I just finished up the initial draft of an essay for the Weekly Standard on drone warfare, self defense, and the CIA, riffing off of my chapter in Ben Wittes’s book. One of my observations is that the Obama administration (and really the whole US government) seems to be remarkably sanguine about the other shoe dropping regarding the emerging “soft-law” campaign to undermine both drone warfare and, remarkably, the very idea of CIA covert action. So I was interested to see this closing paragraph in former CIA director Michael Hayden’s Washington Post op ed on the Christmas bomber non-interrogation:
In August, the government unveiled the [High Value Detainee Interrogation Group] HIG for questioning al-Qaeda and announced that the FBI would begin questioning CIA officers about the alleged abuses in the 2004 inspector general’s report. They are apparently still getting organized for the al-Qaeda interrogations. But the interrogations of CIA personnel are well underway.
My prediction is that the something similar will be true, but in the form of investigations and prosecutions in European or foreign courts, or possibly some ICC prosecutor investigation in Afghanistan, of CIA personnel and their role in Predator drone strikes within two or three years after the Obama administration leaves office. Perhaps Intrade could set up a prediction market contract?
Update: Thanks, Glenn, for the Instalanche – and readers might be interested in the related topic of strategizing such a prosecution comes about, in an earlier Opinio Juris post called “Gaming Spain and Universal Jurisdiction.” What a friend at the State Department called “cynical,” I call … game theory!
Constantin says:
If I could buy shares of that on Intrade, I’d take all of my money out of the stock market. That’s how sure it is to happen. But you’re leaving out what will be the primary source of the investigations–the next GOP administration.
January 31, 2010, 11:05 pmRicardo says:
he emerging “soft-law” campaign to undermine… the very idea of CIA covert action.
Prof. Anderson, I’ve seen you refer to this before and I’m curious what you think has changed in the past few years regarding the legal status of covert action. I’ve been under the impression that when the CIA operates in other countries, many of their actions have always been considered a violation of that country’s criminal laws. CIA officers would typically be guilty of visa fraud (by entering the country under false pretenses), and various crimes related to espionage, wiretapping, illegal access to classified information, bribery and others depending on the exact nature of those officers’ assignments.
The exception would be if the CIA officers operate under cover of diplomatic immunity by posing as State Department personnel. Even then, diplomatic immunity does not seem to be a 100% defense to criminal charges in the U.S. and am not sure it ought to be in other countries.
Breaking the law and running the risk of being caught seems inherent in the very nature of covert intelligence work. Just as soldiers run the risk of being killed or captured as an POWs on the battlefield.
January 31, 2010, 11:26 pmMikee says:
Since the likelihood of a successful mass-murder terrorist attack increases as the limitations on covert activity increase, a successful attack is essentially guaranteed as the “soft-law” campaign succeeds.
What would be the effect of a successful attack in the US, upon these possible investigations of interrogators, drone attacks, and other covert work?
January 31, 2010, 11:46 pm11-B.2O/B4 says:
If a tenth of the people who second guess the front-line guys and talk about all the things they do wrong would hit the bricks and help out we’d be in much better straits. Seriously. If you think you can do better than trained soldiers and operatives, show us. All too easy to sit in the comfort of your den a year after the fact and dissect situations you couldn’t possibly know the least bit of relevant information about.
January 31, 2010, 11:54 pmOren says:
Usually you aren’t “caught” by your own side though, and certainly not “caught” by the next administration because they disagree with the previous one’s policies.
Don’t get me wrong, I was all in favor of Obama changing policy in this area (this is, of course, why we elected him — to make Executive Branch policy) which I think is, in the long run, for the better. He’s the boss, he makes the rules. What he ought not to do (IMHO) is punish those who played by the last boss’ rules during his tenure of office.
February 1, 2010, 12:20 amMark N. says:
Generally I agree, but the wrench in the works is the third set of rules, those set by Congress, which in theory at least, the last administration had to play by, and the current administration still has to enforce. So if the CIA violated US domestic law, especially in egregious ways, it seems problematic to ignore that violation. The CIA violating other countries’ laws, of course, is nothing new.
On the other hand, if there were indeed egregious violations of domestic law and this were demonstrated, I’m not sure going after a bunch of low-level CIA operatives is a very useful remedy.
February 1, 2010, 12:59 amorca says:
“I was only following orders” has rarely worked as a defense for war criminals.
February 1, 2010, 1:18 amrpt says:
Your presumption has no basis in fact.
February 1, 2010, 1:28 amrpt says:
The problem in the last administration is that the armchair guys, i.e., Addington, Cheney, Rice, et al, overruled the trained soldiers and operatives and FBI agents.
February 1, 2010, 1:31 amOren says:
And “these orders conflict with my understanding of this statute” has rarely worked when facing a charge of insubordination.
Well, the DOJ interprets the law for the executive and sets procedures that the grunts follow. I would hardly expect a CIA field operative to read the statutes governing his behavior — I expect him to follow the procedures and policies set forth unless they are completely and totally indefensible.
