The Volokh Conspiracy

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:
  I personally think it's delusional to think that the public would allow former U.S. government officials to face war crimes prosecutions or anything remotely like it for their legal advice in the war on terror. Those who want war crimes investigations brought against Bush Administration officials remind me a lot of the Republicans who wanted Bill Clinton impeached and removed for his conduct in Monicagate in the late 1990s. They're mistaking the anger and sense of moral righteousness among the base with the attitudes of the public at large.

  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.
BGates:
Based on what Dahlia Lithwick thinks she knows about Bush, shouldn't she be assuming he'll declare a state of emergency and suspend the November election, rendering her efforts moot anyway?
8.7.2008 4:52pm
Public_Defender (mail):
I see two good things about an en masse pardon:

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.
8.7.2008 4:53pm
Another Kevin (mail):
I don't foresee a prospective pardon. GWB's definition of "loyalty to the President" includes "willingness to take the fall for the President's mistakes." In that, he's not a feudal king, who would, on accepting the oath of fealty, swear to return faith for faith, truth for truth, honour for valour, death for treason.
8.7.2008 4:58pm
Guest101:
"Those who want war crimes investigations brought against Bush Administration officials remind me a lot of the Republicans who wanted Bill Clinton impeached and removed for his conduct in Monicagate in the late 1990s. They're mistaking the anger and sense of moral righteousness among the base with the attitudes of the public at large."

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.
8.7.2008 5:03pm
MarkField (mail):
As one who strongly favors prosecution, I think your sense of the public reaction is very likely correct. For that reason, I think it's important to begin slowly with the least sympathetic defendants and develop the evidence in some detail. As public disgust builds, so will the desire to see punishment inflicted.
8.7.2008 5:03pm
Nessuno:

Isn't it highly likely that he'll pardon everyone prospectively on his way out in January 2009?


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.
8.7.2008 5:04pm
Jmaie (mail):
Another Kevin - I'm not saying you're wrong, but how about throwing out a few exmples why you think this is so.
8.7.2008 5:04pm
Houston Lawyer:
I could see him pardoning the guys who participated in coercive interrogation if Obama is elected. We've seen way too many Elliot Spitzer type prosecutions in this country already, where the prosecution itself is the punishment even though a conviction is highly unlikely. If Bush were predisposed to pardon, he could have pardoned Scooter Libbey before he went to trial. Even after the trial, Libbey only got a commutation.
8.7.2008 5:13pm
Bill Poser (mail) (www):
I agree that trials are not likely, but I do note that Bush's pardon authority does not extend to war crimes under international law. Any pardons that he issues will be relevant only to prosecution by the United States.
8.7.2008 5:13pm
Sarcastro (www):
No, people. See, if the President does it, that means it's not illegal.
8.7.2008 5:17pm
Soronel Haetir (mail):
I see no reason that the pardons will wait until January. Isn't the day after the election is settled good enough? As for what conduct exactly would be covered, I thought POTUS could grant blanket amnesty covering almost anything. The wrongdoing/wrongdoers wouldn't even need to be named.
8.7.2008 5:23pm
M (mail):
Just for clarifications' sake, Oren, are you saying that "Monicagate" is similar to advocating torture in that prosecuting either one is unlikely to gather wide-spread public support (that may be true, though if so it's sad) or that the crimes and offenses of Bill Clinton were essentially equal to advocating and allowing torture? I hope it's just the former.
8.7.2008 5:25pm
Ben P (mail):

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.


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.
8.7.2008 5:33pm
OrinKerr:
M, in my view, the public is sympathetic to government officials who bend the law when they are in a tough situation and they honestly think it's for the best. Clinton was trying to cover up a sexual affair that was no one else's business; Bush Administration officials were trying to save innocent American lives.
8.7.2008 5:39pm
Adam J:
OrinKerr- How would such a pardon work? Wouldn't it have to list specific individuals and events that are covered?
8.7.2008 5:53pm
Sancho:
I'm curious what theory these guys would be prosecuted under. The two guys who get mentioned most often, as far as I can tell, are David Addington and John Yoo. My impression is also that you need command responsibility for war crimes. Neither Addinton nor Yoo had it; Addington's boss didn't even have it. Is there another theory that I'm missing?
8.7.2008 5:55pm
tvk:
Well, two points:

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.
8.7.2008 5:57pm
J. Nicholas Smith:
M, you're invited to name the law violated in "advocating torture". Please cite the specific section of the United States Code.

