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Law School Conference to Design Plan For Prosecution and (If Convicted) Execution of President Bush and Other Officials:
I'm not positive that this is real, but I think it is. And if it is, Michelle Malkin is going to have a field day with it. And I wouldn't be surprised if the Secret Service finds it worth following up, too. Hat tip: Victor Steinbok.
Tony Tutins (mail):
And people think ABA schools are full of radicals.
6.16.2008 8:43pm
Chris_t (mail):

And people think ABA schools are full of radicals.




lol. indeed.
6.16.2008 8:46pm
OrinKerr:
I don't believe MSL is accredited by the ABA.
6.16.2008 8:46pm
BerkeleyBeetle:

Sending administration officials to the gallows, he added, "would be a powerful lesson to future American leaders."


Never give up power?
6.16.2008 8:46pm
Bill Poser (mail) (www):
There's a huge difference between planning an assassination and planning the prosecution of government officials for capital crimes. Any involvement by the Secret Service or other law enforcement agencies beyond ascertaining that prosecution rather than assassination is what is being planned would be most improper.
6.16.2008 8:48pm
Humble Law Student (mail) (www):
The definitive source for all information (Wikipedia) says the MSL isn't accredited by the ABA.
6.16.2008 9:00pm
David M. Nieporent (www):
This isn't exactly a shock, Velvel's the guy who once tried to sue us out of the Vietnam War.
6.16.2008 9:04pm
Elliot Reed (mail):
Wouldn't it make more sense to find a way to get them to a European country where they could be tried under preexisting war crimes laws?
6.16.2008 9:07pm
Nunzio:
Will this factor in to their ABA accredidation? If so, positively or negatively?
6.16.2008 9:21pm
Richard Aubrey (mail):
I guess they'd have to be accompanied by all the dems who insisted on the same thing, "generally substantiaed by intelligence" quoth the Rockefeller report, and voted for the AUMF.
Dems don't do well absent a double standard.
6.16.2008 9:23pm
Duncan Frissell (mail):
I thought (US) commies opposed the death penalty?

They going to hang Bill Clinton too for his war crimes? Didn't he actually invade more countries than George?

Can't send them to Europe for trial. No death penalty. Life of luxury.
6.16.2008 9:26pm
CDR D (mail):
Hey, I know what to do...

After they get Gitmo cleared out of those poor innocent devils, we can send the evil Booosh and Cheney there.

Holy sheet!... we could even have fun putting any religious artifacts they might have in their possession (you know, like crucifixes) in jars of urine!

Hey, c'mon, it's just ART!
6.16.2008 9:35pm
jccamp (mail):
We could ask Mexico to annex Crawford (ala the recent beer commercial). Mexico refuses to extradite U S fugitives who face capital punishment in the States.
6.16.2008 9:38pm
jccamp (mail):
...and then, even if GB snuck across the line to catch a baseball game or such, and got picked up, ICE would release him 15 or 20 times into his own custody on a promise to reappear, before they got around to checking on who he really was.
6.16.2008 9:42pm
glo:
But... Should not such conference be held at mainstream law school?
6.16.2008 9:47pm
Bill Poser (mail) (www):
Regarding Velvel's Vietnam War suit, don't you think that it is perverse to deny standing to challenge the constitutionality of an undeclared war to someone drafted to fight in that war?
6.16.2008 9:53pm
MnZ:
Leftist are trying to execute their political opponents. The more things change the more they stay the same.
6.16.2008 10:04pm
George Weiss (mail) (www):
poser-agreed-and if you look at the cases cited in the velvel suit on the point that draftees have no standing to challenge undeclared war-the courts cites seem unbelievably off-they are quotes to criminal cases involving draft doing in which the 'undeclared war' issue was a defense-hardly analogous to civil standing.
6.16.2008 10:08pm
Jimmy S.:
At any rate, it appears this isn't a hoax. See here (the link to the conference agenda seems to be broken, though.)
6.16.2008 10:23pm
Cornellian (mail):
Never heard of that guy, or his law school. I suppose this is one way to rise from well-deserved obscurity for 15 minutes.
6.16.2008 10:25pm
Q the Enchanter (mail) (www):
Orin, is the reference to Malkin a veiled dig, or do you actually think her opinion is worth more than a buffalo chip? Just curious.
6.16.2008 10:37pm
Mike& (mail):
And people think ABA schools are full of radicals.


Even if you factual assumption were correct, your inferential reasoning would still leave a lot to be desired. As of 2006, there were 193 ABA-approved law schools.

But one (that isn't even approved) does something funny, and that's evidence that "ABA schools" are full of radicals?

You know, after reflection and deliberation, people can and do disagree about lots of things. But there's really no excuse for sloppy thinking.

lol. indeed.



Seeing a guy get the facts wrong and then engage in poor

reasoning inspires an "LOL" in me, too.
6.16.2008 10:40pm
JRD (mail):
Before they need to start worrying whether their political agenda will prevent them from ABA accreditation, maybe they ought to start considering LSAT scores in admissions decisions.
6.16.2008 11:05pm
Richard Aubrey (mail):
Bill Poser.
Suppose a couple of these nutcases decided to try a citizens' arrest on GWP.
What is the Secret Service supposed to do? Let them haul the pres off and wait for a bail hearing?
The reason I ask, is that if this doesn't get enough ink, that would seem to be the next step in getting publicity.
6.16.2008 11:20pm
Tony Tutins (mail):
I forgot that irony, etc. do not work on the net. MSL is even more radical than the supposed radical ABA schools.

Marxist LS ... MSL... ABA approved ls {subset Regent &Ave Maria}
6.16.2008 11:42pm
xx:
"I don't believe MSL is accredited by the ABA."

I think that's the point of the joke. . . MLS makes the ABA seem conservative by comparison.
6.16.2008 11:53pm
OrinKerr:
Ah, I get it. I thought it was a different joke -- poking fun at false beliefs rather than making a comparison.
6.17.2008 12:15am
Brian G (mail) (www):
What do you knoe. A death penalty that liberals could get behind.
6.17.2008 12:51am
DrGrishka (mail):
Not a hoax. Here's the link

http://www.mslawevents.com/
6.17.2008 2:22am
Jerry F:
If we are speaking of imposing the death penalty on public officials, how about doing so for public officials who actually did commit a capital crime? Last time I checked, Treason is a capital crime. Is there any doubt that Kennedy, Souter, Ginsburg, Breyer and Stevens did not give "aid and comfort to the enemy" in their Boumediene ruling?