I agree. On the other hand, it seems quite problematic to attach criminal liability for a CIA agent for not vetting his some procedure against the governing statutes and case law.
So we are confronted with an situation in which there are two important interests that cannot both be satisfied at the same time. It’s problematic to let the agency get away with violations of the law and it’s problematic to go after agents acting in good faith under existing DOJ interpretation.
Not only would it not be a great remedy, it would do little to prevent a similar episode in the future.
February 1, 2010, 1:59 amRicardo says:
Since Prof. Anderson ends with a comment about European courts or the ICC, I asked for clarification about what exactly he meant about using the law to undermine covert ops.
Offhand, G. Gordon Liddy and others went to prison for doing things that he probably regarded as official orders from the Nixon Administration. The controversy is not over “policy differences,” it’s over whether certain people violated the law. I believe the inquiries have been mostly focused on cases where CIA officers may have exceeded even the limits in interrogation set by the “torture memos.”
February 1, 2010, 2:37 amEH says:
On the other hand, it seems quite problematic to attach criminal liability for a CIA agent for not vetting his some procedure against the governing statutes and case law.
Fruit of a poisoned tree.
February 1, 2010, 4:11 amAnonsters says:
Bolded text is the most relevant. Note that Hayden didn’t say that the FBI would begin questioning CIA officers about interrogations tout court. Just the alleged abuses identified in the IG’s report.
You may now unbunch your panties.
February 1, 2010, 10:18 amOren says:
Orders from the President to break into a hotel are not the same as DOJ procedures.
The law as interpreted by this administration or by the last?
That much I can agree with — if agents were in clear violation of existing Executive branch policy at the time they ought to be liable to any violation of law that follows. My fear is that the inquiry would expand to include behavior not in clear violation of the DOJ’s advice.
I don’t understand the meaning of this response.
February 1, 2010, 11:28 amAllan Walstad says:
Oren, I don’t think executive branch policy = law. Nor does this administration’s or that administration’s interpretation = law. If the law was broken, there should be consequences. We have courts to judge that sort of thing, and they ought to do their job based on the text and clear meaning of the law. The fact that it may be difficult to say precisely where the line is, does not mean that some things are not clearly over the line. If orders to break the law came down from the top then the investigation and resulting consequences should procede to the top. Government of laws not men, you know.
More generally, I don’t much care for the message being conveyed from so much of the right, to the effect that “We are at war; therefore, the feds can do any damn thing they please, and anybody who disagrees is at best an armchair meddler and at worst some sort of traitor.” Even if a few bands of pathetic barbarians in the Middle East could be considered sufficient entity for the US to have a “war” with, they offer zero military threat to this country and our way of life–unless, by our own hysterical over-reaction, we forfeit our own principles and institutions. Virtually all wars expand the power of government over individuals in ways that are well-nigh impossible to turn back completely. Al Q does not stand as sufficient excuse to see the ratchet turned further.
February 1, 2010, 12:33 pmInstapundit » Blog Archive » KENNETH ANDERSON: Interrogating The CIA…. says:
[...] KENNETH ANDERSON: Interrogating The CIA. [...]
February 1, 2010, 1:36 pmJeff says:
Ricardo …
“I believe the inquiries have been mostly focused on cases where CIA officers may have exceeded even the limits in interrogation set by the “torture memos.””
You believe wrong … the memo’s did not detail what could be done. They detailed what couldn’t be done. Procedures where then spelled out with the memo’s as the basis for the limits.
I’m glad you are keeping an open mind about the “torture memos” …
February 1, 2010, 1:55 pmFat Man says:
You, Oren, all of your little liberal friends, and your little dog too, are all traitors and enemies of the American people and Western Civilization. Deal with it.
Fortunately BO, the Wimp, will be replaced by a patriotic American in 2012. The Belgians caved when Rumsfeld said boo. I assume that the next administration will growl and and the euro-weenies will crawl back into their holes. They are sniveling cowards and will behave as such.
February 1, 2010, 2:30 pmLaika's Last Woof says:
The flaw in your reasoning is that no Republican President is going to prosecute CIA operatives for killing terrorists.
And the next President will be a Republican.
February 1, 2010, 2:48 pmSome Guy says:
So your position is that the President interrogating and perhaps prosecuting CIA officers for following lawful orders is similar to running the risk of being shot in the back by your officers as you advance or abandoned by your commanders to captivity?
Maybe I’m confused, but I fail to see how your argument helps Obama.
February 1, 2010, 3:10 pmEcon_Scott says:
“Life’s filled with tough choices, isn’t it” Oren.
So far Obama has endorsed and continued, “Extraordinary Rendition” to third countries for interrogation, Continued the Predator drone strikes and stepped them up, stood by the 2010 troop drawdown negotiated between the Maliki Govt. in Iraq and the U.S. Govt. while Bush II was still in office. And of course abandoning State Dept and CIA operatives and an U.S. Airforce Nato Base commander to conviction in Italy and in a very questionable Italian Court proceeding over the kidnap Extraordinary Rendition; it’s 2010 and GITMO is still in operation, isn’t it, 50-150 terrorists trained and ready in detention they still don’t know what to charge them with.
