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The Non-Prosecution of Bush Administration Officials—

Why doesn't the Obama administration prosecute CIA officials who violated laws against torture? Could it really be indifferent to its obligation to prosecute under international law? And why have the prospects of a "tap on the shoulder" receded in Spain? I answered these questions in the course of predicting these developments, in earlier posts, here, here, and here.

Cornellian (mail):
In a perfect world, we'd refuse to allow a "just following orders" defense for our own people, instead of just applying that rule to others, but not prosecuting front line CIA people is probably a political and practical necessity. I'd still expect them to name who gave them their orders though, and I'd follow that chain all the way up until I got to the guys who couldn't claim they were just following orders.
4.18.2009 10:30am
martinned (mail) (www):
Regarding the investigation by Judge Garzon, the story is explained here and here in El País, the left-leaning most respected newspaper in Spain.

A few quotes:


La fiscalía de la Audiencia Nacional emitió ayer un informe por el que pide que se rechace una querella presentada contra el equipo jurídico de la Administración Bush que hizo posible el limbo jurídico de Guantánamo.

La postura de la fiscalía ya había sido anticipada el pasado jueves por el fiscal del Estado, Cándido Conde-Pumpido, que calificó la querella de "fraudulenta", y dijo que admitirla sería como convertir la jurisdicción universal en "un juguete en manos de personas que buscan protagonismo".

Según Zaragoza, los querellados no son responsables directos de un delito de torturas, tal y como pretenden los denunciantes, la Asociación por la Dignidad de los Presos y Presas. En esa línea, Conde-Pumpido también puntualizó ayer que si se actúa por un delito de maltrato a los prisioneros de guerra, la denuncia debería ir contra los "autores materiales".

Los denunciados son Alberto R. Gonzales, principal asesor legal de la Casa Blanca hasta 2005, cuando se convirtió en fiscal general de EE UU, y otros miembros de la Administración de George W. Bush como David Addington, William J. Haynes, Douglas Feith, Jay S.Bybee y John Yoo. Según la querella, los hechos se remontan a los ataques contra las Torres Gemelas el 11 de septiembre de 2001 que provocaron "que el anterior Gobierno estadounidense diera inicio a lo que en esa administración se entendió como una guerra sin pausa contra el terrorismo".
4.18.2009 10:32am
corneille1640 (mail):
As a political maneuver, Mr. Obama would do well to issue a pardon to Messrs. Bush and Cheney. He then wouldn't have to go through a long and controversial prosecution but would demonstrate his anti-torture bona fides.

(Please note, I believe this would be "politically" wise--i.e., it would be a smart political move if Mr. Obama's only concern was the advancement of his own and his party's interest. I do not claim that such a move would be just; nor do I claim that a prosecution would be the right thing to do, either.)
4.18.2009 10:35am
Eric Rasmusen (mail) (www):
A prosecution would be in the public interest all round, as a test case. If the jury acquitted, as you've predicted reasonably in a previous post, that would perhaps quiet down the calls for prosecution of others. If it convicted, the president could pardon immediately. Also, the court would have to rule on whether the conduct in question is "torture". Congress, while listening with apparent approval to all the Bush methods in secret sessions, has refused to criticize the methods via clarifying legislation. It would be interesting to everyone to see what various levels of courts would say. Even if the Obama Administration thinks it would lose with the jury, it should be prosecuting the case to get the precedent-- unless it thinks it would lose. Is this thus evidence that the Left does not think its definition of torture would win with the courts?

The Bush Pardon is a clever political trick. It is a bit like "Mr. Bush, I pardon you for beating your wife". Is it possible legally to refuse a pardon?
4.18.2009 10:48am
bushbasher:
yes, posner predicted this. his posts amounted to "The practical question is one of political seriousness, not moral seriousness".