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."
8.7.2008 6:00pm
josh:
"Those who want war crimes investigations brought against Bush Administration officials remind me a lot of the Republicans who wanted Bill Clinton impeached and removed for his conduct in Monicagate in the late 1990s."

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.]
8.7.2008 6:02pm
J. Nicholas Smith:
tvk --

In the United States, "international law" is law only insofar as the laws of the United States specify it is.
8.7.2008 6:03pm
MarkField (mail):

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.


That shouldn't have been in issue after Texas v. White.
8.7.2008 6:04pm
Anderson (mail):
We can expect mass pardons of all &sundry, including himnself. At least, if I were his lawyer, that's what I'd be telling him to do.

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.
8.7.2008 6:06pm
Anderson (mail):
OrinKerr- How would such a pardon work? Wouldn't it have to list specific individuals and events that are covered?

Not O.K. of course, but a pardon can cover unnamed offenses, as did Ford's pardon of Nixon.
8.7.2008 6:08pm
wcb:
Wow, do you Kossacks have nothing better to do but flood the comments section of any website that vaguely references Bush and war crimes? I realize that many of you fantasize about how wonderful that such prosecutions would be, but it's about as likely to happen as that Bush impeachment you've all been desparately seeking for the past two years.

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.
8.7.2008 6:15pm
ARCraig (mail):
Interesting constitutional question for all you legal eagles- would the President's pardon power extend to prosecution in an international court that took place under treaties that the US was a party to?
8.7.2008 6:30pm
LM (mail):
Orin Kerr,

I personally think it's delusional to think that the public would allow former U.S. government officials to face war crimes prosecutions or anything remotely like it for their legal advice in the war on terror. Those who want war crimes investigations brought against Bush Administration officials remind me a lot of the Republicans who wanted Bill Clinton impeached and removed for his conduct in Monicagate in the late 1990s.

Agree 100%
8.7.2008 6:36pm
Malthus:
We will all have to be satisfied with the knowledge that GWB won't set his ass outside of Crawford Texas. Just like Kissinger, considered a consummate war criminal subject to quick justice here in South America.
8.7.2008 6:43pm
mls (www):
Lithwick's idea of what the Bush Administration should be held "accountable" for seems to extend to the Presidents appointment of judges that share his views on executive power and the Second Amendment.
8.7.2008 6:54pm
Nathan_M (mail):

Interesting constitutional question for all you legal eagles- would the President's pardon power extend to prosecution in an international court that took place under treaties that the US was a party to?

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.
8.7.2008 6:58pm
MarkField (mail):

The criminalization of policy disputes is about the worst thing that could ever happen to this country


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.
8.7.2008 6:59pm
jgshapiro (mail):
Just as a thought experiment, if the Democrats really wanted to go after the Bush folks, couldn't they just send them to Germany to stand trial and waive any diplomatic immunity that might get in the way? Why wouldn't this work? I believe Germany has already indicted Rumsfeld; is there any doubt they would salivate at the thought of trying others? The same applies to a handful of other nations where U.S. actions have been called war crimes.

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?
8.7.2008 7:02pm
Ohio Scrivener (mail):
Exacting punishment of political opponents as they leave office is a mistake more associated with tyrany than democracy.

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.
8.7.2008 7:11pm
The Ace (mail):
isn't it highly likely that he'll pardon everyone prospectively on his way out in January 2009?

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?]
8.7.2008 7:18pm
The Ace (mail):
Sure, and the Holocaust was just a policy dispute. So was slavery.

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.
8.7.2008 7:19pm
The Ace (mail):
[Deleted by OK on civility grounds. The Ace, I realize you have strong opinions. But that doesn't make it okay to hurl strings of insults at other commenters. You may not believe in a civil society, but I do; if you would like to comment here, keep it civil.]
8.7.2008 7:21pm
Bruce Hayden (mail) (www):
Just as a thought experiment, if the Democrats really wanted to go after the Bush folks, couldn't they just send them to Germany to stand trial and waive any diplomatic immunity that might get in the way? Why wouldn't this work? I believe Germany has already indicted Rumsfeld; is there any doubt they would salivate at the thought of trying others? The same applies to a handful of other nations where U.S. actions have been called war crimes.
Let's see if I understand this. You are proposing that the U.S. government kidnap U.S. citizens without a warrant or any legal justification and ship them out of the country to stand trial in another country for acts that are likely not crimes under U.S. law? And even if they were crimes under U.S. law, you still have the violation of Due Process, etc. issues. I would think this both a civil and criminal violation of the Civil Rights Act. And, I suspect that kidnapping American citizens in the U.S. to ship them to Germany is going to get qualified immunity.