Add to that the Kangaroo Court Article 13 proceedings of Lt. Col. Chessani, and that Sgt. Frank Weuterich still hasn’t had his day in court for the Murtha inspired Trials for Hadditha shootings in 2005, going on 5 years ago. Long enough to wear out and destroy Weuterich’s marriage. This list goes on.
As far as applauding this administration in “changing Policy” the only real change seems to be a thirst for show trials of political enemies, trying to destroy their personal lives with “Abuse of Process.”
This is something that the DOJ Blinked on last week in exterminating the witch hunt of John Yoo and Judge Bybee.
Millions of us are veterans or have Fathers and Brothers who have served and died in action, yes including Air America and the CIA, and have sons, daughters and sons & daughters of our closest friends on the battlefield right now. We are not impressed and take no amusement in snide remarks about placing bets on the legal prosecution of our loved ones while you sit and type in safety and comfort.
There were 14,000,000 firearms legally sold in this country last year alone, and Billions of Rounds of ammunition, more than the armed forces of 27 countries.
Last week this FUBAR’d DOJ walked up to the edge of the Abyss with the Yoo and Bybee actions, looked in, then took two giants steps backwards.
I expect them to do it again, to just “choke on it” at the point of action, over the CIA “prosecutions” or approving treaties for ICC prosecutions against U.S. political and military leaders.
The alternatives are quite unthinkable, for them; shooting breaking out spontaneously, everywhere. Multiple Divisions refusing to obey the CIC including all Four Marine Divisions.
Thank G_d the Founders had the wisdom and temerity to put elections, every two and four years in our basic document of law.
We may avoid Balkanization yet.
February 1, 2010, 3:22 pmegd says:
I think that President Obama should immediately take the time to hold highly public and sweeping trials for any CIA agents, and take nominations and trial tips from Huffington Post, Daily Kos, Moveon.org, and Democrat Underground commentators.
Right now, it looks like the Republicans have only about a 50-60% chance of taking the House in November. With these investigations, I think the Obama administration can bump that up to at least 90%, and put the Senate in play as well.
February 1, 2010, 3:33 pmwjr says:
I realize that this is a hotbed of legal eagles but, fellows, you folks sure are a lot more scary than the Taliban. My understanding of the CIA is that it is not supposed to operate in the United States — other than the bureaucrats who “administer” the operation.
So, by definition, the “law” that we are talking about is extraterritorial. Therefore, all bets are off in terms of domestic law other than those situations where we care to flagellate ourselves.
Generally, it is my opinion that we need a lot less concern for law offshore and a bunch fewer lawyers (meaning none) setting “rules” for combat. As a general rule (from an old Marine) I would propose that for every Marine, soldier, airman, CIA operator or seaman killed due to restrictive ROE’s that one lawyer should be randomly selected and parachuted naked into bad guy territory.
February 1, 2010, 3:33 pmBillW says:
In my “interpretation” of the law, I think that anyone involved in prosecution of these CIA operatives should themselves be prosecuted for the outing of covert operatives, ala Scooter Libby. Maybe that thought would cool some of the ardor in the DOJ.
February 1, 2010, 3:44 pmMike D says:
I always wondered how the predator drone strikes are morally or legally different from the Cambodia bombing during the Vietnam War. Of course there is a matter of degree in pure tonnage. I would find it kind of funny if the Obama administration was relying on Bush administration legal interpretions to justify the strikes. Anyway,as far as CIA prosecutions,what’s the point of having a CIA that can’t operate in the shadows taking out enemies with piano wire and small daggers.
February 1, 2010, 3:51 pmOren says:
Within reason, the DOJ interpretation of statutes is law.
Let’s think about less emotionally-freighted case. A detective is investigating a drug ring and suspects that they are storing drugs in a particular warehouse. He goes to the DA to get a search warrant and he informs her that warehouses are a pervasively regulated industry and hence he can do an administrative search without warrant. She effects the search and seizes everyone and the drugs (or there are no drugs, it makes little difference).
Now, let’s say it turns out that warehouses are not regulated to an extent that qualifies under Burger (or, alternatively, the State-4A-analogue expressly rejects Burger or rejects pretextual-administrative searchs or is otherwise fatally flawed). Let’s even stipulate that the flaw in the legal argument was settled law at the time that the DA gave the detective this advice.
Even under these conditions, it seems manifestly wrong to investigate or punish the detective for acting within the confines of executive-branch advice, even when such advice was contrary to the law. We cannot realistically expect every LEO in the country to become legal experts in the fine distinctions made in statute and case law — it’s absurd to even suggest that, after getting advice from the DA, the detective should have looked up the statute and case law independently.
It also seems unrealistic (but less absurd, no doubt) to imagine that the detective should have read the DA’s mind regarding the sincerity of his interpretation and rejected it on the grounds that he could somehow suss out that the DA was not giving him legitimate advice.
So, in this limited sense that I’ve seen here, it seems quite evident that as far as the detective’s conduct (as a matter distinct from the exclusion of the evidence from criminal trial), the only relevant law is the one the DA gave him.
