AG Doesn't Have a Choice -- Rep. Nadler

[pat_k]

Huzza!

From tonight's Countdoawn:

Rep. Nadler: We're waiting first for the office of professional responsibility to come out with a report on whether Judge. Byee, and Yoo, and{Bradbury} violated professional ethics by writing these handbooks on how to torture people -- which is what those memos were. They were not honest legal memos. They were handbooks on how to torture people and get away with it under the law. . . .

. . .Mr. Conyers announced that the judiciary committee is going to be holding hearings in the next few weeks I gather on the question of torture and the question of people in the administration who arranged and suborned torture. Now, all of these are illegal acts. And let me say one other thing. I don't think the attorney general has much choice but to appoint a special counsel -- a special prosecutor -- because everybody now knows from the international community Red Cross report; from admissions that waterboarding was done; that torture --- these memos make it very clear that torture was committed.

The convention against torture, which the United States helped draft and signed, which is the law of the land, mandates that when there is evidence of torture that there must be an investigation and where warranted a prosecution. And that's why I have called for a special counsel to be appointed to do the investigation and to decide whether prosecution is warranted. And it must be a special prosecutor because the justice department itself -- albeit in a prior administration -- was itself implicated in these crimes.

And earlier, Jonathan Turley's trenchant assessment of the "usefulness" of a "truth commission":

Jonathan Turley: There is no significance to a commission -- a truth commission. First of all, a truth and reconciliation commission is an insult to a country that believes it is committed to the rule of law. That is often seen in emerging democracies. We have nothing to reconcile. The people who committed torture have to reconcile themselves to the criminal code. We don't have to reconcile anything as a nation. . .

God help us if the only thing we get out of this is a commission modeled on 911. That was a commission that was really made for Washington -- that was composed of political appointees of both parties that ran interfere for those parties. A commission that insisted at the beginning that it would not impose blame on individuals. So it's the ideal Washington commission -- a commission that would investigate without any repercussions.

Now, where are the rest of our so-called "leaders"??

[Metta]

1. Hiding. Trying to figure out how to appease Republicans and make them like them.

Waaaaah.

[Laelth]

2. Excellent. n/t

:dem:

-Laelth

[stillcool]

3. Carl Levin is putting it in Holders lap...

which is where in my opinion it should be...I mean the Justice Department investigates and prosecutes, right?

I have recommended to Attorney General Holder that he select a distinguished individual or individuals – either inside or outside the Justice Department, such as retired federal judges – to look at the volumes of evidence relating to treatment of detainees, including evidence in the Senate Armed Services Committee’s report, and to recommend what steps, if any, should be taken to establish accountability of high-level officials – including lawyers.

[pat_k]

8. Not "opinion" -- there is no other option.

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.

[stillcool]

9. Why do you think information...

is being released in such a timely manner? Do you think the Administration was unaware of the Armed Services report being released last night? Do you think that the more information released to the public the more political cover the majority party will have to go after the opposition party? Do you think the Administration can decide who will and who will not be prosecuted, once the matter is in the hands of those responsible for collecting evidence and initiating prosecutions? What government is it that we have anyway?

[pat_k]

10. Of course the "Administration can decide."

It requires nothing more than a public statement akin to the statements made by the Rep. Nadler. To say:

We know war crimes were committed in the name of the American people.

We must defend our Constitution, and meet the obligations of the treaties that are part and parcel of that document as the Supreme Law of the Land, to bring those who committed these blatant violations to justice, no matter high their office. And it is our courts, through the processes we designed to ensure that justice is done without passion or prejudice. It is not enough to discontinue this illegal program. We must confront the truth, enforce the law, and where warranted, exact the punishments we have determined to impose on those who are found guilty of such violations.

The Bush administration ordered Americans to systematically abuse persons in U.S. custody. There may be details previously unknown to the public in the recently released memos and reports, but there is nothing of substance that was not on the record. Obama confirmed this when he released the memos.¹

The case against those who committed war crimes has been indefensible for years. Bush and Cheney admitted and proudly defended this program -- this criminal enterprise -- long ago. Obama has been obligated to make a statement like the above from the day he took the Presidential oath. Just as, prior to that date, he and every other elected official who took an oath to support and defend the Constitution, was obligated to call on the House to immediately impeach Bush and Cheney; to call on the Senate to remove them stop the ongoing torture.

Our treatment of any person in state custody, and the process by which they are committed to state custody -- whether that person is captured in the field of battle; an orphaned child, a convicted prisoner, an illegal immigrant; a criminal suspect; or suffers from mentally illness -- defines our identity as a nation. A government that employs arbitrary or unjust processes, is unjust. A government that subjects those in its custody to inhumane treatment is inhumane. A government that refuses to enforce the law by prosecuting those who commit such atrocities under color of law is a fraud.