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.
8.7.2008 7:22pm
The Ace (mail):
Those who want war crimes investigations brought against Bush Administration officials remind me a lot of the Republicans who wanted Bill Clinton impeached and removed for his conduct in Monicagate in the late 1990s.

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.]
8.7.2008 7:23pm
Sean O'Hara (mail) (www):
Does anyone seriously believe that the next American President -- whether McCain or Obama -- would let a US citizen be prosecuted for war crimes? I rather think that any President who didn't treat such an action as an act of war would be impeached, even by a largely Democratic Congress.
8.7.2008 7:23pm
Christopher Cooke (mail):
I could see there being pardons of Libby ("he has already suffered enough") and then Yoo and Addington, the telephone companies, and possibly CIA personnel involved in the "active interrogations" of Gitmo detainees.

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
8.7.2008 7:25pm
The Ace (mail):
You are proposing that the U.S. government kidnap U.S. citizens without a warrant or any legal justification and ship them out of the country to stand trial in another country for acts that are likely not crimes under U.S. law?

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!
8.7.2008 7:26pm
The Ace (mail):
the relevant criminal statutes are FISA

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?]
8.7.2008 7:27pm
Dave N (mail):
Sure, and the Holocaust was just a policy dispute. So was slavery.
If you have a serious point, make it--because to compare ANYTHING done by the current Administration with either the Holocaust or slavery is worse than obscene.
8.7.2008 7:32pm
Dave N (mail):
I know--let's have a referendum. Let's see Barack Obama campaign on what his radical left followers wet dream about and see if he clears 30% of the popular vote.
8.7.2008 7:35pm
Clayton E. Cramer (mail) (www):

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.
This is one of the reasons that liberalism is a form of mental illness. Democrats in Congress had no problem with waterboarding in 2002. Once they were no longer afraid, suddenly they want to extradite Bush to Germany to be tried for actions that had overwhelming support even from Democrats at the time.
8.7.2008 7:37pm
The Ace (mail):
By the way, what is most hysterical about this topic is that there were no differences between the Clinton and Bush Administrations regarding their views on Executive Power, signing statements, and executive privilege, and all that rest.

That's why it's a covert action!
8.7.2008 7:39pm
Swede:
Hey! Look everybody!

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.
8.7.2008 7:41pm
The Ace (mail):
I think we need a war crimes tribunal!!


What is never compared is the number of military deaths during the Clinton administration: 1,245 in 1993; 1,109 in 1994; 1,055 in 1995; 1,008 in 1996. That’s 4,417 deaths in peacetime


By the way, I love the continued references to FISA in light of things like this:

Broad new surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include — without court approval — certain types of physical searches on American soil and the collection of Americans’ business records, Democratic Congressional officials and other experts said.
...
Democratic leaders have said they plan to push for a revision of the legislation as soon as September. “It was a legislative over-reach, limited in time,” said one Congressional Democratic aide. “But Democrats feel like they can regroup.”


Oh, they regrouped all right! They gave the telecoms immunity!!
8.7.2008 7:44pm
Kazinski:
I doubt Bush would initiate pardons unless he was asked by parties that thought they were vulnerable. I can't see Yoo, Rumsfeld, Addington, Cheney, etc. asking. But there maybe some low-medium level types that may feel vulnerable and don't want to take a chance at being turned into a legal pinata.

Orin,
I could let this go:

Clinton was trying to cover up a sexual affair that was no one else's business;

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.
8.7.2008 7:47pm
Thomas_Holsinger:
These guys are seriously envious of the nutball militias which popped up during the Clinton adminstration to issue their own currency in payment of the taxes they contended were illegal, issued their own "court" orders, etc.

