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Will Bush pardon officials involved in controversial war-on-terror tactics?

Such a pardon would be a generous Christmas gift to the Obama administration, which appears to want to avoid prosecutions. It would greatly disappoint a lot of Obama supporters, but these people could not blame Obama for pardons issued by Bush. At the same time, Bush would protect loyal administration officials. So a pardon would seem to be win-win, at least for the people who have power—who are about to have power or about to have had it.

Why does the Obama administration (appear to) want to avoid prosecutions? A number of possibilities, none of them very clear:

1. The legal cases are not strong, either as a matter of formal law or taking into account the likely response of a jury. Courts would need to convict low-level agents who argue that they received assurances that their actions were lawful and high-level officials who argue that their legal interpretations were made in good faith. Convictions in neither case are impossible but are likely to be difficult. Another difficult problem will arise over how confidential information, with possible national security implications, may be handled. And will a jury convict officials who violated the law because they believed that national security so required? Still, police who violate the law are often prosecuted; why not administration officials? At a minimum, one might argue, criminal investigations are necessary to get the facts straight.

2. The incentives for future lawyers and agents will be bad. Jack Goldsmith and others have argued that agents have become highly risk-averse, refusing to take actions that promote security because of the fear that the actions, even if lawful, will give rise to legal risk. The costs to suspects of investigation and trial are just too high, whereas the benefits of aggressive security-promoting actions are likely to be incremental, and tending to the good of society rather than the good of the agent. On this view, however, the real culprit is Congress, which insists on regulating national security agents rather than giving the president a free hand. Elsewhere Goldsmith has argued that the Bush administration should simply have asked Congress for authorization rather than broken the law, if that is what it did. On this view, Obama should prosecute Bush administration officials and just ask Congress to change the laws so that next time round, the president and his agents won't be constrained.

3. A trial would put the match to the powder keg of the culture wars and explode Obama's stated aspiration to lead in a bipartisan, middle-of-the-road way. The likely defendants are linked to powerful Republicans in Congress, in the courts, in the press, and elsewhere, and will appear as sympathetic figures to millions of Americans (remember Oliver North?). The Obama administration would risk appearing weak on national security as well as vindictive, and these are risks that are unlikely to be outweighed by realistic political gain. If trials result in acquittals (see #1) or minimal penalties, the prosecutions will themselves look like bad-faith, politically motivated efforts to humiliate political opponents over policy disagreements—indeed, this argument will be advanced by defense lawyers and likely find a home in the minds of some jurors. And if Obama subsequently seeks a freer hand from Congress in order to address some new security crisis (see #2), the effect will be multiplied tenfold. Trials that pit the government against its political opponents usually end badly for the government, if not with legal defeats then with pyrrhic victories that are political defeats. Meanwhile, Obama might worry that convictions would strengthen the hand of Congress in national security matters and weaken traditional executive-branch claims to priority in this area (#2, again). Does he really want such an outcome?

So Obama supporters should probably root for Bush to issue pardons. Bush might be just ornery enough to refuse.

Related Posts (on one page):

  1. AG Mukasey Says No Pardons Necessary:
  2. Will Bush pardon officials involved in controversial war-on-terror tactics?
Patrick Krey (www):
You omit that Obama would also like the free hand to torture. He can't do that if he's busy going after other torturers. He would look like a hypocrite (even more so).
12.2.2008 12:07pm
Patrick216:
Bush should issue pardons, if for no other reason than to give those who served him some peace as they depart government. The careers of anyone who played any role in Guantanamo and warrantless wiretapping and all of that are effectively over. John Yoo nearly had his tenure revoked at Berkeley, and surely will never be able to leave that university. Gonzales can't find work. The list goes on and on. If Congress wants to embarrass the administration, it can hold hearings and run Yoo and Gonzales' underwear up the flag pole, and the existence of the pardon will eviscerate any 5th Amendment defense to providing Congressional testimony.

But there's a very real cost to having hundreds of people living with a cloud over their heads until the statute of limitations runs. If I was an Army or Marine O-3 or E-5 or E-6 or a CIA case officer or whatnot and I was involved in that process, I'd be absolutely terrified... And I probably wouldn't be able to be promoted or slotted into a decent billet with "questions" over my head. The same is true for people working on OLC or the White House Counsel's office or in the policy arms of DoD or CIA.
12.2.2008 12:07pm
Guesty McGuesterston (mail):
A few points.

2) The refrain of risk aversion is oft repeated, but it's missing an important contextual aspect. The population of national security agents isn't drawn from the country at random, but from a group of individuals who think the risks of terrorism are so great as to dedicate their lives to it. There are structural tendencies towards overreaction and risk-taking because of this. As the saying goes, if Homeland Security was made up of dentists, we'd have a total war on cavities. A little risk aversion might bring things more in line with an optimal level of action, theory of the second-best and all.

3) I don't understand the claim that the prosecutions would be politically motivated. Failing to prosecute crimes because of the political situation is the definition of politically motivated. If there is clear evidence that officials committed significant crimes, they should be prosecuted. Massive large-scale investigations might cross the line, but prosecution itself should be on the table. Ignoring blatant criminality undermines confidence in government, not the other way around.
12.2.2008 12:19pm
Anderson (mail):
The post omits the immunity conferred by the Military Commissions Act, which the GOP pushed through the Congress right before the 2006 elections.

That would arguably exonerate the real principals, leaving only flunkies to go to jail. Obama might well consider it distasteful to nail the punks while their superiors go free.
12.2.2008 12:21pm
Litigator-London:
Should Bush not issue a general pardon, I should certainly like to see the Obama administration do so for every career government official or service member below the "political appointee" level, if for no other reason that it would be preferable to be able to count on their testimony in order to find out what really happened.

However, were the evidence available to justify the process, a personal preference would be impeachment - just to make sure that any guilty individuals never hold an office of profit under the United States again.

However, it may be wrong to look at pardons in a purely domestic context: torture is a "ius cogens" crime of universal jurisdiction.
12.2.2008 12:29pm
Cornellian (mail):
controversial war-on-terror tactics

So that's the new euphemism for the "T" word is it?
12.2.2008 12:34pm
DCP:

I will add a fourth reason to your list:

4. There are more important matters to deal with, namely a collapsing global economy

I'm a youngin', but I seem to remember reading that there was widespread aversion and resentment to the Watergate investigation during much of its lifespan. This was not because of blind partisan loyalty (Nixon was a moderate, who won in a landslide and had a lot of success enacting his policies) but because at that time (1972-74) there was a recession, a gas crisis, stagflation, an escalating epedemic of crime, the loose ends of the Vietnam quagmire twisting in the wind and a host of other domestic and international disputes popping up on the radar, and the public was simply frustrated at what they perceived to be, at worst a public witch hunt, or in the least overturning the entire government apple cart because of a few rotten apples at a time when people were starving for apples.

Of course as subsequent layers of the Watergate onion were peeled, attitudes towards the Nixon administration changed dramatically, and eventually even his most loyal supporters were forced to concede that his administration was so crippled and comatose that it couldn't do anything, even if it survived.

I'm sure there are zealots on the far left clammoring for a sequel to the Nuremberg trials, but the more prudent strategy is to focus on the more dire problems at hand and let Bush and his neocon cronies limp off into the dustbin of history.
12.2.2008 12:36pm
Ben P:

If Congress wants to embarrass the administration, it can hold hearings and run Yoo and Gonzales' underwear up the flag pole, and the existence of the pardon will eviscerate any 5th Amendment defense to providing Congressional testimony.


Even if Gonzales, Yoo, or whomever they call to testify about "Controversial war on terror tactics" still pull the "that's classified sources and methods" defense and refuse to talk in any sort of public hearing even in the absence of a 5th amendment claim?
12.2.2008 12:37pm
Garth:
it's also possible that obama is merely waiting to take over the office without rocking the boat. bide his time and wait for pressure to build. if you listen to his statements on this, he has ruled nothing out and given no committment to either course of action.

in any case, he will need to be made to do it, if only for the political cover. whether or not he wants to do it, will be beside the point. merely by cooperating with congress, should they choose to pursue the matter, it remains to be seen whether a case can be made for war crimes trials, but, we do know there is a lot of shit out there we haven't seen yet... remember hersh said he had seen photos of children brutalized and other horrific torture.

i'd like to see full disclosure via some sort of congressional investigation followed by war crimes trials if necessary.

whether obama wants to do it will be irrelevant if a case can be made.

i like the idea of pardoning some people in exchange for cooperation in order to speed the process.
12.2.2008 12:41pm
Crust (mail):
Eric, your first two points are linked. If your first point is invalid, that is if some cases are strong and clear cut, then the second point is invalid also: the incentives for future government officials are good. We want our layers and agents to follow the law. Certainly I do.
12.2.2008 12:42pm
Crust (mail):
I'm not sure what it would mean for our layers to follow the law. But I would like our lawyers to do so. ;)
12.2.2008 12:45pm
Nunzio:
The campaign is over. Obama is not prosecuting anybody involved in torture.

W. is probably ornery enough not to pardon them, but who says he hasn't already given them pardons. He doesn't need to make it public.
12.2.2008 12:46pm
Richard Aubrey (mail):
You certainly don't have to have broken the law to be screwed by politicized prosecutions. See the White House Travel Office.
As discussions of torture here and elsewhere have made manifest, most of the complainers have squat, saving items which wouldn't impress fraternity hazing. They have to have the latter in order to have anything like impressive numbers.
They are not and cannot be sincere. They didn't mind when Clinton did it, and they won't mind when Obama does it, so their bad faith will be manifest.
Still, a lot of honest public servants will be bankrupted by investigations and trials--see the White House Travel Office--whose motivations relate to a good many things except justice.
12.2.2008 12:51pm
ShelbyC:

I'm not sure what it would mean for our layers to follow the law.


Not much anymore. There used to be some things you couldn't do down south.
12.2.2008 12:55pm
Lior:
1. From whence does the president derive the power to pardon those who have not been convicted of any crimes?

2. Wouldn't a presidential pardon amount to an admission that criminal acts occurred and were sanctioned by the administration?

3. The President ordering illegal acts and then pardoning the perpetrators eviscerates the oath to the Constitution that all Federal Employees must make. Remember Harriet Myers refusing to testify in Congress on the theory that she swore a personal oath of allegiance to the President? Remember Mr. Libby getting pardoned on the theory that he was harshly punished when in eight years President Bush has not been able to find any other harshly punished criminals?