i'm disgusted by people like posner, and obama, who do not recognize the moral seriousness (to put it ludicrously mildly) of prosecuting those who participated in and those who sanctioned torture. i'm disgusted by a country which cannot generate the needed political seriousness from the overwhelming moral seriousness.
4.18.2009 10:54am
martinned (mail) (www):
@Eric Rasmusen: As I tried to point out in the previous thread, there already is quite a bit of case law on what is or is not torture. It just doesn't usually concern actions by US officials. This WaPo article discusses a number of cases that are directly on point.
4.18.2009 10:57am
D Kosloff (mail):
When were the North Vietnamese officials who used torture pardoned? Would the history of their trials be of interest?
4.18.2009 11:02am
Oren:
Because Obama doesn't want his policy choices criminalized by the next administration? Isn't that easy enough? Once you start to say that the other party's position is not just wrong, but illegal, you can't really have a democracy any more.
4.18.2009 11:27am
martinned (mail) (www):
@Oren: There is just one problem with that argument: "No (...) ex post facto Law shall be passed." A later administration can't go after its predecessors unless the latter did something that was already illegal when they were in power.
4.18.2009 11:34am
Jay C (mail):
Oren: while you're correct, IMO, about the general unwisdom of "criminalizing policy choices" - when "policy choices" by an American Administration actually DO excuse, or worse, foster criminal behavior by US Government agencies/employees, shouldn't a stricter standard than just "political expediency" apply to the consideration of punitive action"
4.18.2009 11:39am
Just an Observer:
Because Obama doesn't want his policy choices criminalized by the next administration? Isn't that easy enough? Once you start to say that the other party's position is not just wrong, but illegal, you can't really have a democracy any more.

But of course, if the actions really were illegal, and you can't prosecute lawbreaking for fear of partisan backlash, it is also hard to have a democracy.

This should not be about "the other party's position" at all, but about upholding this law regardless of parties. It is not right to fail to enforce the law for the sake of political comity any more than it is right to prosecute for political motives.
4.18.2009 11:49am
Brett Bellmore:

A later administration can't go after its predecessors unless the latter did something that was already illegal when they were in power.


But "already illegal" is a fuzzy concept in an age of living laws, isn't it? And "No (...) ex post facto Law shall be passed." is one of those inoperative parts of the Constitution, anyone who pled guilty to a domestic violence misdemeanor decades ago can tell you that.

I'm with Oren: It's as simple as Obama wanting to maintain, for his own benefit, the rule that you don't prosecute past administrations.
4.18.2009 11:58am
ruuffles (mail) (www):

As a political maneuver, Mr. Obama would do well to issue a pardon to Messrs. Bush and Cheney.

(Please note, I believe this would be "politically" wise)

Ford lost re-election.
4.18.2009 12:14pm
D Kosloff (mail):
Martinned,
The WaPo article didn't discuss any cases that are directly on point. The judge who wrote the article cherry-picked history. But there is a quote from the ariticle that is directly on point:

Consider this account from a Filipino waterboarding victim:

Q: Was it painful?

A: Not so painful, but one becomes unconscious. Like drowning in the water.
4.18.2009 12:19pm
Just an Observer:
As a political maneuver, Mr. Obama would do well to issue a pardon to Messrs. Bush and Cheney.
,

I would find a pardon of Bush, Cheney and their high-ranking subordinates a more forthright approach than just uttering mush about "This is a time for reflection, not retribution." The Constitution does grant plenary pardon powers to the President, and if he believes that political comity must trump criminal law in extraordinary cases, a pardon is a legitimate vehicle.

But pardons should come at the end of a fuller investigation and disclosure, not the beginning.
4.18.2009 12:27pm
martinned (mail) (www):

And "No (...) ex post facto Law shall be passed." is one of those inoperative parts of the Constitution, anyone who pled guilty to a domestic violence misdemeanor decades ago can tell you that.

For what it's worth, I got 347 hits on "ex post facto" searching Supreme Court cases alone. The most recent one that invalidated a statute on this ground was Stogner v California (2003).

@D Kosloff: Talk about cherry picking... (We do agree that the memos should have discussed these cases, don't we?)

Let's quote some more things that are in the article.

A towel was fixed under the chin and down over the face. Then many buckets of water were poured into the towel so that the water gradually reached the mouth and rising further eventually also the nostrils, which resulted in his becoming unconscious and collapsing like a person drowned. This procedure was sometimes repeated 5-6 times in succession.

Do we agree that this is torture?

