Nuremberg or Nothing for Bush Administration Officials?:
TPM TV has an interview with Dahlia Lithwick on whether the Bush Administration officials responsible for legal strategies in the GWOT should be tried for war crimes Nuremberg-style, or whether a Truth Commission South-Africa-style or just some investigations or even nothing is more appropriate:
But I doubt we'll get to that point anyway. Based on what we know about George W. Bush, isn't it highly likely that he'll pardon everyone prospectively on his way out in January 2009? After all, the officials were doing the President's bidding. In an Administration as focused on loyalty to the President as this one, I would be surprised if he would let his people face the prospect of prosecution down the road.
But I doubt we'll get to that point anyway. Based on what we know about George W. Bush, isn't it highly likely that he'll pardon everyone prospectively on his way out in January 2009? After all, the officials were doing the President's bidding. In an Administration as focused on loyalty to the President as this one, I would be surprised if he would let his people face the prospect of prosecution down the road.
1) It will create (or reinforce) the impression that the pardonees did something requiring a pardon.
2) It will remove the Fifth Amendment right against self-incrimination, which will make investigations easier.
There's a broad gulf between wanting something and expecting it to happen; your second sentence only applies to the latter group. There's also a broad gulf between receiving a blow job and engaging the governmental apparatus of the United States in a years-long campaign of systematic torture and kidnapping in violation of domestic and international law.
Pardon them for...what exactly? I've yet to see any serious attempt to detail any war crimes committed by anyone in the administration. The closest I've seen is just a sort of flippant attitude that the war was "illegal" or "Bush lied", neither of which can be taken seriously.
So, no, he won't pardon anyone, because no criminal investigation has any likelihood of getting off the ground. Not to mention it would make him look guilty as hell.
You're not thinking very hard then. Although I agree with other posters that it's quite unlikely this will ever come about because it's kind of like the situation post civil war.
No confederate officers or officials were ever tried for treason in connection with the Civil War, in part, I've read, because of the questionable legal issue of whether or not there is actually a right to secede that would necessarily come up in any treason trial.
There's quite a number of things that, (if viewed in a certain light) could be construed as war crimes, not the least among them is sanctioning the detention and alleged torture of a number of individuals. Within the US itself, its' worth remembering that FISA itself contained criminal penalties for those violating the act, something which has been pretty much admitted as a part of the argument that Fisa is/was unconstitional.
Either of these things are highly questionable as charges, but that doesn't mean that people who had an inclination couldn't decide it was enough to proceed on.
1. While the power of prosepctive pardon is well settled, the Supreme Court can always change its mind. Elections have consequences, as someone famously warned.
2. The Pardon power only extends to offences "against the United States". It is not clear that it covers war crimes against international law.
Bill Clinton, on the other hand, actually committed a felony (perjury) that was indisputably professional misconduct as an attorney, subsequent to commission of a misdemeanor (adultery in the District of Columbia at the time).
This is, of course, the fundamental difference between "liberal" and "conservative" jurisprudence. The "liberal" says, "This is bad, therefore it is a crime". The "conservative" says, "This violated the law, therefore it is a crime."
One difference -- Clinton was impeached. http://en.wikipedia.org/wiki/Impeachment_of_Bill_Clinton. [Sorry about the wiki cite. Im not only liberal. I'm lazy.]
In the United States, "international law" is law only insofar as the laws of the United States specify it is.
That shouldn't have been in issue after Texas v. White.
Bush's pride may prevent him from doing that -- it wouldn't be the first time.
Arguably however, the immunity provisions of the MCA are pardon enough.
Not O.K. of course, but a pardon can cover unnamed offenses, as did Ford's pardon of Nixon.
The criminalization of policy disputes is about the worst thing that could ever happen to this country - regardless of ideology or party affiliation. If you want to seriously talk about crimes against humanity and violations of international law, why don't you focus your energy on Zimbabwe or Sudan or one of the dozens of other countries were this is actually a legitimate issue.
Agree 100%
By international court do you mean a truly international court, like the International Criminal Tribunal for the former Yugoslavia, or the regular domestic courts of foreign countries?