If it becomes clear that the way to move up in the executive is to do what the president says and be pardoned in the end, then it also becomes clear that personal loyalty to the President trumps fidelity to the Constitution.
12.2.2008 12:56pm
Houston Lawyer:
Any investigation done by Congress will only serve to make Congress look bad. I'm sure that there are more than a few Oliver North types involved in this who could make themselves household icons at Congress's expense. The public at large is not upset about what harsh treatment these guys may have inflicted on suspected or known terrorists.
12.2.2008 12:58pm
Portland (mail):
I thought there were some libertarians on this site. Wake up! This isn't about Republicans and Democrats. It's about the rule of law. If the executive and its agents can exceed the scope of the authority granted them by the Constitution and the law, we are one giant step closer to a faux-democracy like Russia's. What do you think separates President Putin from President Bush? It is only effective (as opposed to merely theoretical) checks on executive authority.

Voting out such people is lovely, but there must be other consequences. Otherwise, future administrations and their agents will feel free to experiment with illegalities -- including those -- like politically motivated prosecutions and manipulation of the news media -- that make it impractical to vote them out of office.
12.2.2008 1:01pm
Nunzio:
"Fidelity to the Constitution"?

Lior, you must be ticked that people refer to former Senator Obama as "President-elect" whent the Electors have not selected him yet.

And you must be furious with the violation of the emoluments clause by the Hillary nomination to SOS.

Personally, I haven't gotten over the Nixon pardon nor Clinton's illegal bombings in Bosnia because the Congress did not authorize them.

I've finally recovered from FDR's unconstitutional NIRA, but just barely, but not his imprisoning Japanese-Americans in WWII. And they still put him on the dime.

Also, Lincoln's suspension of the Writ of Habeas Corpus during the Civil War. Didn't he know only Congress can suspend the Writ of Habeas Corpus. Perhaps that's why he's on the $5 and not the $20.
12.2.2008 1:03pm
Garth:
the public at large knows only the tip of the iceberg about what harsh treatments have been used on innocents and children.
12.2.2008 1:04pm
Nunzio:
Portland,

Can you name me one President who hasn't violated the Constitution?
12.2.2008 1:04pm
SteveW:
I wonder if a pardon by President Bush can shield a person from alleged violations of international law and treaties?
12.2.2008 1:08pm
the gipper:
What about the idea of moral hazard? If these egregious behaviors go unpunished, what is to deter them from happening again?
12.2.2008 1:08pm
Left_Wing_Lock:
Your suggestion that Bush might not give pardons because he is "ornery enough" is laughable. It is remotely possible that people might make decision based on whether they believe something is necessary or (god-forbid) right or wrong. Opponents may not always make decisions solely to vex "The One". OK, you can put your Obama t-shirt back on now.
12.2.2008 1:14pm
Portland (mail):

Can you name me one President who hasn't violated the Constitution?


So democracy and the rule of law can never be undermined by a government power-grab? Don't supervise them -- just trust their good intentions? Conservatives may think that way, but a libertarian shouldn't.

I can name many presidents who haven't, for example, pressured US attorneys to indict their political opponents and fired them when they refused. Specifics matter. I'm sure most, if not all presidents have fallen afoul of the Constitutional limits on their office in some way, shape, or form (as this is only illegal if a) their actions were not lawful (in other words, it is not illegal to enforce an unconstitutional law that has not yet been ruled unconstitutional) and b) they continued said practice after the courts ruled them illegal). Each branch of government, as the Founders knew, would perpetually be tempted to expand its power. That is a reason to punish illegality harshly, not ignore it.
12.2.2008 1:19pm
titus32:
Can you name me one President who hasn't violated the Constitution?

Nunzio, I'll say William Henry Harrison. Now take it easy on the poor guy, he only had 30 days in office!
12.2.2008 1:19pm
Connecticut Lawyer (mail):
What a grand new precedent Obama could set: win office, and prosecute your predecessor and all his minions for real and/or imagined crimes! Who cares if no one profited, who cares if public servants were trying to win a difficult war with unclear rules, who cares if the Congressional leadership, on both sides of the aisle, were informed and acquisced in the Administration's conduct? Let's just forget about the American tradition of peaceful handover of power; everyone would know, lose, and you lose more than your office. Retribution against one's political enemies has worked so well in various third world countries, we should give it a whirl.
12.2.2008 1:21pm
1Ler:
Some of this business is ridiculous... it's much more faithful to the Constitution to defer to the president's pardon power than to attach qualifications for when it should be "legally" used. The only question is whether that power extends to preemptive pardons, and I've heard good arguments each way.

In fact, I would argue that the Scooter Libby Kangaroo Court fiasco is the paradigmatic case why the Executive has the pardon power--to to respond to an unpolitical proxy attack by the Legislative Branch.
12.2.2008 1:28pm
Portland (mail):

Who cares if no one profited, who cares if public servants were trying to win a difficult war with unclear rules, who cares if the Congressional leadership, on both sides of the aisle, were informed and acquisced in the Administration's conduct?


This is a textbook example of begging the question. If all of the apparent lawbreaking did in fact happen according to this rose-colored script, then there should be no indictments and no convictions. But, of course, many would dispute this narrative of selfless heroism. A thorough non-partisan investigation will clarify the facts.
12.2.2008 1:30pm
ChrisIowa (mail):

1. The legal cases are not strong, either as a matter of formal law or taking into account the likely response of a jury.

A Washington, D.C. jury?


So Obama supporters should probably root for Bush to issue pardons. Bush might be just ornery enough to refuse.

I don't think a President who has used the veto power so infrequently will issue many pardons.
12.2.2008 1:37pm
Bob from Ohio (mail):
No pardons. They are not even being considered.

Its just a lefty fanatsy.

BTW, reason #4: Blowback.
12.2.2008 1:37pm
Oren:

Such a pardon would be a generous Christmas gift to the Obama administration, which appears to want to avoid prosecutions

Obama would likely do an "amnesty for testimony" thing anyway.
12.2.2008 1:42pm
MarkField (mail):

John Yoo nearly had his tenure revoked at Berkeley


I wish this were true, but it isn't. Sadly, the Dean refused even to consider an investigation of Yoo's conduct, much less institute proceedings against him.


and surely will never be able to leave that university.


Surely there's a spot for him at Regent.


If I was an Army or Marine O-3 or E-5 or E-6 or a CIA case officer or whatnot and I was involved in that process, I'd be absolutely terrified...


And such persons should be happy to tell investigators everything they know in return for immunity.
12.2.2008 1:44pm
Anderson (mail):
No pardons. They are not even being considered.

I hope you're right, but I have my doubts.

Notice that Libby got his GOOJF card from Bush before Libby had to check into prison, i.e., before Libby began to feel any strong urge to loosen his lips.

The MCA immunity will work for torture etc. but it won't cover, IIRC, the illegal surveillance stuff. I expect pardons for those folks.
12.2.2008 1:55pm
trad and anon (mail):
Obama wants to be able to break the law too. He won't be setting any precedents that it's OK to prosecute administration officials. Otherwise his flunkies might become unwilling to break the law on his orders.
12.2.2008 1:55pm
Andrew J. Lazarus (mail):
I guess it's good for countries to lose wars from time to time, because this thread shows that otherwise war criminals will walk.
12.2.2008 1:56pm
Happyshooter:
The Roman Republic ended, not because Caesar was stabbed to death, but because of former office holders getting dragged into court by the other party as soon as they left office.

Obama is smart enough/educated enough to know why you have to take your boot off the other side's throat once they leave office, the question is whether he can resist the 'daily kos' people in his own party who want show trials and great punishment for policies they disagreed with.
12.2.2008 2:04pm
Joe Kowalski (mail):

Nunzio, I'll say William Henry Harrison. Now take it easy on the poor guy, he only had 30 days in office!


Harrison's death caused a mini constitutional crisis when it came to defining exactly what office Mr. Tyler held afterwords. So, while, he wasn't directly responsible, it's not quite accurate to say that he didn't cause any constitutional problems.
12.2.2008 2:08pm
Constantin:
For those like me who support "harsh" interrogation, including torture, of foreign terrorists who in no way are protected by the United States Constitution or the Geneva Conventions (I disagree, Justice Stevens) these pardons are a win-win-win. Protect people who did nothing unlawful (as opposed to the thugs at Abu-Ghraib), allow the Obama Administration to do the same and be serious about protecting the country, and probably drive Keith Olbermann to the madhouse.
12.2.2008 2:17pm
whit:

What about the idea of moral hazard? If these egregious behaviors go unpunished, what is to deter them from happening again?



which assumes we don't want them to happen again. big assumption.

we were pretty darn successful at deterring attacks after 911, and catching the bad guys. so was england, after they got spanked, they got tough too.

obama's rhetoric aside, he is not stupid. it's one thing to wank about torture when you are trying to make political hay. it is quite another when you hold the authority to save thousands of lives. i am reasonably confident that "aggressive interrogations" will not go away under obama, whether or not we know they are happening or not - they will.
12.2.2008 2:20pm
Garth:
i can't believe the mindset on this thread. it amounts to, it's okay if bush broke the law in order to perteckt amerika.

perhaps not surprisingly, no one here is particularly concerned to actually find out the facts before wanting to sweep it under the rug.

there is plenty of reason to believe, based on the wealth of research already done, that serious crimes were committed by top administration officials.

it should be investigated and if necessary prosecuted.

i wonder what lesson obama has taken from the nixon pardon?
12.2.2008 2:22pm
wm13:
I think Bush would be very ill-advised to issue pardons. As Prof. Posner said, it would make Obama's job much easier. The best thing for the Republicans would be to set the new president to war with the career national security bureaucracy.
12.2.2008 2:36pm
Andrew J. Lazarus (mail):
Constantin, saying someone is a terrorist doesn't leave them liable to being assaulted. We don't have outlawry any more. So you'll have to explain the system under which their deprivation of liberty takes place.

As far as torture, we are signatories to a treaty that bans it in all cases "whatsoever". Torture is unlawful.

However, you can buy magazines with simulated torture scenes and try to achieve your orgasm that way.
12.2.2008 2:39pm
Connecticut Lawyer (mail):
Garth,

You are correct that a wealth of research has already been done. Numerous congressional investigations have been conducted, as well as internal Executive investigations. It is unlikely that any further investigations or prosecutions will uncover any hitherto unknown facts. All of those facts will be the hands of the Obama administration come January 20. If he wants to, he can release all of them to the public. I doubt he will want to do that, but he could.

Purely for political reasons, I hope that Obama takes your advice and launches one bloody prosecution after another. I think the public reaction will make the reaction to the Clinton impeachment - which was widely viewed as the Republicans using legal tools to exact political revenge - look anemic. The blowback would be impressive.