February 1, 2010, 4:13 pmOren says:
This is not what we have here — we have here coming from the top a (stipulated-to-be) flawed interpretation of the law (much as in the DA/detective example that I gave).
Awesome, you can criticize Obama for doing the something you approve of. What’s next?
Well, I would certainly appreciate the elegance of an American barracks-Emperor in terms of repeating historical themes.
For what it’s worth, no one here is talking about the ROE — they are debating the disposition of captures who are already held in shackles by our boys.
I think everyone agrees that when they are on the lose there is no impediment to killing them at every opportunity — it’s the rules for captures that are really pesky.
February 1, 2010, 4:31 pmConor says:
Oren’s analysis here seems perfectly reasonable — I’m just not sure why one commenter made the “little liberal” comment about him above. If anything, the reasoning would tend to lead one towards a more conservative (for lack of a better term) policy prescription.
February 1, 2010, 4:41 pmMark Field says:
Does this mean you’ll be needing still more Depends to keep your bed dry at night? Nightmares about lawyers must be pretty terrifying. There, there.
February 1, 2010, 4:46 pmjgreene says:
Quite frankly I’m sickened by the lawyering of our military, CIA, NSA et al. My solution to this little issue is to f**k the lawywers and tell the International asshats to kiss off.
If a country begins attempting to interfere with the sovereignty of America I would suggest asking their nationals in the United States to leave forthwith. Bye bye and good riddance. Yes, we DO NOT need the United Nations in NYC.
February 1, 2010, 5:30 pmEcon_Scott says:
Mr. Field:
It is my experience that no matter how “Old” they may be, it is unwise to bait a Marine or Paratrooper.
http://hotair.com/archives/2008/03/29/video-octogenarian-wwii-paratrooper-1-teen-mugger-0/comment-page-1/
http://www.salem-news.com/articles/july022008/marine_shooting_7-2-08.php
February 1, 2010, 5:34 pmOren says:
As an aside, it’s not unusual for both the liberals on the site to find me insufficiently liberal (as in the case not wanting to investigate the CIA for following Bush’s policy) and the conservatives to find me excessively liberal (as in generally supporting Obama’s NatSec policy).
I generally take it to be a sign I’m on the right track. :-)
February 1, 2010, 5:47 pmOren says:
This is a thread about the intersection of US Executive control and Congress. I assume you don’t have a problem with Congress and the President “interfering” with American policy, right?
February 1, 2010, 5:48 pmjccamp says:
I think there is a dynamic largely ignored thus far at work here. There is an inter-agency fight within the U S government over control of the investigation, apprehension and interrogation of terror suspects, including those detainees seized on or near battlefields.
This is not limited to a philosophical – or even entirely pragmatic – argument about how to treat captured suspects. It is a Washington power struggle between DOJ/FBI and the CIA/military. It certainly includes a difference of opinion about how to legally and practically interrogate and then prosecute suspects, but it is much more than that. I would suggest that the FBI’s holier-than-thou position vis-a-vis the CIA’s interrogation methods (torture) is situational, and represents an opportunity for the FBI to beat up on their rivals, more than it represents some true belief in the value of Miranda, say.
The HIG is a good case-in-point. The U S Director of Intelligence didn’t know that the HIG groups were not operational as of Christmas Day, when he suggested after the fact that they should have handled the interrogation of the airplane bomb suspect. The HIG are not operational because the FBI has not yet selected their personnel contribution yet. They won’t either, until the FBI actually controls the HIG or succeeds in negating any proximity of the HIG to actual prisoners.
If you control the interrogations, you can control the flow of information. That’s the FBI way.
February 1, 2010, 5:49 pmEcon_Scott says:
Since you seem to be all about style over substance, the troops and officers who swore an oath to the Consistitution would be more likely to effect an orderly tranisition of legal civilian government than the Chicago Gang currently in the Whitehouse and their enablers currently managing the Senate … until next year.
http://www.foxnews.com/politics/2010/02/01/reid-schedules-vote-controversial-labor-nominee-brown-arrives
Other Law Professors have an opinion about this Administration assiduously following established law.
http://www.nypost.com/p/news/opinion/opedcolumnists/item_ETavtUFVifmERx4Jffo40J/1#ixzz0e2Wm1Khu
Perhaps this prosecuting prior administration officials and using “Abuse of Process” to wreck their personal lives is a “What goes around comes around” kind of thing. 2012 can’t come soon enough.
February 1, 2010, 5:53 pmdavod says:
Mr. Anderson. Andrew McCarthy in his August 28, 2009 article “Eric Holder’s Hidden Agenda
The investigation isn’t about torture, but about transnationalism”, suggests the Administration’s aim with investigations is not to prosecute but facilitate interntional prosecution with the continuous release of the results of every investigtion.
