Sunday, July 19, 2009
The New Yoo Hoopla
“Suffering is by no means a privilege, a sign of nobility, a reminder of God. Suffering is a fierce, bestial thing, commonplace, uncalled for, natural as air. It is intangible; no one can grasp it or fight against it; it dwells in time / is the same thing as time; if it comes in fits and starts, that is only so as to leave the sufferer more defenseless during the moments that follow, those long moments when one relives the last bout of torture and waits for the next.”
Cesare Pavese
Italian Poet, Critic, Novelist and Translator
1908-1950
“There is only one thing that arouses animals more than pleasure, and that is pain. Under torture you are as if under the dominion of those grasses that produce visions. Everything you have heard told, everything you have read returns to your mind, as if you were being transported, not toward heaven, but toward hell. Under torture you say not only what the inquisitor wants, but also what you imagine might please him, because a bond (this, truly, diabolical) is established between you and him.”
Umberto Eco
Italian Novelist, Semiotician, Medievalist, Philosopher, Critic
1932
On Friday, buried under other news at the end of the week, including the death of Walter Cronkite, was a significant decision regarding the personal accountability of a member of the Bush administration for torture. According to a story by staff writer Warren Richey of the Christian Science Monitor, http://www.csmonitor.com/2009/0617/p02s13-usju.html a decision was rendered by U. S. District Court Judge Jeffery White that allows former Assistant Deputy Attorney General John Yoo to be held personally responsible in a civil lawsuit for the memos he produced that were part of authorizing the harsh interrogation techniques that many consider to be torture, used on alleged enemy combatant Jose Padilla. Judge White, who I understand to have been a Bush appointee, issued a 42 page decision in which he is quoted "Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct".
The full decision can be read or downloaded at the Scribd :www.scribd.com/.../Padilla-v-Yoo-Order-Granting-in-part-and-Denying-in-Part-Defendents-Motion-to-Dismiss along with a further comment on the ruling, to which I will defer as I am not a lawyer, much less a professor of Constitutional Law at www.lawprofessorblogs.com . In the comment on that blog, it is noted that Judge White finds the legal cover of the memos was an unconstitutional exercise of power, and also denies Yoo's claim of qualified immunity. This is a significant ruling in view of the recent Supreme Court decision that threw out a similar case against former AG Ashcroft, and FBI director Mueller who continues to head the FBI under the Obama administration. These cases have been defended on behalf of Yoo, Ashcroft and Mueller, by the Department of Justice.
It has been the position of President Obama that individuals who were operating in good faith on behalf of the government should not be held accountable, investigated or prosecuted for their actions or their legal opinions. Given the decision in this suit, and the new interest expressed by Attorney General Holder in addressing the issues involving possible illegal actions, including torture and other illegalities, we can only hope that in future the Department of Justice will find itself on the prosecuting rather than the defending side of these individuals. As I have slogged through the 38 page document that is the part of the report by the five Inspector Generals that is not classified, allow me to share for those who don't have the time or inclination that it was significant who refused to be interviewed by the Inspector Generals who were performing the investigation at the direction of Congress: John Yoo; former A.G. John Ashcroft; former head of the CIA George Tenet; and aide to former Vice President Cheney, David Addington. I'm surprised that they have the option to simply refuse to be interviewed, and wonder if subsequently they will be compelled to answer questions by some form of subpoena.
In view of the extremely poor quality of the legal work provided by Yoo, including the criticism for which Yoo was singled out by the five Inspectors General relating to the PSP, the President's Surveillance Program, among other criticism, I can only say I am surprised that Yoo continues to hold a position as a law professor at Berekely. Being a bad government lawyer, even if you are a high profile bad lawyer,would not seem to be a very adequate recommendation for teaching. Former A.G. Gonzales, after a period of time apparently having difficulty finding work, also turned up as a professor, at Texas Tech for the fall schedule, but in political science, not law. I would have thought, given how things worked out, that he wouldn't be considered very good at either, but then perhaps he has been hired to teach what not to do.
ToE, if I might impose on your kindness to answer a very general question here that is in your area of expertise, am I correct in my impression that having defended some or all of these individuals mentioned above, the attorneys at the Department of Justice cannot now handle any future/ subsequent prosecution, because the rules governing legal confidentiality would create a conflict of interest? I realize that those of us who have not studied law often form mistaken notions of how the legal process works, so I am asking to avoid making a similar error. Does this suggest that if there were to be any prosecution going forward, of persons who had been defended by DoJ, it would now require a special prosecutor independent of DoJ to pursue that prosecution? I'm trying to discern if there might be any special method / planning / thought to this madness by the Obama administration.... or if it is instead a great deal more random and messy and accidental in the way it is unfolding.
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I went and read the opinion in Padilla et al vs. Yoo. I found the link you provided was incorrect, but was able to dig about and find the opinion. The opinion by Judge White was well written and his research is impeccable. He lays a strong groundwork behind his opinion, and I believe the matter will now be forced into discovery, followed perhaps by trial. The defense put forth, in my opinion, wasn't a very strong defense, but it was really the only defense available under the circumstances.
ReplyDeleteMr. Yoo is a disgrace to the legal profession in my opinion. I think he should probably be disbarred. Although I did not attend the school at which he now teaches, if I were an alumnus of that school, I would be incensed by their granting him a teaching position.
The Model Rules of Professional Conduct as adopted by the American Bar Association, in rule 1.11 a government lawyer cannot prosecute a client if the lawyer has previously defended that client in a previous prosecution. There would, in addition, have to be a complete block of information from the attorneys involved in the defense of Mr. Yoo to the prosecution. In light of that, the Department of Justice has several different divisions, including the criminal prosecution division. That is generally separate from the prosecution service. Since you asked me about a special prosecutor, however, I think that in this case, to avoid the appearance of impropriety, the appropriate course of action would be for the Attorney General to appoint a special prosecutor if in fact he believes there is sufficient grounds to prosecute Mr. Yoo for criminal violations.
Moving to comment on other grounds, I'm at a loss to determine what criminal charges Mr. Yoo might face. I do think they are liable, and may face civil sanctions, (and should probably face state bar disciplinary action as well), but the actual persons who should face criminal charges are Messrs. Chaney, Rumsfeld, Bush, and those who hatched the idea of the war crimes that the US Government committed against both citizens of other nations and against some of its own citizens. I'm also not even certain that I agree that we shouldn't prosecute lower level agents who committed these acts. For instance, we are still, today, occasionally prosecuting guards from the German concentration camps, and undoubtedly, they will use the defense of "I was just following orders". Its an axiom of American law that a person who follows an illegal order is as guilty of the crime as the person who gave the order. While it might not be provable that Messrs. Bush, Chaney, Rumsfeld, etc gave orders to torture specific prisoners (and it might be in some cases), they are all, in my opinion, criminally culpable, and as I have said elsewhere, I hope that one day that 2 things happen: 1) the International Criminal Court indicts them and 2) they are stupid enough to leave US soil and travel to a nation which will arrest and extradite them to The Hague for them to face the justice that they denied to to many people.
Terry said...
ReplyDeleteMr. Yoo is a disgrace to the legal profession in my opinion. I think he should probably be disbarred.
Guilty until proven innocent!!"
Not at all, Terry. Yoo's legal activities have been repudiated by the DoJ, both the Office of Legal Counsel, and the Office of Professional Responsibility, as well as receiving strong criticism from the five Inspector Generals.
What Yoo, Bybee and others did were very serious actions. There appears to be extensive evidence of those actions.
No one is depriving Yoo of his legal due process, or any of his constitutional rights - which it appears is more than can be said of Yoo in regards the rights of others.
I agree with you about being innnocent until proven guilty; may I point out that applies to criminal cases, and the current proceedings are civil, not criminal.
Further, it is - and I hope ToE will correct me if this is in error - it is a judge and jury that must hold the view of innocent until proven guilty, emphasis on the proof. Those of us not in a jurisdiction to sit on a jury for Mr. Yoo, are free to form an opinion, including a preliminary conclusion, without it being a violation of innocent until proven guilty. I have advocated an objective and impartial examination of all pertinent facts, and I have tried very sincerely to adhere to those facts in forming an opinion.
ToE - could you please provide me the correct link you used, so I can change it here in case anyone is interested in reading the original legal decision?
ReplyDeleteThanks!
Terry,
ReplyDeleteI hope you realize that SCOTUS has repudiated, not just reversed, the decisions by John Yoo regarding Hamdan and Padilla. In Hamdan, the decision was 8-1 - with SCALIA writing for the majority, denouncing the increadible overreach of the Bush Administration.
So, I mean outside of SCOTUS, and a half-dozen OTHER courts rejecting and repudiating the conduct of Bush's Counsel, they're undoubtedly PERFECTLY within the law.
Other than being rejected time and again by their legal betters (assuming you find people like Scalia, Rhenquist, and Roberts to be Yoo's legal betters on Constitutional principles) - yes, Yoo is entirely innocent.
Outside of the right trammelling the Constitution left and right(pardon the pun) and being called on it time and again in almost ever trial in every level of the court, you are 100% right that Yoo is and should be deemed innocent of doing anything legally improper because, after all, as a court officer and lawyer, how was he to know that violating fundamental constitutional principles would be considered unethical?
I want you to go and do some research Terry on how Bush conducted the GitMo tribunals process, how they refused to budge several times, right up until it was to start trial, and then they backed off, and agreed to do as the suit filed against them demanded - how they had the law changed to make what they had already done legal, how they lost time and again.
ToE, I will humbly beg your pardon if I am being a pest with asking you legal questions. Heaven knows, I seldom hesitate to dig in and research anything and everything myself. My concern here is not in finding information, but in understanding how to use and interpret that information correctly.
ReplyDeleteMy understanding so far, which you confirmed, is that there is a possible conflict of interest with the DoJ prosecuting Yoo and the others involved.
Can you confirm for me that the DoJ had the option to defend Yoo as a DoJ employee for his actions while he was at Justice, but that they were not actually REQUIRED to defend Yoo? That choice was voluntary, in accordance with the Code of Federal Regulations, 28 C.F.R. § 50.15, that states a former federal employee “may be provided representation in civil, criminal and Congressional proceedings in which he is sued, subpoenaed, or charged in his individual capacity . . . when the actions for which representation is requested reasonably appear to have been performed within the scope of the employee’s employment and the Attorney General or his designee determines that providing representation would otherwise be in the interest of the United States.”
I am finding it curious that despite the actions of a few lawyers which were even at the time not supported by the majority of attorneys at DoJ, the DoJ is defending their actions. Given that they apparently are not REQUIRED to defend these individuals, and given that defending them may in fact effectively prevent them from being able to prosecute them directly, requiring an independent prosecutor, it seems very clear to me that the decision to defend may have been part of a larger effort to obstruct or avoid prosecution by DoJ.
Those who genuinely defend Yoo and the others because 'attorneys can come up with different interpretations of the same law' are really stretching that. Yoo and his associates who wrote the 'torture cover' memos went to great lengths to disregard the applicable law, both the statutes and the precedents that would have denied legalizing torture, and instead found an obscure and non applicable medicaid law definition of pain that he further distorted to come up with his cover memos.
Medicaid law????? And we are supposed to believe this was done in good faith... by a former law professor? Add in that it happens to be done 'to fit' a request by the Administration, AND is done entirely in secrecy, even from his bosses.
Good faith, hell no!
While trying to find a copy of the report from the Office of Professional Responsibility, if it was as yet declassified, I did come across this letter on Scribd from an economics professor calling for Yoo's dismissal as a professor. It was not a casual request.