I don't think there is a currently existing international court that would have jurisdiction, so it's impossible to answer a question about a hypothetical future court. The International Criminal Court does not have jurisdiction because the US has not ratified the treaty creating it.
Many countries claim jurisdiction over certain crimes even if they occur in another country, and both the alleged perpetrator and victim are foreigners. For example, someone can be tried in a Canadian court for torture if they are ever present in Canada, regardless of their citizenship or where the torture allegedly took place.
What impact a presidential pardon would have on a prosecution like this would depend exclusively on the law of the foreign country, but it's probably doubtful a pardon from the American president would be of significance. Official who might be suspected of war crimes or torture would probably be well advised not to leave the United States.
Sure, and the Holocaust was just a policy dispute. So was slavery.
Good to know that the conservatives in this country continue to take a stand for morality.
I don't think any Bush pardon would work overseas. Particularly since the countries conducting the trials would likely view Bush as a party to the war crimes and would refuse to recognize the pardons. (Another approach might be for Obama to offer the affected persons the opportunity to waive any pardon and stand trial domestically rather than standing on their pardon and being tried overseas.)
Yes, of course this would have heavy political consequences domestically. but that does not mean that if the Dems won by a sufficient margin in November, they would not be tempted. After all, despite Orin's reference to the Clinton impeachment trial, the GOP did pursue impeachment despite the fact that most of the country did not think Clinton's conduct was impeachable, mostly because the GOP base did think it was impeachable. Why would the Dems be expected to act any differently?
The Romans during the downfall of the republic began imposing proscriptions on their political enemies.
Proscriptions were used to great effect in the civil war between Marius and Sulla, and also roughly forty years later by Anthony, Octavian and Lepidus after Ceaser's death. The most famous victim of the proscriptions after Caesar's assassination was Cicero, a political opponent of Anthony, who was executed and then famously had his head and hands put on display in the forum. In many ways, the civil war between Marius and Sulla set a precedent for taking wholesale revenge upon political enemies. During the downfall of the Replublic that precedent was repeated by the Second Triumvirate.
It is hard for me to imagine how one party could conduct war crimes trials against members of the defeated opposition, withtout soon coming to regret that precedent.
Simply hysterical.
This is not something I would expect Orin Kerr to write.
[OK Comments: Let's revisit this issue in January 2009, shall we?]
I think you should attempt more issue conflation here.
Really, I do.
What is funny about all of this is not one of you leftist dimwits can name a single crime that allegedly took place.
I can just see it now. The Obama people ship a bunch of Bush people over to Germany for these "crimes" against non-citizens outside the U.S., and then the Republicans coming in four years later jail all those Obama people for violation of the civil rights of all those Bush people.
But, of course, Obama could pardon all his people before leaving office after a long four years. But then, the new Republican administration could just ship the Obama people to someplace sympathetic, like maybe Afghanistan, where different forms of capital punishment are an art form.
You mean other than the fact Clinton committed actual crimes, right?
You've delved into a gross amount of unseriousness here Orin.
[OK Comments: Really? The case that the Administration violated the FISA statute is easy to make; on the other hand, there were prety serious legal difficulties with the Clinton case from a criminal law perspective.]
For J. Nicholas Smith:
the relevant criminal statutes are FISA (for the Bells, and Yoo) and the federal statutes criminalizing torture (the War Crimes Act of 1996, 18 U.S.C. Sec. 2441, and the anti-torture statute, 18 U.S.C. § 2340A), and the federal aiding and abetting and conspiracy statutes. See the DOJ memo repudiating Yoo's earlier memo, for a discussion of the laws prohibiting torture:
http://www.usdoj.gov/olc/18usc23402340a2.htm
Of course they.
While not even recognizing the irony of the matter in so much that those are the very same activities they are accusing the President of!
Laugh out loud funny considering nobody has broken that law.
[OK Comments: The Ace, what error do you find in my analysis of that issue from December 2005?]
That's why it's a covert action!
It's another liberal circle-jerk fantasizing about prosecuting this administration for war crimes.
Or any other thing they can think of without having truth or reality intrude.
Don't forget to clean up when you're done.
By the way, I love the continued references to FISA in light of things like this:
Oh, they regrouped all right! They gave the telecoms immunity!!
