terrorists belonging to a group that trains its members to lie about torture and whom have personal histories of lying....


"... which is why it was a Real Good Thing that the videotapes were destroyed, despite requests to preserve them. OOJ is not a war crime, and not a capital offence."

Cheers,
 

Mike:

It's definitely somewhere between 10 and 2,999.
 

Remember that Jack Bauer is the hero of a very popular show even though he is most certainly guilty of true torture.

Remember that "Jack Bauer" is fiction.

Hell, Butch Cassidy and the Sundance Kid are/were heroes too ... but that doesn't mean that a jury is going to acquit a bank robber....

Can we please restrict ourselves to the reality-based world here? Thanks in advance.

Cheers,
 

Consortiumnews.com --

March 19, 2009
TORTURE REVEALED YET AGAIN
by David Swanson
 

Charles:

So what is the number. If you are going to advocate torture, you have to set the guidelines. Let's talk ratios--2:1 saved to tortured is ok? 1.1:1?
 

Mike:

There's no set ratio. If I am the President, I go with my gut (Truman nuked a couple hundred thousand civilians to save a million). I don't think even Professor Dershowitz gets that detailed in his proposal for "torture warrants."
 

Charles Gittings:

Is throwing someone in a full, heated pool (unbound, who knows how to swim) torture?
 

a) Based on the far less than perfect witnesses, the prosecutor will need to blow the covers of the participating CIA agents, compromising and getting their sources and contacts killed. Apart from the moral problems this would present, the news will be all over the media...

Heaven forbid that the names of criminals be made public. No, indeed, those that commit war crimes should forever remain anonymous because uncovering and unmasking such people would be bad for their careers and would harm the War On Terra....

But I'd note that the RW apologist/sycophants putting this forward had no problems with the outing of a CIA agent that was only doing her job to rid the world of WoMD....

Cheers,
 

There's no competent evidence (simple hearsay) that Valerie Plame was a "covert agent" as that is defined serving outside the United States within the five years prior to her name being given to Novak (by Armitage).
 

Title 18 usc s. 1001 is an oft used criminal statute which punishes (please forgive any slight inaccuracy, elements are not immediately at hand)any material false statement made to the federal government within the jurisdiction of a department or agency of the United States. There is no requirement that the maker of the false statement be under oath. The justification and necessity of such a statute is obvious. Where a depapartment or agency is engaged in an effort to determine fact necessary to the ends of government, material falsehoods should be criminalized. Facts which seem to indicate that the American people were/are victims of elaborate deceptions perpetrated by Bush Administration officials, including w, cheney rumsfeld, yoo, bybee et al, (Do we or do we not engage in torture? Were there or were there not weapons of mass destruction and thus an imperative to expend lives and other national treasure waging war?) raise the question whether there should not be some reciprocal statute criminalizing material false statements made by government officials to the American people. Surely the justification for such a statute exists; if it is imperative that the government get the truth from the governed in order to govern effectively then, in a Democracy, is it not imperative for the governed to get the truth from the government for the same purpose, to govern effectively. American Democracy is a government by the people or the people, right?
 

simple = simply
 

George Tallichet:

So, why isn't Obama prosecuting them?
 

Delusions of grandeur:

[Bart]: I would love to serve as defense counsel in such a prosecution. Not only would my clients be not guilty of the charges as the evidence stands today, but I can tie the prosecution to the hip of al Qaeda's worst mass murderers. This would be a dream defense.

You could use your postings here as a resume. I'm sure they'll hire you on the spot. Stay near that phone, Bart. You wouldn't want to miss the call and have them turn to the unemployed (and probably bargain-rate) Addington, Gonzales, or Mukasey in desperation....

Cheers,
 

Addington, Gonzales, or Mukasey:

Any first-year law student knows that counsel should decline representating anyone whom they could testify against as a material witness. I would hire Bart for the defense.
 

In my last comment, I should have included the 4A too, particularly the limits on "seizures."

In the spirit of Brian Tamanaha, I will also answer a question posed to me.

Bart wonders: "When did foreign wartime enemies detained as POWs overseas suddenly begin to enjoy the 8th Amendment rights of domestic civilian criminal defendants"

Is this in response to what I actually said? I specifically noted that the 8A might not be the right tack to take. This includes POWs of any sort who are not being "punished" as such. Not that I particularly addressed the class of people you referenced.

