Send Better Lawyers

Kevin Jon Heller, an authority on international law, is utterly unconvincing in his effort to analogize the OLC 'torture memos' to the Nuremburg trials.

There is, however, another NMT case that does provide significant support for prosecuting the authors of the OLC memos: United States v. von Weizsaecker et al., better known as the Ministries Case, in which a number of government ministers, state secretaries, and high-ranking members of the Nazi party were convicted of crimes against peace, war crimes, and crimes against humanity.  The critical defendants are Ernst von Weizsacker himself, who was the State Secretary in the Foreign Office, and Ernst Woermann, who was the Undersecretary of State and head of the Political Department in the Foreign Office.  The two defendants, who were the Nazi government’s primary legal advisers, were convicted of crimes against humanity for approving SS actions that they knew violated international law.

How did the court reach its verdict?

First, it concluded that Woermann — and by implication von Weizsaecker, his superior — knew that the deportations violated international law (pp. 497-98)...

...Second, the Tribunal held that because the defendants knew that the deportations violated international law, they had an absolute duty as the Reich’s legal advisers to object to the deportations when the SS asked them to assess their legality (pp. 958-59):

...The parallels between the Foreign Office’s role in the SS deportations and the OLC’s role in the CIA’s torture regime are uncanny.  Nothing is lost if we simply substitute “Yoo, Bybee, and Bradbury”  for “Woermann and von Weizsaecker,” “OLC” for “Foreign Office,” and “torture” for “deportations.”

"Nothing is lost"?  Nothing is lost except the whole logic of the argument.  Bybee and Yoo were perfectly aware that some behaviors would be prohibited (e.g., mock executions) and others would pass muster easily (e.g., the belly slap and the attention grasp).  The question challenging them was how to draw lines with behaviors that shade from white to gray to black.

For example, is sleep deprivation torture?  Surely it depends on the duration; four hours of sleep deprivation isn't torture; four days might be; four weeks surely would be.  The OLC authors made a good faith attempt to set medical criteria and draw a line.  Certainly someone might revisit their conclusion years later and conclude that their line went too far.  However, that would be very different from concluding that they had deliberately ignored the law in setting the line and "knew" that the practice they had approved was illegal.  In which case, the Ministries precedent has no weight at all.

The same argument would apply to waterboarding.  Bybee noted that 26,829 servicemen were subjected to SERE training, including waterboarding, from 1992 to 2001.  Well, either the US routinely tortures its servicemen, or, as with sleep deprivation, at some level of intensity waterboarding is less than torture.  Bybee opted for the second choice and allowed waterboarding subject to medical monitoring and strict guidelines.  Again, his judgment is subject to second-guessing but the Ministries argument does not work.

The Times has more on the utter improbability of prosecutions of the OLC legal team:

Efforts to prosecute the high-level Bush administration officials who created and authorized the interrogation program in 2002 — like Vice President Dick Cheney; the C.I.A. director, George J. Tenet; the defense secretary, Donald H. Rumsfeld; and Alberto R. Gonzales, who was then White House counsel — also “would be extremely difficult,” said Eric Posner, a University of Chicago law professor.

It could create a partisan firestorm that Mr. Obama, who has said he wants to concentrate on fixing the economy and on other parts of his agenda, would prefer to avoid for political reasons. And, like the interrogators, the policy makers could argue that government lawyers assured them the program was legal.

“The political officials would say they believed what they were doing was lawful, and a jury could very easily believe that,” Mr. Posner said.

The shield against prosecution provided by the Bush legal team’s assurances has led some critics to focus on the role played by the lawyers themselves, like Mr. Cheney’s counsel, David S. Addington; Mr. Rumsfeld’s counsel, William J. Haynes II; and the authors of the Justice Department memorandums: John C. Yoo, Jay S. Bybee and Steven G. Bradbury.

Legal specialists from across the ideological spectrum have criticized those memorandums, especially a set written in 2002 by Mr. Yoo and Mr. Bybee, who is now a federal judge. Some have accused the lawyers of deliberately writing down a false reading of the law to enable policy makers to violate it with impunity.

But there is little precedent for prosecuting government lawyers who provided arguably bad legal opinions. Moreover, Mr. Yoo, the memorandums’ principal author, had espoused idiosyncratic views about presidential power before joining the Justice Department, so it would be difficult to prove that he did not believe what he was writing.

They do crack open the window a bit:

One thing could change that dynamic, however. The Justice Department’s Office of Professional Responsibility has been investigating the work of lawyers who signed off on the interrogation policy, and is believed to have obtained archived e-mail messages from the time when the memorandums were being drafted.

If it turned out that the lawyers initially concluded that aspects of the proposed program would be illegal, then reversed that conclusion at the request of policy makers, then prosecutors could make a case that the officials knowingly broke the law.

Hard to believe we will see an easy example of that.  Seriously - are these guys dumb enough to write "Wrong answer, try again." in an email sure to be archived?  What we might get, however, would be emails presenting new information or revised guidelines and asking for a re-think.  Problematic! 

To return to my previous example, suppose Bybee initially concluded that four days of sleep deprivation was torture.  Dick Cheney, through Addington, then sends some psychological study or other purporting to demonstrate that subjects can easily recover from fifteen days of sleep deprivation, and implores Bybee to reconsider.  Bybee then re-draws the line at eleven days.  Is he now a criminal?  Was the change made in good faith or in response to pressure from above?  (OK, or both?)   Is Cheney a war criminal for trying to reason with and educate his attorney?