Two segments are include here:
1. “So we come back to Holder in Berlin. Two months before the attorney general’s visit, the U.N.’s “special rapporteur on torture” told German television that the Obama administration had “a clear obligation” under the UNCAT to file torture charges against former president George W. Bush and former defense secretary Donald Rumsfeld. The rapporteur was relying on documents produced because of American investigations — including a nakedly partisan report by the Democrat-controlled Senate Armed Services Committee.”
2.”"Obama and Holder were principal advocates for a “reckoning” against Bush officials during the 2008 campaign. They realize, though, that their administration would be mortally wounded if Justice were actually to file formal charges — this week’s announcement of an investigation against the CIA provoked howls, but that’s nothing compared to the public reaction indictments would cause. Nevertheless, Obama and Holder are under intense pressure from the hard Left, to which they made reckless promises, and from the international community they embrace.
The way out of this dilemma is clear. Though it won’t file indictments against the CIA agents and Bush officials it is probing, the Justice Department will continue conducting investigations and releasing reports containing new disclosures of information. The churn of new disclosures will be used by lawyers for the detainees to continue pressing the U.N. and the Europeans to file charges. The European nations and/or international tribunals will make formal requests to the Obama administration to have the Justice Department assist them in securing evidence. Holder will piously announce that the “rule of law” requires him to cooperate with these “lawful requests” from “appropriately created courts.” Finally, the international and/or foreign courts will file criminal charges against American officials.”
February 1, 2010, 5:54 pmOren says:
Well, I was referring to the historical elegance of it — what with history neatly repeating itself. It would certainly be quite messy, to say the least.
That’s what elections are all about, even if the guy you don’t like from a city you despise happens to win them handily sometimes.
I didn’t think anyone could get more annoying than the “not my President” lefties of 2002/2003. Now I realize my grave error.
February 1, 2010, 6:31 pmEcon_Scott says:
Perhaps you should be hired as an outside consultant to Eric Holder and help him out with that.
Since I’ve lived in that city longer than you have, (shall we review my first attempted voting experience there ?) have a degree from the same university as the corrupt Daley’s and many of their machine cronies, including Obama’s campaign Chief Financial Officer perhaps I shouldn’t be so overtly harsh about that city. More subtle and elegant, like you… or the City Journal. Since you accuse me of begging the question on Obama’s involvement in “Chicago’s Real Crime Store” perhaps you should do more weekend reading.
http://www.city-journal.org/2010/20_1_chicago-crime.html
And since my most beloved daughter in Medical school now lives in peace and safety 3 blocks from the Obama Hyde Park Mansion , I can see how they acheive this vaunted “City the Works” peace and safety in the 8 by 16 blocks of Hyde Park/Kenwood …. more cops per square foot than anywhere on earth except for the Vatican. University of Chicago is a tiny campus with 420 full time police. That’s not counting of course City, County, State PD and now Secret Service.
Yes my beloved Chicago and those wonderful South Side pol.’s. What they did for Chicago they’ll do for your neighborhood too. Now that’s real Change.
Respect the office not the person is it ? And you infer my guilt at begging the question ? Let’s be blunt “Oren, exactly when did you stop beating your wife ?”
I must really be getting under your skin for you to be so petty. Conduct Unbecoming.
I do realize that 3 years at a top law school, clerking, passing the Bar, practicing law, and even teaching it allows for you to breath that rarefied air unavailable to us rednecks here in flyover country, that was once referred to as “the heartland of America”, you know, that space between the Altamount Pass and the Hudson River.
I’m not tenured at Berkeley but I have kids that go there and immediate family that are tenured at Harvard. I’ll ask them, my betters, next time for permission to speak or even post comments on a law blog.
Because I have truly been humbled and put in my place.
February 1, 2010, 7:03 pmOren says:
1984 to 2002. You?
That was the argument of the lefties in 2002/3, which was rightly ridiculed then as being a fairly thin fig leaf over their contempt for Bush as “not their President”. It was annoyingly petty then and little has changed.
Perhaps then it is somewhat satisfying to find that I was in error and both wings are capable of the same childishness.
Oddly, I have done none of those things. You must have me confused with Orin Kerr — a mistake that happens often enough.
Because no one has accused us coastal folks of living in a place that’s not “real America”.
Maybe we need a truce on the denigration (or exaltation) of people based on where in this fine country they live?
February 1, 2010, 7:15 pmEcon_Scott says:
Oren, should you choose one day to live in the city of Chicago here’s a little real estate guide that will help you choose a neighborhood
http://maps.google.com/maps/ms?ie=UTF8&oe=UTF8&msa=0&msid=104675750739697697598.00044e3957099c263f47c
February 1, 2010, 7:26 pmAnonsters says:
Curious, all the “eff the lawyers, let our military KILL KILL KILL” types have utterly failed to appreciate that for the most part, the military itself has been the biggest advocate for and proponent of law(s) of war. It’s the CIA, masters-of-the-universe, armchair strategists, and neoconservative academy-types who have resisted it.
But do go on, continue having your “24,” Jack Bauer, might-makes-right fantasies. This is, after all, the intarwebz.
February 1, 2010, 7:27 pmEcon_Scott says:
1955-73 in the suburbs then 1973-1982 in the City, with constant visits even now to see family.