Before Leftists accuse me of being some sort of far-right conservative, I should note that I am far more moderate than the leftists discussed here: while I do believe that the Boumediene ruling amounts to treason (unless someone can make some sort of argument to the contrary, which I am open to hearing), I also believe that, if the five "Justices" were sentenced to death, President Bush should use his presidential pardon on their behalf (how ironic would this be).
6.17.2008 3:13am
Dreadnaught (www):
Dean Velvet – Show trials before predetermined executions. Joe Stalin would be proud. Well played dean. Well played.
6.17.2008 6:40am
Tareeq (www):
Orin, while I don't know that the story isn't true, I would be very cautious about the "source," opednews.com. It's the journalistic equivalent of a vanity press. Which is to say, it's just a blog.
6.17.2008 6:55am
Lucky:
I think this will probably help MSL with future accreditation. After all, a lawsuit argued in front of judges who are members of the ABA and went to ABA accredited schools didn't seem to work [hmmm... I wonder why?], so MSL has just resorted to the next best thing: Marxism.
6.17.2008 7:54am
Maximilien:
"Last time I checked, treason is a capital crime. Is there any doubt that Kennedy, Souter, Ginsburg, Breyer and Stevens did not give 'aid and comfort to the enemy' in their Boumediene ruling?"

Oh yes, that makes sense. And why not execute Boumediene's lawyers, and the legal academics and journalists who supported the decision? And what about the presidents who appointed these guys, and the senators who confirmed them? And naturally Obama, since he supports the decision.

Next, let's go after Scalia, since his Hamdi dissent gave "aid and comfort to the enemy," too. And Pat Robertson, who blamed 9/11 on American sexual mores, and Dinesh D'Souza, who thinks we wouldn't have been attacked by Wahhabi freaks if we just had a decent theocracy of our own. So many traitors, so little time. Dust off your guillotines, folks.
6.17.2008 8:28am
Jerry F:
Maximilien: I think that an important distinction is that exercising free speech is constitutionally protected and hence, not treason. So Robertson, D'Souza, and even Michael Moore are off the hook. Likewise, simply exercising speech in support of a traitor, as far as I know, is not in itself treason, so even Obama is off the hook. And since Justice Scalia is arguably correct in his Hamdi, surely he is not a traitor for enforcing existing constitutional rights. The lawyers are a more difficult case; what they did is truly despictable and they probably should be held in contempt of the court for making absurd constitutional arguments, but this is somewhat mitigated by the lawyer's duty to defend his client vigorously.

What the Boumediene majority did, however, is to lie about, among other things, the content of the Eisentrager opinion, and reach a decision on constitutional grounds that has absolutely no basis in the U.S. Constitution AND gives comfort to the enemy (the argument that they are traitors is of course premised upon their decision being incorrect, and being so incorrect as to be wholly indefensible). There have been other SCOTUS decision that were so incorrect as to be wholly indefensible in the past, e.g., Lawrence v. Texas, but while these decisions should be ground for impeachment, they did not amount to treason because they did not give aid and comfort to the enemy.

And, of course, your "slippery slope" sarcasm could just as easily be used in the other direction to show that nothing anyone could ever do would ever be considered treason.
6.17.2008 8:43am
Jiminy (mail):
Jerry F, how about the fact that the Geneva Conventions covered the concept of a POW and an Enemy Combatant, and the President decided to create a new category to ignore the first two and also ignore the criminal rights in this fine country?

How about the fact that the writ of haebeus corpus was designed by common law. It was designed to keep the King from creating legal black holes that He could throw undesirables into with no hope of reasonable charges, reasonable bail, or eventual actual trial. The common law around this changed over the years, as the King and His judges kept finding creative ways around the law to force His subjects back into jail.

And so when our current day justices work to restore that writ, only because the President decided to create yet another legal black hole to jail people with no hope of a hearing or understanding what came next (6 years long enough ?) then I am quite alright with your facile definition of treason. Look up the writ and its home in common law, and you would almost comprehend that the Founders had a clue when they thought that this was a good idea to copy and emulate in our own country. NO slippery slope required.

Aid and comfort to the enemy would be creating a country ruled by prejudice and fear. That is the kind of place that Afghanistan and Iraq have become under the influence of terrorists. Would you allow Star Chambers and kangaroo courts in the land of the free?? I would submit the charge of treason against you as well.
6.17.2008 9:21am
Jiminy (mail):
And just for the record, I don't think Bush and his clever ministers are treasonous at all. I think they wanted to make their difficult job easier, and the checks and balances that exist are there to make people think twice about acting outside the box when it comes to executive rights. Woo's memorandum, Addington's ends to justify the means, and painting Patriot Act opposition as unpatriotic all fit that mold perfectly. I wouldn't want their job, that's for sure. I don't know that I wouldn't take the low road when pressed for results and citizens are screaming for revenge.
6.17.2008 9:27am
Jiminy (mail):
In the parent link, they also mentioned that MSL is located in Andover - where they hanged a few witches during the Puritan glory days of Massachusetts. I think someone blamed ergot on the diseased wheat back then... What's the excuse now?!
6.17.2008 9:35am
Richard Aubrey (mail):
Jiminy, well, it's been a damp, cool summer in some places where they grow wheat.
See "Fire from Heaven". The medieval mass hysterias have been thought to be the result of the incredible stress of a permanent state of hunger and instability. Or ergot.
6.17.2008 9:51am
Seamus (mail):
And I wouldn't be surprised if the Secret Service finds it worth following up, too.

This reminds me of Chris Buckley's book, "No Way to Treat a First Lady," where the Hillary-Clinton-like widow of a Bill-Clinton-like president is being prosecuted for the murder of her late husband, all the while receiving Secret Service protection. The book indulges some amused speculation about whether, if quasi-Hillary gets convicted and sentences to take the needle, the Secret Service would feel obliged to thwart the execution.

(BTW, I think Buckley's point is that, if the Secret Service could even imagine that it has the right to thwart the orderly execution of a legal judicial sentence, then it has an absurd view of its role. That should be the reaction to any Secret Service investigation of this proposal for prosecution.)
6.17.2008 9:56am
Anderson (mail):
Annoying little jerks (Velvel et al.). There's pretty good reason to suspect that Bush, Cheney &others are in fact liable for prosecution under the War Crimes Act, and a legal conference on that issue would be useful. (Even if the MCA turns out to immunize them, it would be interesting to debate whether they needed that to stay out of jail.)

But all this grandstanding about "hanging" etc. just discredits whatever merits the underlying theory of liability has, in exchange for publicizing the aforesaid jerks.
6.17.2008 9:57am
Seamus (mail):
Suppose a couple of these nutcases decided to try a citizens' arrest on GWP.
What is the Secret Service supposed to do? Let them haul the pres off and wait for a bail hearing?


No. Unless, of course, the nutcase personally witnessed GWB committing a felony, which is pretty unlikely.
6.17.2008 9:59am
Seamus (mail):
"Last time I checked, treason is a capital crime. Is there any doubt that Kennedy, Souter, Ginsburg, Breyer and Stevens did not give 'aid and comfort to the enemy' in their Boumediene ruling?"

