Proceeding Independently From Political Motive - The Nelson Mandela Approach

[FrenchieCat]

the rule of law can only truly be applied in an environment that is as independent from political motive as possible. If Obama were to come out openly advocating the seeking of legal retribution for the crimes of Bush, Cheney, Rumsfeld and the others, it could not but be regarded (accurately, in my view) as a political maneuver. Such an event would degrade the president's legitimacy by rendering his tactics no better than those of the people he would seek to prosecute.

While the president certainly can (and should) not hinder the prosecution of his predecessor and his administration should another state (who can use the ICC) or entity (such as an organized group wishing to file a class-action suit against the previous administration for harm to the group as a whole - e.g. taxpayers organization, veterans groups, etc.), it is not the job of the president himself to seek such "justice." Directly punishing their predecessors is something done by tyrants in authoritarian regimes, not by legitimate, democratic leaders in an open society. This is why it was the widely revered cleric Desmond Tutu, rather than the newly elected President Nelson Mandela, who led South Africa's own Truth and Reconciliation Commission at the conclusion of Apartheid in that country."
http://www.truthout.org/021809J

[Beetwasher]

1. Exactly! Obama NEEDS To Remain "Above The Fray" And Allow Congress and DOJ To Pursue Justice

He should not be pushing for it or involve himself so that the process remains as unpoliticized as possible.

Thus all his language about "looking forward". It is exactly the right approach for him to take and in no way precludes investigations and possible indictments.

[FrenchieCat]

2. I think only those who don't give a shit about Barack Obama

and what he can achieve for the American people are the ones calling for him to lead investigations against any and all. These folks, hiding behind the "rule of law" don't understand that the "rule of law" specifically does not read that the President of the United States should participate in the prosecution of any one person, let alone a slew of CIA agents. To believe that he should and could is to subscribe to the Bush way of achieving justice.

[HopeOverFear]

5. they want revenge, not justice...an eye for an eye

[FrenchieCat]

6. I'm still trying to find out which part of the constitution they are citing

when they insist that President Obama prosecute CIA Agents. :shrug:

I'm sure they will let us know soon.

[WeDidIt]

19. Article VI n/t

[Hissyspit]

51. Article VI, the one about the President upholding treaties, including the Geneva Conventions:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x5478524

"...all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Geneva Conventions, Article 2:

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

http://www.unhchr.ch/html/menu3/b/h_cat39.htm

"Each High Contracting Party shall be under the obligation to search for persons alleged to have committed , or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts."

[Top Cat]

46. I agree that the president is taking the right approach and it's not all about politics

as some would have us think.

[Cha]

3. Yes, but that's too

complicated for those who want to rage on President Obama and they want to do it now.

[FrenchieCat]

4. You must mean, President Kucinich, right?

On the one hand, President Obama's detractors on this issue continue to cite their insistence that President Obama uphold the constitution, but the same detractors fail to understand what the constitution actually states what is the role of the President of the United States, and it isn't to get involved in the affairs of the Judiciary Branch of Government.

In other-words, they do not know of what they speak of.....and that includes Mr. high fallutin' Turley who screams the same song on our television at every appearance.

Barack Obama is not George Bush. He will not tear up the constitution in order to see folks getting their "Just desserts". That is not his job.

The first three articles of the U.S. Constitution call for the powers of the federal government to be divided among three separate branches: the legislative, the executive, and the judiciary branch. Under the separation of powers, each branch is independent, has a separate function, and may not usurp the functions of another branch. However, the branches are interrelated. They cooperate with one another and also prevent one another from attempting to assume too much power. This relationship is described as one of checks and balances, where the functions of one branch serve to contain and modify the power of another. Through this elaborate system of safeguards, the Framers of the Constitution sought to protect the nation against tyranny.

Under the separation of powers, each branch of government has a specific function. The legislative branch—the Congress—makes the laws. The executive branch—the president—implements the laws. The judiciary—the court system—interprets the laws and decides legal controversies. The system of federal taxation provides a good example of each branch at work. Congress passes legislation regarding taxes. The president is responsible for appointing a director of the Internal Revenue Service to carry out the law through the collection of taxes. The courts rule on cases concerning the application of the tax laws.

Under the system of checks and balances, each branch acts as a restraint on the powers of the other two. The president can either sign the legislation of Congress, making it law, or Veto it. The Congress, through the Senate, has the power of advise and consent on presidential appointments and can therefore reject an appointee. The courts, given the sole power to interpret the Constitution and the laws, can uphold or overturn acts of the legislature or rule on actions by the president. Most judges are appointed, and therefore Congress and the president can affect the judiciary. Thus at no time does all authority rest with a single branch of government. Instead, power is measured, apportioned, and restrained among the three government branches. The states also follow the three-part model of government, through state governors, state legislatures, and the state court systems.
http://legal-dictionary.thefreedictionary.com/Seperation+of+powers

[WeDidIt]

7. FrenchieCat, you know I'm a huge Obama supporter

but this is a bridge too far for me.

