Comments (46)

v. popvli wrote on November 8, 2007 3:37 PM:

i'm mr. bush. blah blah blah. veto this, signing statement that, blah blah blah.

Sven wrote on November 8, 2007 4:16 PM:

the law's provisions don't apply outside the U.S. military.

According to Marty Lederman, that's not true.

jolly ranchero wrote on November 8, 2007 4:38 PM:

Ok, where can I bet my house, car, wife, and computer that Bush vetos this, referencing the classic "ticking-time bomb scenerio" and throwing out statements like "we cant micromanage our military" and "the Democrat Party would rather you die in a dirty bomb than to inflict some pain on a terrorist"...

Anonymous wrote on November 8, 2007 4:50 PM:

Recall, in part, how we got here: President declared -- illegally -- the people at GTMO were not entitled to Geneva protections; and those illegal orders were applied to Iraq POWs at Abu Ghraib. The President's argument was the prisoners -- not yet correctly called POWs under Geneva -- were not protected under Geneva. The truth: GTMO prisoners were not necessarily part of either Taliban or AlQueda; many were civilians detained/imprisoned on the basis of false charges.

If, as we are to believe, the treatment of the prisoners -- "using waterboarding" -- was lawful; then there should be memoranda concluding this. Making these types of arguments, but without any connection to OLC legal memoranda raises the issue:

- Where are the legal memoranda related to these narrow issues of whether waterboarding was or was not "OK for the GTMO prisoners"

- In light of the early prisoner-treatment memos/status relative to Geneva, where are the memoranda related to how prisoners would be treated on the FALSE assumption that they were not entitled to any Geneva protections?

Whether Congress does or doesn't legalize/outlaw a specific tactic does not address the larger issue: What frivolous legal arguments are OLC legal counsel STILL MAKING relative to the EVIDENCE in re prisoner abuse, memoranda, and other activities related to alleged war crimes. Once the legal counsel's arguments are CLEARLY FRIVOLOUS -- as evidenced by a review of their memoranda, TBD -- then a case can be made that legal counsel were complicit in the unlawful war crimes against prisoners of war.

It appears the motivation of counsel isn't to narrowly protect a state secret, but to prevent -- once again -- judicial review of frivolous OLC arguments which, despite the Supreme Court ruling that GTMO prisoners were entitled to Geneva protections, failed to ensure there were policies in place to correctly handle/treat POWs in EASTERN EUROPE. The timing of the departure of the prisoners from Europe -- after the Supreme Court ruling -- shows OLC and the President knew the treatment did not meet Geneva Standards.

Thus, it's reasonable to look for e-mails, messages, and others things between 2001 and the Supreme Court decision showing OLC had one policy; then after this Supreme Court decision continued to assert frivolous arguments justifying [a] inaction; [b] lack of review.

Once OLC fails to adequately oversee the legal issues; and there is no responsible US commander to ensure discipline, then the question is: Were US troops, in effect, not accountable to any responsible commander? If there was no responsible commander enforcing Geneva, then US troops would be classified as "unlawful combatants" under Geneva.

These are foreseeable legal risks, which the President -- on his own -- cannot determine; but must assent to judicial review. Legal counsel knew or should have known this. See: [ Geoffrey Hazard, "How Far May A Lawyer Go in Assisting A Client in Legally Wrongful Conduct?" 25 U. Miami L. Rev 669 (1981) ]

A key view, as it relates to memoranda in re prisoner abuse, but can be broadly applied to proposed telecom-FISA immunity: We don't know all the facts until we see the memoranda. ["First, these memoranda cannot in themselves insulate or immunize persons engaging or complicit in torture or war crimes from international or domestic criminal responsibility for their conduct." 98 A.J.I.L. 689, Richard B. Bilder and Detlev F. Vagts, SPEAKING LAW TO POWER: LAWYERS AND TORTURE; American Journal of International Law October, 2004 ]

Immunity for counsel and telecoms is not appropriate until we see all the White House memoranda in re FISA and prisoner treatment. Without the memoranda, the conduct appears to be related to counsel hiding frivolous arguments; where evidence is missing where it should exist, it is reasonable to make adverse inferences: The evidence of these frivolous legal opinions is being illegally withheld to prevent judicial review of Congressional-Presidential legal counsel recklessness in re their legal obligations under FISA and Geneva, but laws of war applicable during war time. Legal counsel knew the laws of war -- Geneva and FISA -- were applicable once the AUMF was authorized by Congress.

Roberta wrote on November 8, 2007 5:07 PM:

Thank you, Anonymous, for this analysis. It seems that the OLC and Admin might have believed in Rove's permanent Republican majority when they went ahead with actions they had to know could land them in deep trouble.

I'm just not sure that anyone in the US will be able to prosecute against these abuses. It might ultimately fall to the court in The Hague.

Could dismantling, or at least hobbling, the UN have been part of the Admin's self-protective strategy?

Other Analysis wrote on November 8, 2007 5:55 PM:

Roberta,

1. Rives' Memo Talks To Your Comment

FWIW, hit the link above, "Other Analysis" and look for this comment [ Jack L. Rives Memo wrote on November 8, 2007 5:28 PM ] at the TPMM comments.

The link at that comment on TPMM goes to Gen. Rives' memo which addressed your valid comment: International courts might have to do this. However, domestic courts were seen as being a possible forum.