If an enemy alien is prosecuted by our courts and put in our jails, they do have 8A rights. They cannot be drawn and quartered by our gov't etc.

Now, let's underline Bart is being cute here in assuming we are dealing with "enemies" here, when that is a judgment that was not shown, in fact, many were released as not being enemies at all.

Likewise, we aren't just talking about "foreigners" here either. For instance, there is evidence that citizen of the U.S. Jose Padilla was tortured and overall mistreated. Hamdi was also a citizen, so clearly the people detained here need not all be "foreigners."

Next, the SC has repeatedly held in respect to Gitmo (Bagram might be different; Obama seems to think so), we are not really talking about "overseas." Not that my remarks concerned the locale of the alleged mistreatment as such.

Further, showing the alleged "Holy Roman Empire" nature of his quote, are we even talking about POWs? I didn't get the memo where the gov't has agreed that all those detained are POWs.

Again, that would be assuming, since many claim not to be, and never had an adequate hearing to refute the point.

Bottom line, the Constitution (and per the Declaration of Independence, any just government) protects certain basic rights and (mostly intertwined) limits what the government might do, and this protects "persons." Citizens and residents can get additional rights, but at stake here is a more basic matter.
 

George Tallichet:

The mere existence of a legal opinion does not provide an advice of counsel defense.

There is no "advice of counsel" defence per se.

Those cases that have found "advice of counsel" a legal factor have pretty much all been malum prohibitum cases of abstruse laws (generally financial), where there is a hightened level of scienter required (e.g., not only knowingly committing an act that was prohibited, but also having to know that the act was prohibited).

There's related cases of "reasonable reliance on a government authority" (IIRC, Barker), where it's conceivable that such authority might consist of a legal opinion as to legality of something (although I don't know of any specific case that has found such reliance on legal opinion "reasonable"; if anyone knows differently, I'd appreciate the cite). But the keyword here is "reasonable", and for malum prohibitum offences such as torture, such "reasonableness" may be hard to find. But no matter. Such a "reliance on government authority" is an affirmative defence, and should be brought up at trial. It is not a bar to trial (nor does it make the underlying acts legal).

Cheers,
 

For the record, Joe never answered MY questions to him (with or without the spirit of Professor Tamanaha ; )
 

It seems that I did not make my hypothetical clear.
What I meant to say was, is it logical or possible to
know that anyone has knowledge if one (by definition)
does not know what that information is. Do we torture
on the off chance?
The scenario regarding the 9 being tortured called for
the torturer to trade places (unwillingly) with one of the 9. Sorry I was not clear. I will try to do better in
future.
 

I did not see the headline, but referenced Cheney criticizing Obama, so thought it at least somewhat irrelevant anyway.

Your "gut" comment reminds me of Steven Colbert btw.
 

Farris W:

The scenario regarding the 9 being tortured called for the torturer to trade places (unwillingly) with one of the 9. Sorry I was not clear. I will try to do better in future.

Don't engage Chuckles, please. He's thread-jacking once again, and this has been hashed out too many times in the past as it is.

My contention -- as I indicated above -- is that the person desiring to torture should be even less hesitant about voluntarily giving up his own 'innocent' life, before he countenances 'volunteering' others for such a fate. And this he may do ... if we just keep torture illegal (and a capital crime; see, e.g., 18 USC § 2340A). See also my take on the "TTB" of long ago. Anyone that wants to torture -- and that thinks it's a fair tradeoff that "innocents" die to save many others -- is not prevented from "doing the right thing" by our laws as they stand.

Cheers,
 

Farris W:

You are, of course, free to follow Arne's unsolicited advice, or you can clarify one last item as to your most recent hypothetical: am I still "in charge" of the torturing (therefore having to "choose" whether to subject myself to the same torture) or simply one of the ten prisoners with no control whatsoever?
 

Joe:

The Bill of Rights has not been extended to foreigners in foreign countries nor foreign enemies interned in the United States.

The People are generally thought of as the citizenry and aliens who reside with them, not foreign enemies warring on the citizenry.

Of course, there is no assurance that the Boumediene Five are not through rewriting the Constitution.
 

