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Edited on Wed Apr-22-09 07:48 AM by pat_k
War Crimes were committed. It is public record that Bush, Cheney, Addington, Ashcroft, Gonzales, Yoo, Byee, Bradbury, Haynes, Rumsfeld, Tenet, Goss, and Hayden are among the high officials responsible for the violations.1 Internal records exist that identify the government employees who committed cruel, degrading, and inhumane acts upon persons in U.S. custody.
So, the suspects are known (or can be identified on records). The only open question is whether or not a given suspect has a legitimate "affirmative defense."
Whether or not participants in the war crimes "relied in good faith" on the criminal legalisms "authorizing" the crimes is not a judgment that either President Obama or the AG can make with any credibility or legitimacy.
The proposition that every CIA agent who participated in the "program" actually believed, in good faith, that slamming a captive's head against a wall 30 times; keeping them awake for a week and a half; or subjecting them to water torture did not constitute cruel, inhumane, or degrading treatment, is absurd on it's face.
But, even if it were not absurd, it is the role of the court, not the prosecutor, to be the finder of fact on such matters. While "just following orders" may prove to be a legitimate defense in a given case, it mustn't be allowed to be institutionalized as a blanket "get out of jail free card" by "prosecutorial discretion."
The burden is on the person who committed war crimes to prove their "good faith" state of mind to the satisfaction of a court. As you say, this is what our courts are for -- to pass judgment on such "tough questions" case by case, in accord with the Rules of Criminal Procedure, which are designed to keep the judgment as free of passion or prejudice (or political pressure) as possible. (In other words, to do it in a way that gives US ALL confidence in the result.)
This administration's inexplicable failure to do what they must is so damaging on so many levels. We know CIA employees were involved in the program. Refusing to charge the specific individuals makes ALL CIA agents war criminals in the public mind. If some of those who did participate can show that they acted in "good faith," Holder's refusal to charge them is denying them the opportunity to clear themselves.
By refusing to charge Bush and the other high officials involved, we are telling the world that the definition of cruel, degrading, and inhumane treatment in the USA is a mere "opinion,' not worthy of judicial determination. In other words, "techniques" discontinued by this administration could be reinstated by the next. It says we don't consider the acts to be an affront to the body politic worthy of punishment. It tells the victims of torture (or the families they are survived by for those that didn't make it) that we don't consider the horrors they were subjected to in our name to be worthy of the "stress" of a trial.
The bottom line is this: If we fail to meet our treaty obligation to investigate, and where warranted prosecute, we merely shift the obligation to the other parties to the treaty. And the shame of having to look to other countries to take care of "our war criminals" and bring the USA back into the community of civilized nations, is a shame this nation can never fully recover from.
It is up to Holder to act, but that does not let either Obama or Congress "off the hook." The President and Members of Congress each have an oath-bound duty to use the power we entrusted to them to ensure that the DOJ does its job in this matter.
========================== 1. US Code Title 18, Sec 2441 (War Crimes); Title 18 113C (Torture); Article III of the Geneva Conventions, and the UN Convention against torture.
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