Last time I checked, treason is defined, not simply as giving aid and comfort to the enemy, but as "adhering to their [i.e., the United States'] enemies, giving them aid and comfort." Unless you find an al-Qaeda membership card in Souter's wallet, or some similar evidence of "adherence," I think that treason prosecution is a non-starter.
6.17.2008 10:02am
Steph (mail):
"how about the fact that the Geneva Conventions covered the concept of a POW and an Enemy Combatant, and the President decided to create a new category to ignore the first two and also ignore the criminal rights in this fine country?"

The fact is that he did not create a new catigory, he used one well understood in customery law. The detainies a Gitmo should have been given a drum head court and shot. To bad we didn't do it.
6.17.2008 10:17am
Richard Aubrey (mail):
Seamus. What could be more publically obvious than what Bush has done?
No problem with witnessing.
6.17.2008 10:18am
ejo:
war crimes act-you mean acting in the interest of this country by killing an enemy intent on murdering americans counts as a "war crime" on the part of the left? think of what we could and should have done to Truman after he dropped the a-bomb-my goodness, he makes bushitler look like a piker.
6.17.2008 10:18am
Richard Aubrey (mail):
Oh, yeah. Is failing to hang a "kick me" sign on the US military and the US in general a war crime? If it is, then Carter should be in the clear.
6.17.2008 10:19am
DJR:
Jerry F:

The Justices are entitled to absolute judicial immunity for their acts as Justices. No ruling of the Supreme Court could ever be treasonous.


This immunity applies even when the judge is accused of acting maliciously and corruptly, and it "is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences." It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.


Pierson v. Ray, 386 U.S. 547, 553-554 (1967)(citations omitted).

In other words, judicial immunity is exactly intended so idiots like you cannot declare a ruling you don't like treasonous.
6.17.2008 10:25am
Student:
Looks like a stupid publicity stunt by a fourth tier law school to me........
6.17.2008 10:31am
Hi Standards:
Since Vevel and his cohorts have no authority to try anyone, even for littering, his exta-legal conference may have to walk a fine line to avoid being an illegal conspiracy. You can't legally plan a rump trial followed by a lynching, IMHO.
6.17.2008 10:34am
Per Son:
Steph:

You stated: "The fact is that he did not create a new catigory, he used one well understood in customery law. The detainies a Gitmo should have been given a drum head court and shot. To bad we didn't do it."

I agree with one point - the term "enemy combatants" has been around. This administration, I believe, was the first to coin the term illegal enemy combatants.

As for the second part - even the most hard right pundits do not advocate summary executions for those who may or may not be guilty of anything. I suppose you think killing anyone rounded up is the proper thing to do - facts be damned.
6.17.2008 10:35am
Per Son:
Hi Standards:

Don't give them so much credit. It is no different than when grade school kids hold a mock trial.
6.17.2008 10:36am
Per Son:
Student:

You too are guilty of giving too much credit to them. You insult and deride all fourth tier schools by comparing this place in Andover to them.
6.17.2008 10:40am
Jiminy (mail):
Steph, you are very incorrect. They did not use a category well known in "customary" law, whatever that means. They took the term Enemy Combatant, a term well defined under Geneva that clearly defines the actions and intent of Al-Qaeda and affiliated terrorists that don't wear uniforms, don't belong to a specific agressor nation, and hide in civilian populations; he took that term and then added his own meaning to it that allowed him to ignore the basic rights afforded even to Enemy Combatants under Geneva.

They ignored the understandings of Geneva where member countries cannot create new black holes where captured terrorists/soldiers do not fall under the protection of Geneva or the member country. That's precisely what the administration did. They acted in bad faith with the Conventions in order to reach the desired end at Gitmo.

They could have just shot them upon receipt from the bounty hunters or allied solders. They could have left them to rot in foreign jails where CIA operatives put matchsticks under thier fingernails and demanded to know where the nukes were hidden in LA. They could have nuked their host countries and occupied territories.

They didn't do any of that. They threw the scum into a legal black hole, just like the Kings of old did with other undesirables. That's why the Writ was invented and designed in common law.
6.17.2008 10:50am
David M. Nieporent (www):
Is there any doubt that Kennedy, Souter, Ginsburg, Breyer and Stevens did not give "aid and comfort to the enemy" in their Boumediene ruling?
Even if there were, "giving aid and comfort to the enemy" is not treason. For someone who wants to be a stickler for the constitution, you might want to try reading it.
6.17.2008 10:52am
Don Miller (mail) (www):
You know, if I was Pres Bush, I would be really tempted to issue a ton of preemptive pardons about 1 min before my term as president ended.

I would name myself, my VP, and anyone in my administration that these nuts keep suggesting might be tried for war crimes.

As far as I can tell, it would be constitutional and not reviewable by the courts. The left could kick and scream, but not be able to do anything about it.
6.17.2008 10:54am
Per Son:
Don:

You cannot pardon someone who has not been convicted. There is is no get-out-of-jail card that can be handed out prior to your incarceration.
6.17.2008 10:59am
alkali (mail):
You cannot pardon someone who has not been convicted. There is is no get-out-of-jail card that can be handed out prior to your incarceration.

Not true -- see Ford's pardon of Nixon.
6.17.2008 11:01am
David M. Nieporent (www):
The Justices are entitled to absolute judicial immunity for their acts as Justices. No ruling of the Supreme Court could ever be treasonous.
False. Judicial immunity is a civil doctrine, not a criminal one. (Do you imagine that if a judge took money from a litigant in order to decide a case, that he could yell "judicial immunity" when the police came to arrest him for receiving a bribe?)
6.17.2008 11:07am
J. F. Thomas (mail):
Not true -- see Ford's pardon of Nixon.

Although Ford did indeed preemptively pardon Nixon, I think it is still an open question whether the action had any actual legal effect. With his resignation, nobody had the stomach to pursue criminal charges.

Also, Bush would hardly be able to pardon himself even if such a preemptive pardon were possible.
6.17.2008 11:10am
Anderson (mail):
§ 2441. War crimes

(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances.— The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

(c) Definition.— As used in this section the term “war crime” means any conduct—
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

--Now, how conspiracy to commit war crimes is punishable, I leave to students of the arcane arts of criminal law.
6.17.2008 11:11am
Clayton E. Cramer (mail) (www):


Also, Bush would hardly be able to pardon himself even if such a preemptive pardon were possible.
Bush would pardon Cheney, and resign about five minutes before the end of his term. Cheney would then pardon private citizen Bush.
6.17.2008 11:17am
Anderson (mail):
Bush would pardon Cheney, and resign about five minutes before the end of his term. Cheney would then pardon private citizen Bush.

I wouldn't be surprised, but really, is there any authority that a president *cannot* pardon himself?

If not, is there any authority on the self-application of any other "plenary" powers? (IIRC, the pardon power is "plenary," i.e., full and unlimited.)
6.17.2008 11:21am
Don Miller (mail) (www):
I think the issue of preemptive Pardons is traditional. There is no limit on the power of Presidential Pardons in the Constitution.