Orin,
I could let this go:
That may be true if the affair was not work related, but "a pattern and practice" of conduct toward low level female employees is clearly as a matter of law of interest to a jury in a sexual harassment lawsuit. It doesn't much matter if the affair was consenual in Lewinski's case, it helps to show the pattern. I would be in favor of Congress changing the law in order to bar such "pattern and practice" testimony just as the "rape shield laws" make the sexual history of rape victims off limits. But that is my to-be preference not the as-is law.
And they merit a Napoleon XIV award.
If Hillary were the nominee and go on to win, the DOJ would be staffed by the people believing the exact same thing. And the people calling for these "war crimes" hearings would still be utterly clueless.
And when does negligence become codified as pertains to these matters? For example and via analogy, shouldn't the U.N. or Belgium or the E.U. have been brought before a tribunal after Rwanda? Indeed, Belgian and other European forces were in Rwanda when the killing began and those militaries, at least a portion of them, wanted to intervene. In general, failing to act can result in just as many deaths and mishaps, if not more, than acting in a positive sense. And that only considers the short-term consequences of action vs. inaction, long term implications would be even more difficult to gauge.
Here is a specific reference explaining why Clinton's affair was other people's business:
No, he lied about sex IN regards to a trial for sex harassment. sex with an intern. that's about as material as one could imagine.
compare with, for example, mark furhman. he lied about using the "n" word, which has exactly what material relevance to the trial of OJ Simpson for murder?
and he got a perjury and is now a convicted felon.
Clinton got what? Contempt of court or something like that?
I always find that comparison interesting.
Personally, I don't think a sitting president should even BE subject to sex harassment suits. That's ridiculous imo. But given that they are, lying about material facts in a sex harassment suit IS pretty serious. And unlike Martha Stewart (who was never proven to have committed the underlying offense), he was lying to cover up the undisputed fact that "he did it".
Again, I personally don't care who a president schtups, and I think the paula jones thang should have waited until he was a private citizen. But lying in court is lying in court.
I don't know why you assume kidnapping or the lack of any legal justification. Essentially you beg away the question before answering it.
Assume that one or more of these people were indicted in a foreign country. Rumsfeld, for example. Could he not be extradited to Germany to stand trial? His diplomatic immunity can be waived by the President (Obama). And his actions may well have constituted a crime in Germany; perhaps because someone at Gitmo was German. I don't know what the extradition treaty between the U.S. and Germany says, and its not worth looking it up because Germany is just an example, but I fail to see why he would need to be kidnapped to be tried there.
As for the legal justification, it would be because his actions violated international or German law. Anyway, that is the argument. Simply saying his actions did not violate the law hardly answers it: the hypo assumes that Germany disagrees and wants to take the case to court, and that the Dems are willing to let them because the Dems are unable to prosecute them domestically as a result of Orin's hypothetical pardons.
But the funniest part of your answer is that "extraordinary rendition" (i.e., kidnapping) is one of the crimes that Rumsfeld &Co. would presumably be charged with. Gotta love the irony.
As i've said, the "War on domestic violence" and the VAWA imo have resulted in far more erosion of defendant's rights (privacy, right to confront, right to keep and bear arms, right to due process, etc. etc.) than the war on drugs. I just find it ironic that Clinton was hoisted on the overreachingsexharassmentlaws(tm) petard that he so lovingly helped make INTO law and so enthusiastically supported. And then all the feminists who were so hot and bothered to get these laws passed, gave HIM a pass on his sexual harassment, because... well.. he's bill clinton, and he's cute, and he's one of "us".
Wasn't a principal part of OJ's defense that the police were motivated by racism? That they targeted him (and framed him) because he was a black celebrity athlete? That is my recollection.
How would the fact that one of the police officers used the "n" word not be relevant to that defense? The "n" word is usually not used by non-racists. Fuhrman's use of the word is certainly probative of his views of black people.
Nothing like that great conservative respect for the rule of law.
An act of war? Do you really believe that if Germany tried Rumsfeld against our wishes -- assume that the Germans got him because he was foolishly travelling through Berlin and not because they kidnapped him from Boca Raton -- we would go to war with Germany over it?