Earnest libs already know the answers, of course.  The rest of us will await more information.

Comments

[bad]

Silly, TM. Nothing damaging was archived. Cheney made all of the good stuff disappear.

POOFFFFF...... cause he's a magic man...

[Phosphor]

Nothing is lost if we simply substitute "Yoo, Bybee, and Bradbury" for "Woermann and von Weizsaecker," "OLC" for "Foreign Office," and "torture" for "deportations."

Nothing is lost if we simply substitute "Holder" for "Woermann and von Weizsaecker," "OLC" for "Foreign Office," and "D.C. Voting Rights" for "deportations."

[MayBee]

I am sick of hearing people excusing and explaining all the reasons the terrorists terrorize without making any attempt to understand why Bush approved harsh interrogations.

Everything done against us is excused as a valid reaction. Nothing we do ever seems to be considered a valid reaction.

Then people feel so pure for understanding the ignorant savages and declaring they won't be harmed "in my name!".

Gah.

[bad]

HeH, Maybee, did you happen to see Shep Smith yesterday? I wanted to give him such a punch....

[bio mom]

There is nothing sadder than what is going on right now with this debate. I too am sickened to the core. Our congress is corrupt and impossible to change or hold accountable for anything. The need for term limits was never stronger but can never happen. Congress never polices itself. The Obama administration is beholden to the far left as will become more and more obvious. No one but the power-hungry or mediocre will elect to enter public service lest they be the next potential targets of political witch hunts. What kind of country will this become? It breaks my heart.

[MayBee]

I did.
"We don't torture! We don't f'in torture!"

Well, we do if people are willing to define anything Bush did that they didn't like as "torture". I remember when it was Koran flushing and fake menstrual blood = torture.
There was no way we were coming out of this without having 'tortured'. It was the dream of every Bush hater.

Man. Remember the "not in my name" crap when Zarquawi was killed?

[bad]

And while congess is wasting time on fake torture from the past, the O crew is ruining the financial future of of us, our children, our grandchildren, our great-greatchildren and the rest of the world.

The idiots have said the US needs to recover first so the rest of the world has a chance but do you see them doing anything that makes economic sense? Hellz no!!

[verner]

Yep, I saw it. Shep is pretty pitiful. I think he had a bad case of Anderson Cooperitis.

[MayBee]

Shep is a rainbow in a sea of beige reporters.
Remember that.

[bad]

ha ha ha Maybee

[Danube of Thought]

Shepard Smith is an ignoramus, and there is no cure for that. However, he would be well advised to familiarize himself with the activities at Camp Douglas, outside Chicago, during the Lincoln presidency.

And he certainly ought to consider the case of the seven German POW's on US soil who were accused of murdering one of their colleagues, Werner Drechsler, who they suspected was an informant. The seven men were tortured by kicking and gassing until they confessed, whereupon they were tried in a military court and sentenced to death.

President Truman personally approved of the execution order, and the seven men were serially hanged at Fort Leavenworth in August, after the war was over.

Pretty harsh stuff. But we were an altogether different country then. People were willing to undertake some pretty goddam harsh measures in defense of their country. Not anymore. And certainly not Shepard Smith.

[sbw]

Maybee, only the oppressed are allowed to react. That's why America is always wrong. Leftists believe that since they are superior to lesser human beings, we should behave better and let thugs overwhelm us on principle.

Nevermind that they can't state the principle; it must be a good one.

[MayBee]

DoT- I was fascinated to see people twist themselves into the position that FDR and Lincoln should have been prosecuted.
I wish they would make that desire more well known as they advocate the prosecution of Bush.

[verner]

DofT, I had an ancestor at Alton,captured after Shiloh and one at Fort Delaware, a member of O'Neal's 26th Alabama captured after day 1 at Gettysburg.

If Lincoln was held up to Obama's pristine standards, he'd be facing life in prison--and not just for the treatment of southern POWs.

Does that mean that on the whole Lincoln is not a great man? No. I admire him immensely, despite all his sins. Even though he committed what most morally serious people would call "atrocities", and not all of them were necessary by ANY means (the treatment of prisoners was a blatant example of gratuitous sadism and cruelty)you have to look at the entire picture. What was he facing?

As I have said before--the morally relativistic, usually utilitarian left is taking an absolute stand on a lofty ideal of civilized virtue that has NEVER existed in human history. It is pathetic.

[MayBee]

sbw- it's so true.

I actually saw a small anti-war protest this weekend. It was obviously a group of Vietnam-era former hippys, in the hippy part of town.
And it was just so odd, because I don't know what they think they are arguing for. If I believed they were primarily concerned with the lives of US service people, I could understand it. But that wasn't this crowd. I don't know whose lives they think they are saving by demanding we pull out of Afghanistan and Iraq right now. So odd.

[Danube of Thought]

I saw that, MayBee--BDS certainly does have some bizarre symptoms.

I wonder how many people are aware of what Ike biographer Stephen Ambrose had to say about US treatment of German POWs in Europe:

"There was widespread mistreatment of German prisoners in the spring and summer of 1945. Men were beaten, denied water, forced to live in open camps without shelter, given inadequate food rations and inadequate medical care. Their mail was withheld. In some cases prisoners made a 'soup' of water and grass in order to deal with their hunger. Men did die needlessly and inexcusably. This must be confronted..."

[centralcal]

"Shepard Smith is an ignoramus, and there is no cure for that."

Too true. However, since Shep is a newsreader not an opinionista with his own show, why is he allowed to get away with hollering out his opinions? Ailes needs to rein him in.