Charles Gittings:

Is throwing someone -- without the specific intent to inflict severe physical or mental pain or suffering -- into a full, heated pool (who is unbound, and who knows how to swim) torture? If it is, then I legally "tortured" my two sisters growing up.
 

Or, I guess that should be "illegally" tortured them. Does anyone have the number to the ICC so I can turn myself in?
 

As an aside, I wonder why Ian Ayres asks questions on the latest thread but then won't open comments for answers to said questions. If you are going to close comments, at least stop asking questions too.
 

Bart:

The Bill of Rights has not been extended to foreigners in foreign countries nor foreign enemies interned in the United States.

The People are generally thought of as the citizenry and aliens who reside with them, not foreign enemies warring on the citizenry.


This is not true. Any "person" in the United States is afforded at the very least some of the rights in the BoR. And that goes for U.S. citizens, resident aliens, visiting aliens, and even illegal aliens. I doubt that all potential rights conferred by the BoR (e.g., right to abortion or contraception) for each of these categories have been tested in court on that issue and definitively decided WRT that category, but I think the general understanding is that "person" refers at least to all people physically present in the U.S. of any of these categories, and that "citizen" refers to the obvious textual category.

I know that Bart can't point to any case law that says that certain people in the U.S. are not entitled to a specific BoR protection simply because they are not citizens or resident aliens ... or because they are "enemy combatants". Ex parte Quirin is not such a case; the denial of trial by Article III court in the face of such a Constitutional challenge was based on the fact that even U.S.
citizens
(that is, U.S. soldiers) were not afforded such courts for the same offence (and no one is saying that U.S. soldiers are not protected by the BoR).

Cheers,
 

And I know that Arne Langsetmo won't dispute the fact that he wants foreign enemies warring on the citizenry to enjoy MORE Contitutional protections than U.S. citizens who simply believe that "torture" should be available to use as a last resort in order to save those U.S. citizens' very lives.
 

U.S. citizens who simply believe that "torture" should be available to use as a last resort in order to save those U.S. citizens' very lives.

Torture is available to use now. You just have to break the law. If the jury agrees it was worth it, you go free.
 

Wrong. The right to self-defense does not make "murder" available to use.
 

In fact, it's NOT murder (or "torture") at all. Justifiable homicide is the killing of one person by another that is committed without malice or criminal intent. When a person commits a justifiable homicide they are NOT guilty of a criminal offense. In general, homicide can be considered justifiable homicide if it is committed in self defense, the defense of others, while trying to prevent of serious crime, and in the line of duty. Capital punishment is also considered justifiable homicide. Preventing a prisoner from fleeing by means of deadly force may also be considered justifiable homicide.
 

Wrong. The right to self-defense does not make "murder" available to use.

# posted by Charles : 3:47 PM


Sure it is. You just have to hope for a jury that sees things your way.
 

Oh, you mean like: "If the glove don't fit, you must acquit"?
 

I argue that justifiable interrogation is legal, and I agree with Professor Dershowitz that "warrants" should be put into place so we can strictly monitor and sign-off of such use as a matter of "last resort" only.
 

Oh, you mean like: "If the glove don't fit, you must acquit"?

Not quite. You would probably have to convince the jury that your crimes were justified, not that you didn't do it.
 

I argue that justifiable interrogation is legal

Too bad for you that it clearly is not legal at this time.
 

Bartbuster:

Like any analogy, it's not perfect (especially since torture is a LESSER included offense to murder).
 

Maybe you can answer this question: Is throwing someone -- without the specific intent to inflict severe physical or mental pain or suffering -- into a full, heated pool (who is unbound, and who knows how to swim) illegal torture?
 

Maybe you can answer this question: Is throwing someone -- without the specific intent to inflict severe physical or mental pain or suffering -- into a full, heated pool (who is unbound, and who knows how to swim) illegal torture?

That depends on a lot of factors that you don't mention. For instance, it if was me throwing you into a pool, you would probably be fastened to a very large rock prior to entering the pool. If you managed to detach yourself from the rock, you would be fastened to another large rock, and tossed in again. This would be repeated until I ran out of rocks or you were unable to get free from the rock. If anyone asked my intent, I would just say I was training you to be a better swimmer.

Does that sound like torture to you?
 

"Unbound" means not being attached to any rock or other device to prevent me from swimming unimpeded. For instance, when I threw my sisters into our pool growing up?
 