Not recall our ambassador or even suspend diplomatic relations, but actually start bombing them?
Now that is delusional.
get real. the same cops that bent over backwards to cut him slack cause he was a celebrity?
"How would the fact that one of the police officers used the "n" word not be relevant to that defense? The "n" word is usually not used by non-racists. Fuhrman's use of the word is certainly probative of his views of black people"
the N word is used by plenty of non-racists. Like in conversations ABOUT the "n" word, social references, etc. there is a huge difference between uttering the word, and CALLING somebody an "N".
regardless, the evidence he used the "n" word was in a script interview he did in regards to (i believe it was a screenplay... might have been a book) and he was doing stream of consciousness story ideas etc. during this taped interview for this piece of DRAMA.
iow, it's like saying Ice T has personally advocated that he wants to murder police officers because in one of his songs, the character is referred to as a "cop killer" and the song speaks from that pov. or like saying steve earle was advocating for terrorism by doing a song from the frame of reference of john walker lindh.
Furhman should have admitted he has used the "N" word before. I would bet the vast majority of people have used that word in SOME context at some point of their life. It doesn't mean one is a racist.
Did furhman lie? yes. he HAD used the "N" word at least during the script interview. was it material? get real. does he deserve a PERJURY conviction for it? cmon. it was a tangential, immaterial attack on HIS character vs. something actually relevant to the case.
and again - compare. he got PERJURY. he's now a convicted felon. He can't even possess a firearm for pete's sake. Clinton who committed a blatant self-serving material lie in order to cover up something that actually was incrimninating (that he'd been screwing around with an intern) in regards to a sex harassment suit... got a slap on da wrist.
I'm decrying the double standard. But if (and i don't concede this) what furhman did was perjury, then CLEARLY what clinton did was perjury.
If you, or anyone else, has a serious point to make that torture is a "policy dispute", then make it. Because what this Administration has done IS obscene.
It's not the number of crimes I was referring to, it was their quality. And yes, torturing a single person is on the same moral level as holding that person in slavery or raping him/her or marching him/her into a gas chamber.
It is an argument for an internationally-sponsored trial, in an international forum, for violations of ius cogens such as the Torture Convention.
Who cares what the US public thinks about it? A crime is a crime.
I remember the left in hysterics about that!
I think you should keep this silly behavior up. Really, it speaks volumes about the modern American left.
Don't go down that road unless you think you can defend Clinton's 140 last-minute, willy-nilly, shady pardons of a bunch of well-connected common criminals as examples of respect for the rule of law.
The Framers saw the power to pardon primarily as a means of keeping or restoring domestic peace -- a way to take the issue of legal revenge for wrongs to the nation off the table, in order to let the country move forward. It amounts to an explicit recognition that sometimes enforcing the law isn't the best thing for the nation. Pardoning guys like Yoo would be a lot more in line with that intent than most of Clinton's pardons (and, to be fair, those of some other modern presidents). If Bush doesn't do it, Obama or McCain would be wise to.
I don't see how the fact that he recounted his views in a script interview or that it was stream of consciousness absolves him from a conclusion that he is a racist. He clearly was not talking about the use of the word in any sort of analytical sense. "Yeah we work with niggers and gangs." Why would you put it that way if you are talking about the history of the word?
Clearly they were both guilty of perjury. The fact that Clinton got away with it does not mean that we should let everyone get way with it because otherwise it would be a double standard.
When the defendant's case is predicated on his claim that he is being persecuted by racist cops, the fact that one of the lead detectives bragged about using a racial epithet is definitely relevant and material to the defense. It would render the rest of Fuhrman's testimony unbelievable.
You say it was an attack on his (Fuhrman's) character, but only by way of impeachment. Since when is impeachment of a principal prosecution witness irrelevant to a trial?
As for the consequences of his perjury conviction, maybe he should have thought of that before he perjured himself?
It would be highly ironic if Bush got prosecuted after Obama takes office, given the way he quashed all prosecutions of Clinton after HE left office. But it still wouldn't surprise me.
One is policyand strategy disputes- things like the decision to invade Iraq with unfinished business in Afganistan, the decision to use WMD's as the reason for invasion, the decision to treat the "War on Terror" as something different than the ususal police/intelligence issue, etc. I may disagree with them, but they are not criminal. Making policy decisions is exactly what I'm paying senior officials (such as the President) to do! If I don't like their policies, I try to vote them out, not jail them.