How about this:

They laid me out on a stretcher and strapped me on. The stretcher was then stood on end with my head almost touching the floor and my feet in the air. . . . They then began pouring water over my face and at times it was almost impossible for me to breathe without sucking in water.


And finally, please explain why this is not directly on point:


During those detentions the plaintiffs experienced human rights violations including, but not limited to the following:

(...)

5. The “water cure”, where a cloth was placed over the detainee's mouth and nose, and water poured over it producing a drowning sensation;

(...)

All of these forms of torture were used during “tactical interrogation”, attempting to elicit information from detainees concerning opposition to the MARCOS government.

I took this from the original ruling, which is In re Estate of Marcos Human Rights Litigation, 910 F.Supp. 1460, D.Hawai‘i, November 30, 1995. The quote is from page 1463.
4.18.2009 12:47pm
Bob from Ohio (mail):

moral seriousness


Moral preening is the more accurate term. From the "I am so filled with virtue" crowd.

Caterpillars and grabbing collars. Just like the Nazis.
4.18.2009 12:48pm
Oren:

A later administration can't go after its predecessors unless the latter did something that was already illegal when they were in power.

I'm sure if you subpoena enough people and have your clerks thumb through the volumes of USC, you can find something your predecessor did that was illegal. It's much easier than discovering a crime and then finding the perp when you know who the perp is in advance and you need only find a crime to match his actions.


But of course, if the actions really were illegal, and you can't prosecute lawbreaking for fear of partisan backlash, it is also hard to have a democracy.

Except that the crime in question wasn't an act of violating the law, it was about constructing what the law meant.

Let me put it another way, in a functioning democracy, the legislature writes rules and the executive enforces them with a huge amount of deference to agency interpretation (Chevron). If the legislature finds that the executive is constructing the legislation contrary to their wishes, it is incumbent on them to rewrite it to make their intent more clear.

Many people seem to bandy about various methodologies that they feel the OLC should have used when assessing the technical meaning of the term "severe mental or physical pain". In attacking that judgment, it's not sufficient to point out that they could have used better methods (certainly) or that their result is not most in line with the statute (certainly) but whether it survives the deferential review standard.

If Congress wrote more about how the executive was to construct the terms in 18USC2340, I might think differently, but that's not how the statute was written.
4.18.2009 12:54pm
Oren:

We do agree that the memos should have discussed these cases, don't we?

Yes, they should have. But does that omission make for a case under the proper standard of review?
4.18.2009 12:56pm
einhverfr (mail) (www):
Maybe some deal can be worked out that those who are at high levels and have public oversight responsibility for the CIA (like the director) are given a pardon in exchange for a public apology?
4.18.2009 1:02pm
Just an Observer:
@matinned,

I expect that the OPR investigation would locate such cases involving waterboarding, and inquire about why they were not mentioned in this memo or Bybee's other torture memo of the same date.

Remember, neither memo was intended to see the light of day when it was written. (That's why secret law was so easily warped.)

It is the OPR investigation, and possibly some other venue in the future, that need to answer such questions.
4.18.2009 1:04pm
Just an Observer:
@matinned,

I expect that the OPR investigation would locate such cases involving waterboarding, and inquire about why they were not mentioned in this memo or Bybee's other torture memo of the same date.

Remember, neither memo was intended to see the light of day when it was written. (That's why secret law was so easily warped.)

It is the OPR investigation, and possibly some other venue in the future, that need to answer such questions.
4.18.2009 1:04pm
Toby:
IANAL - but I thought you could not be pardoneed before convistion (or confession whis is about the same). Am I wrong? What are the ectual rules...
4.18.2009 1:07pm
martinned (mail) (www):
@Oren: It appears two different questions got mixed up. i.e. a) Should the people who were responsible for these memos be prosecuted somehow? and b) Should the people responsible for the actual torture be prosecuted?

As for a), one can wonder whether the sheer awefulness of these memos rises to the level of malpractice, breach of professional ethics or some other grounds for disbarment. Beyond that, I don't think Bybee et al. can be prosecuted, nor that they should be.