Committing ANY person to state custody without process of law violates core and inviolable American principles. By parroting the http://talkingimpeachment.com/blog/Hall-of-Shame-Inductee----Barak-Obama.html">false memes Obama protected White House war criminals from impeachment. This was an intolerable breach of our Constitution. As is his refusal to demand the prosecution and punishment of government officials who proudly ran the illegal program.

----------------------
1. "First, the interrogation techniques described in these memos have already been widely reported. Second, the previous administration publicly acknowledged portions of the program and some of the practices associated with these memos." (Obama, http://blogs.wsj.com/washwire/2009/04/16/obama-statement-on-release-of-torture-memos/tab/print}4-18-2009>

[stillcool]

11. man...do you even think about politics?

Surely you understand that a newly elected President can not and should not publicly state that he personally is going after the previous administration, and that it is not and should not be his call. And that nothing regarding the systematic release of information is happening outside the realm of the Executive Branch. And that the media will attempt to manage perception, and sway public opinion to such a degree that the public will be indifferent, un-supportive, and look at any action as a witch hunt. And that the members of the United States Congress need to understand that the public demands action. And that those who sit back and watch what happens will contribute to whether some kind of accountability is meted out, or this whole torture era fades to black.

[pat_k]

13. He has no choice. To intentionally refuse to carry out his oath-bound. . .

. . .duty for political expedience, or out of fear of political consequences, is intolerable immorality. I have viewed him as a victim of beltway-blindness and the "sickness" of DC group think. I believe he can recover with "treatment" (i.e., challenging the lame excuses and false menes that kept impeachment "off the table" and are now keeping prosecution "off the table.").

The reasons you cite for his failure are far more outrageous -- and mean he is probably incapable of doing the right thing. If you are right -- that the dereliction is born of such corrupt political motives -- and Holder doesn't wake up and save their asses by pursuing prosecutions, from the top of the chain to the bottom, then we would have no choice but to demand the impeachment of them both for violating our treaty obligations.

It could of course come to that, but I have confidence it will not. I have confidence in the ability of people-power to break through the denial and "cure" beltway blindness.

[stillcool]

14. unbelievable...

There is nothing that is keeping prosecution off the table. Failure will be when whatever you just said is fact rather than your proclamations regarding future events that are not real,.. I guess you don't believe in collecting evidence and ascertaining which laws have been broken, and will result in guilty verdicts. Perhaps you live in a different country, where the laws, when they are applied work differently? Perhaps you have a completely different government, where there is no Congress or Judiciary?

[pat_k]

15. See Reply #10. . .

We know which laws were broken.(1) The crimes were committed in plain sight. The identities of a vast majority of the high officials involved are a matter of public record. Agency records identify the employees of the CIA and members of the armed services who participated. The only question is whether or not the perpetrators have a legitimate "affirmative defense." And that is not a question that Obama or Holder can answer with any credibility or legitimacy. That is a question that must be left to the courts to determine in accord with the Laws of Criminal Procedure.

Obama and Holder have both attempted to put the prosecution of the CIA agents who abused captives "off the table." And they have sought to evade the duty to investigate and prosecute anyone else with declarations of "Look Forward!" (i.e., Look Away).

Obama's duty is simple. It's called leading. Open his mouth. Publicly state what our Constitution and treaty obligations mandate. Declare his commitment to seeing that the DOJ has all the resources required to fulfill its duty to fully investigate, from the top of the chain to the bottom, and where warranted, prosecute those responsible for the criminal program and those who committed the crimes.

If he did it today we would have a special prosecutor on the job by Monday.

-----
(1) USC Title 18, Secs 2441 (War Crimes) and 113C (Torture); Article III of the Geneva Conventions; and the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[Supersedeas]

12. solid post pat. well done.

[slipslidingaway]

4. knr n/t

[slipslidingaway]

5. Eric Holder v. America's legal obligations

http://www.salon.com/opinion/greenwald/2009/04/17/treaties/index.html

"Convention Against Torture -- signed by Reagan in 1988, ratified in 1994 by Senate:

Each State Party shall ensure that all acts of torture are offences under its criminal law (Article 4) . . . . The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. . . . An order from a superior officer or a public authority may not be invoked as a justification of torture...


Geneva Conventions, Article 146

Charter of the International Tribunal at Nuremberg, Article 8

U.S. Constitution, Article VI

..."

[Senator]

6. K&R

[EFerrari]

7. Watch for that report because imho it's going to break this case open.

Those memos were themselves crimes, not cover for crimes.

[Solly Mack]

16. "They were not honest legal memos."