The other is actual violations of US law, such as the torture of prisoners (sorry, redefining torture the way Mr. Yoo suggested doesn't cut it- we all know in our hearts what torture is), and the monitoring of communications in violation of FISA. These are criminal acts, just as Clinton's lying was, and are subject to criminal prosecution. The political leanings of the Administration are (or should be) irrelevant (bothe "left" and "right" wing governments can and have done terrible things!)- it's either a crime or it's not. I don't care what's in your heart or what your intentions were- that's for a judge/jury to consider.
I have no idea about the bulk of Clinton's pardons, though I disagreed with the pardon of Rich. So what?
During the impeachment we heard endless bloviating from right-wingers about "rule of law," and "no man is above the law," etc., ad nauseam.
Suddenly all that's forgotten. "Gee, the torturers meant well."
Yeah. Right.
LM,
How about investigations, then, maybe, trials.
Investigations, of course. And then? I won't speculate, but criminal prosecution is one possible outcomes of an investigation.
Torture for one. The administration has admitted that it has authorized waterboarding, which most of the world considers torture, and even if it isn't, it is a violation of the Convention Against Torture (which requires signatories, of which we are one, to ban more than simply torture). Additionally, Rumsfeld admitted to a war crime in a televised news conference when he said that he told the military to hide detainees from the Red Cross in Iraq at the behest of George Tenet.
Those two are without even having to think about it.
"'Gee, the torturers meant well.' Yeah. Right."
What's your explanaton? You think Bush, Yoo, et al. have been getting some kind of sadistic sexual satisfaction out of all this?
Seriously, I don't see how you can argue that they didn't mean well. Even if you think their methods were misguided to the point of depravity, and were ultimately counterproductive, I don't know how you can conclude that their motive was anything other than protecting American lives.
Absolutely.
You don't need to prove that torture took place (though you probably could). All you need to prove is that there are reasonable grounds for a criminal investigation. It's only the right which convicts first and investigates later.
that is simply ridiculous. only to a jury member with sand in their head.
Hahahahaha! That's so funny...wait. You're serious, aren't you?
It matters a lot what the public thinks! If the US doesn't consider it a crime, then its not. That how the legal system works. Additionally, absent a specific (US) penal law that GWB et al. has violated, there is no crime. In the US we don't prosecute ppl for crimes that aren't on the books.
hold on a second, I was busy playing lacrosse and I missed what you typed. Can you repeat it?
Confederates weren't tried for treason because the cases would have been tried to juries drawn from the state and district where the crime was committed. The jury pools would have thus been overwhelmingly pro-defendant and every single case would have ended in acquittal. The Supreme Court would certainly have reversed any case tried elsewhere.
What a convincing argument. Obviously you have a firm grasp on the meaning of the words "probative,""relevant" and "material."
But go ahead, defend Mark Fuhrman if you must. He is such a sympathetic character! Long after the rest of America has forgotten about him, you can pine away for his lost 2nd amendment rights and his right to drop N bombs wherever he goes, without consequence.
And then there is his right to lie about it on the stand and get away with it, because of the heretofore unheard of "script interview" exception to the perjury law. If only Libby had thought of that!
Those are both true, but they're not the same thing. If someone is prosecuted for something the public doesn't think should be illegal, there may be political consequences but that won't prevent a conviction.
i also have a firm grasp of smokescreen and chewbacca defense. even if furhman WANTED to frame oj (which is absurd, but assume it), he couldn't have. there were metric a**loads of evidence against the guy for pete's sake.
yes. because unequal justice is no justice at all. he gets perjury because he's unliked by the media. clinton gets contempt. and clinton was easily MORE guilty (in that it was clearly material).
fwiw, even after his conviction (he took a plea), he was instrumental in bringing cold case murderer Michael Skakel to justice. and he helped in a serial killer case in eastern wa. not only is he a sympathetic character, but he's done great benefit to society.
and it's ridiculous he can't carry a gun because of a nonviolent quasi-felony.