Also, it is only traditional that the President couldn't pardon himself. Pardons are not reviewable by the courts, so what would be the remedy if he did do it?
6.17.2008 11:22am
Richard Aubrey (mail):
I know a guy who, in WW II, had a casualty in his platoon who'd gotten his left humerus broken by a flying piece of building.
He also had seven prisoners. He gave the wounded guy a forty-five with a full mag and one in the chamber, stuck the guy's left hand in his belt and told him to take the Germans to the rear.
One pistol, eight rounds, seven prisoners and a broken arm.
He never found out either way if anybody actually made it to the rear.
Hard to imagine a war crime didn't happen. About a million times.
6.17.2008 11:24am
Anderson (mail):
Mr. Aubrey, I appreciate your willingness to acknowledge that Americans do in fact commit war crimes, but what exactly is your point here?

Also, FWIW, neither the War Crimes Act nor the 1949 Geneva Conventions were in effect during WW2.
6.17.2008 11:25am
ejo:
again, what's the war crime you want prosecution for? can you come up with one that isn't worse than Truman dropping the a-bombs?
6.17.2008 11:28am
Per Son:
As for preemptive pardons - I stand corrected.
6.17.2008 11:35am
Seamus (mail):
I wouldn't be surprised, but really, is there any authority that a president *cannot* pardon himself?

Back during the Watergate crisis, an article in (IIRC) the Outlook section of the Washington Post considered this issue and concluded that there was indeed no obvious authority that would prevent Richard Nixon from pardoning himself.
6.17.2008 11:37am
J. F. Thomas (mail):
Hard to imagine a war crime didn't happen. About a million times.

Actually in this case it is hard to imagine a war crime did occur. Seven prisoners could have easily overpowered one broken-armed soldier with a pistol if he had tried to shoot them all. Especially if their lives were on the line.

I am not so naive as to believe that German prisoners were sometimes shot after capature by the Americans. But generally, the vast majority of German POWs made it to the rear. In fact U.S. and British treatment of German POWs in WWII doubtless saved tens, if not hundred of thousands of allied and countless German ones. Germans were much less likely to fight to the death in the west than the east. And by early 1945, the trickle of surrenders became a flood. Hitler actually considered executing British and American POWs, hoping to trigger similar atrocities on the allied side to prevent German soldiers from surrendering.

During the battle of Berlin, German Army units were trying to break through the Russian lines just so they could surrender to the Americans rather than the Russians.
6.17.2008 11:46am
Anderson (mail):
again, what's the war crime you want prosecution for? can you come up with one that isn't worse than Truman dropping the a-bombs?

Again, this curious logic:

(1) we commit war crimes whenever we feel like it;

(2) ergo, it cannot be against the law to commit war crimes.

Curtis LeMay was surely correct that the carpet bombing of Japan's cities *was* a war crime, under the Hague Convention if nothing else, but I believe that would've had to be enforced by international law, and no one was in much of a position to do that to the U.S. in 1945.
6.17.2008 11:46am
Sam Draper (mail):
"[H]e shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

Pardons can be before or after the person is charged (for example, Nixon). There is nothing in the constitution prohibiting the President from pardoning himself, except in an impeachment proceeding. Groups or classes can be pardoned (for example, Carter's draft dodgers and the Whiskey rebels). Case law indicates that pardons can not be refused. There is no judicial or congressional review of pardons.

Contempt and civil liability can not be pardoned.
6.17.2008 11:50am
Anderson (mail):
Actually in this case it is hard to imagine a war crime did occur. Seven prisoners could have easily overpowered one broken-armed soldier with a pistol if he had tried to shoot them all. Especially if their lives were on the line.

J.F., I think the question would be why the platoon leader sent the POW's back with the wounded guy. But yes, inability to guard prisoners created practical problems that were often resolved, ah, "summarily," and (I would guess) not in violation of any laws of war.
6.17.2008 11:50am
Tony Tutins (mail):
The mention of Truman reminded me that the Puerto Rican terrorists who attempted to assassinate him were tried, convicted, and sentenced to death. Truman commuted their sentence to life imprisonment, and they were eventually pardoned by Jimmy Carter. Clinton in his time granted clemency to a later crop of Puerto Rican terrorists. So the "law enforcement model" can work well against terrorists, provided that we refrain from electing Carters and Clintons.
6.17.2008 11:59am
ejo:
ie. I can't answer the question of what war crimes I want him prosecuted for-I just don't like Bush and it sounds good.
6.17.2008 12:16pm
J. F. Thomas (mail):
But yes, inability to guard prisoners created practical problems that were often resolved, ah, "summarily," and (I would guess) not in violation of any laws of war.

In WWII it was quite common to send German prisoners to the rear with absolutely no guard at all. It was common to disarm them, have them remove their boots and hang them around their necks and have them shuffle towards the rear (see The Good War by Studs Terkel).

When I lived in Germany I met a guy whose father had surrendered to the Americans in late 1944. He was cut off from his unit with a friend and they mutually decided the war was over for them. They hid out in a cellar until the front passed them by and then waited until they heard vehicles passing by. Their first attempt at surrendering was a failure as the unit was too busy to accept their surrender and told them to wait until the next column came. So they just sat by the side of the road until another unit came by that wasn't in such a hurry. He spent the rest of the war, (until 1948 actually) as a prisoner of the British. He had nothing but pleasant memories of his internment.

The current GC clearly state that if you are unable to guard prisoners properly or evacuate them to the rear, they must be freed. Summary execution is never an acceptable option.

The Conventions may have been different in WWII.
6.17.2008 12:37pm
J. F. Thomas (mail):
I can't answer the question of what war crimes I want him prosecuted for-I just don't like Bush and it sounds good.

Authorizing torture (including the torture of uniformed members of the Iraqi military that resulted in the death of at least one senior officer) and other cruel, inhuman and degrading treatment. Violating the GC on determination of detainee status. Rumsfeld admitted hiding detainees from the Red Cross in Iraq at the behest of George Tenet. That is a clear violation of the GC, which the president stated repeatedly were fully applicable in Iraq.
6.17.2008 12:43pm
Richard Aubrey (mail):
Anderson, J.F. Let's say that the conventions did not cover, 1, inadequate safeguarding of the prisoners, 2, summary execution when inconvenient to do otherwise. So what? The point is that in war a "million" circumstances arise in which war crimes are either likely or inevitable, irrespective of what conventions are in force, or have or have not been signed by the party in question.
The fact is, war kills people. That other people happen to be the immediate agent of that killing does not change that. See "Bomber War" about the bombing campaign in Europe, and particularly about Bomber Harris and his blame, or lack.
In some circumstances, the killing inevitably violates one convention or another, or, later on, proves useful for revisionism.
The platoon leader in question had too few men to spare more than an ineffective soldier to guard the prisoners.
The overall point is that there will be no war without war crimes, given the inability of the convenors to foresee and address the variables of war, the double standards which give some parties free rein, and the need for revisionism for political purposes which will retroactively decide that something was a war crime because now it looks as if it should have been.
To get to Bush, the laws would have to be found which make this war illegal. UN resolutions? AUMF? Faulty intel?