As for b), the question is to what extent various CIA employees should get a pass because they relied on the memos. That depends first of all on whether they did, in fact, rely in good faith on the memos. (This has been disputed.) Beyond that it is a question about which reasonable people can disagree. After all, bad legal advice isn't normally a defence in criminal court. From a strictly legal point of view, it looks like the degree of culpability gets higher as one moves up the food chain. Some of the higher offials certainly had to know better. Finally, the question is whether it would be practically and/or politically opportune to prosecute senior Bush administration officials. The answer is probably no, but that only begs the question of whether the American people should put up with such pragmatism.
4.18.2009 1:09pm
rosetta's stones:
There will be no prosecutions, obviously.

Barrack is protecting the ability for him and future presidents to waterboard and use other coercive interrogation techniques, as they choose.

Hard to read all this any other way.

Cue Roger Daltry.
4.18.2009 1:10pm
Just an Observer:
Oren: Except that the crime in question wasn't an act of violating the law, it was about constructing what the law meant.

Let me put it another way, in a functioning democracy, the legislature writes rules and the executive enforces them with a huge amount of deference to agency interpretation (Chevron). If the legislature finds that the executive is constructing the legislation contrary to their wishes, it is incumbent on them to rewrite it to make their intent more clear.


In our functioning democracy, it was the function of the OLC to interpret the law objectively, not to distort it with bad-faith, tendentious arguments more suitable for advocacy than for OLC's mission of advice and adjudication.

That crass abuse of the very mechanism of justice was the underlying wrong here. It is not within the gift of appointed government lawyers to distort interpretation of criminal law to actually facilitate lawbreaking by the government.

I still am not sure what the right form for accountability should be for perpetrators such as Yoo and Bybee. But I refuse to buy the tripe that this, or similar lawbreaking in the matter of FISA, was just a gentlemanly "policy" question among lawyers.
4.18.2009 1:17pm
Oren:

After all, bad legal advice isn't normally a defence in criminal court.

Sure, I can still sue you for actions taken under bad advice from your lawyer. The question here is whether the DOJ can prosecute someone who was following DOJ advice.

In US civil law, the equivalent answer is certainly no. If the company lawyers advise me that I can do X, the company is absolutely estopped from ever suing me for doing X.
4.18.2009 1:44pm
gerbilsbite:
Just a guess, but I'm assuming that the agents who would be prosecuted in this instance all have extensive overseas histories and many of their contacts, sources and assets are still placed in sensitive or dangerous positions. When Valerie Plame's name leaked, the biggest concern I had at the time was that all of her contacts, and the contacts of any other agent employing the Brewster-Jennings corporate front, were compromised.

So my question: how could we structure an open trial that doesn't divulge the same sort of information about the operatives in question?

There might be a way, but I can't think of one offhand. Secret trials won't work (can you imagine the hue and cry stemming from an acquittal?). As soon as the names are divulged the problems begin.

The only workable solution I can think of is to establish that the men at the top of the ladder are inherently responsible and hold them accountable for the actions of the operator-level interrogators. Then there's accountability and preservation of critical information.
4.18.2009 1:59pm
Oren:

In our functioning democracy, it was the function of the OLC to interpret the law objectively, not to distort it with bad-faith, tendentious arguments more suitable for advocacy than for OLC's mission of advice and adjudication.

And whether or not their construction (quibble: not interpretation) is a permissible one is subject to considerable deference that you have yet to address. It's one thing to say that the memos are wrong (certainly) but it's another to say that it was entirely impossible.


That crass abuse of the very mechanism of justice was the underlying wrong here. It is not within the gift of appointed government lawyers to distort interpretation of criminal law to actually facilitate lawbreaking by the government.

That's circular.


I still am not sure what the right form for accountability should be for perpetrators such as Yoo and Bybee. But I refuse to buy the tripe that this, or similar lawbreaking in the matter of FISA, was just a gentlemanly "policy" question among lawyers.

What else could it possibly be if not policy? What exactly do you think that word means? Conversely, what is the name you give to the act that constructs the meaning of the words "severe physical or mental pain"?
4.18.2009 2:00pm
Cornellian (mail):
I'm sure if you subpoena enough people and have your clerks thumb through the volumes of USC, you can find something your predecessor did that was illegal.

