What I think should happen with prosecutions...

[stevenleser]

From everything I have read, my opinion is:

1. Obama should recognize the World Court and other instruments of international law that Bush refused to recognize

2. Obama & Hillary should use backchannels to approach another country to raise the issues (torture/gitmo, illegal war, etc.) in the World Court.

3. Obama should provide all the information & documents to prosecutors at the WC that would be necessary for an effective prosecution.

4. Obama should permit extradition of ALL people that are indicted.

Then sit back and let the judicial process take place outside of the US, free of US politics, and without the protections of "the AG told me I could do it".

Of course, I also think this should not be done until we have Universal Healthcare and Obama has moved as far as he is going to on the LGBT rights issue. If this blows up somehow I dont want either of those other two items to suffer.

[knowbody0]

1. and this can be Obama's LIHOP

[Aloha Spirit]

2. To me, appointing an independent prosecutor seems a good idea.... what would be the drawback there?

Also, the World Court or other international bodies might drive all the anti-UN people mad--and there are surprisingly a lot of them! I learned this driving cross-country, saw anti-UN billboards :crazy:
My understanding is that the international courts are designed to be used when the states themselves refuse or cannot prosecute the cases.

[stevenleser]

4. Unprosecutable in many situations due to AG guidance

Turns out that in terms of US jurisprudence, AG guidance telling you that what you are about to do is legal is a nearly absolute defense. To get around that defense, you would have to prove that the person acted out of deliberate bad faith. That would seem to me to be as difficult as proving malice in a libel or slander case.

[Aloha Spirit]

5. Ah yes

I guess I was thinking of the other people against whom there would still be a case despite the reality you state.
Those who we don't prosecute could definitely face justice overseas.

[WeDidIt]

3. I could accept this approach fully

and it would restore my faith in Obama.

[bigjohn16]

6. Passing the buck on this isn't the way to go.

What we need to do is prosecute torturers and those who gave the orders according to the rule of law. We need to show the world that we can hold our people accountable and set a precedent so these same things won't happen again in the future. If we pass on justice because we have other political objectives then we are failures as a world leader and as human beings.

[stevenleser]

7. So, what is your solution to the AG guidance issue?

Or do we ignore that problem, try to prosecute, and have a flood of Not Guilty verdicts just to show we were 'serious'?

[bigjohn16]

10. We start an investigation into any possible crimes that may have taken place.

Just because they were given guidance by the AG doesn't make it lawful. The AG can give his interpretation of the law he can't make law. If the individuals tortured people they broke the law according to TITLE 18,PART I,CHAPTER 113C of the U.S. Code. Also just starting an investigation does not lead to indictments but if it can be proven that they broke the law there needs to be justice.

There are stories about CIA agents buying insurance to protect themselves from the cost of future prosecution. That's a huge indicator that even with the AG giving them guidance they still knew what they were doing was possibly illegal.

[stevenleser]

12. Wishing something to be doesn't make it so. This barely has even a small chance of working

First remember that we have to prove someone guilty beyond a reasonable doubt.

Combine that with the AG guidance and you have a nearly impossible task. You now have to prove beyond a reasonable doubt what was going on in someone's mind to prove that they acted in bad faith. Even with the knowledge that these folks had prior training in the legal issues surrounding interrogation and treatment of POWs and folks in similar status, the AG guidance will be a massive mountain to overcome.

Any even slightly reasonable sounding explanation coming from any of these folks is going to make proving bad faith nearly impossible.

I am as appalled as anyone about this Attorney General guidance issue*. I didnt know about it until yesterday. But one has to recognize reality when it is presented and deal with it. Wishing a way around the Attorney General guidance to prosecute in US courts doesnt make it legally plausible.


* - As appalled as I am, the legal reasoning makes sense. If the highest ranking prosecutor in the land issues an edict saying that something is not a crime based on their understanding of the law, people ought to be able to rely on that. This is yet another situation where the system does not anticipate and account for an evil person in a particular position of power.

[bigjohn16]

14. None of that changes the fact that there need to be an investigation.

If crimes were committed then there needs to be indictments. You don't have to prove someone is guilty beyond a reasonable doubt to appoint a Special Investigator to look for possible wrong doing. The AG defense may preclude large portions of the CIA agents from possible prosecution but that's not a reason to give them a pass when it comes to a possible investigation. You don't pack up and go home just because the other side has a strong case. You follow the letter of the law and indite those who broke the law. You have to prove beyond a reasonable doubt to get a conviction not to indite someone and let justice have its day in court.