And the other question is the blackly humorous one as to whether the inhabitants of this blog, and the law school, would fight the imposition of the death penalty on Zarquawi, should he still be alive and in our custody. Or, for that matter, the origin of the information which allowed us to prosecute him. Or, for that matter, the jurisdiction question. Or whether the US had the sovereign power to actually arrest him in another country.
Or whether the people whose heads he sawed off were, in fact, illegal combatants genuinely subject to summary execution.
6.17.2008 12:53pm
Connecticut Lawyer (mail):
I agree with the comment above that this is a pathetic attempt by a 4th rate law school to garner some publicity.

As for pardons, I would be surprised if the President issues one to Cheney, but I fervently hope that he does issue blanket pardons to all the worker bees in the CIA and the Army who have put their careers and liberty on the line for us by doing the dirty work that we don't want to know about.
6.17.2008 1:04pm
Richard Aubrey (mail):
It would be easier to pardon them than for the country to go through years of hysterical exaggerations, only to find out there's nothing there.
The opponents of torture, IMO, WANT there to have been torture. Not that it had any intel value, but because it would be something on which to go after Bush &Co. Imagine their response if it turned out IT DIDN'T HAPPEN.
Recall that, with the exception of three examples of waterboarding, most of what has even been alleged is equivalent to survival school or fraternity hazing.

This is reminiscent of the TANG memos where the admin was going, "huh? what? erm, we haven't heard, uh, we'll have to look at it" until the media and the liberals were well and truly hooked. Hooked themselves, I mean.

And then you have the whole "authorized" piece.
6.17.2008 1:16pm
some sense:
If you ask me, the ergot is still hanging around more than 200 years later...at the Law School and in this thread......
6.17.2008 1:17pm
Dreadnaught (www):
Reading comments on VC is always - or almost always - enlightening. And it is valuable to hear all of the viewpoints on Boumediene the various Geneva Conventions. But, can we step back a bit. Where does this law school, accreditation aside, gain jurisdiction to try anyone?

I plan to conduct a trial this evening. It will take place in my back yard. One of my bulldogs will be the prosecutor, the other will be the sole jury member. We will try, in absentia, Robert Mugabe for crimes against humanity. We should have a jury verdict in time for a trip to the dog park.
6.17.2008 1:28pm
ejo:
authorized-for shame. it's all based on a lie-Jay Rockefeller told me so. sure, his report had some facts that don't quite match up to what he leaked to me. so, keep those factual assertions to yourself-as for me, bush lied, people died.
6.17.2008 1:38pm
ejo:
further, it doesn't matter to me if thousands of lives were saved by waterboarding three people-I would gladly sacrifice all of these hypothetical people (and more-just not me, of course) to save my immortal soul.
6.17.2008 1:39pm
MarkField (mail):

I fervently hope that he does issue blanket pardons to all the worker bees in the CIA and the Army who have put their careers and liberty on the line for us by doing the dirty work that we don't want to know about.


Be careful: you may get what you wish for. The crimes at issue here are jus cogens crimes. One factor which militates against other countries exercising such jurisdiction is the potential that the US will deal with these crimes on its own. A pardon would remove that potential and expose the perps to the risk of prosecution elsewhere.

Law of unintended consequences.
6.17.2008 1:40pm
PatHMV (mail) (www):
Mark Field: When all those other lovely countries successfully prosecute people like Mugabe and Hamas leaders and Syrian leaders and Iranian leaders and people like Saddam Hussein for their actual, real jus cogens crimes, THEN I'll worry about what effects the pardon might have. Because of the nature of evil, the real bad guys are able to get away with mass murder with impunity, and the weak UN-types focus their ire on those whom they know actually DO respect the rule of law. They nitpick and console themselves with ejo's philosophy that they are pure while, in fact, they are utterly impotent to stop true evil.
6.17.2008 1:48pm
ejo:
come on PatHMV-just because other countries are evil and doing bad things doesn't mean we shouldn't be actively working as hard as we can in prosecuting the actions of people fighting for us over here. after all, they are doing their evil acts of defending us from our enemies who are intent on killing us in our name. in the end, as long as we serve due process, does it really matter if thousands of our fellow countrymen die? you have to focus on what's really important.
6.17.2008 2:03pm
Richard Aubrey (mail):
ejo.
Your buddies at Time, with their invisible Baath stringer, ginned up the Haditha war crimes trials. Command, always interested in appeasing the hippies, tried to throw a couple of dozen jarheads under the train.
Didn't work.
If you weren't so determined to get somebody, anybody, damn the facts, you'd be considerably more impressive when a real crime came along.
And I use the second person both in the single and the plura.
6.17.2008 2:07pm
NickM (mail) (www):
I had the opportunity to question former Attorney General Ed Meese after a speech he gave in 1998. I asked him whether in his opinion President Clinton could pardon himself. His opinion was that it was within the President's inherent power to do so, and that the only check on it would be the vastly increased likelihood of impeachment and removal from office due to such action.

Nick
6.17.2008 2:23pm
Richard Aubrey (mail):
ref. Haditha jarheads. Eight,not two dozen.
6.17.2008 2:31pm
Seamus (mail):
Seamus. What could be more publically obvious than what Bush has done?
No problem with witnessing.


You aren't authorized to make a citizen's arrest because it's "obvious", or even "publically" obvious, that the arrestee did the crime. You actually have to witness it; it isn't sufficient for you to conclude that the guy is guilty because you read evidence in the newspaper or saw it on CNN. (Evidence of that kind falls into a special category that lawyers call "hearsay".)
6.17.2008 2:35pm
PatHMV (mail) (www):
My point is, ejo, that truly evil people aren't stopped by court actions and injunctions and threats of prosecution. The relentless obsession you and others who think like you have on what you claim is misconduct by Americans obscures and ignores the real, mass crimes committed by actual tyrants around the world. Those evils will not be stopped by any threat of prosecution in front of the ICJ, partly because the ICJ is toothless until some armed forces actually bring the criminal before them and partly because the conduct of war tends to often leave little real judicially recognizable evidence about things like who ordered what done to whom when.

The only way the real evil will be stopped is by armed men representing, on the whole, the forces of good who are willing to risk death themselves as they kill or capture those who try to protect the evil men.