Fair enough. The water would be heated to 120F and you would not be allowed out of the pool.

Torture?
 

LOL! I didn't think you would answer the question (it should be obvious to everyone else that I specifically included a "heated" pool because of all these silly allegations about air-conditioned cells being "torture"). Perhaps next time, Bartbuster.

I also suspect (given your history of posting) that no one would believe you did not have the specific intent to kill.
 

Arne:

You are free to cite to a case extending the Bill of Rights to foreign wartime enemies within or without the United States.
 

(it should be obvious to everyone else that I specifically included a "heated" pool because of all these silly allegations about air-conditioned cells being "torture").

And I made the water 120C to make it obvious to even a dimwitted clown like you that temperature can be used as torture.

I also suspect (given your history of posting) that no one would believe you did not have the specific intent to kill.

# posted by Charles : 4:22 PM


The same is true for Darth Cheney and his band of torturing psychopaths.
 

Oh, please, Bartbuster. Don't be melodramatic. No one who actually wants to get actionable intelligence from a terrorist would have the specific intent to kill said source (at least not until after the information has been obtained ; )
 

No one who actually wants to get actionable intelligence from a terrorist would have the specific intent to kill said source

# posted by Charles : 4:40 PM


They were going for "actionable intelligence" like I would want to help you win the Lobster Olympics.
 

Fine. Maybe someone intellectually honest (Charles Gittings? I've always answered YOUR questions) will respond instead.
 

P.S. the pool is not over-heated (120 F, or Celsius) and the person thrown in is free to leave the pool immediately.
 

Chucklehead, people aren't "free to leave the pool" when we are torturing them.
 

Bartbuster:

Exactly. The only reasonable answer to my hypothetical, therefore, is that such a scenario is not illegal "torture". The fact that none of you will admit as much says a lot about how obstinate your side really is.
 

The fact that none of you will admit as much says a lot about how obstinate your side really is.

# posted by Charles : 5:03 PM



No, it says a lot about how idiotic your "hypothetical" really is.
 

"The only stupid question is the one not asked."
 

Bart:

You are free to cite to a case extending the Bill of Rights to foreign wartime enemies within or without the United States.

It's your assertion; you have the BoP:

[Bart]: "The Bill of Rights has not been extended to foreigners in foreign countries nor foreign enemies interned in the United States."

You have to provide a case that shows where tbe BoR was "not [] extended to [...] foreign enemies interned in the United States" ... and where the court held that that the BoR didn't apply to such persons. It should be easy: Just one case where the detaining authority argued that the BoR simply doesn't apply to such, and where the court accepted that argument.

Most people of reasonably good intelligence an learning assume that when the Constitution says "no person....", "the accused..." and "the right of trial by jury", it means just that, and that this applies to all. That there aren't cases with this specific issue at bar just goes to show the unremarkable acceptance of such an obvious proposition. In fact, should the contrary be argued, such as you seem to maintain, such a case would be quite remarkable (particularly if the court so agreed) ... and easy to find.

There are "cases of 'first impression'" that have never made the list ... because no serious lawyer would argue the point.

Quirin is of no avail:

"Under the original statute authorizing trial of alien spies by military tribunals, the offenders were outside the constitutional guaranty of trial by jury, not because they were aliens but only because they had violated the law of war by committing offenses constitutionally triable by military tribunal."

This sentence would apply to anyone who committed such an offence. It is the nature of the offence, not the nature (or status) of the person, that is dispositive.

But I've told you that before. You're just a slow learner.

Cheers,
 

"The only stupid question is the one not asked."

# posted by Charles : 5:11 PM


If you accomplish nothing else in here, and it certainly appears that you won't, at least you will have proved that statement to be wrong.
 

Joe:

My "guy" comment may remind you of Dr. Colbert, but allow me to quote Dr. Tamanaha instead: "This is gut check time for America ..."

Good luck debating with Bart.
 

Bart"buster":

I've accomplished getting most of the Balkinization thread comments turned off (please keep up the good work on the remainder).
 

"guy" = "gut"
 

Charles, I am trying to write a post that you can agree with. What do you think about this scenario? We have a prisoner of whom we have a 2% certainty that he has actionable intelligence (remember Cheney and WMD).
We bring in three of his children, all under 5 years of age and start pulling out their fingernails in his presence. That should make him give us some actionable intelligence, whether he has any or not. Agreed?
 