The Nuremburg defese is indefensible.

[FrenchieCat]

8. What part of the constitution are you citing in your insistence that

President Obama insures the prosecution of these many CIA Agents?

Because I am sure that yours is a constitutional issue, this displeasure you have with
Obama's refusal to politicize his office.

[WeDidIt]

11. This is the problem I have is the politicizing Obama is engaged in

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

This is engaging in politics. The president has ordered that criminals will not be prosecuted under the arguments of the very Nuremburg defense which was rejected by the entire world more than sixty years ago.

Obama has politicized this. Had he not ordered these men could not be prosecuted for their crimes, he would have been engaing in constitutional behaviour.

Prosecutions must proceed wherever the evidence takes them regardless of political considerations. Obama has put a halt to that precisely because of political considerations.

I have never been so disappointed in any human being in my life.

[FrenchieCat]

12. You make a good point, but then...

"The president has stated that it is not his administration's intention to prosecute those who acted reasonably and relied in good faith upon legal advice from the Department of Justice. As I understand it, his decision does not mean that anyone who engaged in activities that the Department had not approved, those who gave improper legal advice or those who authorized the program could not be prosecuted. The details made public in these memos paint a horrifying picture and reveal how the Bush administration's lawyers and top officials were complicit in torture. The so-called enhanced interrogation program was a violation of our core principles as a nation and those responsible should be held accountable"-- Russ Feingold

[WeDidIt]

16. But that's entirely the point

It is illegal to follow an illegal order, yet the president has ordered that those who illegally followed an illegal order will not be prosecuted.

This means you need to throw out about 95% of the convictions in teh Nuremburg trials, and a good argument can be made for 100%.

It's absurd on its face, and Feingold supporting it doesn't alter the absurdity.

[FrenchieCat]

25. It was not an illegal order at the time, as that has not been settled yet....

which is why those who determined what was and what wasn't legal at the time that the orders were given are the ones who need to be prosecuted first and foremost.

[mmonk]

9. Upholding the Constitution and the rule of law is not legal "retribution".

[FrenchieCat]

13. What part of the constitution?

[mmonk]

14. Where do you want to start?

[FrenchieCat]

15. The part you are citing of course.

[mmonk]

18. 6th amendment, 8th amendment,or

Article II section 2?

[FrenchieCat]

22. What parts specifically?

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.


Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.


Article II, Section 2.
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.


He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.


The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
http://www.law.cornell.edu/constitution/constitution.articleii.html#section2

[WeDidIt]

17. Here's the specific part of the constitution being violated

The Constitution of the United States

<snip>

Article VI

<snip>

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Geneva Conventions are a treaty engaged in under the Authority of the United States and is thus the Supreme Law of the Land.

The Geneva Conventions specifically state that torture is a war crime and that there is no defense in following the orders of superiors to torture.

[FrenchieCat]

20. That is specifically why it is those making the policies who need to be prosecuted.....

not those following the directives of the DOJ.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
http://www.law.cornell.edu/constitution/constitution.articlevi.html


Clause two provides that the Constitution, federal laws made pursuant to it and treaties made under its authority, constitute the supreme law of the land. It provides that state courts are bound by the supreme law; in case of conflict between federal and state law, the federal law must be upheld. Even state constitutions are subordinate to federal law.

The problem is how the Geneva Convention applied as far as the DOJ was concerned at the time.

On January 18, 2002, President George Bush (the decision is referenced1 in the Gonzales Memo of 25 January, 2002) made a presidential decision that captured members of Al Quaeda and the Taliban were unprotected by the Geneva POW Convention. That decision was preceded by a Memorandum dated January 9, 2002, submitted to William J Haynes II, General Counsel to the Department of Defense, by the Department of Justice's Office of Legal Counsel (which provides legal counsel to the White House and other executive branch agencies) and written by Deputy Assistant Attorney General John Yoo and Special Counsel Robert J. Delahunty.
http://lawofwar.org/Torture_Memos_analysis.htm

Executive Order: Interpretation of the Geneva Conventions Common Article 3
http://www.theindychannel.com/news/13726837/detail.html

[WeDidIt]

21. Then you must overturn at least 95% of the Japan War Trial convictions

because those men were only following the orders of their superiors under the good faith that what they were engaged in did not violate any law.

You cannot have it both ways.