Most of the claimed "war crimes" center not around specific incidents of conduct by the President but around the fact that the war exists at all. If some soldier actually did murder innocent Iraqis, say, them I'm all for prosecuting them. I'm not for prosecuting them and ruining their lives trying to second guess their actions while they were under fire in a hostile war zone. And I have absolutely no moral qualms about waterboarding 3 senior al Qaeda leaders who were known to be responsible for attacking our country and our country's allies. I'm quite certain that a decent majority of the country would agree with that, and so when you demand that President Bush be prosecuted for something like that, then you are, essentially, demanding that WE be prosecuted for electing him, supporting such actions.
6.17.2008 2:51pm
ejo:
it's sad when people can justify the truly evil actions of Bush by pointing out that our enemies are actually worse and intent on murdering us. we should gladly sacrifice ourselves by the thousands to avoid the stain of waterboarding on our national honor. don't you realize that, as long as we comport with due process, that our lives mean nothing?
6.17.2008 3:13pm
Benjamin Davis (mail):
60 members of Congress have called for a special prosecutor with Mukasey so having a law school, or an NGO, or any other forum looking at criminal prosecution of Administration persons is not a crime. I have an article coming precisely on that point entitled "Refluat Stercus: A citizen's view of criminal prosecution in U.S. domestic courts of U.S. high-level civilians or military generals for torture and cruel, inhuman or degrading treatment". Criminal prosecutions of high-level persons in other countries in their own domestic courts is not something new either.
Best,
Ben
6.17.2008 3:46pm
Benjamin Davis (mail):
60 members of Congress have called for a special prosecutor with Mukasey so having a law school, or an NGO, or any other forum looking at criminal prosecution of Administration persons is not a crime. I have an article coming precisely on that point entitled "Refluat Stercus: A citizen's view of criminal prosecution in U.S. domestic courts of U.S. high-level civilians or military generals for torture and cruel, inhuman or degrading treatment". Criminal prosecutions of high-level persons in other countries in their own domestic courts is not something new either. I will be a speaker at the event described. Welcome all of you to come and debate live!
Best,
Ben
6.17.2008 3:47pm
ejo:
here here-thank god we have people out there like you who still remember what it was like to be a patriotic American. The evil we have inflicted upon the World, starting with the victory in WWII, will stain us until we have the good grace to prosecute those trying to protect us. Who are these 60 patriots-Conyers? Maxine Waters? Sheila Jackson Lee? Kucinich? did I miss anyone?
6.17.2008 3:58pm
Repo guy:
Bush can easy claim inasnity defense. All he has to do, is try to spell "tomatoes" without his handlers present.
link
6.17.2008 4:19pm
J. F. Thomas (mail):
And then you have the whole "authorized" piece.

That of course would be the purpose of an investigation, indictment and trial. Whether the documented deaths that resulted from torture of detainees (and we know that there were several--I can think of five specific instances off the top of my head, and there are thirty odd that the Pentagon admits were probably the result of mistreatment) were the result of deliberate policy authorized at the highest levels of the government or just the acts of a few bad apples.

As for the "ghost detainees" I mentioned above, that is certainly a much less serious crime than torture. But Rumsfeld admitted hiding detainees from the Red Cross at the request of Tenet in a freaking press conference! Obviously, Rumsfeld was so unconcerned about violating the GC (which the president had stressed were fully applicable in Iraq) that he was willing to boast about breaking the law to the press. No problem with hearsay there as it is a statement against interest. That Bush didn't demand the resignation of both Rumsfeld and Tenet immediately demonstrates his culpability in that violation of Geneva.
6.17.2008 4:31pm
J. F. Thomas (mail):
ejo, your attempts at sarcasm are lame.
6.17.2008 4:32pm
byomtov (mail):
Who are these 60 patriots-Conyers? Maxine Waters? Sheila Jackson Lee? Kucinich? did I miss anyone?

You obviously missed at least 56 people.
6.17.2008 4:32pm
ejo:
Here I thought I was channeling the brainless positions advocated by many here quite well-Pat HMV thought so. It was quite easy-I thought of what position common sense might dictate and then advanced just the opposite position. I think I captured your nuance perfectly.
6.17.2008 4:42pm
Richard Aubrey (mail):
J.F. Seems as if it would be more economical to determine "authorized" first and then find out who did the authorizing.
The get-Bush-by-pretending-stuff-is-a-crime schtick is pretty old.
I suppose we could go back and do Clinton the same way. Something happened, then it really must be his fault and if we have a giant fishing expedition, we could have all kinds of fun. Might even find something, although that wouldn't be the actual goal, as it isn't in the case of Bush.
It strikes me that the dems are more likely to jump into the cesspool than the repubs and depend on the repubs not to pay them back in kind. Seems odd to accuse politicians of being handicapped by scruples, but if you wanted to find somebody threatening the entire nation's stability in pursuit of a bogus accusation, it would be the dems, and they don't have to worry about payback when the repubs get the chance.
Sort of a Gresham's Law.
And the actions of the dems seem to indicate they are all aware of it.
However, J.F., it might not be prudent to depend on that remaining the case. Just a warning.
6.17.2008 4:47pm
Mark Field (mail):

Mark Field: When all those other lovely countries successfully prosecute people like Mugabe and Hamas leaders and Syrian leaders and Iranian leaders and people like Saddam Hussein for their actual, real jus cogens crimes, THEN I'll worry about what effects the pardon might have.


That's very rational on your part, but it won't help much. To paraphrase a famous quote, prosecutors tend to go after the offenders they can get, not the offenders they'd like to get.
6.17.2008 4:58pm
ejo:
so, the common sense leftist position is that we should prosecute our people and not worry about the folks in other countries looking to kill us who are worse-even I couldn't channel that brilliant bit of strategy.
6.17.2008 5:14pm
Mark Field (mail):
1. I'm not a "leftist". To the extent that term has any meaning at all (which I doubt), it seems to distinguish socialists and communists from liberals. I'm a liberal.

2. Your misreading of my post is remarkable.

3. My views should never be confused with common sense.
6.17.2008 5:39pm
ejo:
has liberalism come to signify, in this era, backing this country's enemies in a time of war? It seems so-we should thank our lucky stars that FDR didn't have such liberals in his time.
6.17.2008 5:46pm
Benjamin Davis (mail):
Folks, cut the crap.

I hope that you saw the Senate Armed Services Committee hearings today raking William Haynes, former DOD General Counsel over the coals about the approval of techniques done by Rumsfeld in a December 2, 2002 memo. What started there migrated from GITMO to Afghanistan and Iraq as was detailed from the DOD reviews of the 2002 and 2003 periods.

One of the key points for me is that Haynes admitted that his focus was on the intelligence persons seeking information and the FBI persons objecting to techniques. He was not really listening to the military lawyers who were objecting.

In the crucial 2002 period between August 1, 2002 and the decision of Rumsfeld on December 2, 2002 to approve the techniques, Haynes says he was aware of service concerns but did not seek out or read the memos of the four service lawyers (Top Army, Navy, Air Force and Marine legal officers) objecting strenuously to the practices. He also "squelched in mid stride" a general review being done for the Joint Chiefs of Staff - something that General Dalton who testified said was unprecedented before and has never been seen after.