2. State AG Role In Prosecuting A Sitting President

You raised an issue: "I'm just not sure that anyone in the US will be able to prosecute against these abuses. It might ultimately fall to the court in The Hague." This is a valid concern given the President's communication to Congress that he would -- in effect -- block DOJ from prosecuting contempt citations against Miers.

However, the State Attorney Generals are not employees of the President or US government; and are not obliged to be dissuaded in fully asserting their oath. The State AG's are independent of DoJ and can litigate these issues as we've seen with the FISA enforcement action in re State privacy Statutes.

3. Scope of Alleged Criminal Activity Appears Unbounded

You asked: "Could dismantling, or at least hobbling, the UN have been part of the Admin's self-protective strategy?" When someone allegedly complicit with war crimes wants to dissuade accountability, it would appear anything is possible, even additional illegal activity including more unlawful abuse and war crimes.

TheraP wrote on November 8, 2007 6:28 PM:

Now this is getting exciting. Seems the posters above are concerned, as I am, that re-legislating something is the wrong track. And there are other, more important, fish to fry!

I intend to reread the above posts carefully. And follow up on the links.

It seems to me that passing laws related to waterboarding, which we already know is illegal, may actually distract us from the main issues - and possibly muddy the waters.

Yes, just as there must have been orders, in a chain of command, for the hoods we saw them put on so many prisoners at the beginnings of all this, there must be much, much more in the "legalistic pipeline" - trying to provide "cover" for their actions.

It's the COVER-UP we're really after here.

Thank you Anonymous and Roberta. And thanks to all of us working hard, trying to get our Constitution back. We have to retrace all the steps on the "wrong road taken" - learn all the mistakes they've dropped there, like pebbles in their path, and find the right way again.

I love this site - especially when good minds get to work! Go Team!

TheraP wrote on November 8, 2007 6:40 PM:

Re Roberta's question about the hobbled UN, does anyone else recall, back before the wars began, how the US insisted that some kind of exception re war crimes be written into something? I recall that. Because at the time it seemed to me, if they are trying to weasel out of being subject to international law, then they must be up to something.

We need to locate what that was. And that too may have a paper trail. And lead us somewhere.

Much is happening right now, that like a can opener ripping open a can makes it possible for a lot of stuff to spew.

seamus wrote on November 8, 2007 6:45 PM:

One place that the trail will lead is to the Federalist Society. The nest of vipers in the DOJ that turned out the torture memos at OLC were hatched in neocon central at AEI and lawyered up by the Federalist Society. Most everything that is wrong in this mal-administration is the result of lawyers who believe that the law should be used as a wedge to justify policy rather than using policy as a tool to administer the law. This is their guiding principle-find me a way to make this LOOK legal.

Means or Ends wrote on November 8, 2007 7:16 PM:

Thank you, seamus. What a disgusting place we've come to, when lawyers, instead of upholding the law and venerating the Consitution, instead believe both are expendable because any means, including those, are justified by their twisted ends.

mbbsdphil wrote on November 8, 2007 7:37 PM:

As usual, Jim Lehrer's attempt at civil discourse lent itself to further obfuscation this evening, in a segment on "Is Waterboarding Torture?" by Ray Suarez.

The NewsHour's waterboarding story was poorly managed. The lede - "Is Waterboarding torture?" - perpetuated the false belief that the answer could be yes or no. Waterboarding has been torture since it was used by the post-medieval papacy’s Inquisitors, and was still torture when used by Japanese officers on American POW’s during the Second World War. The issue is whether we should legalize its use.

Mr. Livingstone argued that it was counterproductive to “split hairs” over whether this or that technique is torture. Techniques using “extreme duress” – a euphemism that competes with the Gestapo’s Verschaefte Vernehmung - work, he argued, and you should stop being squeamish and let us get on with it. For good measure, he threw in the hoary “ticking time bomb” scenario, a Dirty Harry Herring, which avoids two critical issues: torture is illegal and it doesn’t work.

Mr. Livingstone’s arguments are good for his business and for staying out of jail. They don’t help us investigate and stop the illegal use of torture by the US Government. Mr. Nance, in contrast, spoke from professional experience and from the moral high ground. George Orwell has long since stopped spinning in his grave over this administration's word games. They've exhausted even him, and he could sure use a drink.

Proclamation: Removing Pelosi As Speaker wrote on November 8, 2007 7:43 PM:

Putting aside the issues of what the US government counsel was or wasn't discussing, this legislation is a red herring.

1. Geneva is clear: Abuse/Prisoner Mistreatment Is Not lawful

Rather than accept, "We did something wrong," the US govt counsel pretends, "The law was unclear." Baloney. Geneva is very clear, and the DoD-State Department memos cited above, and the working group memoranda/discussions well establish this standard was clear, understood, and linked with real judicial sanctions. These concerns appear to have been ignored. Congress needs to get copies of these working group memoranda: You'll see there is no confusion; and the JAGs well raised the concerns about prisoner treatment vs OLC policies

2. Abuse Illegal; Whether Torture Defined Or not Irrelevant

Specifically, the ruse is to pretend, "We need to define torture" or "There was no law outlawing waterboarding" or "We're not sure whether waterboarding is torture or not" or "Congress needs to clarify this."