And they merit a Napoleon XIV award.
8.7.2008 7:50pm
The Ace (mail):
Where were the Nuremberg style hearings for these Clinton DOJ scoundrels!??


[T]he President's roles as Commander in Chief, head of the Executive Branch, and sole organ of the Nation in its external relations require that he have ultimate and unimpeded authority over the collection, retention and dissemination of intelligence and other national security information in the Executive Branch. There is no exception to this principle for those disseminations that would be made to Congress or its Members. In that context, as in all others, the decision whether to grant access to the information must be made by someone who is acting in an official capacity on behalf of the President and who is ultimately responsible, perhaps through intermediaries, to the President. The Constitution does not permit Congress to circumvent these orderly procedures and chain of command -- and to erect an obstacle to the President's exercise of all executive powers relating to the Nation's security -- by vesting lower-level employees in the Executive Branch with a supposed "right" to disclose national security information to Members of Congress (or anyone else) without the authorization of Executive Branch personnel who derive their authority from the President.


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.
8.7.2008 7:51pm
Michael B (mail):
Dahlia might make a good high-school class president.

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.
8.7.2008 7:52pm
Kazinski:
Orin,
Here is a specific reference explaining why Clinton's affair was other people's business:

Clinton's lawyers in turn scoured Jones' sexual past, but whatever they came up with probably won't be presented in court--thanks in part to Clinton. In 1994, when he signed the Violence Against Women Act, he restricted the kinds of digging that defendants can do into the past of sexual-harassment plaintiffs--and specifically allowed such evidence against harassers who are accused of assault (the Jones team has argued in pleadings that Clinton's alleged behavior in the hotel room amounts to assault). "
8.7.2008 7:53pm
whit:
kazinski is spot on. everybody says "Clinton just lied about sex"

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.
8.7.2008 7:55pm
jgshapiro (mail):

You are proposing that the U.S. government kidnap U.S. citizens without a warrant or any legal justification and ship them out of the country to stand trial in another country for acts that are likely not crimes under U.S. law? And even if they were crimes under U.S. law, you still have the violation of Due Process, etc. issues. I would think this both a civil and criminal violation of the Civil Rights Act. And, I suspect that kidnapping American citizens in the U.S. to ship them to Germany is going to get qualified immunity.

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.
8.7.2008 7:57pm
whit:
"In 1994, when he signed the Violence Against Women Act, he restricted the kinds of digging that defendants can do into the past of sexual-harassment plaintiffs--and specifically allowed such evidence against harassers who are accused of assault (the Jones team has argued in pleadings that Clinton's alleged behavior in the hotel room amounts to assault). "

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".
8.7.2008 7:58pm
jgshapiro (mail):

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?

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.
8.7.2008 8:05pm
The Ace (mail):
[Deleted by OK on civility grounds. The Ace, I realize you have strong opinions. But that doesn't make it okay to hurl strings of insults at other commenters. You may not believe in a civil society, but I do; if you would like to comment here, keep it civil.]
8.7.2008 8:05pm
byomtov (mail):
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.

Nothing like that great conservative respect for the rule of law.
8.7.2008 8:08pm
jgshapiro (mail):

Does anyone seriously believe that the next American President -- whether McCain or Obama -- would let a US citizen be prosecuted for war crimes? I rather think that any President who didn't treat such an action as an act of war would be impeached, even by a largely Democratic Congress.

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.
8.7.2008 8:11pm
whit:
"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. "

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.
8.7.2008 8:21pm
MarkField (mail):

If you have a serious point, make it--because to compare ANYTHING done by the current Administration with either the Holocaust or slavery is worse than obscene.


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.
8.7.2008 8:41pm
jeffry house (mail):
The fact that the US public "may not permit" trial of the authors of the Torture Policy for war crimes reminds me of the similar attitude of the Serbian public to the crimes of Milosevic.

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.
8.7.2008 8:42pm
The Ace (mail):
I love trips down memory lane:


In 1995, Scheuer said, American agents proposed the rendition program to Egypt, making clear that it had the resources to track, capture, and transport terrorist suspects globally—including access to a small fleet of aircraft. Egypt embraced the idea. “What was clever was that some of the senior people in Al Qaeda were Egyptian,” Scheuer said. “It served American purposes to get these people arrested, and Egyptian purposes to get these people back, where they could be interrogated.” Technically, U.S. law requires the C.I.A. to seek “assurances” from foreign governments that rendered suspects won’t be tortured. Scheuer told me that this was done, but he was “not sure” if any documents confirming the arrangement were signed.