He is on during my lunch hour and I actually switch to constipated Norah O'Donnell frequently, just to get away from the hysterical Shep.

If I am forced to watch a b*tch in order to get news, I prefer them to be female.

[Sue]

...... cause he's a magic man...

Posted by: bad | April 23, 2009 at 11:21 AM

Ain't that the God's truth? Oh wait, TMI... ::evil grin::

[Pofarmer]

“The political officials would say they believed what they were doing was lawful, and a jury could very easily believe that,” Mr. Posner said.

Let's keep in mind that this would be a D.C. Jury.

[bad]

Hey, Sue, at least you didn't add, "he's got magic hands..."

Back to Dick Morris....

[bad]

LOL, CC

[verner]

And speaking of the virtuarians, there's a very common question in ethics classes.

"Would you harm one innocent child in order to end the suffering of all others?"

Well, Mr. Barak "second coming" Obama already answered that when he committed death by predator on those children in Pakistan a little over a week after he became president.

And I submit that water boarding KSM, getting accurate, precise intel that we would not get otherwise, and picking up his associates inside their rat holes, instead of having to drop bombs on people we think are terrorists, is a much more moral stance.

[MarkJ]

Obama must really want to be like Abe Lincoln because, at the rate he's screwing the legal pooch, he's begging for another Civil War.

What an idiot.

[verner]

Yeah Mark, although this time he won't have the emancipation defense--au contraire.

[Joan]

Oh, yes, bad, I agree, centralcal made me laugh too. I can't watch Smith. Not since New Orleans.

[sbw]

DOT, Americans can't recall what it was like for Americans in Europe after WWII, in the army of occupation. And imagine what it was like for the civilians and refugees in Germany and Austria. Life was about survival in a circumstance where there could be no trust.

The sin of American liberalism is willful ignorance.

[MayBee]

If we could find a way to explain that water boarding the likes of KSM kept the US from bombing indiscriminate Iraq and Afghan targets in our attempts to get his cohorts...that might hold some weight.

If we can prove we saved foreign lives, rather than just American lives, that might stimulate their "other = good" instincts.

[bad]

Dang, Maybee....

[Jane]

Maybe it was Bad's link earlier but for the first time I see the politics here turning toward our advantage.

Meanwhile we will probably be attacked, but I think that is inevitable under this President. He is practically sending an engraved invitation to our enemies.

[anduril]

I'm not suggesting that Obama is not determined and doesn't have an agenda that he's focused on, but I do wonder whether this move of his wasn't motivated by weakness--placating his left wing, figuring this would keep them harmlessly busy, since the likelihood of actual trials approaches zero likelihood. bad's link on the other thread, which includes the WSJ's lead editorial, suggests that this may be a huge blunder that will be difficult to recover from.

[anduril]

Meanwhile, with the Left in full cry, we get this:

New jobless claims rise more than expected to 640K

I have a sneaking suspicion that it won't be long before an awful lot of people come to the conscious decision that they're more interested in jobs than political theater.

[bad]

I think he made a mistake at his presser because he was off teleprompter and he has this driving need to say things that get him warm fuzzies from his audience.

But I don't discount Rove's theory of being able to continue to campaign against Bush and whatever strawmen he has chosen for the hour.

I do think this WH struggles with recognizing the long term consequences of their words and actions because they are so poll driven in the short term.

[Danube of Thought]

Jane, which of Bad's links were you referring to as suggesting the politics have changed?

I did see a poll in which 56% (including 48% of Democrats) said that if Osama bin Laden were captured they would favor torture as a means of getting information from him.

[Jane]

I honestly think the President awakes every morning and says to Michelle: "What shall I change today?" Michelle says: "Mom has a large credit card balance. Let's make sure she isn't charged interest."

He arrives in the office about 9-ish and says:

"Guys I want to change the way credit cards are billed today, we need to forgive interest - for the good of the economy."

And Rham says - okay, we will take care of it.

Then Mr. president meets with Michelle to plan the social calendar, has lunch, flies off some where and later is handed a speech which he delivers about today's change of the credit card rules. He neither knows or cares what it says. It's all about waving the magic wand for him - and the perks.

[bad]

DoT, I think she is talking about this one LUN.

[MayBee]

heh, Jane.
I do get the feeling sometimes that he's never before read the speech he's giving. The Earth Day speech in Iowa is an example of one such speech.

I think he made a mistake at his presser because he was off teleprompter and he has this driving need to say things that get him warm fuzzies from his audience.

We all know- and our JMH has written wonderfully about it- BHO as a candidate had an incredible ability to hold absolutely every position. His pragmatism was supposed to be the magic that made it all come together.
He can still get away with this as President when it comes to legislation, because he can let Congress deal with the actual details.
But what he's never had to deal with in his career is actually being the one person who has to MAKE all the rhetoric fit together. That's why he's wandered so dumbly into this situation. He could make these statements when it was just another Senator's opinion. NOW he has to choose to actually either do something or not do it. He's boxed himself in.

This is his chickens. coming home. to roost.

[PDinDetroit]

Getting the American Dream is still alive and well in Detroit - LUN...

[Nick]

The only way "the Ministries argument does not work", is if one can credibly argue that waterboarding is not torture.

The logic runs thus:

1. The writers of the memos knew that waterboarding (deportation) violated international law (true, as well as American law, which the memo writers tried to put into dispute--see, e.g., the examples cited in this article by a former JAG: http://www.washingtonpost.com/wp-dyn/content/article/2007/11/02/AR2007110201170.html).