Alberto Mora, one of those leftist Republicans who has gone off now to work with that insidious leftist organization Walmart as a corporate lawyer, in his role as the top Navy lawyer objected strenuously to the December 2, 2002 memo. Mora testified that it was only when he threatened to go public and in writing that he forced the issue so that on January 12, 2003 the December 2, 2002 memo was rescinded orally and then was rescinded in writing on January 15, 2003. However, a memo permitting many of the techniques of the December 2, 2002 was sent on January 24, 2003 to the special ops types.

In February 2003, a DOD Working Group was formed that was to give guidance from the uniformed lawyers on the techniques. The Secretary issued new rules in April 2003 allegedly pursuant to that Working Group process. The top JAG lawyers of that Working Group were never provided the memo of the outcome of that working group until they read about it in the papers nearly a year later. In that WG discussions, the law that was to be applied was the John Yoo/Bybee torture memo of August 1, 2002 - an OLC memo that was to be binding on the Executive. So the military lawyers who objected were confronted with a binding OLC opinion that was rescinded in summer 2004 and replaced in December 2004. That is a "cramdown" in plain English on the applicable law. The OLC memo was a piece of crap.

So you guys can play word games about all this, but the facts of the 2002 period and 2001 period are coming out bit by bit and we will see pretty clearly that everything that you have seen that happened originated from decisions by high-level civilians and some generals to commit prisoner abuse in violation of US law.

There were lawyers who said some of the techniques like poking detainees are per se violations of Article 128 of the Uniform Code of Military Justice - let alone the more exotic things of which we have read.

I hope that you look at the hearings tomorrow in the House Judiciary Committee on the same subject.

Best,
Ben
6.17.2008 6:03pm
Benjamin Davis (mail):
Pentagon lawyers sought harsh interrogation can be read from AP. Also there is a post at Jurist on this.

In addition, here is a quote from Morris Davis, the JAG prosecutor who resigned because of his strong concerns about the Military Commissions process. It is from a post of his over at Balkinization.


I am at Guantanamo Bay waiting to testify (again) on Thursday about unlawful command influence in the military commissions process. Since I have nothing to do until Thursday, I was able to watch today’s Senate Armed Services Committee hearing from start to finish. Those of you who got to watch the hearings and saw the testimony of Jim Haynes probably understand why I submitted my resignation within an hour of learning that the Department of Defense chose to place me under his command and control. My ability to ensure full, fair and open trials evaporated at that moment.
Today’s hearing focused on the propriety of employing harsh interrogation techniques to obtain intelligence. My concern as chief prosecutor was not so much whether the harsh techniques produces good intelligence (perhaps it did), it was whether the same information was also reliable evidence we should use to establish someone’s guilt and perhaps sentence him to death. In my view, that is a much higher threshold. If there’s genuine doubt about the reliability of the information we extracted in the intelligence context there should be no doubt the same information has no place in a judicial proceeding conducted in the name of the United States. Unfortunately, above me in the chain of command were Brig Gen Tom Hartmann and Jim Haynes who didn’t share my views on waterboarding and other enhanced techniques. Note, too, that after Judge Allred found in the Hamdan case that Brig Gen Hartmann broke the law by engaging in unlawful command influence DoD didn’t remove Brig Gen Hartmann, they charged six more detainees. Apparently if you can refocus the public’s attention on the flurry of activity on the right hand they might not notice that the left hand has erupted in flames.

# posted by Morris Davis : 5:40 PM




And for those who would like to actually see the hearings here is the link at Senate Armed Services Hearings Today on C-Span.

Peace,
Ben
6.17.2008 6:23pm
AnonLawStudent:
The fact that Haynes "was not really listening to the military lawyers who were objecting" would generally be seen as a plus by most line officers. But I guess their opinions don't count.
6.17.2008 6:50pm
Clayton E. Cramer (mail) (www):

The fact that Haynes "was not really listening to the military lawyers who were objecting" would generally be seen as a plus by most line officers.
Yes, especially with the history of military lawyers delaying counterintelligence operations against al-Qaeda until the operation was beyond hope.

Lawyers: there must be some value to them, but in time of war, they are right up there with bicycles for fish.
6.17.2008 7:00pm
Smokey:
MarkField:
The crimes at issue here are jus cogens crimes.
Perfect Leftist thinking, leaving out that pesky "alleged."

Translation: "Bush lied, people died! He's guilty!! Hang him now, we'll have a trial later. Or not."
6.17.2008 7:02pm
Clayton E. Cramer (mail) (www):

It seems so-we should thank our lucky stars that FDR didn't have such liberals in his time.
We had the advantage of being allied with the Soviet Union from the summer of 1941 onward, so much of the intellectual class was cheering as FDR threw American citizens into prison without probable cause; executed unlawful enemy combatants after trial by military commission; arrested and held for the duration of the war tens of thousands of German-Americans and Italian-Americans on suspicion of being sympathetic to the enemy; censored news on a regular basis. What did I miss?

But a truly totalitarian society was at risk, so the intellectuals didn't have a problem with it. And history repeats itself--but in this case, the truly totalitarian society that is at risk is our enemy, and so the intellectuals are now the enemy of the U.S.
6.17.2008 7:04pm
whit:

No problem with hearsay there as it is a statement against interest. That Bush didn't demand the resignation of both Rumsfeld and Tenet immediately demonstrates his culpability in that violation of Geneva.


jf thomas, you still miss the point.

yes, hearsay against interest is (generally) admissable at trial. that's not the point. the point was that people can (generally) make citizens arrests for crimes that they WITNESS. one state's CA laws refer to this as the "in fact committed" standard, which is different from (for example) probable cause.

rumsfeld, or tenant, or whomever admitting they did X is groovy, but assuming they admit a crime, is not the same as WITNESSING that crime. do you grok the difference.

i can say "i just robbed a bank". in an of itself, that would give cause to a police officer to DETAIN me (it's at least reasonable suspicion) and see if he can get independent verification of at least some element of the crime (corpus delicti) but even as a cop, i can't make an arrest SOLELY based on a confession.

i can make an arrest based on PC though. generally speaking, though, a citizen can't. he has to witness the offense. NOT an admission to the offense, but the offense itself
6.17.2008 7:12pm
whit:
correction: admission against interest NOT "hearsay against interest"
6.17.2008 7:15pm
Benjamin Davis (mail):
Well you know, I am listening to Senator Lindsay Graham (you know another radical leftist Republican) saying that we should have complied with the Convention Against Torture, the Geneva Conventions, and the Uniform Code of Military Justice.

So you guys are absolutely free to dismiss the top JAG officers strongly held views sitting comfortably whereever you are, but the JAG officers are doing things to protect our fighting soldiers and they did not buy it.

Graham says the advice of the Administration lawyers was absolutely reprehensible, short-sighted and a great disservice to this country. Please feel free to listen to the hearing above at the link as I am. I have Democrats and Republicans ripping out a new one on the detainee interrogation lawyers for Jim Haynes, the former DOD General Counsel.