If he doesn't have any "actionable intelligence" in the first place, no, he won't be able to make it up regardless of what we do to him or his child(ren). How about this: 2% chance is too low to "torture".
 

Arne:

You continue to play the prove the negative dodge. I will take this dodge as a concession that the Bill of Rights have never been extended to foreign enemies within or without the United States over 200+ years and a couple dozen wars.
 

Arne:

I never got back with you on two issues that you raised. With regard to impeaching federal officials who have already left office, it's difficult to see the point. The former official might still retain some federal perks, but is likely to have trouble taking advantage of many such benefits from a prison cell. Considering how difficult it is to get a justified criminal investigation launched against former high-level federal officials, the bulk of available capital should be spent on pushing for the investigation of the Bush administration torture policies. Despite what the lying trolls say, the law is clear and the evidence is mountainous.

Concerning Justice Scalia's narrow view that the Eighth Amendment only refers to punishment meted out to the convicted, I believe Scalia would not find four other Justices who agree. There have been enough successful prisoner lawsuits to know there are viable Eighth Amendment claims for mistreatment of prison inmates where such violations neither arise from convictions that originally sent a prisoner to a cell nor come from due process relating to prison discipline.

It may be that non-U.S. citizens in U.S. custody outside U.S. official jurisdiction do not have the protection of the Eighth Amendment. But soldiers and federal officials take an oath to support and defend the U.S. Constitution. They are bound by the Constitution and all the statutes and ratified treaties promulgated under its authority. Think Geneva Conventions … Uniform Code of Military Justice … Convention Against Torture …
 

Nick:

How's it going convincing Eric Holder to prosecute GWB for "torture"?
 

Eric Rosenbach, a former staff member on the Senate Intelligence Committee and national-security adviser to Senator Chuck Hagel, said there was little evidence to suggest that the interrogation of terrorism suspects under the Bush Administration had led to information that helped prevent attacks on U.S. soil. "At the Intelligence Committee, we tried to test these claims, but the evidence was very, very tenuous," he said.

http://www.time.com/time/politics/article/0,8599,1886603,00.html
 

SAN JUAN, Puerto Rico (AP) — Many detainees locked up at Guantanamo were innocent men swept up by U.S. forces unable to distinguish enemies from noncombatants, a former Bush administration official said Thursday. "There are still innocent people there," Lawrence B. Wilkerson, a Republican who was chief of staff to then-Secretary of State Colin Powell, told The Associated Press. "Some have been there six or seven years."

http://www.google.com/hostednews/ap/article/ALeqM5ie2Gewi7L3__bSzBds095stmE88QD971FBSO1
 

charles said:

There's no competent evidence (simple hearsay) that Valerie Plame was a "covert agent" as that is defined serving outside the United States within the five years prior to her name being given to Novak (by Armitage).

Right. Why should we believe Patrick Fitzgerald or (then) CIA Director Michael Hayden?
 

Bart:

You continue to play the prove the negative dodge. I will take this dodge as a concession that the Bill of Rights have never been extended to foreign enemies within or without the United States over 200+ years and a couple dozen wars.

No, Bart. I didn't choose the playing field. You did. You made the assertion, and if "proving the negative" is difficult, then maybe you shouldn't have asserted the negative in the first place.

I will take your lack of evidence for your assertion (particularly since I've pointed out how, with just one case, you could satisfy my objections).

I'd note that Quirin could have been such a case, and had they held your notions, the answer would have been simple: No Article III courts because "foreign enemy interned in the U.S." are simply not protected by the Bill of Rights and the right to a jury trial, etc. But they didn't say this.

I'd note further that your contention, taken in conjunction with the actual Quirin ratiuonale, would require that BoR protections be denied to U.S. servicemen, a rather extreme position.

I'd also note that your contention, that "foreign enemy" are not entitled to BoR protection, if this argument is based on Quirin as you have previously claimed) would lead to the result that anyone, if designated a "foreign enemy" by the gummint, would lose all BoR protections. One of the Quirin petitioners was a U.S. citizen. On your theory, he had no BoR protection. If so, then any person designated such by the gummint would similarly lose any BoR protections. This position is so extreme as to be absurd. It may even surpass Yoo's legal extravagances.