ReplyDeleteReasonably Foreseeable That Persons Would Suffer Serious PhysicalFeb 17, 2009 ... Yoo's failure is, I believe, a serious breach of professional ... at least as thoroughly as anybody: The Office of Legal Counsel issues its best analysis .... and his direct responsibility to his conscience and his god. ...
www.scribd.com/.../Reasonably-Foreseeable-That-Persons-Would-Suffer-Serious-Physical
Good God DG. An economics professor vs Yoo?
ReplyDeleteI would be willing to bet you real dollars that this economics prof voted for the war-criminal tag-team of Kerry & Clarke in 2004.
Kerry admitted to committing war crimes in Vietnam. Clarke ordered the bombing of civilian infrastructure in Yugoslavia because it was civilian infrastructure.
Ironically one of Clarke's biggest supports was Michael Moore.
Terry says:"Terry said...
ReplyDeleteGood God DG. An economics professor vs Yoo"
May I suggest, respectfully, that you read the letter before you decide that you know his politics, much less that the letter can only ONLY represent an unfair political position?
The letter argued quite sincerely for the widest possible range of thoughts and beliefs, including unpopular ones, to be represented among the faculty. It argues very strongly for every professor to be free to hold whatever opinions his beliefs and research lead to.
If I may be excused a very glib summation; the professor called for Yoo's dismissal not because he advocated torture, but because he was so extraoirdinarly incompetent when he did it. Had Yoo come up with something less overwhelmingly flawed, he would be excused much more in terms of humanitarian objections.
DG:
ReplyDeleteI went to your original blog that you had, and there found the original post on the subject, and followed a link in that blog. I think it was almost correct what you had, but had left off something. I have the decision downloaded on my laptop and I will make it accessible this evening and post a link.
Terry, when I indicated I felt Mr. Yoo is a disgrace to the legal profession, I was commenting on his legal abilities, not on any alleged crimes. If he is indeed charged with a crime, then he is certainly to be afforded due process, which includes a presumption of innocence by the judge and jury which try him. As DG said, this is more protection than he would have given to his victims.
DG, when reviewing statutes, the courts treat the words "may" and "shall" very differently. May implies some discretion. Shall gives the directed body (whether a court, counsel, etc) an instruction and they must do such a thing. As I interpret the section of the Code of Federal Regulations you stated, it would have been optional. However, in many cases, the regulation may be optional, but the practice as made it required. For instance, since in the past the DoJ may have defended others who were charged with violating their duties, they are now required to treat Mr. Yoo in the same light. I'm NOT making apologies for the DoJ, just speculating on their reasoning in defending Mr. Yoo.
I am not on the faculty at Berkley law school. However, if I were on the faculty, I would object to Mr. Yoo being a faculty member: His work has been shown, time and time again to be incompetent and unethical. To have him teaching future lawyers is an incredibly unwise decision by the dean of Berkley Law School.
For the record, the correct URL for the ruling on Padilla et al vs. Yoo is: http://lawprofessors.typepad.com/files/padilla-yoo.pdf
ReplyDeleteThank you ToE!
ReplyDeleteFrom the comments, it seems the subject is at least interesting. It will be more interesting to see what happens next; Yoo is expected to appeal. Next step would then be appellate court, then SCOTUS if SCOTUS would accept it. Then discovery, or could discovery begin before the appellate challenge was completed? Should be interesting to see how Judge White's decision holds up, and if this will signal legal actions against others in the chain of authority, both above and below Yoo's level.
Some of the sources I've read seem to favor the Obama administration trying to invoke whatever the correct name is for it, the blanket state secrets act.
I am getting an increasingly strong impression that the security involved is the rear's of some government officials, and not so much the security of the country. A real can of worms...
Mr. Yoo can appeal to the 9th Circuit Court of Appeals. Given that the 9th Circuit has a traditionally liberal bent, and given that a number of the precedents cited by Judge White were from the 9th Circuits own opinions, I think his chances on appeal there are slim. I think the matter has a better chance before the SCOTUS, although only marginally. The SCOTUS has bitten the Bush administration on a number of issues, and they seem to have a great deal of disdain with what Mr. Yoo and his cohorts did. The legal arguments provided by Judge White also seem reasonable to me and are in keeping with the Supreme Court's precedents on these types of procedural moves.
ReplyDeleteThey generally won't go into the discovery phase of the proceedings while a motion to dismiss is pending even at the appellate level. The theory is that if the matter is dismissed on either of Mr. Yoo's theories, the matter is dead and can't be refiled, so discovery is unnecessary.
I would hope that the Obama administration would not invoke the State Secrets Act. I honestly don't see how any state secrets here could be involved, considering that all of the allegations contained herein are public knowledge and record. I am quite disappointed in a number of attitudes about the DoJ under Obama, but then, I never expected President Obama to be perfect, just much better than the other options.
Dog Gone, DeLong did vote for confessed war criminals Kerry & Clarke in 2004.
ReplyDeleteI can't believe that you think that Delong's letter is somehow non-partisan. He is a hack driven by partisanship and as much of a font of BDS as Krugman, except Krugman is smart enough to know that he is not a lawyer.
Delong's letter is shameful ideological partisanship masquerading as moral outrage.
As DG said, this is more protection than he would have given to his victims.
ReplyDeleteThe BS mark gets higher here all the time.
Moral equivalancy between Sheik Khalid Mohamad -- who murdered thousands of people deliberately, in cold blood, and John Yoo, a highly qualified, highly competent DOJ lawyer acting in his professional capacity.
Utterly shameless.
But if you guys on the left slaver at the thought of turning ideological differences into crimes, carry on. What comes around will definitely go around.
Terry said:
ReplyDelete"Good God DG. An economics professor vs Yoo?
I would be willing to bet you real dollars that this economics prof voted for the war-criminal tag-team of Kerry & Clarke in 2004.
Kerry admitted to committing war crimes in Vietnam. "
Ok, first, let's make sure we're using the correct vernacular. Kerry admitted that US TROOPS committed war crims, I don't recall him recounting any he PERSONALLY committed.
Also, if I were a betting man, betting real dollars, Terry, I'd guess you feel Kerry should NOT have admitted anything, maybe even that he was a traitor for doing so. In short, I'm guessing you felt Kerry betrayed his country in some way by telling the truth (as he saw it).
"Clarke ordered the bombing of civilian infrastructure in Yugoslavia because it was civilian infrastructure.
Ironically one of Clarke's biggest supports was Michael Moore."
Again, I'm guessing Terry that you generally supported the collateral damage costs in Iraq, and the 'total war' approach taken by the United States since really the Civil War.
The point is this Terry, you don't get to assail Kerry and Clarke as an attempt to whitewash Yoo. Either THEY are innocent until proven guilty - and remember neither was ever accused of a war crime - or Yoo gets treated as guilty now. Further, at a philosophical level if you decry Kerry's (or Clarke's conduct), you're a hypocrity if you back Yoo's. If you back Yoo's, then you back Clarke's too - unless your ethics are purely situational based upon the party being accused of wrong doing.
Frankly Terry, it seems to me that you've simply shifted the subject to trying to accuse the left of duplicity. However, that's rather poppy-cock - because first of all - we on the left found our conduct, including of people similar to Kerry, to be reprehensible. Kerry was standing up and saying it was wrong, and that his brother soldiers felt anguished and conflicted about that conduct. He wasn't, for a moment defending the conduct (as you appear to be with Yoo, and I'd guess would defend about our actions in Vietnam). So, in short, you're using conduct you don't even disagree with, to try to what? Obfuscate and cover Yoo? That's what it looks like at least from here - no offense intended. If you don't agree with Clarke's conduct, a bombing of civilian operations during a war - then I'd be really really confused how you'd defend our conduct EITHER in Vietnam or Yoo's conduct trampelling liberty.
So, those on the left aren't asking to have it both ways. Wesley Clarke didn't do something so beyond the pale it would be difficult to NOT see it as a war crime (at least not without indicting Hap Arnold, WT Sherman, and a host of others), we feel the conduct of soldiers in Vietnam where they profoundly mistreated (or killed) Vietnamese civilians, AND the conduct of DOJ - using Yoo's opinions (as pathetic as they were) to then deny Americans (and others) of rights we CALL INALIENABLE - we see ALL Of those as wrong.
You, it seems, do not - you seem to think collateral deaths of Vietnamese civilians was simply the price of war (at least if you think Kerry's admission to our conduct was wrong), yet you'd grasp the idea of collateral damage - but claim Clarke is a war criminal, and you protest about civil liberties while defending an architect of liberty destruction like Yoo. You even go on to try to cloud the discussion by switching the discussion to Clarke and Kerry when you basically agreed with the underlying conduct of both (if we think of Kerry as representative of Vietnam era US soldiery).
That's hardly a position I can support - but is certainly one I have to question you on for taking.
Terry says:
ReplyDelete"I can't believe that you think that Delong's letter is somehow non-partisan. He is a hack driven by partisanship and as much of a font of BDS as Krugman, except Krugman is smart enough to know that he is not a lawyer.
Delong's letter is shameful ideological partisanship masquerading as moral outrage."
Terry, I posted the document, the letter, after having read it, and without having researched the man who wrote it. Usually I do a better job of checking out source material and source authors, so thank you for pointing out the consideration of bias, and my apologies for not having done so myself.
In view of the possible bias, I went back and reread the letter by DeLong as part of thinking about this issue of bias in connection with the larger issues surrounding Yoo. It might interest you to know that I also examined what I could find from individuals with academic credentials, and their possible bias, supporting Yoo.
You may disagree with my positions sometimes, even often, but I really do try to be both fair and thorough.
I have not been able to find anyone, including among the supporters of Yoo, that contend he was acting in a competent manner in the memos and policies that resulted from them. Support seems to center around how to regard, and possibly penalize, the incompetence, but not anywhere to speak in behalf of his work being any good whatsoever. Around THAT there seems to be fairly consistent agreement, and even fairly clear agreement that based on Yoo's work itself, and the timeline of actions taken before and after the memos in question, that there was a deliberate attempt not to render independent legal opinion, but rather to justify existing policy. The letter by DeLong AND the decision rendered by Judge White, who might be fairly claimed to have the opposite bias from DeLong as a Bush appointee, agree about both the incompetence AND the issue of acting in good faith on the part of Yoo.
So while I stand rebuked for not providing the information about any bias by DeLong, which I will take as a firmly stinging slap on my wrist, I do not agree that an admitted or probable bias automatically and completely negates the merits of any specific position such that it does not deserve consideration with respect.
Terry says:"The BS mark gets higher here all the time."
I believe you were addressing comments by Pen and others, but you were also quoting me in those posts. I accept my slap on the wrist, but I do protest and object to a different political view, and specifically what I write, as 'BS'. I think it merits a better reception and more respect than THAT.
I am not clear, and would like you to elaborate. Do you support and approve of the Yoo memos? Are you suggesting that Yoo get a free pass, and NOT be held accountable for his actions, because he shares your general end of the political spectrum? Also, let me emphasize one more time that having different opinions here does give balance that would be lacking without it.
Entirely OFF topic for a moment, Terry, being in Hawaii, will you be in a position to observe any significant part of tomorrow's solar eclipse, or are you too far south / east? The bio sciences are my first love, but I also have something of an astronomy passion as well....
Terry said:
ReplyDelete...John Yoo, a highly qualified, highly competent DOJ lawyer acting in his professional capacity.
Highly qualified? After what has been shown to be true about the Bush administration's hiring policies, i.e. Monica Goodling's (sp?) admission that she hired based on political ideology, not on professional competence, I think Mr. Yoo's qualifications are highly suspect. Reviewing his past legal work prior to being hired for the DoJ, one would think that his politics were probably a reason for hiring: his works were highly partisan and many of them are unsound.
Competent? Mr. Yoo advanced legal theories that are at odds with 200 years of American constitutional thought. A first year law student could read his opinions and poke holes in it with ease. The opinions he wrote were so poorly written, with an absolute lack of legal justification, that they are more a propaganda statement than a legal opinion. What's said is there are equally incompetent and worse just plain evil members of the Bush administration who relied on these opinions to commit unspeakable acts of crime against humanity.