But I would not want to see dozens of dedicated public servants put through the wringer like that - even if they are eventually legally vindicated, they'll be bankrupted from the attorneys' fees and their reputations will be ruined.

In any event, if we can draw any conclusions from Obama's appointments to date, it's that he is cautious and does not want to plunge the country into a cycle of attack and revenge. Bottom line: Bush won't use the pardon power (except maybe for those already convicted, like Libby) and Obama will, as the Democrats used to say, move on.
12.2.2008 2:46pm
Bart (mail):
Why precisely would Mr. Bush pardon folks for actions that he, the Congress and DOJ signed off on and many of which the Obama Administration intends to continue?
12.2.2008 2:52pm
PierreM (mail):
Happyshooter is the only one here addressing the most serious consequences of any attempt at show trials of Bush adminstration officials.

Go ahead and try it: you on the left will provoke a civil war, and you will lose.

What do think would happen, for example, if you went after Cheney and he went to a military base to ask for protection?

Do you think the generals and other officers are so stupid as not to see that they are 2nd or 3rd in line? Do you think those of us on the right (you know, gun owners) will not see this as anything other than an attempt to criminalize all right-wing political opposition?

Who will protect you in such an eventuality? The police and the military you despise? Good luck with that.
12.2.2008 2:54pm
Richard Aubrey (mail):
Some whackjob lefties--or normal democrats, samesame--have bruited the possibility of hassling the Bush officials' next employers until hiring a Bush admin official is simply impossible. Not that the guys did anything provably wrong. Just that the whackjob lefties/dems disagreed.
The object is to make the officials' lives miserable. Period.
Is there anybody who can say with a straight face (lawyers can, Aubrey) that the motivation for prosecutions differs?
12.2.2008 2:59pm
Constantin:
However, you can buy magazines with simulated torture scenes and try to achieve your orgasm that way.

And you can watch people jumping out of skyscrapers and try to get yours that way.

(See, I can do that, too.)

Not only do I have no problem with a president who asserts that he'd use whatever means necessary to extract information from detained foreign terrorists in order to stop attacks on American interests, I would not vote for one who asserted to the contrary.

Why? Because I'd know he's a liar. Obama knows, and I know, that if the American public found out he had a chance to waterboard a guy to stop a bomb going off in Times Square, and he didn't do it, he'd be impeached and branded for all of history. Look at what the Left has done to Bush over the August 2001 UBL memo, then multiply that by 1000.

Comfort yourself by thinking President Obama's not going to throw some sharp, questionable, sinister elbows at bad guys. I comfort myself by knowing he will.
12.2.2008 3:01pm
paulV (mail):
The August 2001 UBL memo waa a rehash os stale 1998 intel. Maybe it should have given Bush an idea of how much the US intel agencies had declined
12.2.2008 3:10pm
AnotherMike:
Interesting that this post solely concerns the political aspects of pardons. Since this more of a legal site, I would think a consideration of the merits of issuing pardons from that perspective which may be more interesting and entirely different.
12.2.2008 3:12pm
Richard Aubrey (mail):
Constantin.
Good point about the memo. But the larger point is not that the memo was ignored (actually was far too vague to suggest any action) but that it was Bush.
There is no possibility that dems or libs would have a reaction to Obama doing the same or worse like they had to Bush.
Dems and libs are not reacting to issues and events except as they give opportunity to bash Bush. Extraordinary rendition was dandy when Clinton was doing it. Just for one example.
There is no good faith here.
12.2.2008 3:12pm
Sean O'Hara (mail) (www):
If Obama goes after Bush administration officials, then the Republicans will go after Obama administration officials next time they take over the White House. Rinse and repeat a couple times and no one with any sense will want a job with the administration, and those who do take such jobs will have a vested interest in staying in power, Constitution be damned.
12.2.2008 3:16pm
Portland (mail):

Happyshooter is the only one here addressing the most serious consequences of any attempt at show trials of Bush adminstration officials.

Go ahead and try it: you on the left will provoke a civil war, and you will lose.

What do think would happen, for example, if you went after Cheney and he went to a military base to ask for protection?

Do you think the generals and other officers are so stupid as not to see that they are 2nd or 3rd in line? Do you think those of us on the right (you know, gun owners) will not see this as anything other than an attempt to criminalize all right-wing political opposition?

Who will protect you in such an eventuality? The police and the military you despise? Good luck with that.


Let me see if I understand you: we should not punish illegal acts by those on the right, because you are traitors who await just such an opportunity to stage a violent insurrection against the lawful authority.

Refreshing honesty, but I think I'd like to see the criminals in jail, and take my chances with your coup de cretin.
12.2.2008 3:19pm
Anderson (mail):
The August 2001 UBL memo waa a rehash os stale 1998 intel.

Make something up, why don't you?
12.2.2008 3:21pm
Bama 1L:
Go ahead and try it: you on the left will provoke a civil war, and you will lose.

I see your civil war threat and raise you a Hitler comparison.
12.2.2008 3:25pm
Sarcastro (www):
Welp everyone, guess we'd better convert to Islam or the next terrorist attack will be all our fault!
12.2.2008 3:27pm
LM (mail):
Patrick Krey:

You omit that Obama would also like the free hand to torture. He can't do that if he's busy going after other torturers. He would look like a hypocrite (even more so).

But you forget, his authority for torture won't come from the Constitution. It will come from Sharia Law. Just like his authority to confiscate the belongings of rich Republicans and re-distribute them among crack dealers and welfare queens will come from the Communist Manifesto (or William Ayers -- I'm not sure).

The election campaign isn't over that long ago. Have you forgotten the script already?
12.2.2008 3:40pm
Thorley Winston (mail) (www):

obama's rhetoric aside, he is not stupid. it's one thing to wank about torture when you are trying to make political hay. it is quite another when you hold the authority to save thousands of lives. i am reasonably confident that "aggressive interrogations" will not go away under obama, whether or not we know they are happening or not - they will.



I think that's largely true, at best (or worst depending on your POV), the Obama administration might return to the Clinton policy of simply sending them off to Egypt or some other country where they will receive much harsher treatment than they get while in US custody.
12.2.2008 3:42pm
Richard Aubrey (mail):
Thorley. And the dems and libs will say about as much as they did when Clinton was doing it.
12.2.2008 3:57pm
KeithK (mail):

Interesting that this post solely concerns the political aspects of pardons. Since this more of a legal site, I would think a consideration of the merits of issuing pardons from that perspective which may be more interesting and entirely different.


Is there really a legal aspect to pardons? The executive pardon power is absolute. The president can absolve any person of all federal crimes with a stroke of a pen. If he does so there is no legal recourse, no matter how foul or odious. The only limits on this power are political.
12.2.2008 4:39pm
Garth:

It is unlikely that any further investigations or prosecutions will uncover any hitherto unknown facts.



so where are the olc memos?

why has the ABA taken the unusual step of calling what has been released flat out wrong?

rice has only just recently confirmed that she, addington, rumsfeld, gonzales, ashcroft and others crafted torture policy in the WH. these are war crimes. does the rule of law matter or not?

these are the people who should have a case against them built and prosecuted.
12.2.2008 4:43pm
Garth:

Why does the Obama administration (appear to) want to avoid prosecutions?


here's another theory - he hasn't been sworn in yet so why spook the piggies?
12.2.2008 4:46pm
Garth:
Amid the chaos, four other Air Force criminal investigators and I joined an elite team of interrogators attempting to locate Zarqawi. What I soon discovered about our methods astonished me. The Army was still conducting interrogations according to the Guantanamo Bay model: Interrogators were nominally using the methods outlined in the U.S. Army Field Manual, the interrogators' bible, but they were pushing in every way possible to bend the rules — and often break them. I don't have to belabor the point; dozens of newspaper articles and books have been written about the misconduct that resulted. These interrogations were based on fear and control; they often resulted in torture and abuse.

The Pentagon's claims that it had returned to interrogations based on the venerable Field Manual, was, it seems, conscious disinformation. But the officer offers an assessment. The torture techniques consistently failed to produce actionable intelligence, he said. But the old techniques—which rest on confidence building—consistently worked and gave the interrogators access to information that saved lives. Moreover, the strategies employed to effect later were used as a much broader tactic, accentuating differences between native Iraqi Sunnis and foreign fighters, in what came to be known as the "Sunni Awakening."

But then we come to the most chilling part of the op-ed, which the writer discloses the Bush Administration struggled to suppress:

I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for Al Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It's no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me--unless you don't count American soldiers as Americans.

The torture techniques developed by the Bush torture team were the most effective recruitment tool we could ever have given terrorists. They cost thousands of American lives. And that's a key element of the legacy of the forty-third president.
12.2.2008 4:53pm
Garth:
- Scott Horton (today)
12.2.2008 4:54pm
Garth:
sorry, discussing the Washington Post Op Ed from Sunday
12.2.2008 4:54pm
Constantin:
I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for Al Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It's no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me--unless you don't count American soldiers as Americans.

This has its roots in a bizarre form of wishful thinking, with a good mix of Bush Derangement thrown in. "If W just leaves them alone, they'll leave us alone, too."

I don't believe a word of it. For the Obama Administration to adopt this guy's policy prescriptions would endanger more American lives than the villainy of his fanciful telling.
12.2.2008 5:07pm
Lior:
whit:
which assumes we don't want [illegal acts] to happen again. big assumption.


Indeed most people would not want illegal acts to recur. I'm not a lawyer, but I'm fairly certain it has always been legal to use whatever methods work to extract "ticking-bomb" kind of information out of suspects. This does not mean, however, that torturing everyone labelled "suspected terrorist" is legal. Similarly, it was legal to start the surveillance first and get FISC to authorize it retroactively within 48 hours. In practice every government request is authorized, so not getting FISC authorization should be a crime even if the authorization would have been granted had the government asked for it.
12.2.2008 5:15pm
Happyshooter:
In Rome it didn't happen the first year they had show trials, it went on for years and years getting worse. Sulla seized power and cleaned house a little, but turned things back over to the Senate and Courts and the game started again.

Caesar is the one who decided that he really didn't want to give up his army, lose his land and money, and go to exile (jail for citizens) for the crime of winning on the battlefield. By that point, many generals had.

Oh, something else to keep in mind. Caesar was a populare, the democratic party. It doesn't matter who starts the court games, or who brings the final case, we know how it starts and we know how it ends.

Let me see if I understand you: we should not punish illegal acts by those on the right, because you are traitors who await just such an opportunity to stage a violent insurrection against the lawful authority.