That is indeed a problem with the United States Code, a product of thirty years of "tough on crime" rhetoric from politicians. I actually do think politicians should be prosecuted more often, not less often, and on the basis of broad, vaguely worded statutes. The more often that happens, the more likely that Congress might actually get around to doing something about that problem.
4.18.2009 2:01pm
Oren:

I actually do think politicians should be prosecuted more often, not less often, and on the basis of broad, vaguely worded statutes.

You don't think selective prosecution might be a problem or do you intend to really eviscerate political control over the DOJ? Either one is pretty bad.
4.18.2009 2:19pm
Just an Observer:
Oren:That's circular.

Not if the OLC lawyers act in bad faith, producing results-oriented opinions to support "policy" when dispassionate and objective reasoning would not.

Oren: What else could it possibly be if not policy? What exactly do you think that word means? Conversely, what is the name you give to the act that constructs the meaning of the words "severe physical or mental pain"?

DOJ has another office called the Office of Legal Policy. The mission of the Office of Legal Counsel is to advise the president and the executive branch on what the law is. That does include the interpretation of statutes, as you suggest, but that is something different than "policy," which term typically pertains to what political leadership wishes to do.

OLC does have a mission to interpret the law -- objectively and in good faith, as a judge would, not just as an advocate might argue. Its interpretation should not be oriented to the result that "policymakers" would like. To the contrary, it is OLC's responsibility to say no to policy if such policy is unlawul. And if "policy" actions violate existing criminal law, then it is called "crime."
4.18.2009 2:29pm
Andrew J. Lazarus (mail):
Are these the original memos or were they translated from German and Japanese?

If these criminals are not called to account, what will the next Republican President's OLC (assuming, reasonably, that at some point there is another Republican President) think up?
4.18.2009 2:32pm
DennisN (mail):
If the Obama administration were to prosecute Bush administration officials for what amounts to policy matters - political crimes - I would advocate trying Obama administration personnel probably including the POTUS himself for Treason and seeking the death penalty. We can come up with the details later.

This is the slippery slope, and it's a pretty steep one, for criminalizing policy decisions. If you didn't like the Bush policies, impeach him. That's the political remedy.

This is one of the faults that brought down the Romam Republic, and I think it would do for ours as well.

Fight politics with politics.
4.18.2009 2:37pm
Constantin:
You don't even have to look to retribution-for-future-events to see why Barack won't prosecute, though I'm sure he's already done something that violates some law or another.

Pelosi and Rockefeller were fully aware of the waterboarding. It's a matter of public record. You don't think the next GOP president will have charges brought against these two, and the other Democratic congressmen who urged these and tougher techniques per the WaPo, as payback?
4.18.2009 2:48pm
Eric Rasmusen (mail) (www):
@matinned,
Thank you for the reference to the Washington Post article. Like the earlier commentor, though, every one of those cases is completely irrelevant, except, perhaps that in your later comment you point to a dictum where waterboarding is called torture. Tell me if I'm wrong, but in each of those cases, wouldn't the interrogation activity have been illegal even if it wasn't "torture"? According to the Geneva Convention, my impression is that a soldier (that is, uniformed) prisoner can be asked name, rank, and serial number, but it is illegal to use any pressure whatsoever to ask more. You can't take away his dessert that night, for example. No-dessert is not torture, but it's illegal in that context.

Similarly, the police have lots of non-torture interrogation techniques forbidden to them, and especially lots of things they can't do to people they know are innocent-- which perhaps covers the Marcos case.

In fact, isn't the law against "torture" relatively new --post 1990? Or maybe past 2000-- I don't remember. So there aren't likely to be cases on ponit.
4.18.2009 2:57pm
Eric Rasmusen (mail) (www):
ps-- And if none of those earlier interrogation cases are about the definition of torture, none of them are relevant now. In fact, not only do they not turn on whether the conduct was torture, they weren't even about interrogating out-of-uniform soldiers, to whom the usual rules don't apply and who are the big issue nowadays.
4.18.2009 3:00pm
Oren:

Oren:

That's circular.