2. Because the attorneys knew waterboarding (deportation) violated international law, they had an absolute duty to object to waterboarding when approached regarding whether waterboarding was legal.

There is no "behaviors that shade from white to gray to black" regarding waterboarding and its illegality under international law. Waterboarding IS illegal under international law, and it has been prosecuted as torture here in the U.S. Any attorney researching this issue would have known that.

Heller's analysis is on all fours regarding waterboarding the the obligation of the Bybee and anyone else who stated waterboarding was legal.

[Phosphor]

Nick, you'll join me in agreement that if pouring water over someone is torture, then blasting someone apart with a predator drone must be an even worse form of torture, right?

[narciso]

One would be charitable and call it category
error, but I won't and say it's an obscene comparison. In the Ministries, the participants waged unprovoked wars against civilians, that were not only against international war, but against human decency. On the contrary, we targeted
'unlawful combatants' who target civilians almost exclusively. Actually defending AQ is more like defending the principals in the Ministries case. It's a vile debating point not really worth consideration.

[TM]

The only way "the Ministries argument does not work", is if one can credibly argue that waterboarding is not torture.

Which can be done, starting with the fact that we have waterboarded tens of thousands of US servicemen.

Your position is (a) it can only be torture and can not be applied with any finesse or judgment at all so as to become non-torture, and (b) no reasonable attorney could disagree.

I would say that just because we have prosecuted torturers who have used waterboarding, it does not follow that all waterboarding must be torture. (Not everyone with a cattle prod is a torturer, either - some are moving cattle. Not a great analogy, but think of the waterboard as the tool by which a torturer expresses his intent - the tool can't in itself be the crime.)

[clarice]

Code Pink used it on their own street performers..should we have arrested them?

[Nick]

Nick, you'll join me in agreement that if pouring water over someone is torture, then blasting someone apart with a predator drone must be an even worse form of torture, right?

Posted by: Phosphor
---------------

First, it's not merely "pouring water over somebody."

Second, you're comparing action taken during combat with action taken during interrogation. There are separate laws for each activity, but nonetheless there are laws.

Third, you're essentially implying that because a person isn't killed during interrogation, then it's okay to torture them.

Fourth, we are/were a nation of laws. We were constantly reminded that during the Clinton impeachment. Reasonable people will not dispute that a war crime is much more grave than perjury in a civil action.

Fifth, it is a fundamental American value that all humans are created with certain basic human rights.

Sixth, to those who have actually read and thought about conservative ideology, one of the starting points is the idea that government needs to be restrained by laws from violating basic human rights.

But all that is certainly going to be lost on someone who dismisses waterboarding as "pouring water over someone."

It's torture. You're for it, I'm not.

[bad]

Only if we hate the other people in jail...

[Nick]

On the contrary, we targeted
'unlawful combatants' who target civilians almost exclusively. Actually defending AQ is more like defending the principals in the Ministries case. It's a vile debating point not really worth consideration.

Posted by: narciso
--------------------

So American soldiers who killed civilians in Iraq--considered even by Richard Perle as an illegal war--can justifiably be tortured if captured (illegal combatants who kill civilians).

It's a great idea for any tyrant who has control of the labeling process.

[narciso]

What they want is 'Miranda rights for
terrorists,'where the terrorists can violate all the rules of Geneva, and yet qualify, yet they are under no obligation to obey the stipulations. Therein is an almost infinite incentive not to cooperate, while terrorist plots that could have been
uncovered continue. It's the DOJ and the CIA applying Alinsky's rule 4, to itself.
There can't possibly be a good end in this.

As for this Harman business, did she say what is alleged to have been said, that would be an objectionable thing, is it necessary illegal, doubtful, why didn't they prosecute if the evidence was so clear

[Jane]

Second, you're comparing action taken during combat with action taken during interrogation.

Well unlawful combat. We certainly haven't declared war on Pakistan.

Regardless it seems to me that killing someone is a lot worse than letting them live - at least where I come from. Apparently not true for you Nick. You have expressed no problem with that at all.

[sbw]

Nick: Fifth, it is a fundamental American value that all humans are created with certain basic human rights.

Yeah? What happens to some of those rights if you act against society? Nothing?

For gosh sakes, can't leftists ever follow a thought to a conclusion!

[boris]

"... considered even by Richard Perle as an illegal war ..."

Doubt RP was the legitimate government of Iraq.

If the legit government of Iraq considered the invasion by uniformed soldiers acting under order of the legit government of the US to be unlawful combatants ... then you might argue that waterboarding the soldiers to prevent terrorist attacks (???) is something we wingers couldn't credibly complain about.

Okay.

Certain facts rule that out though. The first Gulf war was only on hold in ceasefire under terms the government of Iraq had committed to which they subesquently violated. Hard for them to suddenly claim that US soldiers were unlawful combatants.

[clarice]

"What they want is 'Miranda rights for
terrorists,'where the terrorists can violate all the rules of Geneva, and yet qualify, yet they are under no obligation to obey the stipulations."

Of course. This is the Jimmy Carter view of true Christianity--a suicide cult where to prove one's moral superiority you bend down to the forces of darkness in the world.

Had he simply hired a dominatrix he could have avoided so much misery in this world.

[Rick Ballard]

Phosphor,

Isn't the President's ordering the execution of muslim teenagers suspected of terrorism, whether by Predator or sniper, of a different category than stressful interrogation techniques? It's true that many of the muslim teenagers are probably maimed during Predator strikes and some of them undoubtedly suffer greatly and are irreparably damaged but there is no apparent intent to torture involved. Lacking the President's clear intent to torture muslim teenagers, even though some undoubtedly do suffer greatly from the mutilation occasioned by his orders, he should not be judged any more harshly than any CIA interrogator applying stress during interrogation.