He is sadly the President of the Country. He has just about achieved in one year the kind of FUBAR’s it took Jimmy Carter four years. He hasn’t gone to full on scolding the public with malaise speeches or firing his whole cabinet in one night like Carter, but there’s still time. The country is still functional, tho the voting mechanisms bordering on that of a Banana Republic could change that soon enough.
And the childish insults … well if I knew that you were a “Real” law professor, I might get my feelings hurt of course. But you’re not so I wont.
Please forgive me for thinking you’d achieved something. The mistaken identity is surely understandable.
Agreed. Truce on where you live. I’m 2 miles east, on the sane side of the Berkeley Hwy 24 Tunnel, and tho we don’t have coastal wackjobs here just inside the border, we can see them from here, and that’s enough.
February 1, 2010, 7:44 pmQuote
Oren says:
Damn, handily beaten. :-)
Indeed. I live about 10 miles west of the wackos in Boston but I can see the wackos in Cambridge, MA.
February 1, 2010, 7:50 pmwjr says:
Anonsters,
There are no “laws of war” other than what we have learned about how not to lose a war. We do have a “Geneva Convention” that works fairly well when we are fighting Europeans. Not so many Euros are fighting any more, though.
Otherwise these pretend rules only give an advantage to the opposition. We are told to fight “clean” while they openly fight “dirty”. The VC and the NVA did it and now the Islamic jerks do it. We still win despite the left doing everything possible to throw the game.
However, now we prosecute good Marines for making sure the enemy “dead” are actually dead and vilify Marine officers for trying to protect their men by using a scare tactic against a captured enemy combatant. An un-uniformed combatant that, per the Geneva rules, we would be in our rights to line up against a wall and execute as a spy in the field.
Perhaps one day the “raggidy assed” Marines will stop doing this and let some gutless, fat assed lawyers do their share for a change. Ha! Not likely.
February 1, 2010, 8:10 pmEcon_Scott says:
Be Careful there … you’re treading too closely to insulting my relatives there (but not my mother yet or we’d have to fight over her honor, just like they do on the south side of Chicago when they say “Yo mama is a ….”)
Go ahead, insult my Cambridge relations, I won’t fight you over it. Those relations should all have their heads examined for living there anyway, Harvard Tenure not withstanding.
——————–
O.K. I admit it. I cheated. You’re better than me.
From 1955-73 I lived in the “Far Western suburbs” 2 blocks from the Corn & Soybean fields that stretched all the way to the Mississippi. On good days in the fall I could walk 5 minutes from my house and be hunting pheasants with my faithful dog in some of the most beautiful rolling farm country on earth. I joined 4-H as a kid and earned my official redneck badge with farmers emergency First Aid on how to pull your brother out of the cornpicker and get him to the hospital without killing him.
Fortunately we lived farther out than Hillary, so I didn’t have to join the “Young Pioneers” and work with Saul Alinsky like she did.
February 1, 2010, 8:10 pmAnonsters says:
Funny, I (personally) know many Marine Corps and Army lawyers* who would, and do vigorously disagree. With virtually everything you’ve said so far.
(* I also know several Air Force lawyers, but I would never dare to cite Air Force personnel for any point to an ex-Marine. I grew up in the military community. I’m not that big a fool. ;))
February 1, 2010, 8:16 pmRicardo says:
The law as interpreted by the courts. In other words, the same law that applies to every other American. I’m not a lawyer, but I recall a case in which a private citizen who was told by the Attorney General of a certain state that a certain intended course of action was legal. He was later successfully prosecuted for that course of action. It’s not immediately clear to me why legal advice from the executive branch should give absolute immunity for any criminal acts. I can be persuaded but I don’t see an argument here.
Two cases that are apparently under investigation that were leaked to the press involve one case where a detainee died from injuries allegedly received as a result of interrogation. In another case that may be under investigation, a detainee was threatened with a power drill if he did not start talking.
You’re confused. My comment about the risk of prosecution associated with covert ops was in reference to the statement made in the post about European courts prosecuting CIA officers. Indeed, CIA officers who operate illegally in European countries (like the ones in Italy involved in the extraordinary rendition case) do indeed run the risk of being arrested and put in prison just as you and I run the same risk if we go to a European country and break that country’s laws. That has always been true.
February 1, 2010, 8:52 pmJohn Moore says:
.
And the person responsible was already prosecuted.
Oh, my. That’s just terrible! I’m so ashamed of us! Why next thing you know, we’ll be beheading people on video. Oh wait…
Puleeze… if we are going to prosecute someone for the electric drill incident, which I understand took place early in the game and well before folks had sorted out how to deal with detainees, then we are utter, suicidal fools.
Of course, when we look at how our nation dealt with the underwear bomber, well, we ARE utter, suicidal fools!
February 1, 2010, 9:29 pmEcon_Scott says:
Now I think you are confused. In the bad old Cold War days “spies associated with an embassy” never got prosecuted in absentia. They were under the Auspices and Cover of “Diplomatic Immunity” even for quite a number of Overt Crimes.