Refreshing honesty, but I think I'd like to see the criminals in jail, and take my chances with your coup de cretin.
12.2.2008 5:15pm
Thorley Winston (mail) (www):
I agree with Constantin, it seems incredulous to think that someone would actually believe that an otherwise peaceful Muslim who grows up in a country where torture and mistreatment is common part of their penal system would suddenly upon seeing pictures of the comparatively mild treatment at Abu Ghraib or Gitmo decide that that that's what's going to put them over the edge into becoming a terrorist. Or that such people represent half of the foreign terrorists we've been battling in the Iraq theater of the War.
12.2.2008 5:31pm
AnotherMike:

Is there really a legal aspect to pardons? The executive pardon power is absolute. The president can absolve any person of all federal crimes with a stroke of a pen. If he does so there is no legal recourse, no matter how foul or odious. The only limits on this power are political.


I'm sure I wasn't very clear. I meant legal issues in the broader sense of whether pardoning those who committed crimes during the war on terror is consistent with the intended purpose of the pardon power and good public policy. As I understand it, the DOJ has guidelines about when to pardon someone. I'm not sure they apply here, but certainly there are issues of whether these pardons are the right or wrong thing to do, totally apart from political considerations. Would they encourage future lawbreaking by high level officials? Is faith in the government and the justice system undermined if crimes go unpunished? Would it be unfair to punish underlings or even high officials if they were acting in good faith based on legal counsel? How strong of a case is there for criminal violations of the law? Should there be different criteria for underlings versus decision makers? There certainly seems to be lots of pros and cons one could argue as to whether these pardons would be the right thing to do. Instead, however, the post concentrated solely on the political ramifications of issuing pardons. There are lots of political blogs out there. I would rather this site concentrate more on the legal/public policy aspects of issues.
12.2.2008 5:36pm
PierreM (mail):
Happyshooter: yes, I am aware that it will start with Sulla and end with Caesar.

But all it would take is to start the show trials and have one popular commander appeal to his troops on base.

What bothers is me is that the righteous fanaticism of the left would rather risk that-- and all that would follow-- despite the complete lack of any basis in US history or law for pursuing such prosecutions.

And to those of you who argue that my position allows no limit to the power of officials in wartime I respond there is one and only one such Constitutional limit: elect those who will not pursue such policies.
12.2.2008 5:53pm
Thomas_Holsinger:
Obama's administration won't prosecute anyone for war-related offenses that a McCain administration would not have prosecuted for a very simple reason - to avoid responsibility. National security is the Democrats' big weakness, and such prosecution would absolutely guarantee that the public would blame the Democrats for any future attacks by foreign terrorists in the U.S. The public will probably do so anyway, but such prosecution would ensure the worst possible results for the Democrats.

I wouldn't be surprised if Obama appoints a well-known GOP figure as special prosecutor if it becomes necessary to prosecute any non-military American official for war-related atrocities.
12.2.2008 6:02pm
MadHatChemist:
Doesn't matter what bush will do. Obama could just grab them (i.e. how Obama stopped worrying and learned to love the PATRIOT act), and ship them off the the kangaroo court in the Hague.
12.2.2008 6:07pm
Thomas_Holsinger:
AnotherMike,

Obama's selection of Eric Holder as his Attorney General shows some disregard for Department of Justice guidelines concerning federal pardons. Holder's replacement for those guidelines during the Clinton administration was:

"SHOW ME THE MONEY!"
12.2.2008 6:09pm
Thorley Winston (mail) (www):
I'm sure I wasn't very clear. I meant legal issues in the broader sense of whether pardoning those who committed crimes during the war on terror is consistent with the intended purpose of the pardon power and good public policy. As I understand it, the DOJ has guidelines about when to pardon someone. I'm not sure they apply here, but certainly there are issues of whether these pardons are the right or wrong thing to do, totally apart from political considerations. Would they encourage future lawbreaking by high level officials? Is faith in the government and the justice system undermined if crimes go unpunished? Would it be unfair to punish underlings or even high officials if they were acting in good faith based on legal counsel? How strong of a case is there for criminal violations of the law? Should there be different criteria for underlings versus decision makers? There certainly seems to be lots of pros and cons one could argue as to whether these pardons would be the right thing to do. Instead, however, the post concentrated solely on the political ramifications of issuing pardons. There are lots of political blogs out there. I would rather this site concentrate more on the legal/public policy aspects of issues.


Which is nothing more than a high-minded way of saying that you don't actually object to a discussion of what comes down to the political ramifications of whether or not pardons will or should be issued, you just don't like that people who come at the issue from a different POV are talking about the policy and political ramifications that interest them.
12.2.2008 6:11pm
Thorley Winston (mail) (www):
Doesn't matter what bush will do. Obama could just grab them (i.e. how Obama stopped worrying and learned to love the PATRIOT act), and ship them off the the kangaroo court in the Hague.


I doubt it will happen, just as many people think that Obama is too smart to make more than cosmetic changes to the surveillance and interrogation policies of President Bush, he probably realizes that the first American President to authorize sending an American official to the Hague will be the first American official sent to the Hague by the president that comes after him.
12.2.2008 6:19pm
Thomas_Holsinger:
Thorley,

Democratic administrations have different pardon guidelines related to revenue. Pardons are income-enhancement mechanisms.

I wish Fred Thompson was still in office, and on the Senate Judiciary Committee, for Holder's confirmation hearings.

Those will be lively if Republican Senators on the committee have any balls, which I doubt.
12.2.2008 6:23pm
Steve:
What bothers is me is that the righteous fanaticism of the left would rather risk that-- and all that would follow-- despite the complete lack of any basis in US history or law for pursuing such prosecutions.

In that supposed event, you say, you will destroy the Union; and then, you say, the great crime of having destroyed it will be upon us! That is cool. A highwayman holds a pistol to my ear, and mutters through his teeth, "Stand and deliver, or I shall kill you, and then you will be a murderer!"
12.2.2008 6:38pm
ForWhatItsWorth:
Constantin: "...Comfort yourself by thinking President Obama's not going to throw some sharp, questionable, sinister elbows at bad guys. I comfort myself by knowing he will...."

I hope you are right..... I really do!
12.2.2008 6:39pm
wfjag:

What a grand new precedent Obama could set: win office, and prosecute your predecessor and all his minions for real and/or imagined crimes! Who cares if no one profited, who cares if public servants were trying to win a difficult war with unclear rules, who cares if the Congressional leadership, on both sides of the aisle, were informed and acquisced in the Administration's conduct?

Conn Law: Best sarcastic summary of why BHO is "President-elect" while none of the lunatic left candidates could get into double digits even in the Dem. Primaries. He's smart enough to understand that he shouldn't ignore the prediction today that within the next five years the terrorists will likely succeed in a WMD attack within the US (bio, chem, dirty-bomb -- nuke possible, but not likely), and realizes that if he decided to appease some of his supporters and have show trials, and there was a WMD attack, the demise of the Dem. Party would make the demise of the Whig Party look like a slow motion event. The President Elect knows when he is better off not doing something (or, his record makes it appear that not doing something is his default response, as he knows that in politics, not being in the position have having to accept blame (or responsibility) can be an advantage).
12.2.2008 6:49pm
ForWhatItsWorth:
Garth, you have to know this line is pure BS..... "The torture techniques developed by the Bush torture team were the most effective recruitment tool we could ever have given terrorists. They cost thousands of American lives."

Baloney in the extreme! In NYT fashion, I seriously doubt this op-ed has the slightest bit of truth in it. It sounds like Kerry's Winter Soldiers to me.......
12.2.2008 6:51pm
LM (mail):
Thorley Winston:

I agree with Constantin, it seems incredulous (sic) to think that someone would actually believe that an otherwise peaceful Muslim who grows up in a country where torture and mistreatment is common part of their penal system would suddenly upon seeing pictures of the comparatively mild treatment at Abu Ghraib or Gitmo decide that that that's what's going to put them over the edge into becoming a terrorist.

Ever heard of tribalism?
12.2.2008 7:11pm
Crust (mail):
wm13:
I think Bush would be very ill-advised to issue pardons. As Prof. Posner said, it would make Obama's job much easier. The best thing for the Republicans would be to set the new president to war with the career national security bureaucracy.
No doubt. Just as when George H.W. Bush preemptively pardoned Caspar Weinberger and five other Iran Contra figures he was really just trying to make Clinton's job easier. What other possible motive is there? Surely all the members of the Bush administration involved in sanctioning torture, surveillance in violation of FISA and obstruction agree that the best thing would be for Bush not to pardon them.
12.2.2008 7:13pm
Richard Aubrey (mail):
LM
Sure I've heard of tribalism. One Iraqi early in the war was asked if he'd prefer to be tortured by a Muslim or rescued by an American. According the the story, he couldn't make up his mind.
If nationalism and religion are bad--for whatever reason--tribalism is worse.
So...let's see tribalism get all fired up so that the practitioners make good targets.
12.2.2008 7:22pm
Andrew J. Lazarus (mail):
Those anti-torture quotes come from one of our ace investigators, the one responsible for locating Zarqawi (without using torture). You can believe him, or you can believe an assortment of tough-guy wannabes, both in the Administration and on this thread.

Perverts almost always have some noble explanation for their misdeeds. Morality is tossing aside convenient excuses ("We need it to save ourselves from terrorists) for evil.
12.2.2008 7:55pm
Thomas_Holsinger:
Lazarus invents the facts he prefers would exist, while using adjectives and name-calling, to obscure the lack of reasoning and content in his posts. Be warned.
12.2.2008 8:21pm
TruePath (mail) (www):
I'm an Obama supporter and I fimrly hope that Bush doesn't give the pardons. This is for several reasons.

1) To disappoint the annoying liberal morons who are demanding prosecutions. Yes, it's petty but as a liberal it's quite annoying to be lumped with these sorts of shrill indignant partisans and I can't help being a bit shallow on this point.

2) To communicate to the rest of the country that Obama is interested in practical real world solutions not ridiculous ideology. There are many people out there who are more interested in leftist ideology than using the government to promote practical solutions for the poor and less fortunate and it's important that Obama not let himself be painted as being one of them.

In short Obama is now president and needs to appeal to the country as a whole. If the far left faction of the democratic party is disappointed it won't be the end of the world.
12.2.2008 8:34pm
Brian Macker (mail) (www):
Apparently I don't understand how this works. I thought he could only pardon the convicted. So some questions.