[boris]

"You're for it, I'm not."

So don't do it then. Nobody's asking you to waterboard terrorists.

As far as the government goes ... you get one vote, same as everybody else. Like it or not since the US constitution does not apply to foreign terrorists your vote is all you got.

[verner]

Yeah Rick. Who would you rather be? KSM getting his fat ugly butt Water boarded, or one of those Little Pakistani girls mauled by our Commander in Chief by a predator drone.

And I'll only add that not getting timely, accurate information from the A-Q scum only results in more unnecessary and innacurate predator strikes in Pakistan.

[hit and run]

TM:
Not everyone with a cattle prod is a torturer, either - some are moving cattle.

But it is illegal for Porchlight to http://www.dumblaws.com/law/934>carry wire cutters.

[boris]

When boris acts to keep the country safe, Nikki is involuntarily forced to endure security (s)he would reject.

Then Nikki acts to put the country at risk of attack, boris is involuntarily forced to endure danger he would reject.

Figures that Nikki would consider this situation more unfair to Nikki than to boris.

[daddy]

"The political officials would say they believed what they were doing was lawful, and a jury could very easily believe that,” Mr. Posner said.

Let's keep in mind that this would be a D.C. Jury.

Posted by: Pofarmer"

Po, I would love to know if any of these decisions were made at Bush's ranch in Texas, because then a case could be made, ala the convoluted reasons for holding Ted Stevens phony baloney trial in DC, that they ought to have the Trial in Texas in front of a Texas Jury.

Its criminal that we're even discussing trials, but a Texas Jury would be a damn sight better than what passes for an unbiased jury in the District of Corruption.

[Jane]

Had he simply hired a dominatrix he could have avoided so much misery in this world.

LOL

[Ignatz]

-Waterboarding IS illegal under international law..-

Do you have a citation for this assertion?

-and it has been prosecuted as torture here in the U.S.-

A soldier in the Spanish American War was punished with a 30 day suspension and a $50 fine for adminsitering 'the water cure' to an enemy soldier. Here is a description by a US soldier at that time from a New Yorker article on how the cure was administered in that war:

“Now, this is the way we give them the water cure,” he explained. “Lay them on their backs, a man standing on each hand and each foot, then put a round stick in the mouth and pour a pail of water in the mouth and nose, and if they don’t give up pour in another pail. They swell up like toads. I’ll tell you it is a terrible torture.”

That is clearly torture, but does it sound like the same procedure as outlined in the memos? Not to me.

One soldier received a discharge in Viet Nam for waterboarding an NVA soldier in the field without authorization.

And one Japanese POW was convicted of war crimes for waterboarding US soldiers, among other crimes.
Here is a description of Japanese waterboarding techniques:

-"This included waterboarding, by the method of binding or holding down the victim on his back, placing a cloth over his mouth and nose, and pouring water onto the cloth. In this version, interrogation continued during the torture, with the interrogators beating the victim if he did not reply and the victim swallowing water if he opened his mouth to answer or breathe. When the victim could ingest no more water, the interrogators would beat or jump on his distended stomach."

Again, does this even remotely sound like what the memos authrized?
I don't think any reasonable person would say yes.

[Rick Ballard]

Verner,

My feeling is that the muslim leaders who allowed and encouraged their children to join AQ or be in close association with AQ bear the responsibility for the death, maiming and mutilation of those children on President Obama's orders. President Obama has supported the killing and dismemberment of infants for his entire adult life so no one can reasonably expect him to show any mercy toward the muslim women and children who, through no fault of President Obama's whatsoever, have their lives destroyed due to his actions.

I find President Obama's actions in this respect to be completely consonant with his character and I firmly believe that muslim women and children will continue to die with the cowardly muslim fanatics who use them as shields as long as the President ascertains the existence of a probability that their deaths will enhance his political standing.

[Nick]

What they want is 'Miranda rights for
terrorists,'where the terrorists can violate all the rules of Geneva, and yet qualify, yet they are under no obligation to obey the stipulations.
------------------------

My values aren't (hopefully) determined by the bad behavior of others.

But all of this is tangential to the main point of the post--the OLC writers gave permission for the use of a waterboarding, illegal under international law, and fairly clearly illegal under American law.

The original post claimed the analogy was inapt, when in fact it's pretty much on all fours.

We prosecuted Nazi attorneys who knew that deportations were illegal under international law. Those attorneys determined to have violated a legal obligation to notify their superiors that deportation was illegal; they did the opposit.

In the present case, Bybee, Yoo, and Bradford knew waterboarding is illegal under international law (and almost certainly under American law). They had an obligation to write briefs with that information for their superiors. They did the opposite.

The statement in the original post that these two situations aren't analogous is wrong.

[verner]

"I find President Obama's actions in this respect to be completely consonant with his character and I firmly believe that muslim women and children will continue to die with the cowardly muslim fanatics who use them as shields as long as the President ascertains the existence of a probability that their deaths will enhance his political standing."

Good point Rick. And I feel that KSM has only himself to blame for whatever treatment he gets--not the brave people who have done their very best to walk the fine line between giving humane treatment to a monster who-by all standards--has excommunicated himself from the "human family", and protecting the innocent.

[Cecil Turner]

But all that is certainly going to be lost on someone who dismisses waterboarding as "pouring water over someone."

