I might be okay with that...
I was upset, as y'all might know, with the announcement that the Obama Administration was going to let CIA torturers who acted in "good faith" on bad legal advice off the hook. I'm still not great with that decision, actually: you get a legal memo saying it's perfectly legal to rob certain banks or marry your horse, and see where that gets you.
But I consider it a balm to read that Mr. Obama isn't ruling out prosecutions of the lawyers who originated the bad advice. After all, in some ways those attorneys are more culpable than the people who actually committed the torturous acts. While "just following orders" doesn't cut it as a defense, anywhere, ever, giving the order or justifying the order puts a special onus on you. These lawyers, after all, could have said "no," could have said "you can't do that," could have actually done some legal research instead of trying to hide behind a whole bunch of weaselly "you inform us"-es that suggest that maybe these idiots weren't completely oblivious to what they were doing and were trying to leave open a way to throw other agencies under the proverbial bus. ("Oh, we never said it was okay to torture people, we just said if this was true then maybe a court would find such-and-such." Yeah, right.)
As I've written before, a lawyer has an ethical responsibility not to assist a client in criminal conduct. The torture-memo authors will no doubt claim that they were merely trying to help their client assess the scope, meaning or application of the law: a response that is either disingenuous or so stupid as to defy credulity. These authors knew what they were suggesting and why, and couching their language to try to hide what they knew the purpose of these memos to be doesn't get them off the hook. At the very least, their respective State Bars need to take disciplinary action.
Hopefully, however, it won't end there. While I will be surprised if the Attorney General actually prosecutes, it would be a pleasant surprise were it to happen. It would mean the notion that we are a nation of laws and not of men was coming back into vogue after a too-long absence. In any case, the "Bush Six" and others may not be quite off the hook yet.
We'll see.
But I consider it a balm to read that Mr. Obama isn't ruling out prosecutions of the lawyers who originated the bad advice. After all, in some ways those attorneys are more culpable than the people who actually committed the torturous acts. While "just following orders" doesn't cut it as a defense, anywhere, ever, giving the order or justifying the order puts a special onus on you. These lawyers, after all, could have said "no," could have said "you can't do that," could have actually done some legal research instead of trying to hide behind a whole bunch of weaselly "you inform us"-es that suggest that maybe these idiots weren't completely oblivious to what they were doing and were trying to leave open a way to throw other agencies under the proverbial bus. ("Oh, we never said it was okay to torture people, we just said if this was true then maybe a court would find such-and-such." Yeah, right.)
As I've written before, a lawyer has an ethical responsibility not to assist a client in criminal conduct. The torture-memo authors will no doubt claim that they were merely trying to help their client assess the scope, meaning or application of the law: a response that is either disingenuous or so stupid as to defy credulity. These authors knew what they were suggesting and why, and couching their language to try to hide what they knew the purpose of these memos to be doesn't get them off the hook. At the very least, their respective State Bars need to take disciplinary action.
Hopefully, however, it won't end there. While I will be surprised if the Attorney General actually prosecutes, it would be a pleasant surprise were it to happen. It would mean the notion that we are a nation of laws and not of men was coming back into vogue after a too-long absence. In any case, the "Bush Six" and others may not be quite off the hook yet.
We'll see.
Comments
The CINC said it was OK. Then he put on a military flightsuit, a uniform, and flew out to USS Lincoln. He couldn't go to war when he was actually in military, but as president he wanted play at being a military leader. Roger that, I say give it to him, all of it. In the military we are responsible for our actions, and while the phrase "I was just following orders" doesn't cut it (and hasn't since the My Lai Massacre in Vietnam) the commander is always strictly responsible for his orders and the conduct of his men. Period.
He said it himself, "I'm the decider." Roger that, buddy, and you better get a good lawyer.
I'm not sure why, but something about the idea of one Administration going after a previous one seems a really bad precedent to me.
Although W is ultimately responsible, it will not help the country in the slightest to go after W. It'll simply stir up partisan rancor and make bipartisanship even more difficult than it already is.