Don't they need to be convicted before they are pardoned? Can he pardon them of crimes they are innocent of? Can he pardon them of crimes they committed without knowing what those crimes are, or who committed them? Can he pardon whoever committed a crime when the crime is known but the perpetrator is not known?
12.2.2008 8:35pm
whit:

Indeed most people would not want illegal acts to recur. I'm not a lawyer, but I'm fairly certain it has always been legal to use whatever methods work to extract "ticking-bomb" kind of information out of suspects. This does not mean, however, that torturing everyone labelled "suspected terrorist" is legal. Similarly, it was legal to start the surveillance first and get FISC to authorize it retroactively within 48 hours. In practice every government request is authorized, so not getting FISC authorization should be a crime even if the authorization would have been granted had the government asked for it.



then stop making bald assertions and support them

polling data.

what %age of US citizens support aggressive interrogation, to include : sleep deprivation, waterboarding, etc.?

i responded to your unsubstantiated assertion. which you still haven't come close to substantiating . hth
12.2.2008 8:52pm
Thomas_Holsinger:
Brian Macker,

I was in law school during Watergate. Nixon was pardoned without ever being indicted. He had been named as an undicted co-conspirator.

AFAIK, the presidential pardon power extends to state laws as well as federal, in addition to being allowed against future charges.
12.2.2008 9:08pm
Crust (mail):
Thomas_Holsinger:
AFAIK, the presidential pardon power extends to state laws as well as federal, in addition to being allowed against future charges.
The power of the pardon is pretty much absolute, but it does not extend to state laws. From Article II, Section 2, the President:
shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
12.2.2008 9:23pm
Andrew J. Lazarus (mail):
Lazarus invents the facts he prefers would exist
Which fact I cited above is not true? Let's see who invents facts.
12.2.2008 9:23pm
bushbasher:
yes, god forbid that torturers and killers actually be held accountable for their actions. what will those whining liberals demand next?
12.2.2008 9:28pm
Thomas_Holsinger:
Elected officials are generally quite risk-adverse relative to other government officers of comparable importance/seniority, and those in elective executive office are particularly loathe to make decisions they don't have to make right away. The latter is generally wise - it is good policy to let situations develop before taking action, though obviously that depends on circumstances.

President Bush shows the danger of going too far in this regard - he is a shining example of lack of energy in the Executive. Barack Obama showed these traits to an extreme degree in the U.S. Senate, and as an Illinois state legislator earlier, with his numerous votes of "present" rather than "yea" or "nea" as the best known examples.

It is safe to say that Obama as President will continue this tendency, and here that means no prosecutions by his administration of former Bush administration officials, or officers/employees of national security-related agencies, for alleged war-related offenses save possibly for personal financial corruption.

Lazarus' past behavior here, and in particular on other boards such as Winds of Change, has established what he is. Ignore him so he will go away. Responding to him just encourages his further misconduct.
12.2.2008 9:36pm
Andrew J. Lazarus (mail):
Seeing a defender of torture use the word 'misconduct' is pretty funny. The fact is that torture is illegal, and the fact is that our own ace investigators deplore it. Why so-called conservatives choose to endorse it, I feel free to speculate.
12.2.2008 10:15pm
Crust (mail):
It's worth remembering that the remedy the Founders envisioned for abuse of the pardon power was impeachment. The idea was that fear of impeachment would serve as a check on President's use of pardons. Unfortunately, that check becomes completely toothless at the end of the Presidency. Hence we get abusive pardons in the final days, like Bush Sr. pardoning Weinberger and Clinton pardoning Rich. And Bush Jr. pardoning [to be determined, but I'm guessing lots of people].
12.2.2008 10:36pm
Thomas_Holsinger:
Crust,

I doubt it. That would require President Bush to make decisions.
12.2.2008 10:41pm
Crust (mail):
Thomas_Holsinger, when you make a claim like this:
Lazarus invents the facts he prefers would exist
it might be a good idea to given an example or two of the invented "facts" and indicate why you think they are false. And when challenged to back up your claim, it would be a really good idea to give specifics (or retract the claim) rather than vague references to "past behavior" and "misconduct". Otherwise, you may find that people are inclined to follow your advice to "ignore him", except applied to yourself.
12.2.2008 10:53pm
jukeboxgrad (mail):
constantin:

Protect people who did nothing unlawful (as opposed to the thugs at Abu-Ghraib)


Welcome to the GOP concept of personal responsibility: blame the little guy.

Taguba is the two-star general who led the first investigation into what happened at Abu Ghraib. He said this:

I believe, even today, that those civilian and military leaders responsible should be held accountable.


And there's this:

senior defense officials were involved in directing abusive interrogation policies


You should tell us what you know that Taguba doesn't.
12.2.2008 10:57pm
Sagar:
Garth,

What "war crimes" are you talking about? Is there a war? Which war would that be?

Would you be going to India next to ensure no torture when they interrogate the terrorist they caught, or is your sanctimonious preaching limited only to the US (or may be just Bush)?
12.2.2008 11:11pm
Richard Aubrey (mail):
juke.
By the way, wrt Palin's anti-Semitism. Samantha Power is back on the bus. You know, "invade Israel" Samantha Power.

Anyway, "hold accountable" can mean, and you have no way of knowing which way Taguba was using it, ending a career, such as happened to BG Karpinski.
Since career endings don't generally attract much attention, you have no idea whether some were held accountable.
After all, Frank Kelso was held accountable for Tailhook, with which he had nothing to so, and barely retained his rank at retirement. It doesn't take much political interest, in other words.

The little guy at Abu Ghraib actually did the dirty. You have to show--evidence--that there was either negligence or direction. Negligence there was and a BG suffered for it, presumably along with subordinates. Direction has yet to be proven. Why doesn't Taguba tell us what he knows about the evidence of direction?
12.2.2008 11:13pm
Thomas_Holsinger:
Crust,

Just go to WindsofChange.net and ask any or all of proprietor Joe Katzman, his assistant Marc Danziger (Armed Liberal) or moderator Trent Telenko about Lazarus. The only non-negative thing they'll say about him is that he posts a lot. I've seen Lazarus make vicious personal attacks on Telenko there, and Telenko showed amazing forebearance. I've had banned Lazarus for good over those.
12.2.2008 11:22pm
jukeboxgrad (mail):
aubrey:

Why doesn't Taguba tell us what he knows about the evidence of direction?


Why don't you bother reading what Taguba said, so you would understand "what he knows about the evidence of direction?"

And why don't you bother reading the FBI emails (see here, here and here) which indicate that abuse was happening under the direction of one or more Executive Orders?
12.2.2008 11:24pm
jukeboxgrad (mail):
holsinger:

ask any or all of proprietor Joe Katzman


Why should any objective person assume that Katzman has more credibility than you do?
12.2.2008 11:28pm
Benjamin Davis (mail):
I hope some of you will read the op-ed in the Washington Post from Sunday by a former US interrogator in Iraq on the use of the Gitmo techniques in Iraq AN INTERROGATOR SPEAKS
I'm Still Tortured by What I Saw in Iraq
. Gives an idea from a soldier's perspective of the costs of this torture strategy. Keep in mind also that the people convicted at Abu Ghraib for doing the bidding of the higher ups have already faced a trial. So we already have low levels put through criminal process. And those convictions operate as a defacto life sentence for them (difficulty trying to get work with a bad conduct discharge etc). The high-levels who put the policy in place that was a crime should also face the music - even if they have powerful friends who are willing to special plead for them or themselves.
Best,
Ben
12.2.2008 11:46pm
John Moore (www):
Prosecutions would be disastrous for the country. It would rend us apart more than we already are. When there are honest differences of opinion about the legal situation; when emergencies (such as 9-11) happen; then is not the time to be using the crippling power of prosecutors against former civil servants.

Didn't the left learn anything from the Clinton impeachment? The right has. We know we screwed up big-time. Almost every time a special prosecutor has been turned loose, people have been persecuted. Innocent people have had to spend millions of dollars in legal fees. People have gone to jail for offenses unrelated to the investigation (CFE Scooter Libby). Injustice reigns in the name of justice.


There is litte more chilling than a prosecutor with an unlimited budget!

The fear of career damage and legal prosecution, initiated by the Carter era Church hearings, emasculated the CIA. It has not recovered. Yes, some bad actors were found out. But the message to everyone else was: CYA.

Do we want the people who are on the front lines of our defense to be so busy protecting themselves from potential future prosecutions (or Church committee witch hunts) that they won't take necessary actions? This is already a big problem.

The rush to punish the guilty or maybe guilty or people who just did unpleasant things is especially galling when one considers how little tribute is given to those who have done so well for us. How many combat award ceremonies do we have on TV? How many Iraq war heroes have been recognized? Heck, even Pat Tillman's heroism was tarnished by muckraking about the friendly fire, as if that in any way diminishes the man's actions.

The bias is appalling.

Those so willing to cripple our national defense and intelligence apparatus should read this report predicting a biological or nuclear weapons attack within the next 5 years, or listen to this.
12.3.2008 1:47am
bushbasher:
"Didn't the left learn anything from the Clinton impeachment? The right has. We know we screwed up big-time."

yep. on the one hand the brave investigation of the semen-staining of a dress. on the other hand a needless investigation into torturing. you guys have really learned a lot. nothing wrong with your perspective.

how dare anybody make our brave fellows on the front line look over their shoulder as they nobly waterboard another teenager. nope, not a hint of psychopathy here.
12.3.2008 2:52am
TLove (mail):
Boys and girls, the answer is simple. Brezhnev didn't execute Kruschev. Because Brezhnev had the sense to want a nice black sea retirement for himself as well. Limits, people, limits.

Obama would be a fool on many levels to pursue the prior administration. He should understand that Bush isn't the last Republican president, and possibly not even the last Bush Republican president. As you sow, so shall you etc. etc.
12.3.2008 3:13am
tsotha:
Obama isn't gonna prosecute anyone - he just isn't that stupid. For one thing, Kos Kidz, he already has your money. Michelle is measuring for drapes in the White House, and I'm sure they both thank you from the bottom of their hearts. Now get lost, the adults are talking.

But more importantly, like a good chess player Obama is looking one or two moves ahead. Let's say a few people get prosecuted, it makes the headlines, and life goes back to normal. Republicans and "security hawks" are pissed off, but who cares, right? Then there's this big terrorist attack. Sirens blaring, smoke-filled skies, children crying for their mothers...

Now the Democrats really aren't looking forward to the next election.

See, what Obama really needs to be able to say when that attack occurs is "We were even tougher than Bush was." And he can't do that if the security people are looking over their collective shoulder.
12.3.2008 3:30am
Vermando (mail) (www):
"The incentives for future lawyers and agents will be bad ... agents have become highly risk-averse, refusing to take actions that promote security because of the fear that the actions, even if lawful, will give rise to legal risk ... On this view, however, the real culprit is Congress, which insists on regulating national security agents rather than giving the president a free hand."