[FrenchieCat]

23. I am not trying to have it both ways.

I am only stating that I believe that you are using interpretations and calling them absolute.

I am stating that I support the policy makers being held accountable, and not so much the peons. I agree that my position is up for debate, but so is yours.

That's my point....that Barack Obama is not breaking any laws in the constitution, and that it is those who chose to misinterpret the Geneva Convention and ordered those under them to follow their guidance who are guilty of criminality. Therefore, I believe that the legal maneuvers undertaken by the Bush-Cheney White House is what is at odds with the constitution.

So we will have to agree to disagree as to who actually went against the Constitution, and who deserves to be prosecuted for such.

[WeDidIt]

24. The peons are EVERY BIT as responsible as the policy makers

I'm sorry, but it's true.

Failure to prosecute them spits in the face of international law.

And by fialing to prosecute, Obama becomes an accessory after the fact. Obama is in direct violation of international law, and that makes him every bit as much of a war criminal as George W. Bush.

[Beetwasher]

26. Where Do YOU Think Obama Has The Authority To PROSECUTE

He's the President, not a prosecutor. It is NOT his job to prosecute criminals. Congress needs to investigate and DOJ needs to prosecute. Obama is not and should not be involved. It is NOT up to him to hold people accountable for crimes committed while he was not in office. He doesn't have that authority. That is the jurisdiction of Congress and the LEGAL SYSTEM. Separate branches of the Government.

[WeDidIt]

28. Excuse me

byt ordering that no prosecutions occur, he is obstructing justice under the Geneva conventions.

It';s a fine distinction, but I concede the distinction.

This makes Obama every bit as much of a war criminal as anybody in the Bush administration.

[FrenchieCat]

30. Barack Obama is constitutionally within his right.......

In fact, he is following the constitution, not going against it.


Article II, Section 2.
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.


He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.


The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

[WeDidIt]

34. where are the pardons, then

That's the only way they Conant be criminally culpable.

[mmonk]

39. Below that part, underlined a different president already made a treaty

the law of the land (Geneva Convention).

[FrenchieCat]

44. Quote it for me.

What you are conveniently leaving out is that the Bush administration,
on paper, formally interpreted section 3 of the Geneva Convention.
In so doing, until that interpretation is ruled as illegal by a court,
you are incorrect.

[Beetwasher]

31. That's Idiotically Simplistic

"This makes Obama every bit as much of a war criminal as anybody in the Bush administration."

Good grief you sure are a hopeless hater.

If an independent prosecutor finds that certain people need to be prosecuted, or if Congress investigates and finds need for prosecutions, Obama will not stand in their way.

[WeDidIt]

33. If the Bush Administration Officials are war criminals and Obama has ordered no prosecutions

he is obstructing justice.

Under international law, that makes him as culpible as the original criminals.

So either there are no war criminals, or they are all war criminals. The only way Obama cannot be lumped in with the Bush administration in this is to allow the prosecutors to proceed wherever the evidence takes them, which would include those who actually performed the torture.

[Beetwasher]

37. Where Has He Ordered "No Prosecutions"????

Where the fuck do come up w/ this bullshit? He's ordered no such thing. Put up or shut up.

[WeDidIt]

41. Well what the fuck else does this mean

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

This is the "Nuremburg Defense". These people are cirminals regardless of what the DOJ told them.

[Beetwasher]

43. So, You Think That Means NO Prosecutions???

That means they won't proceed w/ prosecutions against THOSE particular people. Does that mean NO prosecutions????

"...it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution."

That leaves plenty of wiggle room to prosecute people.

[WeDidIt]

45. Yes, tehre will be NO prosecutions of these criminals

Regardless of any other criminals, the people who actually did the torturing are every bit as criminals as those who signed off on the policy and must be prosecuted as well.

Who the fuck do you think 95% of those convicted in the Nuremburg and Japan war trials were?

[Beetwasher]

47. LOL!! Well, Thank You Nostradumbass!

"...it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution."

Lot's of wiggle room in there to prosecute people. Even people who DID the torturing. If they did it BEFORE legal advice was given, is just one example. If they did not rely "in good faith" upon the legal advice. Etc.

Not to mention the higher ups.

[FrenchieCat]

27. you calling Barack Obama a war criminal

has just closed off what should have been a reasonable debate.

You have determined an absolute based on interpretations.......but you are not a judge, except for in the court of public opinion. I understand that, and as another judge in the court of public opinion, my opinion differs from yours.

[WeDidIt]

29. No, Frenchiecat, it is a matter of simple law.

If any of these Bush Adminsitration officials are war criminals, then Obama must also be ipso facto unless he rescinds his order not to prosecute.