A series of spectacular covert operations followed from this secret pact. On September 13, 1995, U.S. agents helped kidnap Talaat Fouad Qassem, one of Egypt’s most wanted terrorists, in Croatia. Qassem had fled to Europe after being linked by Egypt to the assassination of Sadat; he had been sentenced to death in absentia. Croatian police seized Qassem in Zagreb and handed him over to U.S. agents, who interrogated him aboard a ship cruising the Adriatic Sea and then took him back to Egypt. Once there, Qassem disappeared. There is no record that he was put on trial. Hossam el-Hamalawy, an Egyptian journalist who covers human-rights issues, said, “We believe he was executed.”


I remember the left in hysterics about that!
8.7.2008 8:44pm
The Ace (mail):
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.

I think you should keep this silly behavior up. Really, it speaks volumes about the modern American left.
8.7.2008 8:46pm
General Disarray:
"Nothing like that great conservative respect for the rule of law."

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.
8.7.2008 8:55pm
jgshapiro (mail):
Here is the recunt from Wikipedia:

In one 1985 recording, Fuhrman gave a taped interview to Laura Hart McKinny, a writer working on a screenplay about female police officers. In another interview, Fuhrman talked about gang members and was quoted as saying, "Yeah we work with n*****s and gangs. You can take one of these n*****s, drag 'em into the alley and beat the shit out of them and kick them. You can see them twitch. It really relieves your tension."[2] He went on to say "we had them begging that they'd never be gang members again, begging us". He said that he would tell them, "You do what you're told, understand, n*****r?"

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?

But if (and i don't concede this) what furhman did was perjury, then CLEARLY what clinton did was perjury.

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.

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

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?
8.7.2008 8:59pm
Brett Bellmore:
Bill Clinton was impeached over his conduct in Monicagate, (Actually, his conduct during the investigation into Monicagate...) in much the same way Dillinger was prosecuted for tax evasion: It was the only charge they could make stick against somebody they were morally certain had committed far worse crimes.

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.
8.7.2008 9:05pm
General Disarray:
No sympathy for Fuhrman here. He was a lying scumbag. It's nice to see one of them caught perjuring himself once in a while. So many cops go an entire career without getting caught, and so few of those who do get caught are ever prosecuted.
8.7.2008 9:06pm
rfg:
There are two different issues here:

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.
8.7.2008 9:09pm
wow. just wow. (mail):
after watching that video i have decided to vote for mccain. god help us.
8.7.2008 9:30pm
Ron Hardin (mail) (www):
Is there anything about nutballs in the constitution?
8.7.2008 9:34pm
byomtov (mail):
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.

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.
8.7.2008 9:38pm
LM (mail):
I don't support criminal trials for Bush administration abuses of power because though it's plausible crimes were committed, on balance the whole movement feels to me more motivated by politics than by crime. That said, the administration did reprehensible things and made a general mockery of Constitutional checks and balances and the public trust. So I wonder how many of the commenters here who dismiss as "BDS" even the suggestion of administration accountability hopped onto Dana Rohrabacher's (and others') bandwagon screaming for blood, and some for impeachment, when the issue was illegal immigration. Or just generally think that Bush may actually be as bad as the left says, but that anyone without BDS can see Bush's problem is that he hasn't attacked enough countries.
8.7.2008 9:48pm
byomtov (mail):
I don't support criminal trials for Bush administration abuses of power because though it's plausible crimes were committed, on balance the whole movement feels to me more motivated by politics than by crime.

LM,

How about investigations, then, maybe, trials.
8.7.2008 10:01pm
LM (mail):

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.
8.7.2008 10:14pm
J. F. Thomas (mail):
What is funny about all of this is not one of you leftist dimwits can name a single crime that allegedly took place.

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.
8.7.2008 10:23pm
J. F. Thomas (mail):
And are prospective pardons really settled law? I realize Ford did it for Nixon but it's not like anyone ever pushed the issue.
8.7.2008 10:26pm
General Disarray:
I was responding to your suggestion that issuing pardons is indicative of some uniquely conservative attitude toward (implicitly, disrespect for) the rule of law. Clinton's example is relevant to that question.