It is reasonable to assume that had Italy tried to do the same to members of the Russian Embassy Staff, or the Iranians or perhaps even the Chicoms … that sufficient life and death threats would be made thru back channels that no trials would have occured. We don’t threaten officials or their families.
I seem to recall a murder by Polonium, of a troublesome Russian Emigre to London by Polonium … and strange and rare nuclear substance with an extremely short half life.
Of where it came from and who did it there was no doubt. Any criminal trials in absentia ? http://en.wikipedia.org/wiki/Alexander_Litvinenko_poisoning
We play by different rules, and NOW, frequently our citizens serving in covert operations are in the present left to swing in the wind.
Until the Congress, the Courts and the Administration get this figured out, I don’t think I would advise any young people to serve the Government overseas. And that is the current administrations (presumed) desired outcome, as it is the enemies of the U.S. that would do us harm.
February 1, 2010, 9:39 pmFat Man says:
No. It means you are a half wit.
February 1, 2010, 10:07 pmRicardo says:
As I pointed out in my comment above, diplomatic immunity is not currently recognized by the U.S. as an absolute defense against criminal charges. Nor is it recognized by other countries. Moreover, while it is generally the case that CIA officers operate under cover of diplomatic immunity, that is not necessarily universally true. In the Italy rendition case, it’s not clear that all of the accused were clearly entitled to diplomatic immunity. Given the official position of the U.S. government regarding diplomatic immunity, it has little room to complain when other countries take a similar stance.
One could say the same of various Mafia hit jobs. In the real world, you need evidence that is admissible in a court of law to prove murder accusations. Can you name who exactly was responsible and what evidence exists that would prove their guilt beyond a reasonable doubt in front of a jury?
The U.S. and U.K. insisted on prosecuting two Libyan intelligence agents who placed a bomb on board Pan Am 103. I’m not sure either country allows in absentia trials in jurisdictions relevant to that case.
February 1, 2010, 10:29 pmRicardo says:
In other words, you concede it may have been illegal (I certainly didn’t see any substantive legal argument above — if you want to make one, feel free) but don’t want it investigated anyway.
Well, too bad. Maybe you think the Abu Ghraib prosecutions were similarly suicidal. Both Presidential candidates in 2008 came out pretty strongly against torture. Maybe McCain would have been less likely to order an investigation than Obama but it’s impossible to know for sure.
February 1, 2010, 10:33 pmOren says:
Because I don’t seriously expect every FBI agent to get a degree in law and spend their nights and weekends double-checking OLC advice? Please read my hypothetical about New York v. Burger above (February 1, 2010, 4:13 pm), if you don’t mind.
The fact is the law as interpreted by the courts is rather complex, arcane and often leaves serious smarties like Orin and Eugene (let alone us lesser folks) uncertain about what the result for a particular set of facts will be. That is, even if our intrepid FBI agent (or detective) was a lawyer and was familiar with all the caselaw on the matter, it might still be unclear how they should be applied to the unique facts of the case.
In these situations, it seems logical to have a body like the OLC that applies the law to specific factual situations (in the Burger example, whether a particular business qualifies as pervasively enough regulated to allow a warrant-less search) and sets guidelines. If those guidelines are wrong, they ought to be changed but that’s a long way from holding liable the grunts that implemented what they thought was good law.
Finally, I want to add that much of the law (18USC2340, at the minimum) had never been clarified by any court at that time. Similarly the contours of the President’s wartime powers are vague, to say the least. When the Executive is interpreting in any area of law that has never been taken to court, it seems logical they have more latitude than after the court has spoken. The freedom the executive has to deal with captures is far less expansive after Boumedienne than before it.
February 1, 2010, 11:16 pmEcon_Scott says:
My point at the beginning … questionable trials by the Italians, the ICC etc to attempt trials in absentia.
Second … the U.K. at least felt they had plenty of evidence to achieve a conviction in their system and attempted extradition of Andrei Lugovoy.
Since you were to lazy to click the link on the Livenyenko pollonium poisoning, I’ll just paste the relevant para.
My point is simply, the rest of the world plays dirty all the time and kills who they wish, when they wish, from their embassys without consequence.
The U.S. refrains from dirty rules, sends their people out on risky missions …. and leaves them to hang out to dry when the Euro’s, the ICC or the enemies of the U.S., and they are many, attempts Lawfare.
In that type of environment … I’d advise young people in my small circle of influence to avoid government service abroad. Particularly with the Clandestine Services.
Let somebody else’s kids get suckered into doing the tough thankless dirty work and get hung out to dry, while law pundits sleep safely in their beds.
February 2, 2010, 1:36 amEcon_Scott says:
Mr. Ricardo:
If you are energetic enough to click a link, you can see the “alleged” killer’s face. http://en.wikipedia.org/wiki/Andrei_Lugovoy
“Alleged” killer and the U.K. feels they are 100% certain with plenty of evidence, enough to effect extradition from their old Cold War enemy.
I’d guess that the U.K. is particularly sensitive about poisoning assassinations on their home territory with weird rare nuclear isotopes you only get as a nuclear reactor byproduct.