Non-sense. That's the same excuse Cheney gave in re Iran Contra: "Congress needs to clarify and has a job to do."

The simple issue: Waterboarding is abuse; Geneva prohibits abuse; and whether something is or isn't torture is irrelevant with respect to whether POWs have or have not been mistreated.

I concur: There is no reason to pass new laws when the existing law -- the Geneva Conventions -- clearly prohibit all abuse of prisoners. Waterboarding is abuse not just in interrogations; but, without a combatant trial -- to determine whether someone is or isn't unlawful -- it amounts to imposing punishment on a prisoner.

In other words, it doesn't matter whether you agree or disagree whether waterboarding is abuse: Once waterboarding is used -- without judicial oversight or any trial of the prisoner -- it amounts to illegal punishment. If it's "not punishment," then where are the GOP lawyers signing up for it?

3. Congress: No Time For Constructive Defense of Rule of Law, Existing Standards; Plenty of Time to Chase Red Herrings

The goal of GOP-DoJ-DoD/legal counsel isn't to clarify anything; they well knew from the working group meetings what the standards were; what was expected. Their alleged FRIVOLOUS defense is to appeal to confusion; yet, Congress, in failing to enforce Geneva through impeachment is allegedly complicit with violations of the laws of war. Why pass more laws Congress appears to believe the President will say, "But I do not agree"? This is a delaying tactic to gum Congress to death, dissuade a referral to the courts, and get Congress to accept: "The laws were clear; there is evidence of war crimes; let's have a trial." Stop passing new laws the President has no plan to follow; and enforce the existing Geneva Conventions against the President and other leadership.

Congress shows it will waste time "redefining" something that need not be defined; but will not focus its attention on enforcing the clear standards -- Geneva -- with an impeachment investigation. The White House wants this. Time to remove the Speaker and clear the way for an impeachment investigation. [Hit the link for a proclamation to have the Speaker removed.]

johnnydoughey wrote on November 8, 2007 7:52 PM:

"...does anyone else recall, back before the wars began, how the US insisted that some kind of exception re war crimes be written into something?

Yes... I've thought about that several times... something to the effect that those involved would be exemted from any and all prosecutions for war crimes. The reason I remembered it was because it was aty the same time the administrations were calling for prosecutions against the terrorists for crimes against humanity.

At the time, I thought the only reason you would want to exempt yourself from prosecutions were if you intended to break the laws and/or treaties...

anonymouse wrote on November 8, 2007 8:00 PM:

Clinton... It depends on what the definition of "is" is...

Bush... It depends on what the definition of "torture" is...

You can justify anything you want just by playing the definition game...

"We the People" seem to enjoy voting in people who like to use their own definitions...

Anonymous wrote on November 8, 2007 8:08 PM:

Follwoup to November 8, 2007 7:43 PM:

FYI: Here are some sample working group memos showing prisoner treatement was well discussed within DoD immediately after 9-11: There was no confusion within DoD what the standards were: [ http://snipurl.com/powworkinggroupmemos ]

No need for Congress to debate "new rules". This debate belongs in the Senate during an impeachment-trial after the House charges the President and VP with war crimes. It's the job of the House managers -- during the trial phase in the Senate -- to present the evidence from the working groups showing [a] the standards were clear; well discussed and understood; but [b] the policy memos/lack of Geneva enforcement  was based on FRIVOLOUS legal excuses of counsel and civilian leadership.

Said another way: It is allegedly a frivolous legal defense of counsel in 2007 for DoJ OLC/DoD to argue, "The Standards were unclear" when DoD working group memos from 2002 shows [a] the standards were clear; [b] the legal discussions were exhaustive; and [c] despite that understanding of the legal requirements and stated policy, no effective oversight existed to ensure prisoners of war were treated, as required, per the Geneva conventions. The problem isn't lack of clarity; but the opposite: An alleged decision to violate Geneva, despite working group information showing the civilian leadership well knew the legal requirements under the laws of war. That is not a mistake; it is alleged reckless, wilfull, knowing breach of the Geneva Conventions, despite a sworn oath of office to enforce those legal requirements. This forms the basis to broaden the war crimes indictments not just against military personnel involved, but also the civilian leadership and civilian legal counsel for alleged violations of the laws of war.

Blocking a witness from appearing on waterboarding, and telling Congress to "clarify" something isn't an error: It's part of the President's legal defense to dissuade Congress from enforcing the laws of war against him, his legal counsel, and senior policy advisers.

It's not bungling, but a strategy to thwart enforcement of Geneva, allegedly a subsequent war crime. This delaying isn't confusion: It's more evidence and admissible. Recall the Nuremberg trails which presented various Reichstag actions: Same is going on today with this Congress -- their legislative actions are admissible as war crimes evidence: Did they fully do their duty to defend/enforce Geneva; or were they reckless in not fully enforcing the laws of war? This legislation shows this Congress is allegedly reckless and complicit with frivolous legal arguments. That is not a political problem for the voters to resolve; it is a legal matter which the judiciary needs to adjudicate.

See This Thread wrote on November 8, 2007 8:17 PM:

There's another TPMM thread which includes other links to other memos, which relate to this debate in Congress: They show more of what DoD-DoJ were discussing, reviewing, at odds with the contention that things were "unclear."