I am not the only member of the legal profession to voice this opinion: his work has been repudiated and denounced by the Office of Professional Standards at the Department of Justice, (among others) and Judge White, in his opinion in Padilla et al vs. Yoo was particularly scathing. Before you make such grandiose statements about Mr. Yoo, do some homework and come to us with something other than uninformed repetition of right wing ideologues.
Terry,
ReplyDeleteThe only partisanship we're seeing here is from the right.
You claimed Clarke is a war criminal, based on what case?
You claimed Kerry is one as well, based on what actions?
You claimed Delong voted for "war criminals Kerry and Clarke in 2004" - Clarke ran for the nomination - I guess that's a vote, sort of - i.e. who is going to be the party's nominiee - but again, neither confessed to being war criminals.
However, John Yoo was found repeatedly to have violated the ethical cannons of his profession.
As well, you are arguing out of both sides of your face on this - Yoo either didn't do anything wrong, but then again neither did Kerry or Clarke, they operated within the defined professional cannons (Clarke certainly did) OR Kerry was wrong for admitting US soldiers committed war crimes and Clarke was wrong for bombing civlians AND Yoo was wrong for stripping, unlawfully, Americans of their liberties.
You don't get to do that both ways.
As well, I think the bias factor here is dramatically lower than other places you comment. We engage in fact-based, point by point discussion, which you seem to be side-stepping much of the above, and ask our commenters, reasonably, to substantiate their statements.
The only people who seem to consistently fail to address points, and provide substantiation for what seem to be outlandish claims, are you and K-Rod.
If you disagree, ok, but you have a Constitutional Law Professor, someone with a pretty good capability to do real research, and someone with a pretty extensive background in US Military law/UCMJ as well as in overall US military history, asking you to substantiate or clarify how you can on one hand decry Kerry/Clarke - what your rationale is, without decrying actions by someone who, wilfully, stripped people of liberties, was resoundlingly repudiated, but we should accept acted responsibly?
Those are fair questions, and the only person ducking those fair questions, the only person avoiding fully addressing the points, the only person seemingly promoting a biased view - is you.
K-rod, Pen and I have conferred about deleting comments. Please, I am asking you nicely, do not write in pejorative or demeaning language about anyone who comments here. That includes derogatory references to anyone's profession or activities. We do not make snide references to your hobbies, or to your profession, nor do we allow others to do so either.
ReplyDeleteWhen in doubt, do onto others. When still in doubt, ask yourself if I would be offended either personally or on behalf of someone else, and act accordingly.
And for the record, here, I believe that the last administration should be held accountable to the same lawful conduct as everyone else. I believe that there should be a greater degree of openess. I am SO sick of the term transparency. To the extent that any wrongdoing is revealed by that openess, then the consequences that are set by law should be applied through the same legal system that applies to everyone else for any illegal actions. Ditto any civil suits for actions a court determines are wrongful.
Nuremburg trials determined clearly that orders are not an excuse for certain kinds of behaviors, nor is simply holding a government office. We do not simply throw that concept out the window because a politician, or a government official held a political or cultural belief.
They should be judged on one thing, and one thing only, the legality of their actions. Period.
And on a lighter note, every time I see the acronym "BDS"... I keep waiting to see a 4th letter, from the middle of the alphabet, and I cannot help a rather risque chuckle. Bad me, but I cannot help it.
Just an FYI; something to take into consideration should you choose to use that acronym.
Sorry, an ooops. That should have been do onto others as you would have them do onto you. Or, damn it, just be nice.
ReplyDeleteI can tell you why Obama is defending them. Look at the Chrystler bailout, the bondholders who are normally the first to get paid in a bankruptcy got about 10% of their money. Suppose the next president decides that this was a violation of bankruptcy law that did not get voted on by Congress or approved by the courts and lets all the bondholders sue him for the money they lost. It sets a very bad precedent to not assume the previous administration was acting in good faith and start suing and prosecuting them. That is what happens in third world countries that have a coup every 5 yrs. Toss your opponents in jail. If you read the accounts of what was actually done to these people very little rises to the level of torture and none of it comes close to what most of the muslim countries do to their own citizens all the time.
ReplyDeleteI think you're more correct than I care to admit, Ttucker, on the issue of why they aren't more interested in prosecution, but also mistaken on other matters. Waterboarding is torture. So are a number of the other things to which Mr. Padilla and others were subjected. This includes extended sleep deprivation, extremes of heat and cold, etc. If an American service person were subjected to those techniques, we would scream bloody murder. We'd insist on punishment on the people who tortured our service personnel. I don't buy for one minute that Mr. Yoo's memos were advocating legal interrogation techniques, he was attempting to somehow legitimize methods which are torture, plain and simple.
ReplyDeleteAs far as I'm concerned, if the next administration finds that the Obama administration, or members of it, have broken US Criminal law, and should be prosecuted, then let them do it. (BTW, in the case of Chrysler, a US Bankruptcy judge did approve the deal after listening to the arguments you gave above, and found that he could authorize the settlement anyway). Being in government service should not be an excuse for ciminal behaviour. If we allow it to be an excuse for ciminal behaviour, then we are lowering ourselves to the very third world countries that you described.
K-Rod Said:
ReplyDeleteWhen will you call for Obama's impeachment and charge him with torturing US citizens training to become SEALS?
WHEN?!?!?!?
That question is so ludicrous that it barely merits a response. However, in the interest of being civil, I will respond.
The persons waterboarded by military and/or CIA investigators did not consent to their detention, nor were they volunteers in a military setting. I am not a SEAL or ex-SEAL, but no one is forced to become a SEAL. Its an all volunteer organization of the US Navy. If they waterboard the members of the seal team, (and I haven't seen any evidence of that presented by you), I would suspect (again, I'm speculating) that it is part of their training to be able to better withstand torture methods practiced by some of our enemies. To call for President Obama's impeachment on that grounds is so insane it bears no further discussion.
KRod says:
ReplyDelete"When will you call for Obama's impeachment and charge him with torturing US citizens training to become SEALS?
WHEN?!?!?!?"
1. Four qestions; is this a simulation experience that is undergone voluntarily?
2. Do they have the ability to stop the waterboarding if they can no longer stand it, or choose not to continue?
3. Are these SEALS in training believed by the waterboarder to be terrorists?
4. Do these SEALS KNOW, beyond a shadow of a doubt, that the training exercise will end at some forseeable point in time, after which they can return to family, friends, and some degree of comfort and freedom?
If you answered yes to one or more of these questions, your statement is invalid.
1. People make the choice to do some strange and extremely painful things. Some people even derive their pleasures that way, and seek it out. The act of choice differentiates it from torture.
2. Part of what makes torture what it is, is the lack of control. For a more eloquent expansion on that aspect, I refer you to the two quotations at the beginning of this thread.
3. However much a soldier is trying to prepare themself to resist torture, a simulation is NOT the real thing. It is a pale imitation; and still not something I would wish to undergo.
4. The question speaks for itself, without requiring further elaboration.
I have addressed your comments and question KRod. Will you address mine?
Answers for both ToE and DG.
ReplyDeleteWaterboarding has been an on-again, off-again experience for SEALS. It isn't fun undoubtedly, but it is, as you point out, entirely voluntary for the SEALS to join SEAL training, and to stay through such training. Further, as far as I know, they experience it ONCE, to let them know what it's like, not 265 times as apparently one of our prisoners was subjected to.
Finally, Waterboarding has been used since the 1960s (which I base upon Jesse Ventura's training experiences) - when SEAL training was called UDT training (under-water demolition team).
K-Rod, so shall we impeach Reagan, Nixon, Johnson, Ford, Carter, Clinton and Bush too - or rather, shall we try them?
Again, K-Rod, you may want to try to make comments which have some semblence of sense. Comments such as yours above are absurd.
I have heard of trials in absentia, although I don't know if we do those in the United States; if we do, it must only be under very unique and unusual circumstances.
ReplyDeleteHowever, I am fairly sure that we don't do any posthumous trials, so that list Pen would have to be a good deal shorter, as a pragmatic consideration.
Krod wrote:
ReplyDelete"I have, it is not in my control if my comments are deleted or not published. Blame it on the software if it makes you feel better. Or, better yet, claim that something might possibly have been offensive. Heh heh heh. riiiight. How "PC"!
Shades of Liberal Fascism?"
What was deleted did not address any of my questions, it was brief but it was not on topic, and it was nasty. Down three for three.
It IS in your control to do better than that. Differences in views are welcome, very welcome; gratuitous crass nastiness, especially nastiness that is so very pointless, is not.
The ball is in your court to act with civility, as a condition of posting here. If you wish to disagree, do so, in as much detail as possible, with as much fact as possible. If you do not, don't expect pettiness or crassness to be indulged. It won't be.
Trials in absentia are exceedingly rare in the US, and generally only happen with the defendant's express consent. In some cases, where a defendant has fled the jurisdiction during a trial, the trial can continue, but even those cases are rare. Generally, a trial conducted in absentia is subject to having the judgment vacated and a new trial conducted, so a prosecutor will generally ask for and be granted a mistrial if a defendant flees the jurisdiction. (I should note: fleeing the jurisdiction and concealing one's location operates to toll the statute of limitations)
ReplyDeleteK-Rod, I have attempted to be civil with you. I have not insulted you personally, nor have I insulted your profession, nor have I disparaged anything except your ideas.
I have no personal quarrel with you. I don't know you personally and I attempt to be civil to anyone, even those with whom I disagree. I find the ideas that you have put forth on this blog to be, for the most part, utterly without reason and unsupported by facts. I don't know why you continue to deliberately cloud the issues being discussed.
I understand that you disagree with my political philosophy, although I also submit that you don't know me well enough to truly form that opinion. Most of the people on this blog don't know me that well, with perhaps the exception of Penigma. You might disagree with some of my opinions here, and that's fine. You have an absolute right to disagree. However, your right to disagree ends, in my opinion, when you cease a civil discourse and turn it into a personal attack. None the less, I won't reply in kind.
The only pejorative or demeaning language I have seen by the writers of this blog have been on your part. You have, at various times, insulted me and have insulted my profession. You have done this to others as well. This isn't my blog, and if I am overstepping my bounds in saying this, then I humbly apologize to Penigma, but I think that you could make your point much more effectively by arguing the topics with facts and researched opinions, rather than taking previous posts and other writers' ideas out of context.
Riiight, we will just take your's and Penigma's "word" that it was "offensive"? Sure, nope, it wasn't a deletion because the truth hurts, eh.
ReplyDeleteAnd if we don't believe you, then just ask you?
Real proud of that comment above on July 21, 2009 4:32 PM, eh?
Were you going to give a glowing point by point and line by line approval, DG?
Liberal Fascism, indeed.
K-Rod said...
ReplyDelete"Riiight, we will just take your's and Penigma's "word" that it was "offensive"? Sure, nope, it wasn't a deletion because the truth hurts, eh.
And if we don't believe you, then just ask you?"
Yes.
KRod wrote:
"Real proud of that comment above on July 21, 2009 4:32 PM, eh?"
Were you going to give a glowing point by point and line by line approval, DG?"
I don't see it as needing commentary from me KR. If you would like to address it, courteously, with facts, line by line, please do so.
KRod wrote
"Liberal Fascism, indeed."
Liberal, yes. Fascist, no. Authoritarian, no.
The realities of this blog KR, is that there is moderation. I would like to think that one of the reasons I have been entrusted with moderation privileges and responsibilities is that I conduct myself with as much courtesy towards those with whom I disagree as I do towards those with whom I do agree. That I am fair, or certainly try to be, as consistently as anyone can be; and that I am not easily provoked.
