Torture logic

Dangerous precedent (4.00 / 1)

When it comes to the idea of impeaching a judge over his/her ruling or judicial philosophy, I am firmly opposed. As some may recall, people like Tom Delay threatened to impeach SCOTUS justices for invalidating anti-sodomy laws back in 2003. This led to an increase of death threats against the justices and other federal judges.

Now, if a judge is corrupted in his ruling, that could be impeachable. If a judge is incompetent, that could be impeachable. If moral terpitude is questioned, that could be impeachable. Impeaching someone for something they wrote in a memo before becoming a federal judge is not something I can ally myself with.

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by: WV26003 @ Sun Apr 19, 2009 at 16:12:28 PM UTC

interesting perspective (0.00 / 0)

Thanks for providing that perspective.

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by: Clem Guttata @ Sun Apr 19, 2009 at 18:13:15 PM UTC

[ Parent ]

illegal legal advice (0.00 / 0)

WV26003 - Just to make sure I was clear about it. The reason I think there is grounds for impeachment is because Bybee has demonstrated incompetence in the legal arena. The "something they wrote in a memo" was a legal opinion.

As the New York Times Editorial page puts it (emphasis mine):

In one of the more nauseating passages, Jay Bybee, then an assistant attorney general and now a federal judge, wrote admiringly about a contraption for waterboarding that would lurch a prisoner upright if he stopped breathing while water was poured over his face. He praised the Central Intelligence Agency for having doctors ready to perform an emergency tracheotomy if necessary.

These memos are not an honest attempt to set the legal limits on interrogations, which was the authors' statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country's most basic values.

My personal opinion is the four authors should not be welcome in polite society, most especially not sitting on the Federal bench or teaching in a law school.

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by: Clem Guttata @ Sun Apr 19, 2009 at 18:27:56 PM UTC

[ Parent ]

If the California Bar (4.00 / 2)

looks at his role as a lawyer as not worthy, then all bets are off for his judgeship. Incompetent? Others who are lawyers think so.

If the Senate had known the truth, it would have rejected him. The story of William Haynes offers a cautionary tale. As general counsel of the Department of Defense, Haynes also played a key role in authorizing torture; and he was also rewarded by a nomination to a leading appellate court. But before he could be confirmed, the Bush administration's involvement in torture became a matter of public record, and the Senate refused its consent to the nomination. Bybee is a judge today only because of timing and the administration's assertions of executive privilege.

Also, I am finding no support for his work from the father-in-law who has been a member of the Supreme Court bar arguing for the NAACP, and starting backward in his federal career, Assistant General Counsel in the Treasury Department, Solicitor of the Federal Maritime Commission, Assistant Attorney General, and some lawyer job at the CIA.

NFTT: Support My Team or I Will Dance

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by: CA Berkeley WV @ Mon Apr 20, 2009 at 03:39:04 AM UTC

[ Parent ]

Nuremburg. Just curious, do you in any sense equate (4.00 / 1)

the Bush/Cheney administration with the war crimes of Hitler and his henchmen?

By "any sense" I mean morally, politically, empirically, historically.

I think many, if not most, Americans resist that equation, and I think that's partly the reason Obama has decided, for good or ill, not to go the prosecution route against the CIA's "good Germans."

Unlike Germany, our country was attacked. And, unlike Nazi Germany, we did not pursue a policy of genocidal extinction.

As I thought I said before (question on that to follow), I can see at least one valid term of comparison between American policy in the Bush administration and the German Total State: The dull bureaucratese of the language used in the frightening Justice Dept. memos to justify torture as an official instrument of US policy.

It's disquietingly reminiscent of the "banality of evil" that Hannah Arendt defines as a hallmark of the fascist mindset in her Origins of Totalitarianism.

As to my question: I thought I posted a version of this soon after your diary appeared. Maybe I forgot to click "post," though I don't think I did. Or maybe there was some sort of Internet/computer glitch. But if not, was it for some reason censored? (If it wasn't, I apologize in advance of your reply.)

 

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by: benjaminwalter @ Sun Apr 19, 2009 at 19:23:27 PM UTC

difficult questions (4.00 / 2)

Good questions.