And to be blunt, we've got bigger fish to fry right now. Our energy needs to be focused on moving forward, not looking back and bitching (after all, look what that got the GOP over the previous 8 years of "Clinton fucked everything up!")
As much as I'd like to see W and Cheney behind bars, it will do absolutely nothing to fi the problems that are at the forefront right now.
Just as Ford chose to pardon Nixon because he left it would be best for the country to leave those sorry events behind is, so I think Obama is best to NOT go after W.
As far as prosecution of the individuals who performed torture at the behest of W cronies, I think they were in a damned if you do, damned if you don't position. Had a classmate who was in the Marines who went up against her superiors (once involving sexual harassment). Her life was made completely miserable and she ended up leaving the Marines because of it. And this was over something that was on the books as wrong.
Yes, people should be strong enough to stand up for what is right, but like it or not, most people are not. If they are told something is legal or right or are given orders to do so, then they will accept what they are told.
I shouldn't have to remind anyone here of Stanley Milgram's experiments--when people are told it is okay to do something, they tend to accept that and move on.
As I said, we need to concentrate on moving forward and putting the country back together, not tearing it apart in a way we haven't see since Vietnam.
Second: prosecution in the U.S. is primarily the responsibility of the President (who historically has delegated it to the Attorney General). Congress does not technically have a role, although Congress could take a role by either creating a Special Prosecutor or by establishing some kind of truth commission (the latter could arguably satisfy our treaty obligations but would not suffice for the purposes of Federal law).
Third: "just following orders" may be true, and those who follow orders may typically be too weak to say no, but that has never been deemed a defense on these kinds of charges. Milgram's work certainly is relevant--he was interested in why the Holocaust occurred. However, his work has never been accepted by a court of law as a defense or justification for criminal conduct. And it should be clear that the CIA program, regardless of what some bad lawyers wrote, was illegal: there were those in the CIA, the Army and in the Justice Department who balked, which is part of the reason the extraordinary rendition component became necessary in the first place. Even the lawyers who wrote the torture memos--and I believe these men should be prosecuted even if Bush isn't--conceded within the memos that judges might not accept their interpretation of the law.
I have become cautious about saying "prosecute Bush" because I don't think it's wise to rush to judgment, but as a matter of law if the Bush Administration advocated torture, Mr. Bush is ultimately responsible and prosecution of Mr. Bush is not legally optional. Naturally, a President could choose to break the law (by not prosecuting) or could issue an anticipatory pardon (as Ford did for Nixon), but even in the latter case one could argue the law is being violated (there is no treaty provision for such a pardon, and our treaties are "the law of the land" as a matter of Constitutional law).
There are certainly polls that suggest Americans may be less-divided than we tend to assume on the issue of whether war crimes should be prosecuted. But I doubt any President, including Obama, will follow the law (making the question moot).
Ultimately I have to disagree with the view that one Administration going after another sets a bad precedent, though I'll admit an Administration going after a former Administration of its own party would be an even better example. I think the way you send the message that the President is not above the law is by subjecting the President to the law, not by pardoning or ignoring criminal behavior. There is certainly a political argument that Ford did right to pardon Nixon, but I think that historically, legally and morally this was the bad precedent that has haunted us since.
2. I also didn't say I thought anyone should be immune to prosecution, up to and including Bush/Cheney. I just really hope that if it happens, it's spearheaded by Congress. (In fact I wish it had begun while Bush was in office, but as I said, that boat has sailed.)
I do think one Administration prosecuting a previous Administration opens a door hiding monsters we can't even imagine.
Additionally, I think that some individuals in the military and/or the CIA already work in morally gray areas. We've all thrown around the term "wetwork" before, however, if you think about it, is such a thing constitutional? On the face of it, no, after all, we're throwing up trial by jury and possibly cruel and unusual punishment.
But, you say, those aren't American citizens we're talking about! No, they aren't. Nor are they American citizens who were tortured.
What I'm trying to say here is that if we have people who are already working in the gray areas of ethics and constitutionality, then if they are given an order to do something that they are *told* is legal, is it surprising that so few people stood up and said, "this is wrong!"
I'm sure Jim will correct me if I'm miscomprehending the situation, and I stand prepared to be enlightened, but I'm not sure about the moral ambiguity of one as compared to the other.