I train dogs KR, I have developed the habit of great patience; for purposes here, you can take that as an indication that I am quite likely more calm, and relaxed, yet gently more stubborn than most people, or most animals for that matter.
You can continue to do the same thing, over and over, in the vain expectation that you will get a different result. You won't. That learning curve is up to you.
You are an engineer, I believe? So that would indicate you to be intelligent, and that you understand logic and reason.
You can choose a different response than attempting provocation, resulting ONLY in your own frustration, not mine.
Or not.
KR wrote:
ReplyDelete" K-Rod said...
And if we don't believe you, then just ask you?
"Yes."
Ah, right, sure... the debate is over, eh,... concensus has been reached...
Bwwwwaaaaahahahahahahahahahaha"
I don't think this has met the qualifications of a debate, KR. Nor do I think we have had any consensus reached.
Let me give you an example of what I consider to be courteous treatment of a dissenting view. I am attempting to get through my local library a copy of the book on Liberal Fascism, and to read it, as part of considering the widest possible view points for writing on fascism. I will strive to have an open mind, and to present a fair representation of the writing in the field of pol sci, backed up with hard examples as illustration, not just vague theory.
That is the sincerest form of treating you and your views with consideration that I can think of showing you. To have you throw in my face in turn an insult to my integrity, and to my consistent courtesy towards you, seems very bad treatment for my efforts.
Pen wrote:
"To call for President Obama's impeachment on that grounds is so insane it bears no further discussion."
Pen called the suggestion of an action insane, not a person. It would have been better to say that it was not adequately supported by fact, or that it was not logical given the evidence. My reading of it was not in any way a serious assertion of mental health issues, but rather reflected an imprecise figure of speech. In any case, yes, I have discussed with Pen, in email and by phone, my strong preference for taking care to address specific statements, and their precise flaws if any, rather than making any comments that are less precise, or which could be taken as an attack on the commenter rather than the idea.
Pen has been supportive of that.
I was the one who used the term insane. While the use of the term may have been somewhat imprecise, I don't retract it, nor will I for K-Rod or anyone else.
ReplyDeleteWebster's dictionary includes the following definitions of Insane:
in·sane
Pronunciation:
(ˌ)in-ˈsān
Function:
adjective
Etymology:
Latin insanus, from in- + sanus sane
Date:
circa 1550
1 : mentally disordered : exhibiting insanity 2 : used by, typical of, or intended for insane persons an insane asylum 3 : absurd an insane scheme for making money 4 : extreme
It was NOT a veiled comment on your sanity. It WAS a completely unveiled comment on the idea you put forth. Even sane people may voice a suggestion which appears to others to be quite insane and lacking reason. Your comment on impeachment of President Obama, specifically for the reasons mentioned, is exactly that. It defies reason and is completely absurd. I also believe, in this case, it was a very precise figure of speech in that it was exactly what I meant. You are free to interpret it differently, but as I discussed earlier, I may find your ideas to be objectionable. I may find them to be without reason and completely unsupported by facts. However, I maintain that I am civil to you and I will continue to be. If I am otherwise, I am quite certain that Penigma or Dog Gone will let me know.
ToE, Pen, both of you, my apologies for confusing the attribution. ToE, I am corrected on the intent and the precision of what you wrote. Thank you for expanding on your intent, and yes, I do find you to be courteous, and I'm sure Pen does as well.
ReplyDeleteK-Rod,
ReplyDeleteYou used the term burbot to describe a regular commenter - a derogutory term for a lawyer - to describe a lawyer.
You ALSO basically had nothing else to say other than the commenter hated Bush.
The comment didn't deserve publication. If you perceive it as truth that a Catholic Priest hates Bush because of his actions while President, then you have FURTHER insulted the man.
If you perceive it as 'truthful' to describe a lawyer as a burbot - I find your comments lacking in all relationship to truth.
I'll leave it to the readers what they think, but your attempt to suggest your comment was deleted because it was 'truthful' - is shot thru with deceit in my opinion, and was rightly deleted.
There's nothing more I'm going to say on this - you can bluster, lie, whatever, all you like, but you've gotten your answer and it was fully justified in being declined/rejected for its tone. I'd recommend you not compound things further by trying to suggest something else happened - such as your comments were deleted because they struck too close to home - when no such thing happened. Your comments have, almost without exception, bordered on the 'tin-foil hat' level, laced with invective, and nearly always shot thru with innacuracies - when they actually DO contain anything remotely factual.
ToE- I think you knew the answer before you asked. You've shown amazing restraint with someone who appears to have no interest other than to spew invective, ignore reasonable discussion, dance aside on points which he doesn't have an answer for - all teh while insulting people's integrity directly and indirectly with virtually every post. I certainly am aware you are an amazingly forgiving and kind person based on our interactions (ToE represents the indigent in various matters, including criminal matters). I have no idea of K-Rod's charitable work, but he seems to entirely lack any charity in commenting.
Sorry, full disclosure, I was inadvertently logged in on another account - personal computer someone in the family was using.
ReplyDeleteThe last comment was obviously mine - Pen - but if there was any confusion, I apologize.
K - your commentary was lacking in grounding, I referred to the comment - not you, and it's pretty obvious that was the intent. Alligator tears and faux offense at having a comment called 'insane' aren't the same as demeaning someone's adherence to the strictures of their faith. You have again strayed off into the land of "I will insult poeple, but become indignant if anything is said in reply which is even mildly chastising."
Time to repeat:
ReplyDeleteYou can continue to do the same thing, over and over, in the vain expectation that you will get a different result. You won't. That learning curve is up to you.
KR, I have not called anyone insane, nor has any other commenter. The word 'insane' was used as a modifier to describe a suggested action, and the intended meaning of that word was made very clear.
ReplyDeleteI am used to the occasional necessity for repetition in making something understood.
It can be useful to change and improve behavior.
"KR, I have developed the habit of great patience"
ReplyDeleteLOL, time to get out the coffe mug that says "Illegitmi non carborundum est"; bad latin that is supposed to loosely translate as 'don't let the bastards wear you down'.
K-rod said in a comment which didn't merit publication:
ReplyDelete>>"You used the term burbot to describe a regular commenter'
I am not a burbot, so, got a quote? Put up or STFU."
First of course, you were obviously NOT talking about yourself in your comment where you called someone a burbot - and I'm sure you know it.
Second, your language is the furthest thing from civil - and was subsequently deleted.
Third - here's your quote - from a comment which didn't merit anything but rejection -
"(deleted), are you implying that Bush and Cheney should be hanged? Would you prefer drawn and quartered?
How much should KSM get for pain and suffering? $1 billion?
Typical if the Burbots have their way."
You CLEARLY called the those who seek to hold Bush to account burbots - equally clearly, since the commenter is included in those who seek to, you called him one, suggesting that if he gets his way ... - you weren't making the name conditional, you were saying that people (like the commenter), were 'burbots'.
So..there's your quote, your proof, and proof of your intent to either lie or deceive.
If you can't be more civil, you will continue to have comments deleted, but hopefully, you understand you also will be exposed when you (apparently) attempt to lie about the conduct. We get an e-mail copy of every one of your comments and can rather easily pull your comments back up to hold you to account.
Please try to be more on-topic and civil - your comment (obviously) wasn't at all about any point - other than insulting poeple and making what could be described as 'fevered' commentary about whom somoene hates, and what they want to have done. I've given you your 'put up' now I guess that makes it time for you to apologize AGAIN - or perhaps shut up?
K-Rod:
ReplyDeleteI think you are, perhaps, laboring under some mistaken idea that I hate Messrs Bush, Chaney, Rumsefeld, etc. I don't. I think there is ample evidence that they should be indicted on war crimes, and perhaps other federal charges as well, but that's not the same as hating them. If these people were to be indicted on charges, they have the same rights to a fair trial as anyone else who is charged with a crime. Again, I note that they would be given many more rights than they proposed to give to many of their victims.
I have never suggested that any of these people should be executed, even if found guilty. I do not believe that in our society capital punishment is appropriate, even for the most egregious offense. However, the appropriateness of the death penalty isn't our topic for discussion here.
The topic for discussion was Mr. John Yoo, an ex-DOJ attorney who wrote a number of incredibly incompetent memos which attempted to justify the use of torture against both US Citizens and prisoners held by the US. If convicted of a criminal offense, I still don't believe that Mr. Yoo should face the death penalty, but whatever penalty is prescribed at law.
"Please, I am asking you nicely, do not write in pejorative or demeaning language about anyone who comments here. That includes derogatory references to anyone's profession or activities. "
ReplyDeleteand
"When still in doubt, ask yourself if DG would be offended either personally or on behalf of someone else, and act accordingly."
KR, I will let you know when I get the Liberal Fascist book.
Thanks ToE, I understood and expected you held no overwhelming animus for Bush OR Cheney - the accusation was frivilous.
ReplyDeleteK-Rod, unless you are ready to call ToE a liar, a pretty profound thing to do given the man is a priest and has a moral and professional ethical obligation to NOT hate people - AND unless you are going to suggest a man who is manifestly opposed to capital punishment (again, in part as evidenced/relatable to his calling to the cloth) - it sounds as if you owe him an apology for your words. They were base, they were insulting, and they were clearly wrong.
Rod- your words were plenty clear.
ReplyDeleteYou said, "(Person named by you but deleted by me), are you implying that Bush and Cheney should be hanged? Would you prefer drawn and quartered?
How much should KSM get for pain and suffering? $1 billion?
Typical if the Burbots have their way."
Those were your words.
Now you ask/comment, "That is false, I did not, period. I really don't know how I can be much clearer. How can I get this fact through to you?"
I'd suggest by understanding that your comment said burbots were looking to pay Khalid Shiek Mohammed $1B - and tied that comment to the original commenter when you said he wanted to have Bush/Cheney hang or be drawn and quartered- extending the comment to recommend PAYING KSM.
Those were your words. You said them, you've been called on it, caught, and it is obvious you intended to use the term pejoratively to apply to the commenter - especially since you've used Burbot in the past and ESPECIALLY since you've used it about that commenter as a 'joke' about lawyers (per another of your comments where you complained about not being allowed to make 'jokes' about lawyers - fyi it's not a joke, it's calling someone a derogutory name.
Your conduct is your own - man up and deal with the fact that you were caught attempting to weasel out of your words.
"I would like to see a quote from a commeter that wants to see KSM get one billion for pain and suffering, Penigma. Are you the one claiming TOE said that? "
No - K-Rod, pretty clearly YOU made the claim BURBOTS wanted to see that - I think that's your comment - as I've now posted twice.
BTW, I've no real worry about your use of childishness like STFU - it demeans you, but if you like it, whatever, just grasp there isn't likely to be anyone 'shutting' anything if you try to deny your own words.
You've exposed your conduct and are only embarrasging yourself.
Oh - one other comment -- I posted a review of a piece of trash book by Jonah Goldberg - actually I posted a link. The review was from the NYT as I recall, which I grasp you'll rant about ALL of it being left-wing - not withstanding the positive reviews they give MANY right-wing books - including things from Vince Flynn - but read the full review - try really hard - it contains many references to MANY other people who pillory the book for it's shoddy research, blindered findings, and abject ignorance of historical facts which absolutely contradict Goldberg's premise. So, I suppose it IS a left-wing position that appears in the NYT IF you agree that facts from history are somehow left-wing.
LOL.
K - you really, truly, are a piece of work.
My car just ran over your dog
In your mind you know I know you're just another rightie.
K-Rod, you just accused one of my commenters of being akin to a child molestor.
ReplyDeleteYou need to take a break. Seriously, that was FAR FAR overboard. I understand you were trying to say, "Don't trust all Priests", but you went FAR too far - and we weren't talking about ALL priests, we're talking about your impugning the reputation of someone who I and others have reason to respect.