Simplest one first. No censoring. We love comments! I can count on one hand the number of comments I've deleted in two years and they were either my own typo-ridden missives or obvious duplicates!

I have had lots of my own comments "disappear" though. After having it happen to me a half dozen times or so at OpenLeft I finally figured out I was hitting preview and then forgetting to hit post...

::

I think Hitler and Nazi Germany comparisons are fraught with difficulty and avoid them whenever possible. I only used linked to one here because it is the direct legal analogy. Unfortunately, as soon as anything Nazi is mentioned, it tends to derail the conversation. (I do agree, though, with your "banality of evil" comment.)

Yes, "our country was attacked", but that's a red herring.

I think the whole problem is that we decided after that attack to do exactly what the attackers wanted. They wanted us to take the low road.  We threw out our own constitution. We became the barbarians. We did all the horrible things they had told the world we did.

::

Back to the question of handing out a free pass to those who went along with illegal policies... consider those exceptionally brave individuals who decided not to just go along with the illegal behavior. To now give those who tortured a free pass is wrong.

Let's talk about Alyssa Peterson:

Every single torturer who is given a pass by Obama's embrace of the Nuremberg Defense represents another insult another attack on those who did not willingly go along, whether or not they found a way to effectively remove themselves from becoming part of the machinery of evil. Every single torturer who is given a pass by Obama's embrace of the Nuremberg Defense represents another bullet in Alyssa Peterson's body, another insult to her honor, her integrity, and her good name.

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by: Clem Guttata @ Sun Apr 19, 2009 at 20:18:07 PM UTC

[ Parent ]

Good answers. I thought it was interesting... (4.00 / 1)

Thursday night on Countdown that Keith Olbermann, when interviewing John Dean, did (notwithstanding Keith's many virtues) his shtick of asking leading questions to get the answers he wanted rather than listen closely to some of the telling things Dean said and follow up on them.

For one example, Dean alluded to failed Watergate burglar prosecutions to illustrate why "good German" prosecutions of CIA perps--acting on however-whorish Justice Dept. legal "fig leaves"--would be extremely hard to get.

It was also interesting that Dean said the practice of using the Justice Dept. as a reservoir of partisan political hackdom when it comes to getting those kinds of extra-legal fig leaf opinions is an aberration that began with Reagan, ceased with Clinton, returned with Bush II and has ceased again with Obama.

This is just my view, but if a special prosecutor could be appointed and the mission could be confined to Bush, Cheney and executive-side presidential appointees, such as the hack Justice Department authors of the torture-as-policy legal fig leaves, I'd be dancing in the street.

But once a special prosecutor is in place, that investigation can't be confined to the cancer's source.

Some (relatively speaking) "little people"/career public servants, who don't even begin to have the defend-themselves resources of Cheney/Bush/Gonzalez et al, are going to get fried, too.

And, as this plays out, Joe Sixpack isn't, IMO, going to like that part of it, either.

Neither is the intelligence "community" that, frankly, Obama politically is in no position to alienate just now.  

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by: benjaminwalter @ Sun Apr 19, 2009 at 20:53:06 PM UTC

[ Parent ]

benjaminwalter (4.00 / 1)

That sounds very much like "keep our powder dry."


When a man embarks upon a crime, he is morally guilty of any other crime which may spring from it. Sherlock Holmes.

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by: Carnacki @ Mon Apr 20, 2009 at 12:30:00 PM UTC

[ Parent ]

"Powder dry"! Excellent Carnacki...I'm honored to be ... (0.00 / 0)

associated with that phrase.

Since I'm a big-time redneck Appalachian progressive Democrat.

And that phrase is so resonant of Andy Jackson and my current political hero, Senator Jim Webb.

Being even more serious, I'd seriously love to know what Webb's take on this issue is.

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by: benjaminwalter @ Mon Apr 20, 2009 at 22:59:11 PM UTC

[ Parent ]

Clem, (4.00 / 2)

I understand torture is your thing, and I can't disagree with your strong feelings about it.

But really, President Obama is right, it's time to move on. It's time to let the sins of the past stay in the past and make them right by the way we behave in the present and the future. This issue needs to be fully put behind us....now. Any future action will be so mired in political gamesmanship and muckraking on both sides, all it will do is distract and futher entrench the divide in this country.