Professor, I may be wrong, but I think you are missing the way in which the two perspectives of Goldsmith can be brought together to evade the final sentence that I bolded.

In particular, as, amongst others, Philip Bobbitt has argued, one reason that our agents feel that they have to violate the law is because our law - both domestic and international - has not kept up with our security needs. Cops are liable if they break the law in the performance of their duties, but we don't think of them as being trapped in a terrible ethical bind because our laws of criminal procedure and adjudication have, for the most part, kept up with their investigatory and prosecutorial needs. That is not the case in the national security arena.

This point works in tandem with Goldsmith's second view that you mention - instead of just directing the violation of the law, President Bush should have worked for reform of the law. As a simple example, he likely could have gotten FISA reform in line with the TSP through the Republican Congress post-9/11. He did not, leaving our agents and cooperative third parties in legal limbo, possibly, as many Republicans were happy to point out, endangering our national security. One answer here is what is in bold above - to blame Congress for not just letting the President do whatever he wants - but the other is to reform the law consistent with the needs of the TSP.

As a consequence, the two views do not, as you suggest, necessarily lead to different positions vis-a-vis pardons and legal reform. Instead, I believe that they - or more appropriate 'it,' if you believe the two views actually work together as one - are agnostic with respect to pardons. You can argue that our agents should be pardoned because they were doing what they felt they had to do to protect us. Alternatively, you can argue that pardons would remove incentives to reform the law in such situations in the future, and that this particular group of agents demonstrated particular moral culpability by disregarding incentives that would have made any normal person think twice. I don't think that either view necessarily flows from one's position about agency incentives and legal reform.
12.3.2008 4:04am
Kilo (mail):
"Bush should issue pardons, if for no other reason than to give those who served him some peace as they depart government."

Er... no.
As Scott Horton points out, that's actually the most that could be done to ensure they ARE prosecuted.
The US won't be prosecuting under any circumstances. All that pardons do is clear the way for foreign prosecutions. It's literally a rubber "OK TO PROSECUTE" stamp for that and nothing else.

Internally, as far as US prosecutions go, the interrogation tactics approved on the record by the entire NatSec staff (absent the POTUS) violated like half a dozen US laws and statutes going all the way back to Washington on the standards for treatment of prisoners and prohibitions on torture.

The validity of pre-emptive pardons for all this may be in question, but as I said, it's irrelevant. No new Democrat administration is allowing an outgoing Republican administration to be prosecuted for torture programs. Especially not one that the Democrats were briefed on and approved of.
12.3.2008 4:51am
Kilo (mail):
Scott Horton on War Crimes Prosecutions...
salon.com/opinion/greenwald/radio/2008/11/19/horton/
12.3.2008 5:01am
ThomasD (mail):
I can't believe the mindset on this thread.

You cannot believe what you do not understand. the mindset of much of this thread is that the progressives' howling about supposed crimes and threatening prosecutions was nothing more than political theater intended to win an election.

Now with the election safely secured all of this will fall by the wayside. Or do you honestly see Obama taking any actions that might diminish his own power or authority? Never mind some poor prosecutor being assigned the task of proving any incidents of actual torture to a real live jury.

And, just in case you haven't received the President Elect's memo, ixnay on the itaryunay ecutiveexay shibboleth.
12.3.2008 9:44am
CBM (mail):
How is this win-win? By accepting a pardon, one is admitting guilt. Unless the Left is correct that the administration is run by an evil cabal bend on world domination (somehow they forgot about that pesky term limits problem), then maybe they are willing to do so. But if these folks truly believe the administration has complied with the law, how likely are they to admit guilt? Would Bush even consider offering them given this fact?

If pardons were offered at all, I think it would be by Obama to avoid the problems Mr. Posner cites. If I were in their shoes, I would tell Obama to cram it and let the show trials begin.
12.3.2008 9:52am
Benjamin Davis (mail):
The Society of American Law Teachers joins human rights groups urging president elect obama consider prosecuting use of torture

Torture split us - criminal prosecution will provide the full record and send to jail the top level people who put the policy in place. The low level people have already been convicted and served time. They will serve a life sentence based on those convictions (bad conduct discharge etc). Where was the weeping for those poor folks when they were being thrown under the bus by the folks up top? The law applies to the high and mighty and to the low level also.

Best,
Ben
12.3.2008 10:06am
Ken Arromdee:
I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo.

Was that number one in the sense that without it, they wouldn't be there? Or was it just number one in the sense that that's the excuse their recruiters used most often but without it, they would have just been recruited using some other excuse instead?
12.3.2008 10:22am
Peter the slow (mail):
Short argument:

People are yelling "torture" with more outrage than this week's unambiguitus example produced.

The law is the law but you can't argue with success.

If we are hit in the next 8 years, they won't want the guys who foiled them the previous 7 on trial when it happens.

Long version here.
12.3.2008 11:00am
Crust (mail):
Thomas_Holsinger:
Just go to WindsofChange.net and ask any or all of proprietor Joe Katzman, his assistant Marc Danziger (Armed Liberal) or moderator Trent Telenko about Lazarus. The only non-negative thing they'll say about him is that he posts a lot.
Huh. This statement by Armed Liberal sounds kind of non-negative to me:
Andrew Lazarus has been one of the most fervent - and yet thoughtful - opponents of the war in Iraq in our comments, and I thought it would be a good idea to invite him to set out his whole argument in a more expansive format.
12.3.2008 11:09am
Crust (mail):
PS to Thomas_Holsinger: That quote is the first sentence of the top hit for a Google search for Lazarus on WindsofChange.net.
12.3.2008 11:10am
Thorley Winston (mail) (www):

How is this win-win? By accepting a pardon, one is admitting guilt.


Nope, not at all. It can also mean that you were both innocent of any law-breaking and right but prefer not to bankrupt your family with legal fees to defend yourself from a politically-motivated prosecution.
12.3.2008 11:27am
jukeboxgrad (mail):
peter:

The law is the law but you can't argue with success. If we are hit in the next 8 years, they won't want the guys who foiled them the previous 7 on trial when it happens.


The WTC was first hit about a month after Clinton took office. We then went through the rest of Clinton's term without suffering another domestic attack (unless you want to claim that Timothy McVeigh is part of the vast Islamofascist conspiracy).

This obviously proves that Clinton "foiled them" by playing the saxophone. After all, "you can't argue with success."
12.3.2008 11:46am
jukeboxgrad (mail):
thomasd:

Never mind some poor prosecutor being assigned the task of proving any incidents of actual torture to a real live jury.


Bush has declared, via his State Dept, that sleep deprivation and using water to asphyxiate are both forms of torture. (His State Dept made those declarations in the context of condemning certain other countries for using those techniques.) At the same time, there is ample reason to believe that we have used those methods on our captives.

There's also a long history of US courts treating waterboarding as a form of torture (pdf).

Maybe you're picturing "a real live jury" of people like you, who apparently believe that a given act is 'torture' only when someone else does it, but not when we do it.
12.3.2008 11:52am
Brian G (mail) (www):
ANy prosecutions would be nothing more than criminalizing policy differences. And some day, the Republicans will be back in power and would be looking for their own blood.

Obama should just let it go, which I am sure he wants to do.
12.3.2008 11:54am
Crust (mail):
jukeboxgrad:
Bush has declared, via his State Dept, that sleep deprivation and using water to asphyxiate are both forms of torture. (His State Dept made those declarations in the context of condemning certain other countries for using those techniques.)
Ah, but you forgot that it only shocks the conscience when other people do it.
12.3.2008 11:59am
Richard Aubrey (mail):
Doesn't shock the lib conscience.
See Chabad House, Mumbai.
12.3.2008 12:37pm
Crust (mail):
Brian G:
[Any] prosecutions would be nothing more than criminalizing policy differences.
It's amazing that we've gotten to the point that approving torture, FISA violations, non-compliance with subpoenas and so on are considered by some to be mere policy positions. Apparently these acts are to be thought of as presumptively not criminal such that enforcing the law constitutes "criminalizing" what otherwise ought not to be thought of as crimes.
12.3.2008 12:42pm
wfjag:
London-Litigator wrote:

However, it may be wrong to look at pardons in a purely domestic context: torture is a "ius cogens" crime of universal jurisdiction.


The Times (UK) reports Mumbai police to use truth serum on 'baby-faced' terrorist Azam Amir Kasab (Dec. 3, 2008), www.timesonline.co.uk/tol/news/world/asia/article5280084.ece

And, the outrage of the left - US, UK, elsewhere -- is reported where?
12.3.2008 12:52pm
jukeboxgrad (mail):
crust:

It's amazing that we've gotten to the point that approving torture, FISA violations, non-compliance with subpoenas and so on are considered by some to be mere policy positions


That's because there are some "policy differences" with regard to the question of whether or not Republicans are above the law.
12.3.2008 1:08pm
Lucius Cornelius:
A little food for thought. I think that people in this thread have different ideas about what types of crimes could be committed by government officials during any president's administration and when pardons may be appropriate. Let's look at a few categories:

(1) Undisputed crimes: murder, theft, extortion, bribery, embezzlement, drug dealing, smuggling, torture involving mutilation that have nothing to do with public policy and are purely involved with self enrichment and personal gain of the individuals engaging in the criminal activity.

I believe that a presidential pardon with respect to the first category would be an abuse of the pardon power. I also believe that there would be no threat to the continued existence of the Republic if a successor administration were to have the Justice Department pursue prosecutions of this type of illegal activity.

(2) Illegal policy for an arguably justifiable reason: domestic espionage, presidential suspension of habeas corpus, torture involving mutilation all of which actually stop a nuclear attack on the US.

The second category is a bit more difficult. This category really involves a dispute over policy between an administration and Congress. We should be very wary about prosecutions in these cases. The best remedy is for the public to decide by choosing on election day. Arguably, FDR's actions in supporting England prior to WWII were illegal. But he did it in plain sight of everyone. The Reagan administration should have supported the Contras the same way. By doing this in plain view one challenges Congress to take action (impeach the president)…probably not going to happen no matter how t'eed off Congress gets (of course, some argue that the Boland Amendments that prevented the Administration from aiding the Contras may have been unconstitutional; but by going covert, the Reagan administration created an environment where a great deal more illegal activity could occur).

At some point, the public will be willing to forgive public officials for some (certainly not all) criminal actions. This would be analogous to the "necessity doctrine." The evil prevented is much greater than the evil inherent in the policy. James Bond may be violating Blofeld's civil rights by invading his fortress, killing his guards, and stealing his secret plans…but we are damned glad that Bond stopped Blofeld from nuking Miami. The same applies for Jack Bauer. However, we don't want the government to make a habit of authorizing this conduct.