What do you call it? (We get the "torture" part . . . except when we do it to our troops, of course.) Something tells me you don't know what waterboarding is.

. . . (illegal combatants who kill civilians).

Something tells me you don't know what an "unlawful combatant" is, either. Here's some help (from SCOTUS)Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. 8 The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.A US soldier in uniform is hardly in this category (though our enemies typically don't follow this, or the other laws of war), regardless of what you think about the "legality" of the war.

[Phosphor]

Nick -

No one is going to take you seriously as long as you argue out of one side of your mouth that a terrorist having water poured on him is torture, while out the other side of your mouth you insist there's absolutely nothing morally or legally wrong with incinerating innocent Pakistani women and children in drone attacks authorized by Obama (which took place not, as you dishonestly claim, in a combat situation, but as an opportunistic attempt to extrajudicially assassinate a suspected terrorist).

If you're not just a paid Axelturfer I suggest you take a little time to recalibrate your #^%$&@-ed up sense of morality.

[boris]

"My values aren't (hopefully) determined by the bad behavior of others."

And my befavior is not determined by your values.

But hey ... let the prosecutions for breaking these "laws" proceed immediately. Pretty sure that will create a lot of sentiment along the lines of "just you wait ... next time we get hit ... you're gonna be sorry"

[narciso]

Seriously, Nick you're clueless. The Nazis operated very much in the same way that AQ operates now. And if we let them take over
Pakistan or Saudi Arabia, that would
punctuate the point. There is the parallel with the Ministries case, then again, Yale
has the Taliban's propaganda minister as a student. It is a moral atrocity to even make this argument, Good day to you, sir.

[Phosphor]

Lacking the President's clear intent to torture muslim teenagers, even though some undoubtedly do suffer greatly from the mutilation occasioned by his orders, he should not be judged any more harshly than any CIA interrogator applying stress during interrogation.

Rick,

I agree that we don't know Obama's exact personal intent with the extrajudicial assassination attempts -- presumably he's doing it to help protect the U.S. rather than out of some sadistic streak.

But given that being blown up is a little more painful, a little more final, and a little more permanent than being wet, I don't want to hear word one from him or his sycophants about how righteous he is because he's not waterboarding HVTs as long as he's still lobbing high explosives into a peaceful sovereign nation.

[Ignatz]

-waterboarding is illegal under international law-

You keep saying this but, since you provide no citation, presumably it is tautolgical Nick law;

Torture is illegal under international law.
Nick says waterboarding is torture.
Therefore waterboarding is illegal under international law.

[Rick Ballard]

Phosphor,

I wonder if they print this disclaimer on the Hellfires fired from the Predators:

Absolutely no stress was used in acquiring the tactical or strategic information used in ascertaining the legitimacy of the target struck by this missile. The information used was provided as the result of a friendly request with the full expectation of cooperation and truthfulness on the part of the people who agreed without reservation to provide targeting information which has regrettably resulted in your death, maiming and or disfigurement.

We regret any inconvenience cause by this action, authorized by President Barack Hussein Obama who has sworn that he is no enemy of Islam.

Inshallah.

[verner]

We prosecuted Nazi attorneys who knew that deportations were illegal under international law. Those attorneys determined to have violated a legal obligation to notify their superiors that deportation was illegal; they did the opposit.

So now Bybee is a Nazi.

[verner]

Torture is illegal under international law.
Nick says waterboarding is torture.
Therefore waterboarding is illegal under international law.

International law crafted by Eurocrats. Nuff said.

[clarice]

Do you get the idea that Axel tries out his new carp here to see how long it takes for smart folks to torpedo it? Or are we seeing the unfortunate results of liberal arts students without enough money to go to Bermuda for spring break trying to show off the rhetorical skilz they picked up in the dorm room since Sept?

[verner]

Unfortunately they didn't get it from the dorm Clarice,they got if from their crap neo-marxist professors.

Just heard Chas. K. on Fox. I love that man.

He just gave the most brilliant smack down of Pelosi EVER.

[clarice]

I love him, too. What did he say?..of course, on this he has an easy target.

[Captain Hate]

Verner, was it related to that idiotic statement that even though she was briefed on waterboarding she didn't know that they planned on doing it? That statement was incredibly dumb even by Nick's standards; proving that Pelosi Galore is willing to present herself as a complete moron in order to attempt to make a political point.

[verner]

Yep CaPT. PRETTY MUCH

Clarice, he basically said that if she felt that WBding was wrong, she had a moral and legal obligation to mention it the minute the topic came up, and CIA said that they might/would be using it "in the future".

Further, a briefing "after the fact" would be pointless, because the deed would already be done.

Oh if only the CIA will leak those memos.

I've read 30 briefings. As the co-chair of intel committee, and then speaker, I would assume that she would have been privy to ALL of them.

At the very least, LOTS of Democrats were--Harman isn't the lone ranger.

[Jane]

He also said that if we are going to have tribunals put pelosi in the dock first.

I second that suggestion.

[Nick]

Torture is illegal under international law.
Nick says waterboarding is torture.
Therefore waterboarding is illegal under international law.

International law crafted by Eurocrats. Nuff said.