And as is always the case for me....how would this play out politically for Obama to spend his first term prosecuting the sins of the Bush administration? I doubt we would see a second Obama term.....I could be wrong, but why take the chance?

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by: japhyryder79 @ Sun Apr 19, 2009 at 23:55:38 PM UTC

actually... (4.00 / 1)

Truth be told... clean energy is more my thing, I'm a reluctant blogger on the topic of torture. It's more Carnacki's thing than mine. :-)

Not everything is up to Obama. Somethings are up to the Democrats (and Republicans!!) in Congress, too.

It's also up to us as the electorate to demand that our elected leaders act responsibly. Here's my biggest fear--if we don't do something, government sanctioned torture will happen again (in your and my lifetime). Next time around it may be US citizens like you, me, and our kids spirited off to government detention centers for who knows what.

Here's a question for you... how did putting Iran-contra behind us work out?

Oh, right, that's how we ended up with the crew back in power to "fix the intelligence." That's how we ended up with this torture policy, with the invasion of Iraq, and with who knows what else?

When does it stop?

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by: Clem Guttata @ Mon Apr 20, 2009 at 00:16:43 AM UTC

[ Parent ]

Sorry for (4.00 / 1)

mixing the two of you up.

And for the rest....touche' (not sure how to properly place the ')

My main point and area of concern is that any further action will be a circus.....nothing of good substance will come out of it and it will hurt us politically.

Obama has exposed the gross behavior supported by the God fearing Bush administration and lost practically no political capital. True, everything isn't up to him.....but any negative blowback from this will be felt by Democrats.

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by: japhyryder79 @ Mon Apr 20, 2009 at 00:57:22 AM UTC

[ Parent ]

Well said, Clem (4.00 / 1)

When a man embarks upon a crime, he is morally guilty of any other crime which may spring from it. Sherlock Holmes.

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by: Carnacki @ Mon Apr 20, 2009 at 12:28:55 PM UTC

[ Parent ]

japhryder said it well (4.00 / 1)

...."how would this play out politically for Obama to spend his first term prosecuting the sins of the Bush administration?"  .............  The answer is President Obama need not be overly involved in the sorting out of this legal and civil rights mess that the Bush Administration made.

  Obama need not be involved because US citizens, entire classes of Law Schools , the Justice Department and our elected representatives will get Involved.

   Andover Law School. Berkley. UC. U Of Chicago .  The list goes on and on and on.  College students , professors and the legal community are all over the Bush Admistration and they are going to stay all over the Bush administration. Leave it to a bright young group of the Millennial generation activists to force the nation into bringing  to Justice the people that thumbed their nose at our laws. ...........  The activism of the nations youth has been reawakened by the abuses of the Bush administration. I must say they leave me awe-struck. These are not my generation of activists. Where we fought to set ourselves outside the system. Fought to place blame and showed our contempt for the man and his unjust system.
These are young people that have learned to work within the system. These are young people that have the legal, economic, and political clout to make the system work for them. And they are skillfully wielding their power in a awesome new very effective type of activism.
    I am impressed and have great faith in the activist young people I see at work in the nation today.
   They will do great things. And set the nation on a path my generation worked and dreamed of.  
  It will amount to three generations of activism to right the course of the nation. The balls being carried now by our brightest and most competent generation yet.

  This is going to take a couple of years to get going guys. Progressives need to be patient.  Support the effort and work to further this cause.  It will happen and I suspect we will see some of the first fruits of the investigations just prior to the 2010 Congressional elections.

 Here is how I see this scenario playing out.  
   Eric Holder new to the Justice Department has his hands full trying to right the wrongs of the Bush administration. Just replacing the States Attorney's and getting rid of the Bush Ditto Heads will take him a few months.
   The Bush partisans are out at the state department ........... Holder and the Obama administration will replace them with people that respect the law is non partisan.