(3) Potentially legal but vague policy: some people carrying out the policy engage in conduct that is ultimately found to be illegal based on an incorrect interpretation of the policy

(4) Legal policy gone bad: (policy could be vague) and some people carrying out the policy go too far

(5) Legal policy: is legally implemented, but is politically unpopular

These three categories really involve disputes over policy. Generally, a successor administration pursuing prosecutions of officials because of policy disputes would be very harmful for the continued existence of the Republic (as some writers have noted above).
12.3.2008 1:16pm
LM (mail):
Objections to the Bush administration's conduct of the Iraq War break down into three categories:

1. Incompetence in the planning and execution;

2. Obtaining Congressional authority and public support by deception; and

3. Using illegal surveillance and interrogation tactics.

Most people would agree #1 should be and has been punished by the political process.

On #2, putting aside the contentious question of whether the administration did in fact lie (I believe they did), most people would probably agree that if they lied, that would be wrong. I think this calls for a serious national discussion about what level of honesty is reasonable for us to expect from our leaders on questions of law and security, since, to be fair, I'm not aware of a war we've fought in that wasn't preceded and/or accompanied by government deception to manage public opinion. That said, even if there was a public consensus that such deception should be punished, I assume it be through the quasi-political process of impeachment, not criminal prosecution.

Which leaves #3, the subject of the OP. And the reason #3 is different is that we undermine ourselves as a nation of laws when we turn a blind eye to criminal lawbreaking in our government. If, as some would argue, the lawbreaking in this case (like the deception under #2) was necessary for our survival, then at least we need to confront that structural contradiction, not sweep it under the rug.

I'm not saying anyone did anything for which they should be criminally punished. Frankly, I have no idea if they did or they didn't. There seems to be some agreement across a pretty broad ideological spectrum that illegal surveillance and interrogation were conducted. The question is whether they were sanctioned or ordered with criminal intent. That's a question that won't be answered without a proper investigation. And without at least attempting to answer it you can add this to the list of responsibilities we're trying to shirk, but are really just kicking down the road.
12.3.2008 2:13pm
Anderson (mail):
And, the outrage of the left - US, UK, elsewhere -- is reported where?

Dunno about you, but I'm an American, and the country whose use of torture outrages *me* is the United States.

When Russia or China or India tortures people, that's bad and I would like them to stop ... but I'm not a citizen of those countries and I have no say in their government.

Whereas in America, I can rest assured that my blog comments are being heeded in the innermost vaults of power.
12.3.2008 2:14pm
Richard Aubrey (mail):
Anderson.
Cheap excuse. See, the issue is that, if some kind of intercourse is promoted with one of those nations, the bad things you'd like them to stop.... They don't count. They don't exist. Anybody who points them out probably gets off on the very idea and is a meanie. So we should get all mushy with those folks.
Cheap excuse.
12.3.2008 3:00pm
Crust (mail):
Richard Aubrey, torture is universally outrageous no matter who does it.

The focus on America is natural for three reasons:

1. Most of us here are Americans, so naturally America is a focus of concern. Some of us would one day like to be able to see it again as "a shining city on a hill" as that progressive radical Ronald Reagan used to put it.

2. America is the most powerful nation on Earth.

3. I just don't run into a lot of people trying to defend Mugabe or the Saudis or whoever. So while abuses there are obviously (far) worse than here, I mostly take that for granted and don't put a lot of energy into explicitly criticizing them. I imagine most others feel the same way.
12.3.2008 3:32pm
Thomas_Holsinger:
Obama's decison to keep Secretary of Defense Gates was the tip-off that the whole pardon controversy is a non-starter. Gates had been Director of the CIA in the elder Bush administration. There is no way that he'd have agreed to stay on absent assurances of no such prosecutions. Bush '41 would know this. Ditto for Obama's selection of former Marine Corps Commandant James Jones as his National Security Adviser.

Obama's appointments in this area have clearly signalled that there will be no major changes in national security policy for a while.

What will be interesting is how bad the disasters will be when the national security establshment leads him off the cliff the way it did to Bush '41, who consistently chose their consensus opinion until overruling them on the Surge in Iraq. Neither Obama or Bush '41 had any experience in this area prior to being elected President, which means an inability to tell *hit from gold until well and truly stepping into the former.

Sometimes the establishment produces good advice and plans, and sometimes it doesn't. The plan for the Afghan campaign was devised during the Clinton administration, and was implemented promptly and quite successfully after 9/11.

The American national security establishment's decision to conquer Iraq in the event of a major terrorist attack in the U.S. was likewise made during the Clinton administration, and was so widely known that almost all the foreign businessmen in Iraq on 9/11, eagerly awaiting the end of U.N. sanctions, vanished within 10-14 days afterwards. Some came back for a while when the expected American invasion was delayed, but they were a small proportion of the swarm there on 9/11.

The Department of Defense developed a variety of pre-9/11 plans for the Iraq conquest campaign, and a variant of one was successfully implemented, but what was surprising, after the fact, was the almost complete absence of effective planning for the occupation campaign, particularly given the 18-month interval between 9/11 and the invasion. The reasons for this are outside the frame of this discussion, but that there were no effective plans for the Iraq occupation proves one very germane point:

The national security establishment can screw up big-time, and poison a presidential administration. Their consensus opinions and advice on major issues simply cannot be accepted as safe to follow. Every war President must use his own judgment, and not blindly accept the consensus (aka lowest common denominator) opinion of his advisers. The Bush '41 administration was crippled because he did that concerning the invasion of Iraq. He did not understand that they had no plan for what would happen afterwards. Bush '41 first overruled them only in the middle of his second term when events showed their advice to be clearly in error.

And Obama has no executive experience at all. His learning curve here will be steeper.

What price will Americans pay while President Obama learns that he cannot simply accept the consensus opinion of his national security advisers?
12.3.2008 3:49pm
jukeboxgrad (mail):
You said "Bush '41" about five times. You didn't mean that, right?
12.3.2008 4:48pm
jukeboxgrad (mail):
lucius:

At some point, the public will be willing to forgive public officials for some (certainly not all) criminal actions.


Our court system provides room for forgiveness. A judge and a jury can take extenuating circumstances into account (in, say, your hypothetical example of "torture involving mutilation all of which actually stop a nuclear attack on the US"). But when we say the criminal actions should not even come before a court, then we are promoting lawlessness. The exact thing we accuse our enemies of promoting.
12.3.2008 4:48pm
jukeboxgrad (mail):
anderson:

When Russia or China or India tortures people, that's bad and I would like them to stop ... but I'm not a citizen of those countries and I have no say in their government.


Indeed. There are criminals in lots of places, and I'm outraged by them all. But I have a special duty to be concerned about criminals who are on my payroll. Their crimes are also mine, in a way that the others are not.
12.3.2008 4:48pm
Stuart Armstrong (mail):
Dear Eric Posner,

I'm afraid I've now lost the great respect I used to have for you, after your writing of this post.

Why do people spend so much time justifying torture, or finding arguments to defend those who indulged in it? Torture is a perfect villain; there is no shades of grey in its blackness.
1) It's morally evil.

2) It doesn't work, and produces very unreliable information (outside of specific "ticking bomb" situations that never actually happens - under what realistic circumstances could the US government be certain that a) there is a bomb in a city, b) that is will go off in a very short time-frame, c) that so-and-so knows where it is, but d) not know where it is themselves? But the proof is in the pudding - when has this happened?)

3) It blackens our reputation and is a recruitment for terrorists - but much more importantly (you might argue -wrongly- that ALL of those terrorists would have attacked anyway), it allows those terrorists to gain the sympathy of the population they operate in. A sympathy that makes it much more likely they will succeed.

4) It degrades and brutalises those who carry it out.

Really, people, there is no redeeming streak in this villain, no hidden depths to convince us that torture isn't such a bad chap after all. Torture is the cartoon villain for five year olds: a pure, simple evil.

(illicit surveillance, on the other hand, is another issue entirely)
12.3.2008 5:32pm
wfjag:
Crust: 2 points:
1. London Litigator isn't an American. But, he is asserting that "torture" (an ill defined concept) "is a 'ius cogens' crime of universal jurisdiction". So, it is the height of arrogance to restrict the discussion to Americans or assert that Americans have some sort of special interest in "torture", since as an ius cogens crime, the nationality of the perp is irrelevant so that everyone has equal interest in the issue and in enforcing "universal" criminal standards); and,

(2) more importantly, I don't see calls for or even half-assed attempts to "arrest" to extradite non-Americans (or, more exactly, non-Republican Americans) to face trial for war crimes under the universal jurisdiction argument, except in very limited circumstances (e.g., people involved in the Rwandan genocide brought to Belgium for trial - there being a historic link between Belgium and central Africa).

So, if "torture" is a serious issue to the political left (US, UK and elsewhere) and not merely a partisan political tag line, then there must be universal consistency of condemnation and application of criminal standards. Of course, if that is attempted the result may well be that in the face of consequences, there won't be nearly the supposed "universal" condemnation or agreement on what acts and practices are or are not "torture" subject to "universal jurisdiction."

And, also in that case, you, as an American, will have the legal right (which is generally respected) to have personal opinions that gov't officials do not agree with, but, unlike many people in the world (possibly a majority of the earth's population) will not have to worry that during the night someone will take you from your home due to your personal opinions, either for "re-education" or never to be heard from again. You will thus be in a position to urge your opinions as "what should be", but not able to assert your opinions as "what is".
12.3.2008 5:47pm
Elliot123 (mail):
"the public at large knows only the tip of the iceberg about what harsh treatments have been used on innocents and children."

Can you tell us about the rest of the iceberg?
12.3.2008 7:00pm
Crimso:

But when we say the criminal actions should not even come before a court, then we are promoting lawlessness.

Does this include perjury? How about illegal unprovoked aggression in the Balkans? Extraordinary rendition? If we're going to try members of former Administrations, shouldn't we go about it in chronological order? Kissinger's still alive. Let's execute him.
12.3.2008 7:33pm
Andrew J. Lazarus (mail):
Holsinger post upthread.

Lazarus invents the facts he prefers would exist…

Holsinger post upthread.

I've seen Lazarus make vicious personal attacks… [I would have] banned Lazarus for good over those.
I'd say this juxtaposition illustrates the same point as the torture debate: the radical-right wing (to call it "conservative" is ridiculous; approval of torture is not a conservative value) has lost even an ironic sense of the Goose-Gander Principle.
12.3.2008 7:38pm
John Moore (www):
I suspect that, with activists like those at the conference Ben reported on, Bush administration officials may face harassment in all sorts of jurisdictions, and may not be able to safely travel to foreign countries.