ToE, allow me. Please!
ReplyDeleteKR, that there were well publicized incidents is undeniable. To be accurate, those problems of misconduct, especially sexual misconduct of all kinds, exist among the clergy of all faiths, not only Roman Catholic. Those problems of conduct exist in a variety of professions, where trust and ethics are essential, not only the clergy.
Those instances of misconduct do not generalize to all of the clergy, or all of those other professions either. Those who are the problem are a very very small percentage of the larger whole.
So, unless you have some real and substantial basis to make that accusation, or any other accusation for that matter, don't do it here. ToE personally does deserve respect for not hating Bush or Cheney. There is a big gap between being critical of conduct, and seeking executions.
Unless you can provide proof that ToE has actually supported the death penalty in writing, or voice recording, you are simply making up nasty things to say.
I believe we have addressed how THAT will be dealt with already.
What? Are you now making nasty things to say about me? Are you taking the lead from Penigma?
ReplyDeleteJust because YOU want to believe what YOU want to think I might have possibly meant does not make it so.
Unless you can provide proof that I actually supported or said something specific in writing, or voice recording, you are simply making up nasty things to say!!!
*channeling TOE's subconcious... ...hey friends, thanks, but really, please stop "helping"... ...end channeling*
KR, you generalized from the few individuals to the whole of the Roman Catholic church, and specifically the clergy with these applicable words taken directly from your comment:
ReplyDelete"I would hope that a priest would never harm another.
[snip] What ever happened with that whole Catholic Church alterboy fiasco? [snip] what the church did was wrong [snip]
With those words, you generalize: "whole Catholic church", you did not say "whole fiasco"; it could be argued that it was simply ill chosen word order that did not correctly identify what was intended...
Except...
that you follow it up with "what the church did was wrong". That shifts your meaning to referring in both cases to the entire church; the entire church encompases all of the clergy, which includes ToE.
You give as your reason for challenging that ToE does not hate Cheney and does not support the death penalty:
"I would hope that a priest would never harm another.
Reality is not as nice as what we would hope. "
That asserts clergy are in reality harmful; ToE is one of the clergy.
I believe from rereading your comment that it was clearly your intent to cast aspersions, vague rather than specific, on ToE as a Roman Catholic priest, KR by how you wrote your it. You were trying to justify not believing ToE.
IF that really was not your intent, then be much more careful in the clarity and precision of what you write. You merit the criticism so far.
A small FYI side note: I worked for the home office claims division of the insurance company that wrote the policies for many of the diocese where there were problems, and had access to many of the claim files in HO, because they were potentially high dollar liability.
Tread very carefully here with accusations if you don't really know the subject, because I do.
I do not think that K-Rod meant to imply that I approve in any manner of the molestation of children. (or any other person for that matter). What he said may have been un-artful, but I don't think it was done in malice, and I won't take it as such. If it was intended in malice, then it was in error, and I forgive him.
ReplyDeleteIn as much as the discussion of those scandals is incredibly off topic, I won't further address it here.
That you forgive him is to your credit, and of course, sort of the thing I'd expect from a Priest and a man of concience and calibre.
ReplyDeleteK-Rod, what you said was undeniable - you lumped TOE as a Catholic Priest, in with those who molested. You may not have MEANT it, but that's hardly a defense - you're ignorance or shall we say, horribly tactless comments only show you are incapable of seeing your own misconduct, not excuses for it. It would have, to some extent, been better if you HAD meant to insult ToE, because at least then, we'd have something to work with - you GET your conduct, and we move ahead with trying to get you to fix it.
As it is now, it seems you are incapable of doing anything other than insulting folks (i.e. calling ToE a burbot, then denying you did it, likening him to molestors, then not grasping it) - and you don't get it - that's really pretty sad, but since you don't get it, I guess we'll have to forgive you and treat you like someone with a mental impairment OR....
You could grasp that I (at least) have been doing to you what you've been doing to people here - making the same accusation, no matter how off base (though mine wasn't particularly up until this last part) over and over and over again, making you defensive, making you lash out - the same things your conduct elicits from others.
And maybe, just maybe, you'll grasp it's ugly, a waste of breath, and stop.
So how about it, are you capable of behaving here the way you behave with everyone else away from blogs - of engaging in actual discussion - or do you need to be made to see more examples?
Part 1
ReplyDeleteOK admittedly I haven't read EVERY comment here....so forgive me if I'm rehashing old ground. Also, I am a layman when it comes to law. However, I find a tad distasteful some of the postings I've read through. I'm not sure if some of you even recognize what you're saying, suggesting or proclaiming with your opinions. Let me get some points out of the way first before I begin: 1) torture is illegal; 2) torture was conducted during the Bush Admin; 3) the Bush Admin did push the envelope
However I do not understand why many of you insist that Mr. Yoo should be held responsible for torturing Mr. Padilla. It is my understanding the Mr. Yoo was a lawyer employed by the Bush Admin at DoJ. It is my understanding that Mr. Yoo (and other lawyers at DoJ)was asked to give his "legal opinion" on various subjects. I fail to understand how an opinion equates to action. I can understand being held responsible for personal actions but being held for responsible for actions other people take based on an opinion you give seems a lot like fascism to me.
Was Mr. Yoo's interpretation of the law incorrect? Absolutely. Is Mr. Yoo incompetent? Undoubtedly. Does this mean he probably shouldn't be teaching law? I can't argue with that. However, I draw the line at allowing Mr. Yoo to be held either criminally or civilly liable for an opinion he wrote. This is un-American. This is dictatorial. This is abusing a low man on the totem pole because you can't reach up to the true culprits. It's akin to pulling the wings off flies and finding pleasure in it.
Where does an attitude like this stop? Do we now open up each Marine stationed at GITMO up to civil suits or criminal proceedings? I mean if someone can be slapped with lawsuits for an opinion why not for the actual acts? ToE mentioned German concentration camp guards. Based on some of your statements how far separated are, would you say, those NAZI's that pushed Jews into ovens from Marine guards detaining human beings at GITMO?
So I humbly ask that some restraint and consideration be given before we leap of this cliff. If we start putting people in jail or destroying their lives with civil suits for ones opinions where will it stop? What about a blog? How about authors? What do we do with all the people involved with the detention and torture of these terrorists? Should Padilla win a civil suit against Mr. Yoo and win all of Mr. Yoo's personal assests what happens to themoney? Will Mr. Padilla be able to donate it to a front charity with shadowy ties to terror cells?
Part 2
ReplyDeleteIn addition, why not begin the legal proceedings against the Obama Admin? Human right violations are still on going. GITMO isn't closed nor is there any significant or true progress in closing it. The people we are now detaining are being kept in sub-human conditions in Afghanistan. On a nearly daily basis our UAV's are crossing into Pakistani airspace and dropping bombs that kill civilian Pakistani's. Nothing has changed. Where is the outrage for these crimes against humanity? Where are the law suits?
Now please don't misinterpret what I've stated. I am not condoning torture or actions by either the Bush or Obama Admins. Nor am I persecuting either. I'm trying disparately to point out that rabid anti-Bush sentiments may just take you to a place you didn't expect. The Democrats in the 1950's didn't have the foresight to see that their creation of the House Committee on Un-American Activities would backlash on them. I think Democrats are heading down a similar path today. I am a conservative. However, I see no benefit that can come when either of the two principal parties are weakened to the point of being ineffectual. If the Democrats insist on having clean hands in all of what transpired after 9-11 up to and after the invasion of Iraq you are doomed to suffer a similar fate as the Republican party.
A majority of Americans will not tolerate this for much longer. The witting is on the wall. Even Obama see's it and is trying his hardest to make it all go away. Not because it's the right thing to do but because if he can't steer the party away from this subject it will be the party's undoing.
So be careful when you cheer about the downfall of Mr. Yoo. You might be next.
Jas, Yoo is facing a civil suit for his actions. That CIVIL suit found a clear connection between what he did as a lawyer, AND the loss of liberties by Padilla in the form of torture.
ReplyDeleteAnd the timeline of the torture, and the memos, the ones that rely on things like inapplicable MEDICAID legal definitions of pain while ignoring ALL, not some, ALL applicable statutes AND the precedent case law. This wasn't Yoo just doing his little job at Justice; this was an intentional subversion of the law and government. The actions that resulted were similar to actions which have been prosecuted as war crimes, and other crimes BY US, and by our ALLIES in the past.
So, unless you want to try to make a case for a double standard here? Your argument fails.
That connection that you don't understand? WHY he should be held personally accountable for the torture? THAT is in the 42 page decision, which you can read for yourself. It is a public document, it is online at SCRIBD, and it is online at the constitutional law prof blog; both had links posted here.
Your comments are welcome, but with due respect, you have both failed to understand what I wrote about Yoo here, AND you have failed to inform yourself of why it is indeed appropriate, and responsible for Yoo to be held accountable. Read the decision, the dots have been capably connected.
Those dots were connected by a BUSH appointed JUDGE, Judge White.
As to criminal investigation, and prosecution, the DOJ and others are looking at whether the conduct of the parties involved, THE CONDUCT, not the politics, require a criminal investigation. It sounds like again, you haven't done the requisite reading to understand why a criminal investigation appears to be merited.
As to the Obama admin, compared to Bush? Obama is far from perfect; he has been criticized, but his executive orders in his six months in office, compared to the eight years of Bush, show movement in a better direction, even if it is not there yet.
READ Jas, READ READ READ!
One of the canons of the Model Rules of Professional Responsibility (1.2(D) states "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law"
ReplyDeleteRule 2.1 states "In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation."
These Model Rules of Professional Responsibility have been adopted, with very, very few changes, by the state bars of all 50 states, and all of the federal courts. Mr. Yoo Appears to have violated both of these.
Both are equally important. One states that a lawyer may not counsel a client to commit a criminal act. Torture, or conspiracy to commit torture, is a criminal act. Mr. Yoo, by his incompetence, wrote memos which did not exercise independent professional judgment, but instead simply were propaganda "cover" for the Bush administrations torture programs. Some of these memos were specifically written with Mr. Padilla in mind. It is for this that Mr. Yoo is being sued, and for which they are attempting to hold him civilly liable.
Mr. Yoo's defense is that he has a qualified and limited immunity in that the memos were written during the course of his employment by the DoJ. However, its also well settled American case law that a government employee loses that qualified immunity when their actions are so outside the pale of their professional responsibilities that they aren't a government act.
I urge you to read the opinion by Judge White in Padilla et al vs. Yoo Its remarkably easy reading and if one is not well versed in legal terms, its not jam packed with them. I haven't read the initial complaint filed in that matter, but I will pull that complaint off of the federal court websites and make it available for anyone who is interested.
Now, Jas, if a marine guard at any of our detention facilities tortures a prisoner, that marine guard should be held accountable for his/her actions. So should every person in the chain of command above him/her who ordered that torture. Again, its a basic axiom of American (and international) law that a person who obeys an order to commit an illegal act cannot use as a defense that they were following orders. The Nuremberg trials established this in international law but it had been deeply seated in American and English common law for centuries.
If individuals of the Obama administration are eventually found to have committed crimes, then they should be prosecuted to the fullest extent of the law. Being in government services does not excuse one committing crimes. I'm not advocating JUST the Bush administration being indicted if there is sufficient evidence to do so. I believe we need to re-establish the rule of law so that our elected leaders and those they appoint understand that they aren't above it.
BTW, welcome, Jas!
KR wrote
ReplyDeleteTOE, I did nothing toward you what so ever. No malace, nothing.
KR thank you for that clarification that there is no ill will.
Although if you had not intended by a generalization to discredit anyone, it is much less clear why you wrote those words.