We expect members of our armed forces and intelligence agencies to do the dirty work that most of us don't have the stomach for. And this is a good thing, because most of us would be incapable of doing such work.
We live in a world of moral and ethical ambiguity. To expect a bright line to be visible to all individuals who operate on the absolute fringes of that world seems naive to me.
As far as Nixon (and W), there is political expediency, and then there is the allowing the country to move forward. We are in a time of grave uncertainty and political upheaval. Is it truly a good use of the time Congress and the president have to go after W?
To be blunt, there's a hell of a lot of work to be done. Going after Bush would drag that work to a standstill, and allow the country to spiral further out of control.
I do not think I could respect Obama for going after Bush, when he has the work of the country to focus upon--the work of pulling us out of a recession, ending two wars, and trying to convince the rest of the world that we really aren't a bunch of bullies.
Where, precisely, would prosecuting Bush and Cheney fit into that schedule?
Do you truly think that congress could continue to operate under such circumstances? Remember the Clinton impeachment? Remember how much work got done during that mess?
Like it or not, we're stuck with a system that requires political expedience. That means that sometimes we have to suck it up and recognize that we're not going to always be able to punish those who deserve punishment.
Because the good of the country comes first. And sometimes we have to choose one good over another.
And JUST to be clear, I do not accept torture done in my name, no matter who instigates it. But it happened, and taking the time right now to punish those who deserve punishment will cause immeasurable amounts of harm, in comparison to a nebulous good.
But that's really only relevant to what recourse, if any, the detainees might have in American courts, be it lawsuits such as Binyam Mohamed's or petitions for habeas relief.
The Constitutional issue is Article VI:
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. (emph. added)
Torture is forbidden by international treaty, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed by the United States in 1988 and ratified by Congress in 1994. A violation of the treaty is therefore a violation of Article VI. The treaty sets forth certain specific duties when a state actor becomes aware of torture, which is defined for the purposes of the Convention as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." Furthermore, pursuant to our obligations under Part I, Art. 4 of the Treaty (and routine as part of ratification of a treaty), the Congress enacted enabling legislation making torture a Federal crime.
I can't say this enough times: the Treaty is not optional. It does not carve out an exception for political comfort. Furthermore, and an additional sign of just how awful the torture memos are as legal memoranda, the Convention specifically states that the rationalizations offered by the Bush Administration for torture shall not be invoked as a justification of torture. The Convention also states, direct to the topic at hand: "An order from a superior officer or a public authority may not be invoked as a justification of torture."
The end. It's just that simple as a matter of law, however difficult and tumultuous it would be in practice (Michelle, you're absolutely right it would stir rancor and potentially be politically disruptive). And anybody who says the torturers shouldn't be dealt with in accordance with the law is simply advocating lawlessness and lawbreaking. This is the part that I'm frustrated with people being so damn blase about, to be honest: if you're going to say "we shouldn't try anyone from the Bush Administration because it would be divisive and politically inexpedient," please say the entire thing: "we should break the law and dishonor our international obligations by not trying anyone from the Bush Administration because it would be divisive and politically inexpedient." Acknowledge that you're advocating lawlessness and scofflawism and dishonor because it would make it hard for Congress to do anything else. And no, it's not merely that we can't punish everyone who deserves it--that's true enough, but almost secondary. The primary thing is that however much we may care about the law, we don't care enough about it to honor it.
I don't want to speak for Jim, but I suspect what he will tell you is that those who serve this country in the military and those soldiers and civilians who operate in the grey and black areas are told what the law is. (This is another requirement of the Convention Against Torture, after all, and of the Geneva Conventions dealing with prisoners of war, and other potentially applicable treaties such as the Convention On The Rights Of The Child.) I suspect Jim would also say that an honorable man or woman who strays outside of what the law permits takes responsibility for their actions, something the former Commander-In-Chief's defenders don't seem prepared to do, although the fact that Mr. Bush didn't pardon himself on the way out the door suggests he might actually be prepared to defend what he's done if called upon to do so, and perhaps he's even man enough to answer for it if that's required, as well. In any case, copies of some of the documents provided to servicemen about their legal obligations can be found online.