The insanity of criminalization of political disputes, and the crazyness of the Europeans who tend to support the ICC may soon be obvious to all.
12.3.2008 9:07pm
jukeboxgrad (mail):
crimso:

If we're going to try members of former Administrations, shouldn't we go about it in chronological order?


I personally think that the seriousness of the offense is more relevant than "chronological order." I also think that torture is more serious than lying about a blowjob. I also recall that some legal proceedings (including a trial before the Senate) did in fact take place in connection with that very weighty matter. Did you not notice? Ken Starr spent about $40 million.

I also am not generally inclined to make excuses for bad behavior on the part of "members of former Administrations." The last time I voted for the winning candidate (for president) was over thirty years ago (and I've voted in every national election, during that period). In other words, don't blame me. I think it would be good if we had a two-party system.

Kissinger's still alive. Let's execute him.


It's important to have a trial first.
12.3.2008 9:59pm
Richard Aubrey (mail):
juke.
Nice--aw hell, not even average--try at misdirection.
Nobody's talking about Clintonian perjury.
We're talking about his extraordinary rendition and illegal war in Kossovo.
Since you've been around as long as you claim, you must have mounds of records of your objections to said offenses at the hands of BJC.
If you don't, you're just a partisan hack. And you're not a partisan hack. So let's see twenty or thirty thousand (contemporary) words about Clinton's extraordinary renditions. You must have them handy.

And, ref Palin's anti-Semitism. SAMANTHA POWER. Got any comments?
12.3.2008 10:33pm
jukeboxgrad (mail):
aubrey:

Nobody's talking about Clintonian perjury.


Crimso recently said this:

Does this include perjury?


Since you have a stunning array of magical powers, I hope you can tell us how you know that Crimso wasn't "talking about Clintonian perjury."

So let's see twenty or thirty thousand (contemporary) words about Clinton's extraordinary renditions.


You seem to be under the impression that I've posted "twenty or thirty thousand (contemporary) words" about Bush's extraordinary renditions. I'll be waiting patiently while you look for one example of me making a statement on that subject.

Speaking of having no idea what you're talking about, you also seem to be under the impression that Clinton's extraordinary renditions were public knowledge while he was in office. Really? Prove it.

You also seem to not know this:

The current policy traces its roots to the administration of former President Bill Clinton. Following the attacks of September 11, 2001, however, what had been a limited program expanded dramatically, with some experts estimating that 150 foreign nationals have been victims of rendition in the last few years alone.


But I realize that "Clinton did it" makes for a nice all-purpose alibi. Even when Bush "expanded dramatically" on what Clinton did.

SAMANTHA POWER


I think it was you who just made a comment about "misdirection." Thanks for the laugh.
12.3.2008 11:30pm
Richard Aubrey (mail):
juke.
Then you must have twenty or thirty thousand words on how the press and the admin let us all down by keeping Clinton's extraordinay renditions quiet. Shouldn't public-spirited whistle blowers have leaked this stuff to the NYT?

And, no, Power's not a misdirection. It's a separate subject, referring to your lame attempts to make Palin the Jew-hater.
12.4.2008 12:04am
whit:

2) It doesn't work, and produces very unreliable information (outside of specific "ticking bomb" situations that never actually happens - under what realistic circumstances could the US government be certain that a) there is a bomb in a city, b) that is will go off in a very short time-frame, c) that so-and-so knows where it is, but d) not know where it is themselves? But the proof is in the pudding - when has this happened?)



not this canard again. look, in some circumstances torture DOES work. there are PLENTY of people who are experts in interrogation who admit it works in many cases. specifically, there are many methods that work much better, but also often require significanty time to implement.

but argue facts here. we can play dueling experts if you like, but there is HARDLY anything close to a consensus that torture does not work.

torture, like many interrogation techniques (reid comes to mind) has some utility in some situations.

that says zero about it's morality, which is not what i am disagreeign with here. i am addressing your false claim that it is settled that torture does not work.
12.4.2008 4:40am
TruePath (mail) (www):
Stuart Armstrong:


Dear Eric Posner,

I'm afraid I've now lost the great respect I used to have for you, after your writing of this post.

Why do people spend so much time justifying torture, or finding arguments to defend those who indulged in it? Torture is a perfect villain; there is no shades of grey in its blackness.



Uhh, what does this have to do with what he said. Claiming it's unjustified to prosecute people for doing X is a very different thing than saying X is okay and defensible.

I mean to take an extreme example look at the many many german citizens who did nothing to stop the holocaust or even supported the government who was doing these things despite their knowledge. Now this behavior was neither okay nor defensible but it would have been a horrible pointless idea to try to prosecute anyone but the people actually giving the orders.

Moreover, even though much of what the Bush admin did was (IMO) indefensible it's very hard to legally distingush between intensive interogations and the torture they engaged in without hamstringing the government. The best way to deal with this is not prosecutions but electing better leaders.
12.4.2008 5:46am
bushbasher:
"Claiming it's unjustified to prosecute people for doing X is a very different thing than saying X is okay and defensible."

close enough, if X = torture. posner's post was pretty nauseating.
12.4.2008 7:59am
jukeboxgrad (mail):
aubrey:

Power's not a misdirection. It's a separate subject


Your irony impairment is severe. Misdirection is "a form of deception in which the attention of an audience is focused on one thing in order to distract its attention from another." In other words, gratuitously raising "a separate subject."

Speaking of misdirection, we're still waiting for you to explain why you said "nobody's talking about Clintonian perjury," shortly after Crimso made a comment about "Clintonian perjury." And we're also waiting for you to explain why you implied I've made a fuss about "extraordinary renditions," when it's actually something I've never mentioned. Is it because you're determined to add to your track record of inventing your own facts?
12.4.2008 8:14am
jukeboxgrad (mail):
whit:

torture DOES work


Can you show proof that torture has ever saved lives? That question has been raised in threads here, here, here, here and here. As far as I can tell, no such proof has ever been provided.
12.4.2008 8:15am
jukeboxgrad (mail):
truepath:

Claiming it's unjustified to prosecute people for doing X is a very different thing than saying X is okay and defensible.


It might be "different," but it's not different enough.

it would have been a horrible pointless idea to try to prosecute anyone but the people actually giving the orders


You should familiarize yourself with the Nuremberg Trials. You're essentially invoking the Nuremberg Defense. Trouble is, it's not a valid defense against charges of war crimes.

The best way to deal with this is not prosecutions but electing better leaders.


When we set the precedent that leaders can commit crimes without being prosecuted, it's virtually inevitable that history will repeat itself, and that sooner or later we will end up with the opposite of "better leaders."

Something very similar happens when we set the precedent that it's OK for leaders to lie.
12.4.2008 8:15am
Richard Aubrey (mail):
juke.
You can never prove a counterfactual. You clever boy, you.
To "prove" anything like this, one would have to "prove" what would have happened otherwise, which, since it didn't happen, is not subject to investigation.
Try something else. This one's getting worn out.

Now that you've gotten your knickers in a bunch about misdirection--actually a change of subject--let's hear about Samantha Power and anti-Semitism.
12.4.2008 8:41am
jukeboxgrad (mail):
aubrey:

To "prove" anything like this, one would have to "prove" what would have happened otherwise, which, since it didn't happen, is not subject to investigation.


I'm not asking for perfect proof. I'm asking for something that even resembles proof. And it's not hard to imagine what this would look like: the bad guy blurts out the location of the bomb, and we get there as the timer has about a minute remaining. It's quite easy to imagine many logical variations on this. Therefore it should be possible to present one or more instances of such a thing actually happening.

By the way, I'm not claiming that such a thing could not possibly happen. I'm also not claiming that such a thing has never happened. I'm simply pointing out that no one ever seems to be able to present an example. This tends to create the impression that if such things have happened, they are extremely rare. And it's rational to take that into account when we contemplate the policy implications of being unduly impressed by fanciful stories about ticking bombs.
12.4.2008 9:47am
Richard Aubrey (mail):
Well, then, Juke, torture works. You say so. Or at least you're not saying it never works and can never work.
And I suppose it depends on whose lives were saved. The KGB and the Gestapo used it to penetrate resistance networks, thus saving the lives of those the resistance had planned to take. I'd have preferred the resistance succeed in those endeavors. But some highly professional and effective organizations have used it. You could certainly make the case that they tormented folks whose information was useless on the way to getting what they wanted. But that doesn't mean they didn't eventually get what they wanted.
But it doesn't show like Bruce Willis arriving as the LED counts down from sixty seconds, accompanied by loud beeps.
Anyway, as long as there's the possibility it will work, we have a moral question about prices paid. I don't like the idea of waving the whole thing off by saying it doesn't work. Cheap and easy.
Thing is, it works. So, let's see some debate on what we're willing to accept in lieu of information we don't have because we refused torture.
12.4.2008 10:27am
jukeboxgrad (mail):
aubrey:

it works


Some proof would be nice. But I realize you're long on undocumented anecdotes and short on proof.

let's see some debate on what we're willing to accept in lieu of information we don't have because we refused torture.


Why shouldn't torture have a role in our criminal justice system? Since "it works," why shouldn't we be using it to get child molesters to tell us about other child molesters they might know? Why shouldn't we be using it to get serial killers to tell us about other serial killers they might know?

After all, "as long as there's the possibility it will work, we have a moral question about prices paid." So "let's see some debate" on that. Or maybe you simply want to express your belief that police should torture, because if they don't "we have a moral question about prices paid."

By the way, I'm hoping that you'll still explain this strange remark you made:

Nobody's talking about Clintonian perjury.
12.4.2008 11:02am
Andrew J. Lazarus (mail):
Another tired defense of torture "working".
The KGB and the Gestapo used it to penetrate resistance networks, thus saving the lives of those the resistance had planned to take.
The KGB and Gestapo were willing to tolerate a huge number of false positives. It didn't matter to them if they swept up many random people along with the other members of the resistance. Indeed, since torture is an effective tool for terrorizing a population, false positives were more of a feature than a bug.

In a situation with limited resources and a need for accurate intel (anti-aircraft defense), even the Nazis eschewed torture in favor of trained interrogators.

Perhaps the Bush Administration was more interested in terrorizing the American people with a thought towards defeating liberals unwilling to torture at the polls, than in actually interfering with Al Qaeda.
12.4.2008 12:16pm
trorkkeenoge (mail):
bbcfrvwnlmyjagnawell, hi admin adn people nice forum indeed. how's life? hope it's introduce branch ;)
12.28.2008 10:58pm

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