Check the link ["See This Thread," above] for more links, commentary on those other memoranda related to this topic:

- A. November 8, 2007 5:16 PM
- B. November 8, 2007 5:28 PM
- C. November 8, 2007 6:26 PM
- D. November 8, 2007 7:11 PM

TheraP wrote on November 8, 2007 8:35 PM:

johnnydoughy @ 7:52:

Thanks. I seem to recall that at the time the exemption was for 1 year only. (As if you could exempt for war crimes!) And I also recall they redid it - or at least asked for that - for another year. Then, to my recollection, it dropped off the radar screen.

Anon, I can see you are going great guns and are on a mission! wow! Maybe I'm wrong, but I sense a 'window' of opportunity right now. Let us hope so!

Al Swearengen wrote on November 8, 2007 9:08 PM:

I don't think that the story is right about the McCain bill. As I remember it, the CIA was included, but Bush used a signing statement to give them authority to continue renditioning and torturing.

Al Swearengen wrote on November 8, 2007 9:11 PM:

My point (which I failed to make) is that anything can be passed, and unless the signing statements are challenged in court somehow, Bush will always consider a bill like this unconstitutional.

Another torture bill seems like attacking the symptom, but not the cause.

FISA, Geneva Laws of War wrote on November 8, 2007 9:27 PM:

Comment in re [ Al Swearengen wrote on November 8, 2007 9:11 PM ]

The power of the President to "declare" something "unconstitutional" is in dispute, and not a "power" of the President. He only has Article II power to enforce the law, not interpret it, Article III power, delegated only to the Judiciary, even in wartime.

FISA and Geneva are laws -- once the AUMF was passed, these laws apply to the President during war time. President can't argue, "but they constrain power" as his power was EXPANDED under FISA: He's been given legal options to lawfully violate the Constitution, as long as he follows specific procedures in re FISA/FISA Court. When he ignores FISA/FISA Court, he wanders outside the protection of FISA.

His signing statements are not force of law; they are evidence of his decision to violate the law. President may not, after violating the laws of war -- FISA or Geneva -- say he will not follow the laws of war. It's not consistent for someone to argue "some laws of war" shall be followed; but other laws of war shall be ignored. Power must be used only within what the law -- Acts of Congress -- permit. Once the President crosses that line, he's outside the Constitution. ( For more, see [ Comment: November 1, 2007 9:07 PM ] at the link above, "FISA, Geneva Laws of War"] )

TheraP wrote on November 8, 2007 9:40 PM:

Google: US exemption from war crimes

You'll find tons and tons of articles and a lot of commentary on the US bullying other nations to try and get exemptions from war crimes.

To me it's the same thing as the seeking of immunity now.

I did try to post many links, but at the moment that's not working. So just posting this in case.

TheraP wrote on November 8, 2007 9:48 PM:

Summarizing just a bit from those articles, it seems the US tried the UN and apparently got something in 2002. Then tried again in 2003. They finally tried to make individual agreements with separate countries. But in many case they were viewed as bullies and hypocrites. These articles are worth a look in terms of the groundwork they laid, the effort made. They knew they were breaking international law and therefore tried to immunize themselves.

There have got to be tons of paper trails for all that!

Roberta wrote on November 8, 2007 10:27 PM:

For the most objective, yet moving, discussion of torture I have yet to hear or read, I highly recommend tonight's CBC As It Happens interview. Currently it's at http://www.cbc.ca/asithappens/latestshow.html, but this will change tomorrow, when something else obviously will be its "latest show."

From AIH's Website: "MANFRED NOWAK ON TORTURE

"For the last three years, Manfred Nowak has travelled around the world investigating torture. He has seen prisoners with rotting limbs. Another strung up by his wrists with his hands tied behind his back. Even children who have been tortured. He bears witness to all this as the United Nations special rapporteur on torture. Mr. Nowak's term ends in a few months and he is taking stock. We sat him down to talk in a studio in Vienna."

As powerful as Nance and Kleinman's testimony may have been, it doesn't approach Mr. Nowak's matter-of-fact recounting of interviewing torture victims the world over. But then Carol Off of the CBC brings the discussion where it has to go: What about the United States?

Nowak doesn't even hesitate: It's torture. Not only the waterboarding, but the terror tactics with blindfolding and dogs, subjecting to unending rock music, and playing on the prisoners' fears. It's all torture. What's the difference? In Nowak's opinion, the US's methods are simply more sophisticated than other countries'.

Listen to the interview. If you don't feel sick by the end of it, you're as inhuman as an Administration that can promote torture and, in Bush's case, be proud of the enhanced interrogation techniques used during his terms of office.

Roberta wrote on November 8, 2007 10:37 PM:

Oh, and by the way. The use of torture to prevent an attack?

Manfred Nowak says no, never. As soon as you make an exception for using torture, you've opened a door that can't be closed. More "exceptions" come up, and more torture is committed.

As Malcolm Nance said in his fine article in Small Wars Journal, torture does harm not only to its victims, but also to its perpetrators. It's not something to recover from. It's always there, dehumanizing everyone involved.

Utopia wrote on November 8, 2007 10:49 PM:

"called the American Anti-Torture Act of 2007"

When are these guys going to learn? Take a page out of the GOP playbook. Call it the Help America Win The War on Terror Act and force the GOP to vote against *that*.