So folks, you guys want to go out on a further limb on this (right or left), you are welcome to it. But, don't say you give a damn about the US military.

Best,
Ben
6.17.2008 7:22pm
Smokey:
Ben, which branch of the military did you serve in? Just curious.
6.17.2008 9:22pm
Benjamin Davis (mail):
Smokey, thanks. None of them. Best, Ben
6.17.2008 10:09pm
Benjamin Davis (mail):
Former DOD General Counsel testimony (Part 2) today before Senate Armed Services Committee is at the link there. With that you can see all of what was said today, if you wish to hear what the principal actors in this whole travesty are saying.
Best,
Ben
6.17.2008 11:41pm
one of many:
MarkField:

The crimes at issue here are jus cogens crimes.

Perfect Leftist thinking, leaving out that pesky "alleged."

Translation: "Bush lied, people died! He's guilty!! Hang him now, we'll have a trial later. Or not."

No need for alleged, the crimes at issue are jus cogens crimes. Whether any particular person committed a crime, or any crime was actually committed is irrelevant, the crimes at issue remain jus cogens crimes. It is a simple statement of the nature of the crimes without any judgement on the validity of any particular charge of a crime. I was going to comment on how insightful it was of MarkField to make that on point observation, but decided not to.

As for the successful prosecution thing, well sure they didn't manage a successful prosecution of Milosevic but look where he died. Arresting someone and holding them while a trial goes on and on for years until they die of old age is almost as good as a conviction and better than risking an acquittal.
6.18.2008 12:17am
TokyoTom (mail):
The ABA Journal is also running this, with more useful links.

FWIW, apparently Velvel was described in October 2004 "National Jurist" magazine as "one of the most influential people in legal education over the past 15 years," and the Wall Street Journal once called Massachusetts School of Law "The Little Law School That Could" - in the face of his struggles against the ABA and much of the legal establishment to establish an affordable law school focused on training practitioners, struggles in which he won support for the Justice Deprtment that forced changes in the ABA's anti-competitive accreditization procedures. Brian Tamanaha at St. John's recently praised MSL at Balikinization.

Velvel blogs and writes, frequently takes a libertarian, big-government/corporate rent-seeking/MSM bashing slant, and in criticizing the Bush administration doesn't sound much different from Bruce Fein, Bob Barr or Ron Paul.
6.18.2008 2:11am
Richard Aubrey (mail):
Clayton Cramer referenced on his site the WaPo story of the congresscritters who got briefed on this and agreed the techniques were appropriate, except for a couple of questions about whether they were tough enough.
I recall the story got a little ink--since dems were involved, it didn't have any traction--but went down the memory hole.
I wonder how the dems think it can be kept there, beyond retrieval.
6.18.2008 10:51am
J. F. Thomas (mail):
Clayton Cramer referenced on his site the WaPo story of the congresscritters who got briefed on this and agreed the techniques were appropriate, except for a couple of questions about whether they were tough enough.

And your point is? Even if the Congress was fully apprised of the techniques used, mere acquiescence and approval of criminal acts does not usually constitute a crime in and of itself. I would imagine most people were happy and secretly, or even openly, cheered the murder of Jeffrey Dahmer. That doesn't make them guilty of any crime.
6.18.2008 12:47pm
ejo:
JF-have you yet given us the body count you would countenance to protect the soul of this nation. if we follow your wonderful advice, do you expect it to be consequence free or will you at least admit it could lead to more deaths, both military and civilian. do you have a tipping point or, no matter the body count, will you simply bleat it's a criminal matter?
6.18.2008 1:20pm
J. F. Thomas (mail):
JF-have you yet given us the body count you would countenance to protect the soul of this nation. if we follow your wonderful advice, do you expect it to be consequence free

I don't know ejo, what is the body count you are willing to accept for your techniques. How many people are you willing to lock up without charges and trial to protect us from our enemies, whoever they may be? We already know you are partial to summary execution? Would you be willing to kill ten, one hundred, one or ten thousand to be sure we foiled a plot? How many people will you torture to stop the terrorism. How about raping and killing the wives and children of suspected terrorists in front of them to get them to talk. When is that justified? Can you do it to save 10 lives, a hundred, a thousand, ten thousand?

The ticking timebomb scenario is a fantastical strawman. Give it up.
6.18.2008 1:30pm
Richard Aubrey (mail):
J.F. Whether acquiescence is criminal or not, the congressional miscreants aren't going to want to be seen cheering it on.
You'll note how hard it is to get a dem to address their beliefs in WMD ca. 98, and at other times, despite its not being criminal to believe in that stuff.
6.18.2008 2:29pm
Benjamin Davis (mail):
Not that this counts in the grand scheme of things but I did complain at the time about Rep. Jane Harman lying to me in April 2005 on what she knew and when she knew it. I wrote an essay on this at Jurist in December 2007. I am well aware of the Gang of Eight who went along even enthusiastically with the torture and I am certain that in the closed meetings Armed Services, Intelligence, Justice, and Foreign Affairs Committee members on both sides of Congress and both sides of the aisle were appraised of this. I also think - as we have seen on this blog - there are plenty of Americans who are perfectly happy to have cruelty done to anyone the government says is a bad guy in the war on terrorism. The feeling is one of good old bloodlust - we have seen this before - nothing new under the sun. The problem to confront is the 4 service lawyers complaining bitterly that this was a bad idea - we need to understand how much this stupidity has cost america. If our uniformed types understand this, is it so hard for all the rest of us boneheads to give them the benefit of the doubt and object to the boneheaded policy along with them? Do we support our troops or are we just bumpersticker patriots?
Best,
Ben
6.18.2008 6:33pm
Jimmy S.:
The school has now removed references to the conference from its website.

Cowards.
6.18.2008 9:23pm
Richard Aubrey (mail):
Ben. You have no idea what the point is. "Bloodlust" must be projection. See how easy it is?
The point is two-fold. One is whether the stuff is actually being done, and the other is whether it is worth it. Recall, we also kill people in large numbers. That is also cruel, especially as there's no attempt at painless execution. Why do you think medics carry morphine?
Your elected representatives lie to you? Wow. Especially when it's a matter of classified material. Who do you think she is; Leahy?
I spent some time watching and participating in discussions of this on another blog. What was interesting is hauling in anything they could think of in order to increase the numbers. This is a standard tactic which works until somebody finds out you include leering in your rape stats, or slamming a door in DV stats, or muttering under your breath in road rage stats, or a belly slap in torture.

Then you lose credibility.

And if the law says it's okay, it's going to be hard to figure out how to prosecute somebody for breaking it.
6.18.2008 9:50pm
ReaderY:
There's a good reason why the framers chose to put a very, very narrow definition of treason and an extra requirement of proof directly in the Constitution.

We're none of us as free of emotion as we think we are; we can all only see it in other people and we all think ourselves as rational and as calm as can be. The Framers had perspective to see past this.
6.19.2008 12:17am