Posted by: verner
---------------------------

“This is a critically important issue – but it is not, and never has been, a complex issue, and even to suggest otherwise does a terrible disservice to this nation…. The Rule of Law is fundamental to our existence as a civilized nation. The Rule of Law is not a goal which we merely aspire to achieve; it is the floor below which we must not sink. For the Rule of Law to function effectively, however, it must provide actual rules that can be followed. In this instance, the relevant rule – the law – has long been clear: Waterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise – or even to give credence to such a suggestion – represents both an affront to the law and to the core values of our nation.”

http://leahy.senate.gov/press/200711/110207RetGeneralsOnMukasey.pdf

Four retired judge advocates general, aka, Eurocrats, expressing their view that waterboarding is not only a violation of U.S. law, but also a violation of Common Article 3 of the 1949 Geneva Conventions.

Eurocrats.

[clarice]

Nick, Leahy still can't get over the fact that the Dems lost fair and square in 2000. It's eating his lefty heart up from the inside. As Professor Robinson so wisely notes, if it weren't waterboarding, it would be something else they conflated to try the Bush administration. He's wrong and he's nuts.

[sbw]

Pat Leahy has said some wondrous things in his life. They parse as sentences but do not stand up to scrutiny, Nick.

His statement is a rhetorical flourish, nothing more. The premises don't stand up to scrutiny, and even if they did, the conclusions do not logically follow.

Take a course in rhetoric. The Teaching Company has a good one, "Argumentation: The Study of Effective Reasoning."

[MayBee]

if it weren't waterboarding, it would be something else they conflated to try the Bush administration. He's wrong and he's nuts.

Before it was waterboarding, it was something else.

First, it was for not doing enough to stop 9/11.
Then it was Koran-flushing and fake menstrual blood "torture".
Then it was water boarding.

This was an moral outrage in search of a cause.

[Cecil Turner]

. . . waterboarding is not only a violation of U.S. law, but also a violation of Common Article 3 of the 1949 Geneva Conventions.

Waterboarding is a violation of US law? Then how come it's been practiced at SERE school for decades? Did the lawyers not know it was going on?

Back to that "unlawful combatant" thing. Who is covered by Common Article 3? Spies? (No.) Mercenaries? (No.) Terrorists? (Hint: same as the first two.)

[Nick]

Pat Leahy has said some wondrous things in his life. They parse as sentences but do not stand up to scrutiny, Nick.

His statement is a rhetorical flourish, nothing more. The premises don't stand up to scrutiny, and even if they did, the conclusions do not logically follow.

Take a course in rhetoric. The Teaching Company has a good one, "Argumentation: The Study of Effective Reasoning."

Posted by: sbw
-----------------

It's not Leahy's statement.

It's a statement from four retired JAG officers submitted to Leahy's committee.

The letter from the JAG officers states:

"Waterboarding is inhumane, it is torture, and it is illegal."

It further stated that the four sitting JAG officers (four different JAG officers) in 2006 "[unanimously and unambiguously agreed that such conduct is inhumane and illegal and would constitute a violation of international law, to include Common Article 3 of the 1949 Geneva Conventions."

Now, rather than use your expertise at logic to parse out the premises and conclusions in the JAG letter (which I merely posted in response to the suggestion of one of your fellow travelers that the idea that waterboarding is illegal under international law is an idea expounded by 'Eurocrats'), impress me and show me how Maguire's argument that the conduct of the attorneys in the Ministries case is not analogous to the conduct of Bybee, You and Bradford regarding the OLC memos.

If you have trouble, I explained how the analogy is on all fours. Use your claimed superior skills and show how I'm mistaken.

Or just toss an ad hominem (you know what that is, right?).

[clarice]

Well, the first effect of the Obama F*&( up on the memos--the Dems are testing their long knives on eachother:

http://news.yahoo.com/s/nm/20090423/pl_nm/us_usa_security

[clarice]

Let me do a litle editing on Leahy's fine blown prose:
The Rule of Law is fundamental to our existence as a civilized nation. The Rule of Law is not a goal which we merely aspire to achieve; it is the floor below which we must not sink. For the Rule of Law to function effectively, however, it must provide actual rules that can be followed and a Congress willing to follow them. Rules like innocent until proven guilty. Rules like Senators not leaking classified information. Rules like not conflating policy disputes into crimes. Rules like confirming the president's judicial nominees as long as they are qualified to hold those positions.

[Rick Ballard]

"the Dems are testing their long knives on eachother:"

Let us all hope that they maintain there strength to the bitter end.

[sbw]

Nick, Clarice beat me to it. But let me pile on:

Rhetorically, your JAG comment boils down to, "My attorney says..."

And that opinion is not admissible as fact and somewhat short of an adjudicated decision.

Finally, I never claimed my skills were superior, but you just demonstrated that they were.

And, I was honestly trying to give you a solid pointer. The Teaching Company course on rhetoric still might be useful to help you recognize Leahy for the blowhard he usually is.

[PD]

It's a statement from four retired JAG officers submitted to Leahy's committee.

The letter from the JAG officers states:

"Waterboarding is inhumane, it is torture, and it is illegal."

Nick, you claimed it was illegal, and then when pressed offered the above as "evidence." All it amounts to is the view of four JAG officers. How does that translate into binding U.S. law?

[Nick]

And, I was honestly trying to give you a solid pointer. The Teaching Company course on rhetoric still might be useful to help you recognize Leahy for the blowhard he usually is.

Posted by: sbw
------------------

One last time--it wasn't Leahy's statement. It was a letter from 4 chief JAG officers stating waterboarding is illegal under U.S. and international law, which cites Congressional testimony from four other chief JAG officers stating essentially the same thing.

[clarice]

What is a "chief JAG officer?" How many chief HAG officers do you think there are? How frequently do you suppose they are in disagreement?

