Tortured Logic: Obama Writes Off Old Crimes While Promoting New Outrages

[Karmadillo]

Floyd argues the Obama defense is the Nurmeberg defense.

http://www.chris-floyd.com/component/content/article/3/1743-tortured-logic-obama-writes-off-old-crimes-while-promoting-new-outrages.html

I have little to say at the moment on the details of the Bush torture memos released by the Obama Administration, beyond what I have been writing for many years now about these sickening practices, and what they say about America's bipartisan, imperial elite, which countenanced them, and often openly championed them. (I think my first piece on America's torture system was written in early spring 2002 -- a column printed in the Moscow Times, drawn from readily available stories in the mainstream press. America's willing practice of torture as an official policy has been open knowledge for almost the entire decade. But I will admit the bit about using putting insects into the torture box of a wounded, deranged captive was new.)

Barack Obama is being given great credit for releasing the memos, although as the president himself points out in his statement, their release was actually required by law. I suppose it's true that the United States government has become so degraded that we must be surprised and glad when a president actually obeys the law when it suits him, but I must say that I can't find any great cause for rejoicing -- especially as Obama's statement immediately and definitely ruled out prosecuting any of the direct perpetrators of these criminal actions.

I know that some are holding on to the hope that Obama's carefully worded statement leaves open the door to prosecuting the actual instigators of the crimes -- the top officials of the Bush Administration, including George W. Bush, Dick Cheney, Don Rumsfeld, and a host of other very senior officials and advisers; but I believe this is wishful thinking in the extreme. Look again at what Obama actually said:

But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

If Obama truly believes that prosecuting unknown CIA operatives would constitute some kind of disturbing disunity that the country could not bear in the present situation, then how likely is he to pursue the even more "disturbing" prospect of investigating and indicting a former president and his top officials?

And now focus closely on this astonishing phrase:

...we must resist the forces that divide us, and instead come together on behalf of our common future.

It is clear in the context of his statement that "the forces that would divide us" refers to those who are calling for the instigators and perpetrators to be prosecuted. They are the ones insisting on the disturbing, disunifying course of "laying blame for the past." But what, in the name of God, are America's "core values," if they do not include prosecuting people who order and commit the high crime of torture?

And cannot every criminal on the face of the earth now claim the Obama defense: "Surely, your honor, nothing will be gained by spending our time and energy laying blame for the past. So let's forget the fact that I (raped/murdered/robbed/tortured), and move forward, shall we?" For the Obama defense is nothing other than the Nuremberg defense: "I was only following orders. I was given assurance by the highest authority that my actions were legal in all respects." Is this what we have come to? Is that what now constitutes bold, progressive action? Is this, really, part of our "core values," an essential embedded component of our "national greatness?"

more...

[Supersedeas]

1. An element of the reasonable reliance defense: Model Penal Code Rule Sec 2.04(3)(b)

A person's belief that her conduct is lawful constitutes a defense if:

1. she relies on an official, but erroneous, statement of law;
2. the statement of law is found in an official interpretation by a public official or body responsible for the interpretation, administration, or enforcement of the law; AND

AND

3. the reliance is otherwise reasonable.


By releasing the Memos, the Obama Administration is 'anticipating' the presense of the first two elements of the reasonable-reliance defense.

By pronouncing the conclusion that there will be no prosecutions, the Administration is ASSUMING the presense of the third element without considering the particular past acts involved.

It is an Anticipation and an Assumption that none of us regular folks would ever EVER receive.

[Supersedeas]

2. one can even dispute whether the Yoo/Bybee/Bradbury Memos were merely legal opinions

Consider this:

The role of an OLC opinion in our government as the statement of law binding on the Executive is a significant aspect of the Yoo case that makes this not merely an opinion up or an opinion down but an operational document (an act) to further the conspiracy to torture.

In addition, the opinions (on the theory the opinions are post hoc rationalizations of things that went before or pre hoc "cram downs" to help those below accept to do the torture) are operationalized documents.

Put kindly, they are frauds.

The work of Yoo and others in furthering the National Security Principals conspiracy to torture and other crimes is prosecutable in US domestic law as the means available to vindicate the international law rule that US v Alstoetter is concerned with.


See some discussion here:
http://balkin.blogspot.com/2008/05/john-yoo-and-justice-case.html