U

Bill wrote on November 8, 2007 10:56 PM:

We already have laws against torture. Passing more laws won't make this administration follow any of them. They've stacked the courts with people who enable them to break the law with no legal review. Their allies in Congress have blocked every meaningful attempt to reign them in.

What will get their attention? Once they leave office, indict everyone, starting with the bottom and working your way up to Bush. Start throwing people in prison for breaking our laws. We can only hope that the next President won't be Republican, otherwise our Constitutional system will remain suspended as it has been since 2001. If the people in power aren't held accountable, then the masses in flyover country won't give them much thought either. The Bush Administration's "cures" for terrorism are causing more damage to our economy, freedoms and governmental legitimacy than any terrorist act ever could. When they leave office, they must be held accountable by the next administration and the courts.

Teledoc wrote on November 8, 2007 11:18 PM:

If Bush were to veto an anti-torture bill, and the veto was overridden, could he then attach a signing statement?

Anonymous wrote on November 8, 2007 11:23 PM:

A. Ticking Time Bomb: Flawed Premise In Scenario

The issue with the "using torture to prevent an attack" is the "ticking time bomb scenario." The ticking time bomb scenario: Those arguing for torture will posit, as a flawed assumption, "The person you have has information, and a bomb is going to go off . . .do you torture them?"

The fundamental flaw with this assertion -- as a hypothetical -- is: "How does SOMEONE ELSE (the accuser, A) know the person you propose to torture (target, B) is the right person; or that they have information?" The missing piece of the puzzle: How did the accuser get the information that "this person" (target, B) is the "right person" to abuse? This analysis yields the unaddressed question: The focus changes from the person supposedly "warranting torture" (target, B) to "the person who is making the accusation that this is the right person to torture" (source, C) : Where did they get their information; and who (the source, C) is the source of that information?

We never hear anyone argue, "Go after the known person who has disclosed the information or made the accusation." That is supposed to be done during cross examination in the adversarial system of justice. The ticking time bomb scenario doesn't consider this as an option, only (1) "torture or (2) let the bomb go off?" Torture is the lazy man's approach to saying, "We would rather rely on accusations by someone ( person "C" ). . .than getting reliable information, and real criminals with evidence under a system of justice."

Anyone can make accusations: Why aren't the accusers being interrogators? Because the other problem with war crimes: Accusers, on basis of accusation alone said, "This person is in the Tablian or ALQueda . ." when that person "C" knew or should have known they were not.

B. Bounties Are War Crimes

Other relevant issue: One reason there is a problem with people at GTMO is that the US illegally offered bounties to Pakistanis/Afghans to provide the US with "Taliban" and "AlQueda." The Laws of war prohibit putting a price on the enemy's head for this reason: It impermissibly induces civilians to take up arms, jeopardizing their Geneva protections as non-combatants. Had the US never offered illegal bounties, but interrogated those making accusations -- persons "C" in this discussion -- we might have a very different situation with respect to prisoner detentions, which people are being detained, and progress in Afghanistan.

C. Scenario To Test Critical Analysis Skills

The ticking time bomb scenario is a means to detect whether someone can be induced to commit illegal acts, without thinking. Concluding, "We must torture, or lives will be lost" shows us who is not asking the right questions. The scenario is a test of how well you can trust your legal counsel. Use the test. Many will fail. The key hint: When "the only possible options" are between two extreme positions. There are other factors to consider that do not require us to choose one or the other. This is the flaw of either-or thinking, which the JAGs well challenged in the detainee/prisoner working groups immediately after Sept 2001.

D. US Government War Crimes Against American Civilians

Unfortunately, despite the working groups on prisoner treatment, the abuse continued against civilians who had nothing to do with any combat: FISA violations are abuse of American civilians during wartime. This US government did engage in war crimes against American civilians.

Utopia wrote on November 9, 2007 12:24 AM:

Another big flaw with the "ticking timebomb" scenario is that there is usually a time limit placed on it. It is usually set to be too short to do a professional job of interrogating a prisoner but just long enough to (presumably) beat it out of the prisoner. One hour is the limit I've heard most.

How convenient. The premise is rigged so as to force the conclusion. There is, in effect, no real choice at all.

U

Xopl wrote on November 9, 2007 9:44 AM:

1. The United States has a bill to make torture illegal in 2007, and it probably won't even pass.

2. Bush will claim he has executive powers that allow him to ignore this law, especially outside the country with "illegal enemy combatants." Nothing short of impeachment will put the Bush admin in check.

3. The United States of America has a bill to make torture illegal IN THE YEAR 2007. And it probably WON'T EVEN PASS. THINK ABOUT THAT.

Q wrote on November 9, 2007 9:45 AM:

What country from the Geneva conventions does an isolated terrorist cell of 5 people represent? None of the above arguments apply to enemy non-combatatnts.
They are not cosidered a combatatnt when they plan the killing of thousands of Americans.Which of the bloggers above have ever made anything except a "theoretical" descision that would protecct someones life? To protect 270 million people is a theory to all, except a very few that have been chosen as our representatives. I feel since 911 they have done this protection well,and given you the luxury of sitting back and second guessing.Y'all don't get it.Anonymous is the type of person that would arrest someone for being a whistle-blower against a sleazy coroporation raping our nation(i.e. an accuser).

I'm afraid your wrong on all accounts.

Mary wrote on November 9, 2007 11:34 AM:

So let me get this right.