[Beetwasher]

32. You Know Shit About The Law

You make it up as you go along to fuel your hate.

[WeDidIt]

35. You might want to look over my psots of the past several months

I doubt there has been anybody more supportive of Obama.

But this is one line I refuse to cross. Ordering prosecutors to not proceed due to political considerations is wrong, and is obstruction of justice. This makes Obama an accessory after the fact.

[Beetwasher]

38. "I doubt there has been anybody more supportive of Obama."

:rofl:

Oh brother. That's rich. So supportive that you claim he's a war criminal after three months in office and nothing to back up your bullshit?

[FrenchieCat]

40. I think you are wrong and rash on this.....

and this thread spells out why.

You are pretending that the courts have ruled the Bush Administration's Justice Department's directive illegal, but they have not as of yet.

You are suggesting that those following the directive shouldn't have done so because it was illegal, but it hasn't yet been judged illegal.

You are going about this backwards, and you don't even realize it.

[WeDidIt]

42. First of all, you're wrong

This is what has me in uproar:

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

This is the "Nuremburg Defense". The entire world rejects this defense. The Geneva Conventions were altered to specifically prohibit this defense. Those who carried out torture on prisoners are cirminals. By disregarding international law and treaties, Barack Obama becomes every bit as culpable as they are.

[FrenchieCat]

48. You can keep repeating the same thing, but it won't make your argument

anymore legal.

As for "your professed support" for Barack Obama, I recall your incessant postings of the Birther controversy. You might call that support beyond all others, but some might beg to differ.

Again, I have your view, which equals that Barack Obama is a War Criminal. I understand your view, and no, I don't agree with your findings.

So I'll leave you here in agreeing to disagree with your conclusion at this time. period.

[WeDidIt]

49. Um

I bring up the Birthers because they're funny. sort of like the teabaggers were two days ago.

They crack me up.

And you can disagree all you want. Your opinion does not alter constitutional and international law.

[FrenchieCat]

50. You have not cited any constitutional or international law

that have been judged illegal by an appropriate judicial body.

The first thing that must happen is that those who "interpreted" Section 3 of the Geneva Convention must be tried and the courts must find that they did not interpret Section 3 correctly. That is the first step which needs to be taken in this whole thing. Again, you are glossing over that, and have decided that your judgement alone is enough to convict the Bush Administration and its justice department. You may be correct that they are guilty, but the problem is that a judgement has not yet been formally rendered, and until it has, you are only talking about what you think, but not what the law actually is.

In this country, you have a right to your opinion, but you personally are not allowed to make law when you feel like it.

[WeDidIt]

54. We can agree on one thing

It was the right thing for the president to release the memos.

[FrenchieCat]

55. There you go! At least everyone is talking about what occurred in reference to torture,

instead of talking about some dumbshit that doesn't matter.

[FrenchieCat]

36. "IF" any of these Bush Administration.....is the part that has not yet been determined......

which is the part you miss, which is why you are dealing in fabricated absolutes,
and calling this Presidents names without official justification.

Until it has been determined and judged by the appropriate judicial body that the Bush Administration's directives to the CIA indeed were in breach of the law, and illegal, those
who were ordered to act under those directives did not break the law.

You can feel that Barack Obama is a war criminal, but that doesn't mean he is.

In otherwords, you have put the cart before the horse, and have decided to indict Barack Obama, and call him guilty before there has been an actual judgement against the Bush Administration calling them guilty.

[Bluenorthwest]

53. The United States has excecuted people

for waterborading Americans, people who were ordered to do so by their legal superiors, following the laws of their country. We killed them for it. And now, when it is our own, suddenly such behavior is fine, and humans are not responsible for themselves if they have a note from home.

[Bluerthanblue]

56. the crimes 'we' executed people for were much

more than waterboarding.

http://members.iinet.net.au/~gduncan/massacres_pacific.html

http://www.pbs.org/wgbh/amex/macarthur/peopleevents/pandeAMEX101.html

That doesn't EXCUSE or condone those things that were done by our CIA operatives, or which we allowed to be done by other countries while we looked away- but you can't use the argument that we killed people for doing the very same thing- cause it wasn't the very same thing.

NO ONE says the behaviour 'is fine' or anything about 'a note from home'- that kind of absurdity makes your arguments meaningless.

What the memo's describe is outrageous- but if we take that outrage and just dump it on everyone else, we're not helping anyone or anything.


:shrug:

[Hissyspit]

52. See Post #51. nt

[redqueen]

10. There are so many reasons why...

I do think that the outrage about the possibility of *no* prosecutions is good... it gives his administration cover for doing what's right.

But yeah... so many reasons why he shouldn't be out in front on this.