I never said he had the RIGHT to lie about it. i said the exact opposite. he lied, and it was wrong.
but don't fail in erecting your strawmen 1 by 1. i said the punishment was unequal and unjust. i didn't say he had the right. in fact, I said he was clearly WRONG to do what he did.
So no, when you mouth pablum like that you really sound more foolish than you think you do.
...Whats missing in this fantasy prosecution is a charge, or charges, that cite specific laws violated by specific acts of specific people. All well and good to claim that we all know what torture is, that " most of the world " considers waterboarding torture. Without a specific violation of law, a listing of the elements of that offense and how the defendant's actions constitute a violation of those elements, you won't get the junior court officer in a three man podunk department to buy off and send it to the prosecuter.
...Get specific, or get lost. Come back when you've got a case.
""It's only the right which convicts first and investigates later."
hold on a second, I was busy playing lacrosse and I missed what you typed. Can you repeat it?"
You da MAN!
There's no chance that the public will allow any president to start waiving the immunity of his predecessor's cabinet members in order to ship them off for public trial in a foreign country for actions taken in office. Don't make the mistake of projecting your revenge fantasy onto the public.
"An act of war? Do you really believe that if Germany tried Rumsfeld against our wishes -- assume that the Germans got him because he was foolishly travelling through Berlin and not because they kidnapped him from Boca Raton -- we would go to war with Germany over it?
Why would we have to? In the worst imaginable case we'd send a team over to take back our man by force. And the administration would have 90% public support for doing so.
Leave the punishment to the historians.
Its really disturbing how the left-wing disinformation campaign on US detention and interrogation policy has come home to roost. We've got a whole generation radicalized on lies--including otherwise smart people like Mark. geez.
Orin,
I'd love some objective evidence about Bush's record that indicates the pardon window is open. I am not of course ruling out pardons completely but I stick to my prediction that they will only be by request and carefully vetted. Such as the CIA agents that actually did the water boarding, and not the policy makers.
It is not my experience that smart people can long be satisfied by the narrow world view Mark evinces. YMMV.
For would-be guardians of the Republic who claim to be seriously concerned about criminal violations on the part of the government, yet quickly descend into left/right, red sox/yankees sniping, either:
(a) You've been divided. And conquered.
(b) You're not really serious.
David Warner--- Forget the Yankees or Red Sox. Go Cardinals!
Exactly right. It is worth noting that a leading cause of the fall of the Roman republic was the fanatical determination of the contending political factions not merely to defeat their opponents politically, but to prosecute them after they left office. Caesar crossed the Rubicon because if he gave up his armies, he faced conviction on trumped up charges, exile, and political oblivion, none of which was acceptable to him. If a President inevitably faces trial after he leaves office, there is a strong incentive to find a way not to leave office. Either the Leftists fruitcakes are unaware of this (it's boring old white European male history, after all), or they don't care.
It was wonderfully informative to see the Lithwick video. It is evocative, as no mere written description could, of the kind of prating fool that inhabits today's media.
The thread is a collection of the Mahatmas that populate our middle class, and will elect Obama in November. But "friends", if you think he will countenance any show trials, you are nuts. Perceptive policitian that he is, he knows how this would play in a workingman's bar in Aliquippa PA.
I love the poster who looks down on Mark Fuhrman. If you can find me a Los Angeles cop who hasn't used the term "nigger" when referring to a black criminal, I would like to meet him. He certainly would not have used it in reference to an presumed aristo like OJ Simpson. And as to Fuhrman and police generally, let me quote Rudyard Kipling:
For it's "Tommy this and Tommy that and chuck 'im out, the brute"
But it's "saviour of his country" when the guns begin to shoot.
I could go on for several pages, but that will do for now.
Technically, that's a Godwin confirmation: It's a prediction, not a rule.
You could say the same thing about the politicization of crimes.
You have to wonder given the beliefs of some of the posters on this thread about why a president would ever obey any law passed by Congress with which he disagreed - either a law passed over his veto or one in existence when he took office.
After all, he won't be removed from office through impeachment, since he can always count on his own partisans in the Senate in voting against convicting him and there will never be 67 or more senators from one party. And according to these posters, prosecuting him after he leaves office would be criminalizing a political dispute.