Cheers,
 

Hi. Just checking in for messages. Did the fat lady sing already?
 

Charles quotes Bart:

What part of "I fully agree with the torture statute" are you having trouble understanding?

That's funny because Bart has argued vociferously here in the past that the torture laws are "void for vagueness." But he fully agrees with them!

Bart has also instructed us that he "cannot abide liars." And yet when Arne called Bart on his DA claim there was the sound of crickets.

But this thread is a strange brew of serious debate and comic inanity thanks to Charles who is proud of helping ruin this site:

I've accomplished getting most of the Balkinization thread comments turned off

Just for the general edification of the group here, Charles told me on another blog some time ago that the universe was created "exactly" as described in the Bible.

Is that still your view, Charles?
 

Is the dead hand of Edgar Bergen moving his dummy's lips via a keyboard? (And I don't mean Mortimer Snerd.)
 

mattski:

DFTT. M'kay?

Cheers,
 

... but FWIW, I think Mattski's observation is all the proof one needs that -- if the proprietors want the comment section to run in the manner they would prefer -- some form of banning must be imposed. Prof. Tamanaha?

Cheers,
 

Arne:

I took my definition of "the People" as used in the Bill of Rights from the Supreme Court in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):

‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. . . . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

The reason that there is no case law after two centuries and a couple dozen wars ruling upon the question of whether foreign wartime enemies within or without the US are part of the People enjoying the protections of the Bill of Rights is because such a contention is ridiculous on its face. Foreign enemies warring on the People can hardly be considered "part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."
 

Bart:

I took my definition of "the People" as used in the Bill of Rights from the Supreme Court in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):

‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. . . . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”


Yes, but this case involved a search that the court took pains to declare "[was] 'fully accomplished' at the time of an unreasonable governmental intrusion" outside U.S. territory. Thus Verdugo-Urquidez is a case of extraterritorial application of the BoR, not the application of the BoR to those of any classification that are within the U.S (which is the part of your claim I was disputing).

I'd note that Verdugo-Urquidez cites a whole raft of cases holding that the BoR applies to all kinds of people in many different situations, including illegal aliens (see V-U at 271). The only "sport" is a 1904 case denying a "free speech" claim of an unadmitted alien ... but that was because they upheld the immigration laws which excluded all anarchists regardless of any attempted speech (see id at 292; they summed it up this way: "Appellant's contention really comes to this: that the act is unconstitutional so far as it provides for the exclusion of an alien because he is an anarchist"). They did not strike down his right to get on a soap-box (and declined to say what would have transpired had the record shown that this was his only ambition ... or the reason for exclusion). They said he simply would have to do so elsewhere; he would not be admitted. IOW, they said that there was no valid "free speech" issue here. Needless to say, free speech jurisprudence has changed since then in any case (this case was well before even Debs et al.).

The reason that there is no case law after two centuries and a couple dozen wars ruling upon the question of whether foreign wartime enemies within or without the US are part of the People enjoying the protections of the Bill of Rights is because such a contention is ridiculous on its face....

You misspelled "obvious".

... Foreign enemies warring on the People can hardly be considered "part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."

This is really not the standard (for one, this comes from a bit of a misstatement of the somewhat questionable Ex rel Turner "free speech" case, which in no way set out what such sufficient "connections" would be, other that to cite Ex rel Turner for the nondispositive proposition that "attempt to enter, forbidden by law" is not sufficient [a conclusion that may be in doubt given the subsequent Plylerv. Doe]). As I pointed out, the court ruled against Verdugo-Urquidez because the search was fully accomplished outside the U.S. And then they ruled that his "involvement" with the U.S. (while sufficient through territoriality to afford him Fifth and Sixth Amendment rights because he was inside the U.S. at the time of trial, etc.) wasn't sufficient to extend him the rights of U.S. citizens abroad under the BoR.

Verdugo-Urquidez take much time to distinguish Fourth Amendment application to "the people" within the territory of the U.S. from its application to aliens outside the U.S. (see, e.g., p. 267-269), but I'd note that they cite no case that shows that U.S. citizens should be protected from unreasonable searches outside the U.S. (and in fact, one objection to such application is the absence of availability legal warrants under Fourth Amendment standards extraterritorially). But this distinction is just to show that BoR protections don't extend to "wherever and against whomever [the government] act[s]". They reject the argument that Reid stands for this: "Since respondent is not a United States citizen, he can derive no comfort from the Reid holding."