Sorry.
I know I'm the resident conservative here, but if Bush did order torture, then there should be some sort of consequence. But, I also believe that there is more to this than "The American People Have a Right to Know". I believe going public with the information is completely a partisan decision, and once you open that can, I'm quite sure those of us on the right will become very aggitated around the next couple of elections. You know that everything the Obama administration does from here on out will be looked at through a microscope. Revenge is a dish best served cold. I'm not threatening, but Nathan is right, a precedent for administrations to go after oneanother will become normal.
One thing I'm curious about, Eric, is that as a Juvenile Defense Attorney, I imagine part of your job is to instill a sense of doubt on your clients behalf. I am guessing that at some point in your career, you defended someone whom you actually believed to be guilty. If I am wrong, correct me. I'm sure that some defense attorneys are defending criminals out there whom they believe to be guilty of crimes, but because of their position in the legal system, they are "just following orders". How many cases have you declined because the evidence pointed to guilt, or how many other attorneys have you known who have done so? Just curious.
I am really interested to see Obama get to work on something about the future. Perhaps when he finishes trotting around the globe on his "tour", shaking hands with tyrants, we will see some of the "Magic" we've been promised.
If this so-called "Bush-Six" is 100% guilty beyond a reasonable doubt, go ahead and convict. Just remember, payback is a bitch, and it may cause more trouble than intended. Torture is wrong, so is carving off the heads of Americans, or anyone else for that matter. Time to press forward.
Accordingly, there is nothing unconscionable about defending somebody who is guilty--our system of justice makes no distinction between whether an accused is guilty or innocent, it merely assigns the burden of proof to the state and accords the accused with certain basic rights. Note that the plea in criminal matters is "not guilty," as opposed to "innocent"--there is a basic difference, albeit one that most people miss. It might be even more accurate if the plea were "prove it."
Personally, I generally find it easier to defend a person who's guilty, even in trial: if I win, I have forced the State to fulfill its duty and the State has failed, if I lose, my client (presumably) gets some form of his just desserts. But when my client is innocent? My loss means an innocent man has been convicted.
And far more queasy is another option I think I've discussed here in regards to the death penalty: I've had clients who were very probably innocent who decided to plead guilty to a lesser offense or in exchange for a guaranteed lighter sentence rather than risk disaster, and I've entered Alford Pleas on their behalf.
In any case, because of the way our system works, your comparison between the soldier or spy "following orders" isn't really the same thing as the attorney who speaks for his client at arraignment; I hope that doesn't sound critical--as I say, a lot of people don't really understand how the system works. I blame the schools, frankly.
On another point: I'm not sure how much "magic" one has a right to expect while we're still in the President's first hundred days, but I'm pleased with his efforts to repair our global reputation, his release of certain documents and his leadership on the economy (though it remains to be seen as to whether his efforts will bear fruit). I'm not happy with protecting torturers and continuing the Bush Administration's positions on issues such as wiretapping and the state secrets doctrine, but you can't have everything. I think overall Mr. Obama has done quite well.
Sometimes, unfortunately, one has to shake hands with tyrants, perhaps for the same reasons that one might have to violate American legal obligations by not prosecuting torturers. One of the few productive things Nixon did when he was President was go to China--where, of course, he shook Mao's hand. I don't know if any American President shook Saddam Hussein's hand, but there's a famous photograph of one Donald Rumsfeld doing exactly that. The former President, Mr. Bush the Lesser, famously didn't stop at shaking hands with former KGB chief thug-turned-cryptofascist Vladimir Putin, but somehow looked into his soul (notwithstanding copious evidence to suggest that Mr. Putin doesn't have one). That's one of the things a President has to do if he has any hope of making other countries tractable or at least less-actively-hostile: shake hands, smile, display tact, receive awful gifts from and try not to vomit on foreign leaders.