KR wrote
ReplyDelete"CRIMINAL!!!! An eye for an eye, start filling the tank!!!
This should be a notice for all those incompetent workers at the DMV."
If you can find the incompetence by anyone in the DMV that has tried to void constitutional rights and enable waterboarding, let me know. Not one of your better analogies.
Here is my main problem with the whole thing. Suppose someone told Yoo,"we are going to use a method that does no actual damage but scares the shit out of someone", and Yoo wrote an opinion based on that. Did he know that what they were going to do would be considered torture? And what exactly will we define as torture? Some of the Gitmo guys are claiming torture because they were interrogated by women in skimpy clothing, some people in the US go to Las Vegas and pay good money for that treatment. Playing loud Britney Spears music (I personally thing that one is torture)? So 3 yrs from now when we capture a guy that has knowledge of say a nuke in LA and we have decided that the only thing anyone is allowed to do, without being prosecuted for it, is to talk with him. Do we change the law or watch several million people go up in smoke? Circumstances do matter and I think we need to remember that the FBI said a major 9/11 style attack on LA was stopped due to information gained with enhanced interrogation techniques. I think it is grossly unfair to unclassify documents saying Yoo, Bush, Cheney or whoever authorized torture and keeping the reasons for doing it or the information we gained from it classified. Even in a murder trial mitigating circumstances can be introduced, self-defense, heat of passion, temporary insanity. By classifying the reason they did these things they take away an important part of Yoos defense. Suppose they had reason to believe that Padilla had already planted a dirty bomb somewhere, do you think they would be able to seat a jury that would convict him if he was allowed to tell them about it?
ReplyDelete'tt' wrote:
ReplyDelete"Suppose someone told Yoo,"we are going to use a method that does no actual damage but scares the shit out of someone", and Yoo wrote an opinion based on that. Did he know that what they were going to do would be considered torture? And what exactly will we define as torture? Some of the Gitmo guys are claiming torture because they were interrogated by women in skimpy clothing, some people in the US go to Las Vegas and pay good money for that treatment."
Thanks for your comment tt. Allow me to take this in sections.
1. "Suppose someone told Yoo,"we are going to use a method that does no actual damage but scares the shit out of someone", and Yoo wrote an opinion based on that."
This was not only about what they were going to do, it was about what they had already done. And it was clear and well understood that these techniques DO actual damage, both psychological and physical, not just scare someone. Individuals have died, in part attributed to interrogation techniques.
2. "Did he know that what they were going to do would be considered torture? And what exactly will we define as torture?"
I continue to be surprised at how few people have read the Geneva Conventions. They are easily available online. Those conventions very clearly in words define what is allowed, what is torture, which includes certain kinds of humiliating treatment as well as physical harm. Our own statutes are in many instances surprisingly clear as well, although in many cases written in more 'legalese'. Beyond the 'mere' verbal definitions, these terms have been defined in extensive practice, including in prosecution and resultant penalties. There is simply NOT the ambiguity you posit.
3."Some of the Gitmo guys are claiming torture because they were interrogated by women in skimpy clothing, some people in the US go to Las Vegas and pay good money for that treatment."
The assumptions that we tend to have about things that you describe as 'women in skimpy clothing' suggests a very culturally limited understanding. Because we do not have problems with it, it is not fair to expect or require someone from a radically different cultural bias to feel the same. If I may draw an analogy, I am fairly relaxed about nudity, for example I've taken art classes which included a naked male or female model for life drawing. Many of the men with whom I have taked about this, also express a positive view of nudity, either in art, or for example optional nude beaches. I have yet to find one of these men in conversation however who are AS positive or comfortable with the idea of their wife, daughter, sister, girlfriend / wife being naked in the middle a group of strange men, and even less comfort if there were any aspect of overt sexuality involved. The intended feelings at Gitmo were akin to those, not entertainment. It is the very intent of the treatment as torture which separates it from pleasure. I would also point out that in many instances the men involved were in situations of enforced nudity, exclusively to create vulnerability and humiliation. To equate this with pleasure is utterly, profoundly specious. It is comparable to the analogy that because there is a form of kinky sex involving electrical stimulation, everyone who has experienced having electrodes connected to their genitalia, and subsequently shocked with painful levels of electricity, must be having a lot of fun courtesy of the person controlling the electricity. I rather doubt that anyone reading or commenting here would care to volunteer for that experience, for the obvious reasons, but most of all because of the lack of any control over making it stop.
The US has been accused of using a variety of techniques which can be fairly described as sexual abuse. The above example, but also some credible accusations of rape and enforced sodomy, and genital oriented torture. These sexualy abusive techniques are outside any allowed methods. It is shameful for our country that these acts have been committed in our name, or justified as benefitting us.
Responding to other points in your comment, torture does not work. It does not produce reliable information, and it does produce unreliable / false information which wastes limited resources to investigate. I have found overwhelmingly more indications that any torture by the US or its allies failed to protect anyone, or to produce reliable intel. Unfortunately, both fiction, like the tv series '24' which I find entertaining btw, and some very calculated non fiction that is also less than honest, persuades many people to believe emotionally rather than objectively on the subject in support of these methods. It makes us feel good to think that if the interrogators were only a little bit bolder, tougher, harsher, they would get results. What does work is being smarter.
ReplyDeleteIt is no accident that the FBI pulled out of the interrogations at Gitmo, or that these methods are opposed by many trained military interrogators. It is not because they lacked the guts to be good interrogators that so many of the assigned military refused to engage in these practices, and requested transfers.
Jas,
ReplyDeleteThank you for your comments - if I may, I will try to reply in the veign you've brought up.
First, as you may or may not know, I was in the Army for 12 years - much of it in the Reserves. Second, I served as our unit's Geneva Convention/EEOC, etc.. training sergeant. So I will try to respond to your points from the context of the military and the UCMJ as I understand it.
Marines or others at Guantanamo can only be held criminally or even civilly liable if their actions knowingly violated the law, or that had any reason to understand they would violate the law. That law includes treaties to which we are signatory, such as the Geneva Convetion (or rather Conventions 1-3) - we didn't sign the IVth protocol which primarily dealt with the treatment of civilians in war zones.
Included in the third is the prohibition that no prisoner is to be demeaned, is to be subjected to humiliating conduct, or placed at risk by offering them up to civilians for ridicule (or harm). This is training each and every soldier received when I was in the Army. Now, they may not remember it - but many actually did, and those who did and objected were reassigned to other duties. Their objections were (for example) that a female CIA operative pretending to wipe menstrual blood on her hands and then on the prisoner - was demeaning to muslims who consider such blood to be unclean. They were right to object.
However, those soldiers who DIDN'T object, while they could CONCEIVABLY be held criminally negligent by the military aren't going to be. Quite simply because such offenses do not warrant criminal action against the dozens or hundreds of soldiers involved. The demeaning conduct was wrong, but the allowance of it at best might warrant a reprimand and retraining.
However, let's then turn to Mr. Yoo, from what I've read, what he did violated his basic professional oath. Namely, to offer legal advice which is consistent with the law as he understood it, not shape the law to fit into whatever convenience was presented/desired. His opinion was so legally shoddy that it is now held in derision by virtually the entire legal profession. It is, in short, the epitome' of malpractice. He shoved what he almost certainly knew, and professionally was obligated to know, was correct aside in favor of an outcome which furthered his boss, and his own standing within the DoJ. That's unethical, and that kind of negligence is little different than an engineer standing aside while defective parts are shipped to make cars which have gas tanks fail killing their occupants.
It is for these specific and EXACT kinds of things we have civil courts for.
Mr. Yoo also violated the same 'natural' laws we hung people at Nurenburg for - and have imprisoned other dictators for. Almost certainly, he knew at the time he was doing so.
Lastly, while President Obama hasn't fully shut down GitMo, I think it's fair to contrast the situations. First, there is NO waterboarding going on now, so Obama isn't condoning ANY of the torturous conduct which occured under Bush. Second, while Obama WILL use tribunals for a handful of prisoners, the ratio is 241 under Bush, to less than 20 under Obama, and 13 of those were people already put through tribunals. I dont' like it, but I hope you see that there is in fact a VAST difference in conduct.
Again, thank you for writing so thoughtfully. I don't agree as you can tell, but I'm happy to discuss it so that we can come to some understanding of what SHOULD be done with these kinds of people. Clearly they cannot be let go, but equally clearly, we HAVE to afford everyone a fair trial, present evidence lawfully gained, and punish them in accordance with the agreed upon laws of the land, rather than degrade them - for we only in the end degrade ourselves with a stain that survives LONG after the person in question is dead.
The tribunals were actually modeled on some wwII tribunals. These guys cannot really be tried in the US for a couple of reasons. If they are not US citizens then fighting against us in Afghanistan, their home country for several, is not a crime. Also congress nearly shit a brick when someone suggested bringing them to the US and we do not do trials in absentia. They are also not POWs as I believe the Geneva Convention says that a POW is someone who fights for a nations military, with a chain of command that can be negotiated with, and wears a uniform. If they were POWs this would be easier, you keep POWs till the war is over so no need to release them until the fighting stops. The other problem with releasing them is that no one wants them back. These guys are ones that stir up trouble trying to establish muslim rule and sharia law wherever they go, their own countries are glad they left and do not want them back. The only country willing to let them back was China wanted the Uighars so they could toss them all in prison and instead we are paying some little island $200 million to take them. Obama made a mistake in setting a deadline for closing Gitmo before finding out the problems Bush had with it. For the last yr of his presidency he said several times that some of these guys had nowhere to go so he had no way to release them yet. I guess Obama found out he was not lying.
ReplyDeletettucker said...
ReplyDelete"The tribunals were actually modeled on some wwII tribunals."
Were you referring to the WWII trials at Nurenburg and Tokyo, tt?
Apart from the contrast between the very public nature of the Nuremburg trials, for example, and the lack of public access to the tribunals at Gitmo, I would respectfully suggest to you that these tribunals were not so similar as you seem to suggest.
Given some of the other individuals we have tried, AND imprisoned in the U.S., it is just stupid to think we cannot do so, safely and legally, with the Gitmo detainees. Why not? Is it rational to be as frightened as people seem to be? No. The reaction is on a par with the McCarthyism era notion that citizens scared of pinko infiltrators ostensibly checked for 'commies' under their beds at night before they could go to sleep. As for releasing detainees, some present a problem, but not the majority. In fact, a majority of the total have already been released. I have no doubt that the remaining individuals can and will be dealt with... once some of the more emotional and less sensible hysterics get a grip, and act like adults. I cannot express fully the chagrin and just plain outright shame I feel for the reputation of this country when I consider how the uproar over bringing these people into the US appears to the rest of the world.
TTuck, I have a couple of thoughts in reply, and offer one slight correction.
ReplyDeleteGeneva Convention III actually covers quite clearly the treatment of forces out of uniform and/or out of command. They are deemed “irregular forces” and are to be accorded all rights of any other type of POW. Think of how we’d expect US citizens who raised up in small bands to fight an invader, or how we expected the French resistance fighters to be treated. GC3 formalized that expectation – and we signed it. That’s why SCOTUS required Bush to put the people in GitMo through some sort of trial where they had previously refused to (calling them a made up term ‘Illegal combatants.’)
Bush claimed that foreign nationals (non-Afghans or Iraqis) captured in either country were engaging in warfare illegally, and claimed there was no provision for how to treat them. This also was erroneous – first we had our own history of helping other nations voluntarily (Eagle Squadron, Lincoln Brigade), and GC3 and GC4 provided for treating actual criminal combatants as criminals, either under the laws of the nation they were captured in, the laws of the occupying power, or international law if no other venue seemed acceptable.