Is a particularly gruesome death over a three week period. A kind of “Send a message” kind of assassination.
That along with fairly brazen unsolved street assassinations of “opposition Journalists” proves that the KGB may be working with a much smaller budget than they once had … but they are surely back in business.
While Russian methods are still crude … they work.
Haven’t heard much out of Russian refusniks, Russian opposition journalists, or KGB defectors who are interested in writing books lately have you.
February 2, 2010, 2:06 amRicardo says:
Econ_Scott, I hadn’t followed Litvinenko case since it broke a few years ago. I never thought there were any serious doubts that it was organized within the Russian government. Now that the U.K. insists there is solid evidence against a particular person, they have already issued an arrest warrant and extradition request.
As I pointed out above, I’m not sure the U.K. allows in absentia trials so I’m not sure what your point is. The U.S. hasn’t extradited any of the CIA officers in the rendition case to Italy either.
February 2, 2010, 2:48 amEcon_Scott says:
Mr. Ricardo:
You really are confused aren’t you. Or just acting so.
I think I stated it plainly enough. That until the Administration and Congress follow Kenneth Anderson’s advice and develop the rationale in international law for extraordinary rendition and CIA drone platform targeted killing, they are going to have to either have to step up in the face of legal attacks on their operators, OR accept that it’s going to be increasingly difficult to recruit new people into the clandestine service
If you are implying that the operators in Italy that performed the snatch and extraordinary rendition of the Egyptian muslim cleric is somehow “morally equivalent” to the murder in London by a KGB operator just come out and say it.
Further if you feel that Kenneth Anderson’s other topic, that using Drone Platforms for targeted killings is Morally Equivalent to thug governments doing assassinations, then just come out and say it …
… you believe it is all morally equivalent.
You apparently haven’t lived in those countries in real fear for your life just for exercising the civil liberties we are enjoying typing on this blog. People are hanging tonight in Tehran for just the same kind of activity.
What Lawfare creates is real difficulty for real people to get on with their lives with not only the expense of defending themselves in a criminal show trials, usually $100,000 to $250,000 each round, but the consequence of not knowing if they will be extradited based on some legal wackademic hired into an Eric Holder Justice Dept. and certainly the inability to ever travel again outside the U.S. due to the risk of arrest under extradition for a dubious trial and the extradition requests.
Lawfare, “Abuse of Process” as a way to get at political enemies, does have consequences upon real people.
If the Administration and the Congress refuse to address it, as Kenneth Anderson admonishes, then that will have consequences too, and they won’t be pleasant.
February 2, 2010, 3:38 amwjr says:
Anonsters,
Lawyers agreeing? I believe you. However, I am certain that if you poll line officers — particularly the junior officers who deal with actual field problems — you would find a quiet concurrence to ship the lawyers back to the States — preferably to a remote portion of the North Slope — for the remainder of their service.
OTOH, your comment about Air Force types is, well, quite accurate.
February 2, 2010, 12:44 pmJohn Moore says:
Ricardo says:
I do not concede it may have been illegal. On the other hand, I don’t really give a damn if it was. Sometimes the law is an ass. And prosecutors, when they aren’t being driven by politics, should take circumstances into account when judging whether a prosecution should take place.
However, you do illustrate the idiocy of the law-fare folks: judge all policy by the law, as you choose to interpret it. Use monday-morning quarterbacking to make your judgments, harassing people who were operating in the belief that they were legally operating to protect American citizens.
What is it with you, Ricardo? The Abu Ghraib incident has nothing to do with this other case. Abu Ghraib was an out-of-control, improperly trained reserve military unit mis-behaving for sexual pleasure. Of course those prosecutions were appropriate. The behavior of the Abu Ghraib perpetrators was not only illegal, it was also terribly damaging to our country (especially when used by people like yourself).
If you think being scared by a drill is torture, you need to do some remedial reading. Or maybe you should visit a SERE school (I was a student there once upon a time) and find out what we do to our own people as part of their training.
Or maybe you should grow a sense of proportion about the whole thing, and realize how far the term “torture” has been, well, tortured to arrive at today’s prissy meaning – where we can’t even scare a terrorist with an electric drill without the prosecutors being called out.
Lawfare is for idiots and traitors. Which are you?
February 2, 2010, 10:09 pmEcon_Scott says:
Mr. Moore:
I am somewhat new as a commenter on Volokh but “what is with” “Ricardo” is quite plain. Yeah I took the bait too.
He’s an idealogue, reasonably far left and in methodology mostly Gramscian, all about moral equivalency,
in Short, an internet Troll.
Look at the pattern above. He’s not about substance, it’s about dropping little turds in the punchbowl to get you all worked up and waste your time.
The second best emetic for a blog infected with a Troll is to simply ignore him … “Don’t feed the Troll” … simply because it drives them crazy at the root of their narcissism to be ignored.
However the best emetic of all is simply hunt down there Unique number on their ISP, using readily available tools and report them to their employer as they are surely goldbricking on business hours.
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