I do think it would be preferable if a Republican led the investigation into Bush Administration malfeasance, though it doesn't seem any more probable than an investigation occurring in the first place. There are many who do see the law in partisan terms, which is an epic, tragic failure of our Republic when you get right down to it (it's an example of why the Founders were so opposed in their speeches and writings to "Faction," though in practice they succumbed to factionalism quickly enough).
Finally, the American People do have a right to know, at least within certain pragmatic bounds. Obviously, there are things that are matters of national security and must be kept secret. Where our country has erred grievously--and this long predates Bush the Lesser, though his Administration expanded on the practice--is in seeing governmental secrecy as a norm instead of a limited necessary evil to be loathed when required and done away with when possible. We have confused the nation with the Republic, and while a nation might thrive to some degree as a cloistered tyranny, a Republic such as ours vitally depends on having an informed populace. Secrecy is antithetical to such a state, because it obstructs the ability of the People and/or their elected designees to cast responsible, well-considered votes. Contrary to what Mr. Cheney seems to think, publication should be the default position, not the grudging result of lawsuits or lost elections, unless publication would somehow be more damaging to the Republic itself (not the nation, nor a party, nor a politician) than a limited period of secrecy. (On that note, by releasing the four torture memos in redacted form, Mr. Obama has taken us a small step back towards our principles, and this alone is a positive leadership act, even though some critics have noted the publication was legally required to begin with; after the past eight years of relative lawlessness, even following one law a little is an improvement, sadly.)
Thank you for your explanation on the judicial system;
You are right about the hand shake; I was just stirring shit up (you know how I love to do that). I think Dan Rather probably shook Saddam's hand as well. I'm not sure, but I do believe there is video of Hussein and Sean Penn spooning. I could be wrong.
Since Madonna has had sex with all men (exept for me)....you know where I'm going with this.
My brain isn't functioning well today, so I'm lacking coherence.
Regardless of the legality of justice of the situation, Omaba has a lot of work to do. A lot of work. Yes much of that work is going to rely upon bi-partisanship, for which he needs the GOP, but more than that, going after the Bush administration seems like fiddling while Rome burns.
Regarding my second point... I wish Jim would weigh in one this. :) As you said they are trained in legality. However, if orders come down from the CiC, who are soldiers and intelligence agents to say that those orders are truly illegal? Especially in an atmosphere where going against the grain (even when in the right) can be brutally dealt with?
One point to be made in all of this is that Obama could certainly ask Congress to appoint an independent special prosecutor or a bipartisan truth commission, something he's flirted back and forth on doing.
Another point is that Obama would certainly be drawing less fire from some of us if he simply deferred judgment instead of announcing that CIA agents who acted "in good faith" would not be prosecuted and waffling on whether lawyers would be prosecuted (not only has Obama flipped, but his Administration is sending mixed messages, with Rahm Emmanuel saying lawyer prosecutions won't happen and Obama saying (now) that he'll defer to DOJ). That's not to say there'd be no pressure or criticism, but "We are taking matters under advisement and will be reaching a decision after we resolve the economic crisis" is a bit different from a blanket statement that at-least-some have "nothing to fear."
Recent behavior of the GOP contingent in Congress certainly calls into question whether or not Obama has bipartisan support or needs it. At the present time, the House and Senate Republicans have pretty thoroughly indicated that they want to completely refuse to cooperate with the Democrats and then complain that they're not being cooperated with. Or perhaps its that the Congressional Republicans definition of "bipartisanship" is "Republicanism," since they have said more than a few times that if Obama wants to be bipartisan he'll have to not do anything he promised to do while running and will instead need to do exactly what they say with no compromise on their part. I might have agreed more about the bipartisan thing before the Repubs on the Hill made it clear they were going to be asshats about everything, but there you are.
It's also worth mentioning that there were individuals in the Army, at State, at Justice and within the CIA who informed the Bush Administration that their behavior was illegal. (Around midnight a link to an article by a former officer at State whose anti-torture memo was withdrawn and destroyed by the Administration will be appearing on the main page of this blog. Stay tuned.)
Hope your brain feels better soon, Michelle. It's a nifty brain. We like it. Happy brain. Happy brain.