"'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.
8.7.2008 10:35pm
MarkField (mail):

Investigations, of course.


Absolutely.
8.7.2008 10:38pm
MarkField (mail):

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.


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.
8.7.2008 10:41pm
whit:
"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. "

that is simply ridiculous. only to a jury member with sand in their head.
8.7.2008 10:49pm
Patrick216:
My guess is that assuming Obama gets elected, Bush will pardon the lower-level military and CIA officials who implemented the interrogation program. The Democrats' heavy emphasis will be on taking down the two "bogey men" most closely associated with the program -- David Addington and John Yoo. Look to see Obama appoint a special prosecutor within his first month in office as well as a Congressional investigation. Given the seriousness of the charges, I wouldn't be surprised to see the people targeted (whoever they may end up being) flee or commit suicide on the eve of prosecution. Once that happens, the Democrats' bloodlust will be satiated and they'll move on to more traditional activities like raising taxes and losing wars.
8.7.2008 11:04pm
Mikey:
>
It's only the right which convicts first and investigates later.


Hahahahaha! That's so funny...wait. You're serious, aren't you?
8.7.2008 11:11pm
Matthew K (mail):
I call a Godwin's violation about a quarter of the way into the thread.
8.7.2008 11:22pm
Ck:
jeffry house:

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.
8.7.2008 11:29pm
whit:
"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?
8.7.2008 11:43pm
Bama 1L:
A late hit, but:

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.
8.7.2008 11:44pm
jgshapiro (mail):

that is simply ridiculous. only to a jury member with sand in their head.

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!
8.7.2008 11:55pm
LM (mail):
Ck:

It matters a lot what the public thinks! If the US doesn't consider it a crime, then its not.

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.
8.7.2008 11:57pm
whit:

What a convincing argument. Obviously you have a firm grasp on the meaning of the words "probative,""relevant" and "material."



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.



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.


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.


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!



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.
8.8.2008 12:12am
Dave N (mail):
It's only the right which convicts first and investigates later.
Yet there are those on this thread who are absolutely convinced that Yoo, Rumsfeld, et al. have committed crimes without any hearing, presentation of any evidence, or a wiff of due process.

So no, when you mouth pablum like that you really sound more foolish than you think you do.
8.8.2008 12:18am
Dave D. (mail):
...All twelve jurors had sand in their heads.
...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.
8.8.2008 12:34am
Sancho:
I'll ask again: under what theory do you prosecute Yoo and Addington. Some people have mentioned torture and FISA; neither Yoo nor Addington ordered those policies implemented. Yoo wrote legal opinions saying they were ok, but he didn't order torture or torture anyone himself. As far as I can tell, the worst he could be sanctioned for is legal malpractice. Addington, as far as I can tell, merely lobbied for certain policies. Assuming he argued for their legality, legal malpractice is the worst you can punish him for. What's the other theory? However abominable you consider their behavior, it's not criminal unless you can show that they violated a statute.
8.8.2008 12:36am
Constantin:
Christopher Hitchens's case for trying Bill Clinton as a war criminal for firing missiles to distract a nation from his uncontrollable libido is quite stronger than anything I've seen a moonbat cook up for GWB.
8.8.2008 12:53am
Hoosier:
whit:

""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!
8.8.2008 12:58am
Random Commenter:
"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)."

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.
8.8.2008 1:01am
kow:
Convening war crimes trials, truth forums or serious investigations (special prosecutor or DOJ) would not rip America apart. It would rip the Democratic party apart. I see two types of Democrats: citizens of America and citizens of the world. If the trials were held outside the US, it would strengthen the hand of those who favor isolationism.

Leave the punishment to the historians.
8.8.2008 1:14am
Laura S.:
So are we going to arrest Bill Clinton too? Last time I checked his administration originated US policy on extraordinary rendition.

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.
8.8.2008 1:31am
JM Hanes:
This thread is a legal embarrassment.
8.8.2008 2:00am
Kazinski:
The more I think about this the more I think Orin has fallen short of his usual standard of objectivity:

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?