The text of the Constitution itself already provides that there can be no Bill of Attainder (aka pains and penalties) so that our government can not, constitutionally, engage in the infliction of pain on individuals extra-judicially.

We then have the Eighth Amendment, which bars the infliction of cruel and unusual punishments.

Then we have the War Crimes Act, which is not specific to military for severe breaches of the Geneva Conventions.

And oh yeah, then we have an extensive criminal code and hundreds of years of common law crime - for assault, battery, kidnap, etc. none of which have ever had "uh, duh, these guys named George and Mike said I could" as a valid defense.

The proposed law is just stupid. While they're at it, why don't they pass a law that says the sun rises in the East and sets in the West? Or that Congress shall have the power to impeach a criminal President?

Instead, they want to adopt the pretense that there has been some kind of confusion up until now, and more than 200 years into Constitutional government it just now dawns on someone (I guess and eastward looker) that torture might not be legal.

And the law does nothing to deal with the two actual problems.

Problem #1 - A President who has been told that no matter how heinous and depraved and criminal and vile his actions, Congress has abdicated its Constitutional duties and he won't be investigated or impeached or held accountable. Or his little doggies either.

Why don't they fix that little problem by passing a law that says Congress is supposed to impeach criminal Executives? Oh wait, never mind. Heaven forbid that problems would be addressed by Congress performing its Consituttional duties. Everything this President has done has been explicitly (as with the MCA) or implicitly (as with invocations of 'impeachment is off the table') approved by Congress, CHOOSING to act as a subservient co-conspirator.

Problem #2. The Executive owns - literally owns - just like a mafia don with a dirty politician in his pocket, a completely corrupted and thoroughly depraved and amoral Department of Justice that:

a) had no public reaction to the disclosures of torture memos, kidnap and even the deaths during and resulting from torture, or to massive illegal spying on Americans - - - not one USA or AUSA, not one member of DOJ, publically, said these policies are depraved and I am resigning because of them;

b) not only had no reaction against torture and illegal spying, but actively solicited torture by signing off over and over and over on the depravities and even, in instances like the Arar shipment to Syria, directly involved its top officers (then Larry Thompson, DAG and acting AG) in signing off on the specific actions to initiate torture and actively solicited illegal spying; and

c) not only had no reaction against torture and illegal spying and actively solicited torture and illegal spying, but also used their office to cover up the crimes, invoking state secrets without basis and with disdain for the rule of law; making misrepresentations over and over to the American people, other attorneys including defense attorneys, and even being willing to stand in a court of law, without shame (and when the judge was a loyal Bushie with even a sense of camaraderie) and make arguments of the ridiculous and misrepresent facts to the court.

How does Congress plan on fixing that problem? Well, they think its really sad that all the folks at DOJ are "demoralized" and they want an AG who can give them happy faces.

The truth of the matter is that Congress is a piss poor diagnostician. Anyone in America who cares about the Constitution and the rule of law is demoralized, but after 6+ years of compliant depravity at DOJ, it's not that its employees are demoralized, it' rather that they lack morals.

Brother Muk's travelling salvation show and a nice shiney new law from Congress won't change that.

Having someone who embraces a, b an c and is willing to put "the torture AG" on the final notes of his legal resume will, however, give the immoral collaborators at DOJ a smiley face - that's for sure. Knowing that your crimes go unpunished and euphemized and that consequences are off the table for your silence and solicitations and even for your direct actions - I'm sure the Snoopy dances will cause vibrations that register on the Richter scale.

It's a pathetic situation. The only lawyers who have acted with any real and demonstrable integrity have been military and they have paid dearly for it. No one seems all that interested in dealing with how demoralized they are, and instead Haynes is allowed to act with impunity and Congress itself dutifully passes laws like the MCA.

It's hard to have a kindly thought about any of Congress or any of DOJ and its hard not to be further demoralized at the treatment of the few men and women in uniform who have tried to stand for this nation, it's constitution and for basic human decency.

Karen wrote on November 9, 2007 11:40 AM:

If we give the CIA clear guidelines, which they have been begging for, by the way, would they keep to them if they knew exactly what was or was not permissible?

If we give the government clear guidelines (no rendition, for example, and no black sites) would they observe them? Not this administration, which has made us the equivalent of werewolves shooting speed around the world.

moondancer wrote on November 9, 2007 11:42 AM:

Writing another law is like writing another letter. If you don't enforce the laws on the books, new ones are meaningless.
I agree upthread that these hypotheticals are hogwash. If you know enough to know the right questions, who the players are you don't need torture to fill in the blanks.
You just need torture to get the bad guy to sign the confession you wrote for him.

Mary wrote on November 9, 2007 12:08 PM:

You just need torture to get the bad guy to sign the confession you wrote for him.

Or the innocent guy you've been torturing for weeks, months and years to sign the confession so all the torture was of "a terrorist" and therefore "ok."

TheraP wrote on November 9, 2007 12:12 PM:

Mary @ 11:34 is a MUST READ.

Substantial. Eloquent. Timely.

So true it's depressing!

Al Swearengen wrote on November 9, 2007 1:30 PM:

"FISA, Geneva Laws of War wrote on November 8, 2007 9:27 PM: His signing statements are not force of law; they are evidence of his decision to violate the law. President may not, after violating the laws of war -- FISA or Geneva -- say he will not follow the laws of war."