This left Bush with two rather unsatisfying options, first, the administration knew some of the evidence gathered had been gathered coercively, and would never stand up in front of a normal court (ours or international – as it shouldn’t have, it was obtained by torture). So he came up with the idea of tribunals. These are AT BEST only qausi conforming to treaty. They were used during WWII to try enemy soldiers who engaged in activities rightly called spying – and CAN be used here, but they are a far cry from properly constituted courts. They are staffed by members of the military whose careers are dependent upon conformity to political desires, and which allow for evidenced gained through coercion. That’s just plain wrong – given that we know some of the people in GitMo were put there purely for political revenge – it’s really doubly wrong.
The Supreme Court has repeatedly repudiated the positions taken by Bush, claiming state secrets, refusing to adhere to signed treaty, refusing to put people on trial, slow-footing the trial process, etc.. and they did so because both US and international law was very clear about how these people were to be treated. There isn’t and there wasn’t ambiguity – we’ve seen this kind of situation before, and laws were written, treaties signed, to deal with them.
Lastly, Congress had a problem with trying people here - true enough, but much of that was in part due to the erroneous suggestion that if the person were found not guilty, they'd be released on US soil. That is just utter nonsense. If, and it's extraordinarily unlikely, someone were found not guilty, they'd be repatriated.
I equally cannot support trials which would use as evidence, confessions and other data obtained by torture.
The notion that we can't try some (or all) of these people on US soil is patently absurd. Federal courts have for years routinely dealt with accused criminals as dangerous if not more so than these individuals. Aside from the political grandstanding, (which makes for great television sound bites, but poor political practice), I don't think any of the members of congress who "shit a brick" about these people being tried in the US really believe there is any real danger.
ReplyDeleteEven after trial, if they are convicted, they will need to be housed in US prisons. Compared with the state prison systems, the Federal prison system has an incredibly low escape rate. Prisons like the SuperMax or Ft. Leavenworth (Super High Security and High Security institutions) can certainally house anyone convicted and sentenced to lengthy prison sentences.
There were two types of tribunals used in WWII. One was a military commission, which in several cases tried captured spies and sentenced them to death. These military commissions were used several times throughout the course of the war. However, their proceedings were not secret as news reporters covered them extensively. The Nurenburg tribunals were a seperate court set up by the allied powers after the war to try suspected war criminals. Their proceedings were not by any means secret, and in fact were publicized every step of the way. While the proceedings were not exactly based on anglo-american common law, they gave the fairest trial available under the circumstances to allied prisoners. I stress that these were allied prisoners, i.e. prisoners of all the allied powers, not just of the US.
In short, I see absolutely no reason not to try each of these persons on American soil, in a US District Court, and if convicted, they can serve their prison sentences in the US Bureau of Prisons system.
KR, you know how much I enjoy your musical riffs.
ReplyDeleteI do... even when I don't agree with them.
There is no credible evidence that any worthwhile information has ever come from torture. It is not a reliable technique,which has been proven over way too much time. The examples which come to mind are John McCain in VietNam, and the U.S. soldier currently held by the Taliban in Afghanistan / Pakistan. I don't believe what he says, even if it is someone else who is doing the coercing, and not our torture.
But I don't think that you will ever agree with that, even if you saw it first hand.
I will defer to Pen's expertise in military matters. My understanding however of the definition of mercenary does not include someone foreign born who meets the criteria for serving in our military. While there are many hispanics in our armed forces, [some who are citizens, some not], we have provisions through our embassies world wide to accept foreigners who wish to serve in our armed forces.
A small but important detail.
This comment has been removed by the author.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteSo, my question to you is, to avoid paying for captured combatants care and upkeep, what do you suggest?
ReplyDeleteAlso, given that the topic was about legal representation and torture, do you suggest they be denied access to a trial and interred for life without a chance at liberty or chance to argue their case? Further, do you support torturing people?
You see, this was NEVER about costs, and that frankly is as canard - we can't avoide the costs no matter what we decide about John Yoo.
In the interest of brevite and focus, I've pulled the other two comments I made. - let's focus on the cost point for a moment.
ReplyDeleteDG - as to the viability of torture - obviously you know that neither you nor I ever said it didn't get information, in fact, the problem is the opposite, it gets LOTS of unreliable information, and it takes too long to get. In short, it's stupid to use.
It's not an extreme KR, perhaps you don't know it, but that hardly makes it untrue.
ReplyDeleteTorture is, as compared to other methods of interogation, considered a failure, a fool's errand, and stupid to engage in.
In reply to your commment about miranda.. first, that's hyperbole - however, as I've actually BEEN instructed AND instructed soldiers on how to comport themsevles with prisoners and to care for prisoners - please, let me help you - once a prisoner has surrendered, it is unlawful to use weapons on them - period. Shooting someone in the attempt to escape, if they are doing no other harm, is in fact UNLAWFUL. You should be aware of that if you aren't - I am not scolding you, I'm saying I want you to be aware of that. So, I have heard, and said, as an actual soldier, what the rules are.
You did however duck the question - we weren't talking about soldiers on the battlefield.
You made the point that you felt we shouldn't be giving captured prisoners "3 hots and a cot" - what is your alternative?
Simple question - please answer.
As regards what constitutes torture, it's not really ambiguous, in treaties we are signatory to it's been defined pretty extensively, and waterboarding is torture.
So, the second question is, do you approve of waterboarding?
Contrary to what many laymen believe after watching too many police dramas, it is NOT a requirement that the police (or any other arresting agency) "mirandize" a suspect upon arrest. It is only required prior to interrogating the suspect with the intent to use the evidence against them in a further legal proceeding. That means, for instance, if a police officer stops a person for a tail light being out, and the police officer subsequently arrests the person for a DUI, the police officer isn't required to read the miranda rights if they don't wish to ask questions and use the answers in a later criminal prosecution. This doesn't apply in a battlefield situation, but it might apply to those prisoners who will be subject to prosecution in US Courts.
ReplyDeleteOne of the reasons that the Bush administration had problems with prosecuting these people in US Courts is that they (1) captured them under dubious circumstances, (2) the information gained was gained without the prisoners having the opportunity to have counsel present and (3) in many cases, coercion or torture was used to obtain the information. Any or all of these reasons are sufficient to make the evidence inadmissible in a US Court that is properly consituted. The use of said evidence IS allowed by the military tribunals, to the everlasting shame of the United States. (For the record, I don't approve of the Obama Administration's decision to use military tribunals on any of these prisoners. Either we have sufficient evidence, lawfully obtained, or we let them go).
KR - thank you for replying about what to do with prisoners.
ReplyDeleteLet's talk about two things then.
First, while doubtless you were generally joking about Obama and paying for everyone, the point is, it's not a question germane to John Yoo, or GitMo, or anything else. Your objection there wasn't really relevant.
Second, we don't get to 'just turn over prisoners' to other parties unless we have an agreement to do so AND we have a good reason to believe they'll be propoerly treated. In the case of the prisoners captured in Afghanistan, we certainly COULD have turned them over to the Karzai government. I think they'd have been reasonably treated, but I strongly suspect our own CIA didn't want that - as we felt they'd probably be released when we didn't want it.
Again, the point is, we had to feed and house them, regardless of any requirement to a. not torture and b. provide a legal framework for their release.
Yoo erroneously argued that we a. didn't have to give them any legal recourse, and b. we could hold them indefinetely on non-US soil and c. that 'torture' was akin to 'the pain experienced in death or the loss of a major bodily organ.' in contravention to signed treaty.
So, the point here is - do you feel torture, which actually according to MANY experts is self-defeating - do you feel it was permissible?
You've answered the quesiton about what you think could be done - and thanks for doing so - I've tried to reply with my understanding of our requirements as soldiers - which I hope you'll agree I'm somewhat more qualified than most to convey - as an answer to your commentary about miranda (which was also obviously either a joke or failing to understand battlefield responsibilities).
So, how about it, do you think what John Yoo advocated was correct?
Assuming you don't, and assuming you'll understand the legal community sees his work as shoddy, do you feel he should be held accountable for his work?
Couple of things. I think the number was 80 or so of what were called the most hard core ( one was a driver at one time for binLaden) that their country of residence did not want them back. We cannot send them to another country except maybe Afghanistan if they want them. The Uighars (probably spelled wrong) we did not want to send to China for fear they would be persecuted for their religious beliefs. I don't think anyone looked at the distinction between being persecuted for your beliefs and being persecuted for using guns to force your beliefs on others. As to torture never getting good info, several people have stated that attacks on US soil were stopped due to information obtained at Gitmo but they are not allowed to say how the information was gained or what attacks were stopped. The only person who can definitively end the argument is Obama by also unclassifying the results of the illegal interrogations. If the illegal interrogations were really useless then release the results and let people see if the information was good or not.
ReplyDeletettucker wrote:
ReplyDelete"The Uighars (probably spelled wrong) we did not want to send to China for fear they would be persecuted for their religious beliefs. I don't think anyone looked at the distinction between being persecuted for your beliefs and being persecuted for using guns to force your beliefs on others."
You spelled it correctly. However, there is no clear indication that they were using guns. They have been welcomed where they are now, Bermuda, I believe, and show no signs of being violent men.
" As to torture never getting good info, several people have stated that attacks on US soil were stopped due to information obtained at Gitmo but they are not allowed to say how the information was gained or what attacks were stopped."
Except that all of those who have made those statements have an agenda, something to gain, something to lose if that is not truthful. At the same time for every one of those claims, there are credible individuals who disagree, who deny that there was critical information gained, or attacks prevented.
" The only person who can definitively end the argument is Obama by also unclassifying the results of the illegal interrogations. "
Absolutely, and I fully agree with you that Obama should make it public. But for Obama that opens up beyond any taking back the can of worms of illegal actions, and prosecutions, including the risk of international prosecutions, and the chance revelation of some covert sources. Not an easy decision, but I think there IS only one right choice in this. Sooner, or later; sooner would be better.
DG asked me to inquire about the treatment of mercenaries under GC I-IV.
ReplyDeleteI post the following with two caveats:
1. Another section clearly indicates that until the status of the captive is determined, they are to be treated in all ways as a POW.
2. There is no provision for treating someone as an 'illegal combatant' or defining them as such - this term does not exist as far as I know of, in any of the GC's.
From GC-III (I believe) section 43
Article 47.-Mercenaries
1. A mercenary shall not have the right to be a combatant or a prisoner of war.
2. A mercenary is any person who:
(a) Is specially recruited locally or abroad in order to fight in an armed conflict;
(b) Does, in fact, take a direct part in the hostilities;
(c) Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
(d) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
(e) Is not a member of the armed forces of a Party to the conflict; and
(f) Has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.
- This means, you generally cannot be a mercenary in your own country (DG I was wrong) - it also means that our Eagle Squadron in WW2 would likely meet the definition of mercenary, and certainly the Flying Tigers would have - as they both received compensation well in excess of their indiginous peers.
TTuck,
ReplyDeleteThe fact that people say it gained information wasn't my point.
I agree with DG that those who said so had an agenda, but that wasn't my point either.
My point was that torture is an idiot's game - it results in self-contradictory information, information which discredits OTHER more useful information, and almost always takes MUCH longer to get.
As such, while it MAY have gotten information - there is little evidence of that btw, and given Bush's penchance for showboating vis a vis the Pakistani intel guy they caught and hacked his computer whom they announced much to the anger of the intel community - anyway, I don't believe they'd have kept it quiet - nevertheless, the point is, the info they got the likely would have gotten anyway and MUCH more quickly by NOT torturing.
All of that doesn't matter though, because torture is WRONG, the ends do not justify the means, and it's illegal. If killing babies would stop 'an attack', would we be right to do so? Obviously not - and the conservative members of the Supreme Court agreed with that. So this is about whether someone who knowingly violated obvious legal standards should be held accountable - and with him, perhaps those who put him up to it.