Not if the OLC lawyers act in bad faith, producing results-oriented opinions to support "policy" when dispassionate and objective reasoning would not.

Again, the fact that their construction is objectively flawed is not sufficient to reverse an agency determination. An agency determination, even if the product of passionate (silly wording, I know) reading and objectively-faulty reasoning stands under Chevron. That's the entire point of Chevron.

If Congress wanted to mandate how the decision that method X causes severe physical of mental pain, they should have written it in the statute. If it's not in the statute, the executive can come up with whatever minimally-plausible construction.
4.18.2009 3:03pm
Just an Observer:
Constantin: Pelosi and Rockefeller were fully aware of the waterboarding.

You raised that in the other thread, and were answered by a chorus of comments agreeing that a full, open investigation should be underaken immediately, sparing no one of either party. No doubt you will join the calls for such an open investigation?

Few people who blog or comment here and decry the torture memos are Democratic partisans. (I know I am not.) And most of the identifiably Democratic torture critics agree that any Democratic complicity should be exposed. So throwing out the "Democrats were briefed" red herring in an attempt to color this as a partisan issue is hardly an effective argument. Perhaps you should try to pick that fight at Daily Kos.
4.18.2009 3:03pm
D Kosloff (mail):
Martinned,

The author of the WaPo article cherry-picked history by mentioning the activities that involved water as though those were the only acts that led to the charges. If the judge had wanted to present an honest description of the cases, he would have included the real examples of torture that were addressed. There is plenty of information available about what the Japanese did to non-terrorists.

I don't agree that the water examples were torture. Torture is much more harmful. When a person is really tortured, if he can walk, he walks away with scars and missing body parts. That reality is being intentionally submerged with all of the talk about water. Just like the real torture manual found in Iraq was almost completely ignored by the media.
4.18.2009 3:09pm
RPT (mail):
Bob from Ohio:

Have you actually read the memoranda? Or anything factual related to torture, in its various forms. I do understand, but cannot agree with, the position that the US can do anything to anyone whom we declare to be our enemy, with proof or evidence, just because we can. I take this to be your position; that is, anything goes.

To all:

What about the footnote in the 2005 memo which clarifies that the waterboarding actually done was not at all what had been discussed and "approved" in the earlier memoranda.
4.18.2009 3:17pm
RPT (mail):
Kosloff:

Sometimes people who have been tortured walk away with less than a mind or personality. Does that bother you if, as in most of the cases under discussion, the person was factually innocent of any crime or terrorist act, facilitation or support?
4.18.2009 3:19pm
Just an Observer:
Again, the fact that their construction is objectively flawed is not sufficient to reverse an agency determination. An agency determination, even if the product of passionate (silly wording, I know) reading and objectively-faulty reasoning stands under Chevron.

The issue here is not reversing an agency interpretation. The issue is the personal, professional misbehavior of the Bush administration officials and lawyers.

As I said, I do not have a fully formed idea about what the consequences for these miscreants should ultimately be. (Maybe exposure and shame is the worst consequence they will ever experience. I will have to wait and see.)

But they did horrible damage to the law, and their performance was objectively despicable. I refuse to accept their bad behavior as normal execution of "policy." I also refuse to accept the implication of your premise that the next administration can, simply as a matter of business-as-usual "policy," install a new stooge at the head of OLC and reinstitute torture (or illegal surveillance, or murder, or other lawbreaking of the policymakers' choice.)
4.18.2009 3:22pm
jukeboxgrad (mail):
kosloff:

When a person is really tortured, if he can walk, he walks away with scars and missing body parts.


I can attach electrodes to your genitals and deliver a series of electric shocks that will leave no scars. And when I'm done, there will be no "missing body parts." And after you rest for a while, you'll be able to walk. Some people might even say that you're as good as new.

Feel free to tell us that in this scenario, you haven't been "really tortured." Is that really your claim?
4.18.2009 4:16pm
rosetta's stones:
Fine, don't accept it, but it appears Obama and Holder are doing precisely that.

Coercive interrogation was a policy decision, and the new administration is not only acknowledging that fact, but is reserving the use of that policy on into the future.
4.18.2009 4:19pm

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