A solider may have the obligation to disobey an illegal order. That is the law. The reality is totally different. Good, bad, or indifferent, a young solider being order to use harsh interrogation methods by his commanding officer in the field better do so, or face consequences. If your superior tells you to do just that, you'd better not be seen questioning your suspect over Latte's a Starbucks. Rest assured, declining to do what you are told on the battlefield, whether or not it's illegal, will generally cause a solider a great deal of pain. This isn't my hunch, I play softball with group of Marines from Camp Pendleton who have shared their thoughts with me.
Say what you want about what the "Laws" are; they tend to "bend" out there where no one is looking.
I'm not trying to skirt a relevant issue: there may well be grounds for prosecuting soldiers (some have already served as scapegoats during the scandal involving human pyramids, etc., by the by--so I'm not sure much of this argument about soldiers obeying orders isn't post-horse/post-barn).
But we've slowly taken our eyes off the ball that was in play, here. The President, right or wrong (and you know what I think), has essentially taken prosecutions of those poor, poor CIA agents who were only following orders to systematically abuse another human in good faith off the table. (And while I'm a big fanboy of Milgram's work, let's also recall that Milgram sought to explain, not to justify; I don't believe Milgram ever said German soldiers who followed orders shouldn't be prosecuted, rather, he wanted to figure out how it happened at all.)
But the issue considered in the top post was whether lawyers should be prosecuted. Well-paid lawyers. Lawyers in offices in Washington, D.C., thousands of miles from that front line everyone obsesses over. Lawyers professionally trained to argue and dissent. Lawyers taught to cover all bases in a memo. Members of a profession that prides itself on independent and analytic thinking and boasts of the way its training and self-discipline hone those qualities. Lawyers who took assorted oaths to uphold the laws and Constitution, not just when they joined the government but when they were licensed to practice law in various states. Lawyers who had not just a moral duty to offer sound advice, but an ethical duty subject to review by professional disciplinary committees. Lawyers, some of whom went on to become law professors and in one case a Federal judge.
Given the disrepute the profession is in, some of that may seem ludicrous. The general opinion of the public seems to be that a lawyer is somebody who does what his client wants, someone who tells his client how to do something even if it's illegal. Aside from the public perception being wrong, when these things do occur, you see lawyers losing their licenses and sometimes ending up in prison alongside their former clients.
I have no problem with that. It's what I expect from my profession, frankly.
I don't mind discussing the soldiers/agents issue--it's relevant and it's been discussed here in the past, so it's not really a hijack. But at the moment it is a tangent, and a moot one given the current position of the Obama Administration.
And I'm all for an independent council looking into things, but I think Obama has to be completely non-involved.
Anyway, my brain is a little better today, but not necessarily up to long complex paragraphs. :)
One of the problems with the SP in the past has been the tendency to exceed mandate. The last thing we need is a prosecutor (or commission) on a fishing trip into the last administration's political or financial dealings. But I think we do have a legal and moral obligation to find out who knew what when about torture, who authorized-what and who was responsible-for, and to remind ourselves that we are a nation of laws, not a nation of men (or worse yet, a nation of politics, where no misdeed will be punished if it can be considered the least bit partisan to do so). And we need to send the world a message that we are not merely a nation of words and empty promises.
This isn't about Democrats and Republicans, or Liberals and Conservatives. The thing that we all ought to be able to agree upon is that our legal institutions, written laws and traditions have weight and meaning, and that no future administration of any party will be able to hide behind fear, necessity or paperwork should they break the laws.
The left has done nothing more than make Limbaugh and Coulter more powerful than they were before.
I hate to burst the bubble, but there are much bigger issues at stake than what "Commentators" are saying. Maybe Rush IS right, and he IS the most powerful man in America. After all, with the left paying so much attention to him, they must really feel threatened.
I think it would be a fair statement to say I was the most unpopular officer in that area, if not in the entire country of Iraq … There was one gentleman who was acting very odd toward me, and one time I walked by his tent, and it just happened to be the two of us, and he was sharpening a knife, and he looked up, and he said that "it wouldn't be recommended that I sleep too lightly while I was at that camp."
Glad you found it anyway.
I thought of this discussion as I listened to him discussing his experiences.