   The nation is in luck!  We have a President who is a constitutional law professor. Obama's ties to non partisan defenders of the law go deep and swim in the pool of justice. Behind the scene our constitutional law professor / slash president has a virtual army willing to build the case against the Bush administration for him.  Private citizens , law schools , legal scholars all working to make that happen.
  Democracy at it's finest. The citizens and the law will not be denied where the Bush crimes are concerned. Private citizens now released from their loyalty to Bush as the commander in chief are coming out of the woodwork contacting civil rights groups and law schools to tell their first hand accounts of  Bush administration crimes.
  Testimony will be gathered in mass.   The case presented to the Congress and Justice Department and the announcement will come.
  " Congress to Hold Bush Administartion Truth Commission"
  The hearings will be long.  I'd estimate 3-4 months at least.  They will be a media circus. Sound bites by the talking heads will be seen on the nations airwaves by the millions. ...........  Problem for the Bush administration is those sound bites will be of American citizens serving in civil service positions that will testify they were horrified and conscious stricken by the orders they received by cabinet members of the Bush administration. But could they dare disobey when so much lay on the line for the nation where the war on terror was concerned? So they obeyed.

  The underlings will be given immunity to testify. Prosecutions of cabinet members of the Bush administration will be few if any. What we will get instead is a historical Congressional resolution condemning the illegal activities and the twisting of our laws under the Bush administration. A resolution that stands for civil rights and the rule of law in the nation.  A resolution that admonished the nation to be ever vigilant that partisans like Bush never be allowed to twist the nations laws again.

  What we will get is a resolution that assures the Bush administration goes down in history disgraced.  Law schools will  teach the intricacies of the Bush administration abuses to our laws and civil liberties for a century. We will pass some new laws to make govermental activities a bit more transparent. We will rescind parts of the Patriot act brought to light through the commissions that violate civil liberties.
   More importantly we will shore up the checks to power set down  by our constitution. Never again will a president be able to hide from Congressional over sight as Bush did.
 The lesson the nation will take from this is that the founders knew their stuff. Our Three branches of government are designed to check and scrutinize the actions of each other. Thanks to Bush that principal will be solidified in the minds of Americans as the nation moves forward.  

  I guess the old saying is true, every cloud has a silver lining. Even a storm of immorality and injustice like the Bush administration will provide the civil lining of a return to the nations core principals and social justice.

   

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by: wvpeach @ Mon Apr 20, 2009 at 15:33:24 PM UTC

[ Parent ]

Thanks for the compliment Peach, (0.00 / 0)

but you sort of totally missed my point here.
Axelrod said it best:

"The president believes strongly that we need to be looking forward," said Axelrod. "If he had not banned these [interrogation techniques] there would be a different case to be made here. But these practices are a thing of the past. What this should not become is a forum for re-litigating these issues apropos to the last administration and some of the policy makers there, because we have too much work to do to become bogged down in that debate. That's the feeling."

The "middle" is not going to stay with us on this issue for long. My point and my argument is that we, as a whole, need to stop and let this issue die.  If we allow ourselves and our party to be led down a path by the "Move On" people, our majorities will become vulnerable.

There are real problems in this country that need fixed and re-litigating the past is not going to fix health care, social security, education, or the environment....it is only going to serve as a tool for the right to obstruct.

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by: japhyryder79 @ Tue Apr 21, 2009 at 12:46:28 PM UTC

[ Parent ]

right on japhyryder79!!! (1.00 / 1)

You are so right! President Bush was right when he put politicians in charge of the Justice department. The President decides what laws to obey and enforce.

Those "Move On" people are driving the country to ruin. They were wrong about the Iraq war, too. It's about time someone said that here.

Yeah, the Republican party has hit a rough spot (I saw somewhere the commies in Venezula and China are more popular) but that could change in a heart beat. If Democrats keep saying bad things about what Republicans did, they'll lose the majority for sure.

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by: joseph hawkins @ Tue Apr 21, 2009 at 13:20:36 PM UTC

[ Parent ]

Please forgive me for speaking against the (0.00 / 0)

all mighty MoveOn people!

Also, it wasn't too hard to get the Iraq war right there Joe!

But more importantly, can you respond and counter my argument in a fashion that doesn't involve just trying to insult me or misrepresent my position?

Seriously, do you think moderates are going to stay with us on this one? Do you think the right will not turn this into a case of "soft lefties" caring more about Khalid Sheik Mohammed than protecting Americans?
And do you think getting even with Bush/Cheney (because even if that's not what it's about, it's how it will be perceived) is more important than health care, the economy, education, etc.?