I agree with you, but with Alito, Roberts, Thomas and Scalia, it is far from being settled. Obviously Congress has to end this practice for good, but in Hamden v. Rumsfeld, Scalia cites the signing statement as being equal to the Congressional floor debate transcripts. He's blatantly applying a double standard, as in other cases he will generally disregard the congressional record and fault others for using it to explain their conclusions.

They're opportunistic, and without shame. I have very little confidence that given the right case, Kennedy wouldn't fold like a lawn chair and turn signing statements into a legitimate, lawful expression of executive power. I am quite sure that the 4 conservatives mentioned earlier are ready to pounce on an opportunity to do just that.

The dissent opinion in Hamden v. Rumsfeld, it is eye opening. Making this scam legit is a pet project that they are very serious about seeing through.

Anonymous wrote on November 9, 2007 7:03 PM:

November 9, 2007 9:45 AM:

That's not an argument. You're simply making accusations.

Try again.

Anonymous wrote on November 9, 2007 7:31 PM:

November 9, 2007 9:45 AM

The arguments below are flawed on so many levels, this note merely touches on some of the absurdities.

1. Supreme Court: GTMO POWs Are Subject to Geneva Protections

"What country from the Geneva conventions does an isolated terrorist cell of 5 people represent?" -- You fail to account for the President's move of the Eastern European detention centers. Whether the people are or are not affiliated with a country is unrelated to whether they are or are not entitled to Geneva protections: Lawful or unlawful combatant status is a conclusion of law by a judiciary; POWs may not be deprived of rights, punished, or abused unless there has been a trial.

2. Civilians Are Mentioned in Geneva

"None of the above arguments apply to enemy non-combatants." -- This statement fails to consider civilians who are non-combatants. Whether you mean something else is for you to explain.

3. Civilians vs. Non-Charged Civilians Vs. Civilians Falsely Charged On Basis of Illegal Bounties

"They are not considered a combatant when they plan the killing of thousands of Americans."

Key word "Plan": Planning something -- as you assert is happening -- is different than proving there is a plan; or that those detained are involved with that plan. Pakistanis did, on the basis of illegal bounties, offer non-combatant civilians, accusing them without evidence that they were part of the Taliban. These accusations were without merit, merely responding to illegal bounties.

4. Relevance: Meaningless Question

"Which of the bloggers above have ever made anything except a "theoretical" decision that would protect someones life?" Perhaps if you want to answer that yourself first, maybe others might consider your response -- Is it or is it not relevant to the issues you raise. Makes no sense to abuse someone simply on basis of an accusation.

5. Falls in Trap of Ticking Time Bomb

The Ticking Time Bomb Scenario asks someone to choose between two extreme positions; without considering whether there are or are not other sources of information: "To protect 270 million people is a theory to all, except a very few that have been chosen as our representatives."

6. Legal Requirements: Nobody Is Saying "Don't Defend America"; rather, use lawful means.

"I feel since 911 they have done this protection well,and given you the luxury of sitting back and second guessing." You're not making an argument for why torture should or shouldn't be outlawed; but distracting attention from illegal activity. This Congress has given this President and alleged war criminals on the GOP legal counsel staff the "luxury" of meaningless oversight.

"Y'all don't get it." -- We the People have the Constitution

6. Frivolous Assertion

You don't believe this: "Anonymous is the type of person that would arrest someone for being a whistle-blower against a sleazy corporation raping our nation(i.e. an accuser)." You failed to comprehend the A-B-C issue with the ticking time bomb. You have no basis to assert what you're asserting. Try again. It's incorrect to assert that person "C" would be arrested; to the contrary, they would be cross examined. Are you advocating that people with evidence be detained indefinitely as material witnesses, and distract attention from the alleged war criminals in the White House?

7. Capitulation

And, after failing to provide any evidence, the prosecution merely concludes with the final assertion: "Your honor, despite no evidence, we've proven beyond a reasonable doubt that the moon is made of cheese."

This is meaningless: "I'm afraid your wrong on all accounts." It should be, "You're wrong on all counts." Accounts deal with funding; counts deal with points in an argument. "You're" is the short version of "you are" as in making an accusation. In this case, you're merely asserting an unproven assertion: Congratulations, you've made my point -- accusations need to be challenged in court, as stated above: Not arrested, but cross examined.

8. Facts Belie Assertions

Contrary to your implicit assertion -- that illegal methods have kept us safe -- the President, despite violating FISA prior to 9-11, did not keep us safe during 9-11. You've successfully argued against yourself -- even when illegal methods are used, this President cannot achieve the stated goals he's asserting "justify" that illegal activity. Safety and security include defense of rights and preservation of the Rule of Law. It remains to be understood how much evidence related to illegally physical abuse against American civilians this US Government has illegally destroyed or hidden as a "state secret". TBD. Beyond this discussion.