So there is really no downside for him to ignore any law they think is silly, at least as long as the action has the remotest connection to a his official duties. The key is for him to make sure he has people at OLC who will bless anything he wants to do, irrespective of whether that blessing is consistent with the law. Then he can argue that he was relying on advice from attorneys at Justice, so how can he be prosecuted for it? This doesn't work for private actors who claim to have been relying on (bad) advice from their attorneys, but for some reason, it works for government attorneys. (They should change the name of OLC to the Dept. of Indulgences.)
I suppose this is welcome news for Obama if he is elected, or McCain for that matter. It's great news for anyone who likes executive supremecy in general or really doesn't like the idea of separation of powers. But it seems hard to square with a constitution in which the president has to follow the law, whether he agreed to it or not.
Once you concede the latter point, then it is easy to see how a president or his staff could be prosecuted for a "political dispute" after the end of the administration -- it can happen when the dispute is not merely political, but involves the violation of a law, such as FISA or the anti-torture statute or perjury statutes (with respect to Congressional testimony). Because it will always be easier to violate the law and then call it a political dispute than it will be to work to change or repeal it so that you can act consistently with the law. And it is easy to see the consequences of giving a pass to anyone for violating laws in this context: there goes your deterrence to future violations by the other party.
Of course, Clinton couldn't use this defense because his misconduct had nothing to do with his official duties. But that hardly means the principle isn't useful to the Democrats.
Perhaps I was being sloppy with the word "everyone" -- I should have been more specific, as in "everyone who might actually face future criminal charges." I think the example of Scooter Libby is the most clear sign; Bush took care of Scooter to get him out of jail, and he refused to rule out a full pardon later. Anyway, I'm a bit surprised that folks have taken issue with this prediction: I didn't expect it to be particularly controversial. I guess we'll see in a few months.
Random:
I was asking what the legal impediment would be to this, not the political impediment. That's why I said "Yes, of course this would have heavy political consequences domestically."
In any case, don't make the mistake of projecting your fantasies of Bush the Hero onto the public. Bush is going to leave office with perhaps the lowest approval rating of any president in the last century. If Bush were to start pardoning his staff members to protect them from future prosecution, it is quite possible that the public would view attempts to bring them to justice -- even abroad -- in a different light. Particularly after an investigation showed what they had been up to.
The Chinese Uiger's do not want to be repatriated to China. we could of course do what the Brits are doing, which is releasing the ratbags into their own population.
The Canadian killer has already been addressed in earlier posts. These posts missed that the whole is a nest of vipers. The father and one son died fighting Jihad. This son is lucky to be alive. The mother stayed home in Canada to stoke the fires of Jihad, which she still does.
The fact that there was lots of evidence against OJ has no bearing on whether Fuhrman's perjury was material to OJ's defense. Simpson's whole defense was based on a claim of being framed, which in turn was based on a claim of racist cops (he said that is why they framed him). So evidence of racism by the cops is obviously material to his defense, and the use of the N-word by those cops is obviously evidence of racism, even if it is not conclusive in itself.
Clinton got contempt because they couldn't prove the perjury in the criminal context (before the grand jury) and they don't usually prosecute for perjury in a civil context (which they could prove). So it looked political. Fuhrman was guilty in a criminal context and it was easy to prove because they had him on tape. There is no double standard there. If Clinton had been proved to have lied in a criminal context, he would have been out of a job.
But in any case, if you are willing to give Fuhrman a pass because of his other good deeds, wouldn't that get Clinton off too? Are you really arguing that Clinton never did anything of benefit to society as president?
...Bush is going to leave office with perhaps the lowest approval rating of any president in the last century. If Bush were to start pardoning his staff members to protect them from future prosecution, it is quite possible that the public would view attempts to bring them to justice -- even abroad -- in a different light. Particularly after an investigation showed what they had been up to."
You really need separate your viceral hatred of the president and all things Bush, and therefore all things that that are good and right with the American way of life, from reality.
The facts are that there is little that the Bush administration has done illegally during his term. The masses of gobbldyook foisted on the public by the Liberals of this country will only work for so long.
Eventually, the man in the street will begin to wake up to the bullshit. I look forward to that day.