[stevenleser]

15. I'm not sure you are right here and would put the administration and prosecutor on dangerous ground

Someone with a criminal law background please correct me if I am wrong, but I believe if you are a prosecutor and you pursue and obtain indictments that you know have no reasonable chance of resulting in a conviction, I think that constitutes prosecutorial misconduct.

Not to mention, what you are talking about would result in aquittal after aquittal. You talk about the damage of not prosecuting, what about what the damage of across the board aquittals?

[bigjohn16]

17. All I want is an investigation into possible crimes.

We know that torture took place that's enough to at least start an investigation. If there is proof of crimes then we have a responsibility to let justice be done. If there's no proof then you don't seek indictments but we know there was torture and we know that's against the law.

[stevenleser]

20. Prosecutors do not waste money on investigations that they know cannot result in a conviction

it is a waste of taxpayers money. I've seen in other threads what you hope will happen and it is not a realistic hope. All of the folks involved know that they are unprosecutable because of AG guidance. They are not going to "turn states evidence" if there is no realistic threat of anything happen to them. States attorneys and district attorneys decline to prosecute cases all the time if they feel they cannot get a conviction.

Thankfully, Obama and his AG are not going to do what you want, because THAT would result in acquittals of everyone concerned.

[bigjohn16]

21. There's no cost to great in the pursuit of justice.

It sickens me that money would ever be a factor when we're talking about the investigation of torturers and those who held their leashes. This is a sad day for America and even sadder one for the human race.

[stevenleser]

24. Just what the Freepers said with regards to the Clinton Impeachment

The reality is, money pays for healthcare, roads, bridges, etc.

Of course there are costs too great.

[bigjohn16]

26. So I'm a freeper for wanting to hold torturers accountable?

Should we just scrap the justice system to save money for those items? The Obama administration is on the wrong side of history with this issue and it's enough to make this man regret his vote.

[polichick]

8. Better than nothing, but that does seem like passing the buck...

We need to take responsibility for our own criminals imo.

[stevenleser]

9. See my response to bigjohn16.

Unless we have a reasonable solution to that issue, I think we are dead in the water.

[polichick]

11. I would support the appointment of a Special Prosecutor...

At the very least, we could see that the lawyers involved lose their licenses to practice (and to serve as judges).

I'm okay with not going after the CIA operatives - but justice demands a look at the top brass imo.

[stevenleser]

13. This makes more sense

I think we could even skip a step and go right to the bar association to have them investigate this. I might even do this myself as I think anyone can file a bar complaint. I believe the things that usually get people disbarred are conviction of a crime, fraudulently overcharging clients and not honoring the confidentiality of attorney/client privilege. But, items like what we have here can also do that.

Do you have links to the findings/guidance by some of these people in the AGs office or the AG themselves? If not, I can find them.

[polichick]

16. Sorry, I don't have any links...

A guest on NPR this morning mentioned the possibly of going after the lawyers - only caught a couple of minutes so I didn't get his name, but I thought it was a great idea.

[Spazito]

18. The World Court only acts when a country refuses to do so....

and shouldn't be used, imo, for political expediency. To join the World Court and then, in essence, breach it by refusing to prosecute, in your own country, those who committed war crimes would be as big a black mark on the US as was already left by the bush administration.

[stevenleser]

19. This is a perfect fit. We CANNOT prosecute most of these people

due to the AG guidance.

[Spazito]

22. To be clear, the Administration statement was specific 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."

Those who "will not be subject to prosecution" are those CIA officers who acted "in good faith" upon legal advice from the DOJ. There is no same protection given to those other than the CIA officers who acted in good faith leaving those who were responsible for authorizing the torture, DOJ, etc, open for prosecution.

I can only surmise, then, that you believe the World Court (ICC) should prosecute the CIA officers who have been given protection?

[stevenleser]

23. If indictments are issued and extraditions are requested, I would say Yes, comply

and in terms of the good faith issue, your quote is of course, correct.

As a practical matter, however, overcoming the obstacles of having to disprove "good faith", AND the AG guidance is next to impossible

[jewishlibrl]

25. Rahm said today that Pres. Obama does not want to prosecute Bush officials, either

By DOUGLASS K. DANIEL, Associated Press Writer