8. Allegedly Frivolous Legal Arguments Basis To Prosecute OVP-WH-DOJ-GOP Legal Counsel in re Geneva Violations

How's that war crimes evidence review going in Federal Court? too bad the evidence is safe overseas; and the war crimes prosecutors have access to the evidence. US government won't enforce the laws of war; but they'll sure go out of their way to target formerly assigned NSA-CIA officials who have evidence of illegal war crimes by US government officials: Video, memoranda, recordings, e-mails, transcripts, and physical evidence. There is no statute of limitations for war crimes. DoJ Staff counsel's arguments appear to be frivolous: That's an alleged basis to have them prosecuted in re illegal war crimes planning, memoranda, and violations of the Geneva Conventions. Rendition isn't a state secret: It's an open secret, well connected with US contractors, flight plans, and specific landing times. It's illegal to classify evidence of war crimes in the Rendition Program. Your Counsel Should have known that. They too can be disbarred, prosecuted, and adjudicated with war crimes. Just like Nuremberg.

joebhed wrote on November 10, 2007 11:25 AM:

This is all wasteful and distracting.
The Dems have a simple solution.
Put the TORTURE language in the Defense Spending Bill, or attach it, or whatever, and then send it to the President.
Job done.
Let's move to the next problem.

Roberta wrote on November 10, 2007 7:08 PM:

Dear Anonymous,

Thanks so much for the referrals and links you've provided, particularly to the Rives memo (et alii) and the Haynes/Taft letter, which got me reading and remembering Karen J. Greenberg's The Torture Debate in America. I'd meant to get it at the library some time ago.

I know that others have noted this, but to me the most important statement Mukasey made was that he could not say anything definitive about water-boarding as torture because it would open others to legal consequences.

This is the whole thing. In The Torture Debate, Burt Neuburg's opening statement in the Panel Discussion starting on page 13 makes it clear that the use of lawyers--from Nazi Germany to apartheid to Ghandi's emergency era to post 9/11--does not provide a before-the-fact opinion on the actions a government plans to take but rather creates a justification for and defense against challenges to these actions, as the defense attorneys do for their criminal defendants.

What has happened so unmitigatedly since 9/11 is a perversion and subversion of the legal profession, setting aside ethics for, perhaps, the thrill of cleverly circumventing the law rather than upholding it.

So please keep up with your posts and references. I value what you have to tell all of us.

b wrote on November 11, 2007 11:14 AM:

since the cbc.ca retires older links from their main page, here is a link to the manfred nowak interview .. archived at:

http://preview.tinyurl.com/2dnyvj

Roberta wrote on November 11, 2007 11:42 AM:

Thank you, b!

Anonymous wrote on November 11, 2007 2:24 PM:

A country that ignores prudence when planning war, will not use prudence during warfare to comply with the laws of war. Defense of war crimes requires the defendant to show that they reasonably relied on those orders. This is a burden on defense: To show the orders were reasonably lawful; and that they were reasonably relying on those orders.

Similarly, imprudent leaders did not effectively plan to immunize the telecoms before starting illegal warfare; and retroactively attempted to pretend the US government can prevent the States from enforcing State privacy laws. This reckless US government is out of control; illegitimate; and has long removed itself from a reasonable expectation it can rely on law to adequately defend its flawed legal positions.

Making allegedly frivolous legal arguments, or suggesting that 'some might be at risk if the AG stated an opinion on waterboarding' is hardly a solid legal defense to war crimes. This means:

A. There evidence of war crimes floating around;

B. There are likely efforts to destroy that evidence;

C. Lawyers for the President, DoJ, GOP, DoD, NSA and CIA likely know their legal defenses are allegedly frivolous/fleeing;

D. There is evidence showing the legal defenses counsel have provided are not valid, and that they should have known the legal positions were tenuous.

mark hawthorne wrote on November 13, 2007 1:47 PM:

I have been a lifelong Republican, until now, its time to be an Independent.
To stand alone ,if necessary , because I along with Millions of others
Know the difference between Right and Wrong, and Torture is Wrong.
As my daughter would say “ It’s a no brainier “ Nuff Said.

At what time did we, The United States become a Nation that condones
Torture ? Only during THIS Presidency , and never before .
How in the world does someone become the U.S. Attorney General ,
That doesn’t know or think that Waterboarding is Torture ? And what
Of those that didn’t vote against the Confirmation of Michael B. Mukasey ,
Shame, Shame On all of you .Republicans and Democrats alike . I Have heard it
Said, “ He is the Best Candidate we have “ God I hope that isn’t true.

I have walked thru the “ Killing Fields “ of Cambodia, seen with my own eyes
The results of a Nation that condoned Torture , the bones and clothing are still
To this day coming out of the ground for all to see, but hear in America our children
And future generations will not have to dig into the ground to see our past sins,
They only need look to the library, the newspapers and yes even our congressional
Documents to see what we thought was “acceptable “ to do to other Human beings.

Its Ironic , if someone were to ask if it were “ok” to use “Waterboarding “ on a dog or cat How the outcome would be different, the outcry would be defining , the outcome,, We just wouldn’t stand for it! No debate, No Compromise, , Just NO, ,,,,ITS WRONG.

Winfred Mann wrote on December 13, 2007 1:40 PM:

House Dems Introduce Pro-Terrorist Bill

It seems the Dems and their cohorts are more interested in the right, safety and security of terrorists, than the right, safety and security of Americans.

I haven't dogs or cats flying planes into buildings or beheading infidels. They recognize no one's rights. Terrorists want to kill you, and they follow their wants. There were more than 9000 terror attacks 1983 - 2001.

Hey, why don't we just say, Pretty please, tell us where the next terror attack will happen. I'm sure they will answer if we just ask nicely enough.

This favors TERRORISTS.