[clarice]

**chief JAG officers***

[bad]

chief HAG

I'm tired of talking about Pelosi...

[Nick]

What is a "chief JAG officer?" How many chief HAG officers do you think there are? How frequently do you suppose they are in disagreement?

Posted by: clarice
___________________________

There is 1 chief JAG for each branch of the service (it helps to read the information in the links). In the present case, all 8 cited from each of the four branches of service agree that waterboarding is torture and illegal under U.S. and international law.

That is pretty persuasive opinion, and Bybee, Yoo and Bradford had an obligation to inquire into the law which informs that opinion, including past U.S. prosecutions of American and foreign individuals convicted of waterboarding.

A short brief would include 18 U.S. 2441 which makes war crimes illegal, and incorporates as the definition of war crimes the Geneva Conventions of 1949 (to which the U.S. is a signatory and hence by which the U.S. government is bound to obey by law).

Specifically, subd. (c) Definition.— As used in this section the term “war crime” means any conduct—

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;....

If you read Common Article 3, in definitions it would include the prisoners we've taken in this conflict, and it clearly prohibits mental or physical abuse. It's a very restrictive treaty, with good reason--nobody wants their soldiers tortured.

Bybee, Yoo and Bradford had a legal obligation to research and advise in consideration of this area of the law. Instead they gave permission to torture. Hence, according to the Ministries case, they are liable to prosecution for war crimes.

As a side note, I recently saw a bit of writing by Posner (I assume it's Judge Posner), who claimed that war crimes prosecutions in this matter are unlikely--not because there was no merit to the claims, but because of the reaction of the right wing of the U.S.

That's pretty damning when you think about it. If Posner thought the prosecutions lacked merit, he'd say so. And despite being a conservative jurist, his word would carry weight. He should be on the Supreme Court, well ahead of Thomas or Alito.

[clarice]

Nick,this is all that I get when I click on your link.

Senator Leahy

Page not found.

404: File Not Found

Sorry, the page you were looking for could not be found. It may have moved to a new location. Please use the navigation at the top to help you locate the page. You can also search for a page by using the Search Page at this site.

To go on to the main page of this site, click the link below:
Leahy.senate.gov

Absent an ability to see the originals, I can't comment further. I believe Leahy is a lying con of a bitch and would examine any "evidence" he proffers in support of any claim with a magnifying glass.
Just saying

[boris]

"it would include "

Or not.

"nobody wants their soldiers tortured"

Terrorists are not soldiers. This is the root of your confusion.

Nobody wants innocent civilians slaughtered, beheaded, tortured, shredded, raped, gasses ...

Nobody except the terrorists that is.

[clarice]

Nick, it was not JUDGE Posner--you assumed incorrectly. It was Michael Posner, head of Human Rights First (probably) a Soros funded left wing operation.http://abajournal.com/news/war_crimes_against_bush_officials_unlikely/

The statement was made in July 2008.

[boris]

"And despite being a conservative jurist"

Who cares? Nobody disputes it is a controversial issue with some reasonable people on both sides.

I am not interested in being "reasonable" when it comes to terrorists and you lack the capacity to be reasonable about anything.

[boris]

"Michael Posner, head of Human Rights First (probably) a Soros funded left wing operation."

Heh. Another one pwn3d. Most Excellent C.

[JM Hanes]

Good grief Nick. The prisoners we have taken would not, in fact qualify under Geneva at all -- which is probably why you don't quote the defining language.

"Bybee, Yoo and Bradford had a legal obligation to research and advise in consideration of this area of the law. Instead they gave permission to torture."

Research and advice on the extent and limits of the law is precisely what they provided. Do you even know what documents are actually involved here? The idea that a lawyer in the OLC has the power to grant "permission" to anybody, let alone the President or the CIA, is legal fatuousness of the highest order. As Al Gore would say, what you yourself refer to as the JAG's "opinion" does not constitute controlling legal authority. There are, indeed, good reasons to set clear limits on what soldiers can and cannot do -- which has virtually nothing to do with the interrogations at issue, of course.

"If Posner thought the prosecutions lacked merit, he'd say so."

Who knows what "bit of writing" you came across, but I assume if Posner had said that prosecutions were warranted, you'd have passed that tidbit along -- which means, of course, that Posner wouldn't say one way or the other. I afraid sbw may be right. You would lose your ass in a courtroom. So would the folks maniacally pushing to prosecute the former administration -- which is why Democrats are suddenly looking for more elastic venues like hearings or truth commissions, where they won't be constrained by stuff like, you know, the rights of the accused in law.

[clarice]

Nick, has given one cite in support of his work, which cite proved non existent.
Then he said he remembered something by someone named Posner who he ASSUMED was the great Judge Posner and uses that to buttress his unsubstantiiated legal arguments which are so many flowery words and so little like you know actual LAW and it turns out this was a lefty Posner, not judge Posner, a lefty Posner who is an advocate for nogoodniks like KSM.

I propose that until Nick can come up with something more substantial to support his airy fairy claims we ignore him.

Two strikes already ,Nick. You are on thin ice.

[Charlie (Colorado)]

Nick, what's you're effectively arguing is that 4 JAG officers' opinions are binding and the Deputy AGs' are not.

How do you know that? Because you agree with what you report to have been reported as having been the opinion of the JAG officers.

You're also kind of missing the fact that the JAG officers may have been opining about people who were legitimate POWs, which )since they use no distinguishing marks and use the civilian population as a shield) the Al Q people weren't. And also that, for various good legal reasons, CIA isn't constrained in the same ways as are military personnel.