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.
8.8.2008 2:14am
David Warner:
Laura S.,

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.
8.8.2008 2:36am
Don de Drain:
I have a question regarding possible pardons. Does a pardon have to be made public? After all, the current administration has kept lots of other stuff secret, or has at least tried to, has apparently issued secret executive orders, has invoked executive privilege to a degree that appears to be unprecedented, etc. Why can't GWB issue a pardon in secret, to be shown by the recipient only when needed, i.e., when the authorities show up to investigate? Heck, GWB can even claim executive privilege in response to questions as to whether he has issued pardons!

David Warner--- Forget the Yankees or Red Sox. Go Cardinals!
8.8.2008 2:54am
Uthaw:
The criminalization of policy disputes is about the worst thing that could ever happen to this country - regardless of ideology or party affiliation.

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.
8.8.2008 3:41am
donaldk2 (mail):
This is one of my favorite threads of all time. I have put it in my "keepers" file.

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.
8.8.2008 6:21am
Public_Defender (mail):
Please, please, please pardon Yoo. Then he'll turn from being a controversial professor who may have advocated torture into a professor who needed a pardon because he committed war crimes.
8.8.2008 6:30am
Brett Bellmore:

I call a Godwin's violation about a quarter of the way into the thread.


Technically, that's a Godwin confirmation: It's a prediction, not a rule.
8.8.2008 6:52am
jgshapiro (mail):

The criminalization of policy disputes is about the worst thing that could ever happen to this country - regardless of ideology or party affiliation.

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.
8.8.2008 7:48am
OrinKerr:
Kazinski,

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.
8.8.2008 7:55am
jgshapiro (mail):

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

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.
8.8.2008 8:05am
davod (mail):
Skorzeny was aquitted largely on the testimony of a British spy "The White Rabbit" (I forget his real name), who testified that he and his men regularly disguised themselves in enemy uniforms.

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.
8.8.2008 8:30am
jgshapiro (mail):

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.


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.


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.

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?
8.8.2008 8:32am
Happyshooter:
Lithwick is really a loon. She must tone it down for her articles.
8.8.2008 8:40am
davod (mail):
jgshapiro
...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.
8.8.2008 8:46am
Bart (mail):
Why exactly would Mr. Bush need to pardon anyone on his way out? While the left may have wet dreams about the Bushies being hauled in front of the International Criminal Court, their view of what constitutes "war crimes" is not widely shared outside of their circle.
8.8.2008 9:15am
sbw (mail) (www):
Those who want war crimes investigations brought against Bush Administration officials remind me a lot of the Republicans who wanted Bill Clinton impeached and removed for his conduct in Monicagate in the late 1990s.

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.
8.8.2008 9:27am
General Disarray:
donaldk2,

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.
8.8.2008 9:56am
PC:
Anything members of the Bush administration have been accused of certainly do not rise to the level of Whitewater, Travelgate, Filegate, or Hillary killing Vince Foster in a lesbian love spat.
8.8.2008 10:06am
KenB (mail):
If Democrats mount polical show trials in an Obama administration, they will damage the political fabric of this country in ways I cannot fully imagine. The poison in our domestic politics would increase exponentially, and I fear for the continued existence of our government as we know it.
8.8.2008 10:08am
srg:
Mark Field,

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.
8.8.2008 10:11am
Ricardo (mail):
For those requesting the specific law regarding torture, here it is:

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?
8.8.2008 10:14am
Dave N (mail):
Public Defender,

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.
8.8.2008 10:17am
BUUUUUUUUUUUUSSSSSSHHHHHHHH!!!!!11!!!11!!!!!!!eleventy! (mail):
BUSH LIED, PEOPLE DIED!

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.
8.8.2008 10:26am
byomtov (mail):
the criminalization of giving legal advice

Do you think it is impossible that giving legal advice could be a crime?
8.8.2008 10:30am
Dave N (mail):
Ricardo,

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.
8.8.2008 10:34am
Bob from Ohio (mail):
A total lefty fanatsy. Rememember all the impeachment fanatsies after 2006?

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:


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.


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.
8.8.2008 10:39am
mcdonald:

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.




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.
8.8.2008 10:44am
MarkField (mail):

Yet there are those on this thread who are absolutely convinced that Yoo, Rumsfeld, et al. have committed crimes without any hearing, presentation of any evidence, or a wiff of due process.


That's not quite right. I'm convinced torture has occurred; hell, the Administration has admitted it. I have good reason to believ