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by: japhyryder79 @ Tue Apr 21, 2009 at 14:16:16 PM UTC

[ Parent ]

You are about as prescient on this (0.00 / 0)

as you were for Vic Sprouse's pick for McCain's VP being SMC last year.

Are you talking with your tongue firmly planted in your cheek , or are you just glad to see us?

NFTT: Support My Team or I Will Dance

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by: CA Berkeley WV @ Thu Apr 23, 2009 at 19:47:03 PM UTC

[ Parent ]

Dangers of pragmatism (4.00 / 2)

Meteor Blades - Pragmatism on Torture Another 'Sorry Kind of Wisdom'

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by: WVaBlue @ Mon Apr 20, 2009 at 11:06:00 AM UTC

Khalid Sheikh Mohammed (4.00 / 2)

On the Waterboarding of Khalid Sheikh Mohammed

Those of us who knew Danny are very protective of Danny and his legacy because Danny Pearl was an exceptional human being. It is hard to talk about Danny and not wax eloquent. It is beyond belief to us that when Al Qaeda killed Danny they killed someone who actually was interested in having their grievances heard. Not that Danny or I sympathized with Islamic terrorism but there are many who think it important to understand its causes so that we might be able to better mitigate its spread.

In thinking about Khalid Sheikh Mohammed and the fact that he was waterboarded 183 times in the month of March of 2003, I cannot but express how this denigrates everything that Danny stood for. In waterboarding Khalid Sheikh Mohammed, we have descended to the level of that butcher. We have proved that we are no better than them and I refuse to believe that. The West has a moral obligation to live up to the ideals that Danny Pearl embodied.

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by: WVaBlue @ Mon Apr 20, 2009 at 11:16:59 AM UTC

For the record, I am against torture, and feel that anyone who either used it or legally authorized it should be prosecuted. (4.00 / 2)

Anyone thinking that torture isn't effective is missing a key point. Torture has long been recognized to be a highly effective method of producing war propaganda.

I strongly believe that blowback from US torture policy has caused far more harm than good, but no one can really make an informed judgment about how much good torture produced unless those who justified it step up and list all the good which they produced by using torture. Under oath.

Obama's whole "looking forward" argument is bogus on two levels. Under current law, prior records are considered when investigating, prosecuting, convicting and sentencing regular citizens, so why should the Bush Administration or any of their hand-picked Corporate Intel Agents get a pass?

The fact is, if Iran-Contra criminals had been prosecuted, we would not have had one Bush/Cheney administration, let alone two, and they would never gotten their hands on the 'shadow government's' black ops apparatus and technology.  It's never too late to prosecute 'enemies of the state. ' George H.W. Bush didn't pardon himself.  Neither did GeeDubya.  

So although I believe that Kieth Olbermann had it right, I'm not certain that Barack Obama doesn't have it right as well. At least from the standpoint of his own survival, it may be best to at least wait awhile before Obama prosecutes anyone in Cheney's shadow government, given the low level of protection and oversight which Congress has afforded any of us from the CIA. Including (and perhaps in particular) prominent lefty U.S. leaders.

That's why I feel it's important that a special prosecutor take this on.

I also feel that any Democrats who won't support the appointment of a Special Prosecutor at some point should suffer politically, including Obama. Torture is unAmerican, and US citizens "get it"  -whether or not our politicians have the guts to recognize it.

Douglas Feith, Bush's former under secretary of defense recently wrote an op-ed in the Wall Street Journal regarding Spain's attempt to prosecute former Bush officials over their use of torture. He made on point on which I wholeheartedly disagree.

This is not a left-versus-right political issue. It is a question of preserving the American constitutional system of government in which U.S. officials are answerable for their opinions and advice to the American people -- but not to foreign criminal courts.

However, I'm probably politically and historically wrong by disagreeing with Mr. Feith on this point, as the Geneva Convention is as much part of U.S. law as any other U.S. treaty. Our politicians have a long record of casually dismissing foreign treaties in the past, so why should we stop now?

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by: One Citizen @ Mon Apr 20, 2009 at 19:27:16 PM UTC