Clear up for me, Orin, whether you are talking about Clinton's sexcapades, which do not rise to the level of high crimes or misdemeanors, or to Clinton, as an officer of the court and titular head of the Department of Justice, lying under oath? If it's the latter, please explain its triviality more thoroughly.
I suppose I'd be the poster you're referring to, and I'd note that I'm definitely not voting for Obama this fall. (I haven't decided whether to hold my nose and vote for McCain or sit out the presidential ballot entirely.) That said, corrupt cops -- by which I mean cops who can't be bothered with the truth in court when they think it might interfere with their idea of justice -- worry me more than criminals. I don't so much need "Tommy's" gun for criminals; I have my own, thanks. Roughly 18,000 homicides and innumerable other violent crimes per year -- which somehow manage to occur despite the existence of the police -- plus Warren v. D.C. and cases like it have convinced me that I shouldn't count on "Tommy" to do much more than take a few notes after the fact.
It's nice to know that you think that whatever the Bush administration did that you consider illegal was comparable to the Holocaust and to slavery.
Now I can read anything else you write with that wisdom in mind.
Title 18, Chapter 113C, Section 2340:
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;
[I would say wrapping someone's face with plastic or cloth and pouring water over that person's nose and mouth involves "the threat of imminent death", torture memo notwithstanding]
(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
[Jurisdiction section omitted: any American national or any foreigner physically present in the U.S. is subject to the law]
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.
So why, exactly, is it beyond the pale to suggest that this pretty plainly worded statute does not cover those Bush Administration officials present during the meetings in which it was agreed that detainees could be subject to waterboarding?
I have always assumed that is your occupation, so you understand the concept of criminal law. Please answer what exact crime by statute that Professor Yoo committed--along with the elements of the crime.
Please don't blather "war crimes." I would like specific sections of the United States Code. I am particularly troubled by you, as a "Public Defender" (if that indeed is your occupation) apparently advocating the criminalization of giving legal advice. For John Yoo to be criminally liable, he would have had to step outside of his role of a lawyer in giving legal advice and actually facilitate a crime.
IMPEACH! PROSECUTE! DON'T LET HIM GET AWAY WITH IT!
p.s. Speaking as a conservative who is no Bush fan, I'm going to really enjoy watching libs self-immolate while tearing down someone who isn't even in power.
Do you think it is impossible that giving legal advice could be a crime?
You would say that "wrapping someone's face with plastic or cloth and pouring water over that person's nose and mouth involves "the threat of imminent death", torture memo notwithstanding" but I note the actual language, which also uses the term "prolonged mental harm"--a phrase that you could drive an 18 wheeler through sideways.
Obama will not allow anything to go forward for purely practical reasons.
It would consume incredible political oxygen. It would be a distraction and would overshadow everything else. Its the same reason Pelosi killed any impeachment efforts.
Plus, 75%/80% of GOP voters still support President Bush. They would demand their Senators and Reps to counterattack. Dems may have big majorities but they are still going to, especially in the Senate, need GOP co-operation sometimes.
Someone above said:
Don't you think Obama and other actual adults, unlike many people here, know that?
Indict my leaders, kill yours is the next logical step. Is that what people really want?
Maybe you can safely prosecute nobodies like Yoo or Addington. (That will be very brave of you, BTW.)
But if you come after Bush, Cheney or Rumsfeld, be prepared for the whirlwind.
So, does that mean that GWB might consider declaring some sort of overwhelming national emergency shortly before the elections? He could simply put off the elections for the duration of the emergency - and if the Army backs him up he is President-for-Life, because the GWOT will last as long as necessary. (since a war on a word or a concept is per se unwinnable)
I, of course, do not actually think GWB is willing to subvert the constitution that much, but it is instructive to remember the administration use of the terror alert system during the 2004 elections. Everytime the Democrats or Kerry got a boost in the polls, or the Republicans or Bush took a hit, we suddenly were inundated with increased terror alerts (Orange!, Yellow! Hot Pink!) and pleas to go out a support Home Depot by buying duct tape and plastic sheeting.
That's not quite right. I'm convinced torture has occurred; hell, the Administration has admitted it. I have good reason to believ