We have this from the Verdugo-Urquidez case:

"Verdugo-Urquidez also relies on a series of cases in which we have held that aliens enjoy certain constitutional rights. [494 U.S. 259, 271] See, e. g., Plyler v. Doe, 457 U.S. 202, 211 -212 (1982) (illegal aliens protected by Equal Protection Clause); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953) (resident alien is a "person" within the meaning of the Fifth Amendment); Bridges v. Wixon, 326 U.S. 135, 148 (1945) (resident aliens have First Amendment rights); Russian Volunteer Fleet v. United States, 282 U.S. 481 (1931) (Just Compensation Clause of Fifth Amendment); Wong Wing v. United States, 163 U.S. 228, 238 (1896) (resident aliens entitled to Fifth and Sixth Amendment rights); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (Fourteenth Amendment protects resident aliens). These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country. See, e. g., Plyler, supra, at 212 (The provisions of the Fourteenth Amendment "`are universal in their application, to all persons within the territorial jurisdiction . . .'") (quoting Yick Wo, supra, at 369); Kwong Hai Chew, supra, at 596, n. 5("The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders") (quoting Bridges, supra, at 161 (concurring opinion) (emphasis added)). Respondent is an alien who has had no previous significant voluntary connection with the United States, so these cases avail him not."

This would seem to indicate that those people "within the territorial jurisdiction" are afforded at the very least Fourteenth Amendmend protection; if this is sufficient "connection" to afford such protections, I can see no consistent basis to assert the same is insufficient WRT other provisions; how can there be a different (and still rational) level of connection needed for other protections (outside of restricting such to such obvious distinctions as citizenship)?

To emphasise the delineation of "connection", we even have this quote from Verdugu-Urquidez:

"These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country. See, e. g., Plyler, supra, at 212 (The provisions of the Fourteenth Amendment "`are universal in their application, to all persons within the territorial jurisdiction . . .'")"

How else to read that than the Verdugo-Urquidez court setting (or at least accepting the "connection" at the level of those "within the territorial jurisdiction"?

More Verdugu-Urquidez:

"But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders") (quoting Bridges, supra, at 161 (concurring opinion) (emphasis added)). Respondent is an alien who has had no previous significant voluntary connection with the United States, so these cases avail him not."

But Verdugo-Urquidez was "lawfully" (albeit not voluntarily) within the U.S. at the time (nice elision on the part of Rehnquist). Had Verdugo been unlawfully held in the U.S., he should have been let go which would have satisfied him, I'm sure).

rehnquist tries to dismiss this objection:

"But this sort of presence - lawful but involuntary - is not of the sort to indicate any substantial connection with our country. The extent to which respondent might claim the protection of the Fourth Amendment if the duration of his stay in the United States were to be prolonged - by a prison sentence, for example - we need not decide."

Nice Catch-22. You don't have your BoR protections until after we've used this absence to convict you....

Here's the punch line (from Rehnquist):

"At the time of the search, he was a citizen and resident of Mexico with no voluntary attachment to the United States, and the place searched was located in Mexico. Under these circumstances, the Fourth Amendment has no application."

It's a legal fiction of "resident" being dispositive, complemented with the twisting of the previous "legal" presence into "voluntary". If "residency"" is dispositive, some of the Rethuglican's Cayman Island contingent should take alarm.

It truly is an unworkable standard. and outside of Verdugo-Urquidez and the Fourth Amendment, really unsupported by any case law.

* * * * *

And as I pointed out, the license to designate people "foreign enemies" and thus deprive them of all Constitutional rights is a pretty hefty sword. By such designation (which would, according to you, remove habeas, right to trial, right to confront witnesses, right to a lawyer, etc.), makes any refutation of this designation rather problematic. They could lock up you (or Yoo), and no one could say "boo". And it's well established that "foreign enemies" within the U.S. that happen to be U.S. citizens are afforded the rights of U.S. citizens within the U.S., which happen to include the BoR. For a textualist to assert that the BoR, when it says "persons", means "persons who are not designated 'foreign enemies' by the gummint" is rather presumptuous, to say the least.

Cheers,
 

Bart:

DFTT.

Cheers,
 

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