I say it's the only way to avoid the repitition, and a repitition which NEXT time might be by some powermad extremist of a regime not against foriegn nationals - but rather against political opponents. The key to freedom is vigilance that these 'slippery slopes' are stopped in the womb.
One more comment on mercenaries (ok, two)
ReplyDeleteAfghani and Iraqi prisoners could NEVER be defined as mercenaries if captured in their home country.
Foriegn nationals fighting for 'beliefs', in country prior to the start of hostilities - defending a regime they support, could not either.
K-Rod said,
ReplyDeleteAll terrorists will be afforded their miranda rights. All soldiers will be required to recite these rights on the battle field... this could be a bonanza for all the millions of lawyers... talk about job security... mexicans can now do a short mercenary stint but do no harm... get caught... get 3 hots and a cot in the good ol USA!!!!!! And get FREE health care!!!!!
If you did not mean to object to providing prisoners with "3 hots and a cot", please clarify your statement.
K-Rod said:
Obama is still requiring it to be done on our own soldiers in SEAL training. Obama can do no wrong, right? Becareful of what you say, Napolitano's goons may lable you a threat.
Its been explained over and over here the difference between voluntary training by US elite forces and torture of a prisoner. Just in case you didn't understand, let me explain the first time. Penigma is our resident military expert, and if I am in error, I am sure he will correct me.
1) SEAL training is voluntary. The participants volunteer for this unit and they volunteer to complete the training. They can stop at any point and go back to their original unit.
2) The SEAL trainee who is waterboarded is doing so as a training exercise so that he can better resist torture techniques that have been documented to be practiced by some of our enemies.
3) The SEAL trainee knows that this is a one time, temporary and training exercise.
4) The SEAL trainee has a degree of control that a prisoner does not.
To compare the torture employed by the Bush administration with the training of some of the US Military's elite forces demeans the soldiers who undergo it to help protect your freedom to spout nonsense.
K-Rod said:
The only acceptable response to incompentent work performance is termination.
Mr. Yoo is no longer with the Department of Justice. However, Mr. Yoo committed egregious breaches of his ethical responsibilities as an attorney. Let me list a few of them here:
1) He knew, or should have known, that the legal foundation for his memos was non-existent. Nevertheless, he provided a professional opinion when he knew or should have known that it was in error. Rule 1.1 of the Model Rules of Professional Responsibility state "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
2) Mr. Yoo breached his duty to provide independent legal advice. By this, his legal memos and conclusions didn't reflect the state of the law, they were acting as an attempt (shoddy, at best) for legal cover to commit human rights abuses.
3) Mr. Yoo breached his duty to not assist a client (the Bush administration) in committing crimes. He thus violated Rule 1.2(d) of the Model Rules.
In summary, Mr. Yoo, through his negligence and professional incompetence, allegedly caused injury to Mr. Padilla, and that why he is being sued to be held accountable for his actions.
K-Rod, I would respectfully request that you not invoke phrases such as "God #(%*" here.
This comment has been removed by the author.
ReplyDeleteI deleted and am re-posting my comment above to correct a couple of glaring typographical errors.
ReplyDeleteK-Rod, you have again either not understood my comments or have chosen to remain ignorant of what I am saying. I have been quite clear.
Mr. Yoo, as a graduate of a US Law school, would have had required courses in constitutional law. He also was not a recent graduate, but had in fact been in practice for several years before he authored the memos in question. Nonetheless, I don't know if he acted maliciously or not. However, in a torts lawsuit, (such as the lawsuit filed by Mr. Padilla), malicious intent isn't necessary to prove. Incompetence and negligence are the standards, and he meets both. He was incompetent in that he provided legal advice which was wrong and which was clearly wrong. As I have said over and over, he blatantly ignored over 200 years of American jurisprudence in coming to his conclusions. He was also negligent in failing to provide independent legal advice, which is again a requirement of the canons of legal ethics. His negligence and his incompetence are the basis for Mr. Padilla's lawsuit, and the reason I believe he should be disbarred. Legal malpractice is a recognized tort, and Mr. Yoo appears to me to be liable. Mr. Yoo is an embarrassment to my profession, and when I see an example of professional incompetence, I am rather biased against those individuals. Am I interested in vengence towards Mr. Yoo? No. I am interested in making sure that he isn't teaching future lawyers and continuing to practice law when he has violated so many of the cannons of the profession.
K-Rod, I'm referring to your use of the quote from Rev. Wright, (and I might note you haven't provided a source for the quote, either). As you use the quote, you appear to be using the words yourself, which means you are using words which I find objectionable.
The terrorists who hijacked 4 airplanes on September 11, 2001 were not mercenaries by any stretch of the definition. Obviously, since all of them died in the attack, none were captured or interrogated, none were waterboarded, and none were tortured. Therefore, how are your statements relevant? Your last sentence about flying in an aeroplane is nonsensical.
I suggest that you read what I've said closely, and review what you said. I've refuted your statements, and think I have been very clear in doing so.
Rev. Wright is not currently President Obama's pastor. President Obama left his church after he found he couldn't support some of his more outlandish statements.
ReplyDeleteThe debate over Rev. Wright has nothing to do with this topic, and as such, I'm going to ignore your futher comments on the subject. They are off topic and specious at best.
I will comment on your absurd suggestion that by being paid "72 virgins" the terrorists who flew hijacked airliners were mercenaries. That's completely off base, has no grounding in reality, and is an intentional misstatement of Islamic belief.
Pen, I wasn't saying the ends justify the means I was saying that accusing someone of doing something without allowing them to talk about why they did it is not very fair. There was a recent case where a special forces soldier in Afghanistan captured a Taliban guy. While he was handcuffed he told them he was the guy who set a female archeologist on fire for wearing a sleeveless shirt, took her a month to die. The soldier shot him in the head. He was brought back and tried for murder, the jury found him guilty of manslaughter, the judge said the crime did not call for jail time and gave him time served and a yr probation. Basically he lost his career in the military. The jury obviously thought he did something wrong as they found him guilty but judge and jury both could understand why he did it. If he had not been able to tell the jury why he did what he did then he would most likely be sitting out a life sentence. I would even say that the trial should be moved to a non-public courtroom, no media allowed, and let the judge and jury hear why Yoo wrote the memos and what was gained by what they accuse him of.
ReplyDeleteSorry for the delayed response.
ReplyDeleteThanks for the invite and your welcome ThoughtsOfEternity.
First, let me say, I refuse to argue over a decision made by a judge for several reasons. Two of which are 1) until all appeals have been exhausted it's pointless; 2) Judges are not god's upon Mount Olympus and frequently get it wrong or are made moot over time.
What I will argue is the validity based on common sense of a civil case brought by an admitted terrorist against someone that was engaging in their job to help prevent terrorism. I don't agree with torture in any of it's forms but I do agree with ones right to interpret law and counsel on that interpretation. If said interpretation is latter deemed by the GOVERNEMNT to be invalid then said person should be prosecuted by the GOVERNMENT. Clearly we have a situation in which a person performing his duties (incompetent or otherwise) for the GOVERNMENT (whether you voted for it or not)at the request of the GOVERNMENT and is not being sought after by the GOVERNMENT for violating the spirit of the law. How is that any different that say an Engineer building a bridge based on GOVERNMENT mandated regulations being personally sued by some private citizen who was hurt because the bridge fails? If the GOVERNMENT doesn't prosecute the Engineer because they find he was following regulations how is it reasonable for the Engineer then to be found guilty in a civil procedure. Similar to what happened to OJ (he should've been found guilty in my opinion but opinions don't count). Found innocent of murder but then guilty in a civil procedure. HOW DOES THAT MAKE ANY SENSE? If ANYTHING I think one could argue a civil case against the DA of LA for incompetence. Not OJ (though I'm not crying for him).
You can quote the Model Rules all you like but doesn't that mean you need to PROVE he KNOWINGLY counseled a client to engage, or assisted a client, in conduct that the lawyer knows is criminal or fraudulent? You can say...well he should've known or it's OBVIOUS he knew. However, and I'm not a lawyer mind you, I think that the law weights very differently a criminal that knew he was breaking the law vs. a criminal that via incompetence broke the law. I would agree you have a disbarment case here. I would disagree as to the PROOF that he was KNOWINGLY engage in something criminal. Before you point out the judges ruling please refer to the last two paragraphs. Need I point out that throughout our short time as a country there are many examples of judges making rulings based on emotion rather than law or many examples of miscarriages of justice?
Furthermore, lets get serious about the dual roles some posters seem to what to attribute to Bush Admin officials. Can you be incompetent and diabolical at the same time? I don't think I've ever heard anyone accuse the NAZI's of being incompetent. Diabolic YES but an incompetent NAZI? So lets try and get the argument on a logical path either the Bush Admin (including Mr. Yoo) were either a) Diabolic and therefore should be all be brought to trial or they were b) incompetent boobs. You can't have it both ways. Incompetent Diabolic Boobs? Really? Nixon and Clinton were both incompetent boobs but I would hardly say any of their actions were diabolic and should've resulted in jail time.
From what I've read here some consider the mere fact of detaining these terrorists at Gitmo or at other locations without a trail in federal courts is a denial of these individual’s human rights. Therefore, by similar argument....OH YES...a Marine guard at Gitmo is actively partaking in the denial of someone’s human rights and therefore following a illegal order and SHOULD be held accountable. Again you can't argue that on one hand a Marine engage in torture is any less guilty of human rights violations than the Marine walking the fence with a loaded weapon ready to shoot to kill should a prisoner trying to escape to prevent themselves from being tortured. In fact based on what I've read here these Marines should be held to the same standard as Mr. Yoo. The standard should flow both up and down the chain of command. So when will the prosecutions begin?
ReplyDeleteNow all of this aside, I would agree that there is a methodology for dealing with people like Padilla. Let’s remember Padilla was not tortured. He has been denied his civil and human rights according to some because he's been held without trial. You all might find this surprising but I think the Bush Admin was incorrect in holding him without trail. I think they should've dealt with him the way FDR dealt with the 8 Abwehr agents. Their capture, Court-Martial and execution all took place in less than 7 weeks. Please note 2 of the convicted held US Citizenship. Also, the proceedings were closed to the press and they were only allowed to view some of the records.
I'm not an expert of all things GC but I think the argument that these people were civilians doesn't hold muster. Comparing these "civilians" to Americans rising up to throw out foreign invaders doesn't hold water. To my knowledge the people being held at Gitmo are for the most case individuals that are on foreign soil. So a citizen of Yemen caught in Afghanistan engaged in saboteur activities does not fit the French resistance, American rebel, or civilian mold. These are SABOTEURS and are not part of a military body nor are they citizens of said country. Yemen doesn't want them and the left leaning Americans don't want them to face the same trials that one of their GREATS (FDR) established. I agree that the Bush Admin f'ed up. However, I blame the left for muddying the water and making it basically impossible for anything to be done with these people that would've made sense. You can't have these cases heard in front of a Federal court for obvious reasons. These aren't people arrested by the FBI on foreign soil. Most are picked up on the battle field by military personnel. In addition, even the lauded 9-11 commission pointed out that one of flaws with our system that allowed 9-11 to happen was specifically because we were treating terrorist and terrorism as a legal problem rather than a war. So lets not walk backwards into that please.
I'm APPALLED (incase my sarcasm doesn't reach through via black text let me clearly state I'm being sarcastic) at Obama's detention of even 20 terrorists at GITMO! So let me get this straight....It's OK to argue that the LAW MUST BE UPHELD except in the cases when the Obama Admin violates the law? 200 vs. 20. OK I see. So Obama is just a little "d" dictator and a little "f" fascist and a little "w" war criminal? COME ON! Really? So you'll accept a little human rights violations but not A LOT? Good to know!
So let’s call them POW's. What's the harm in that? Nothing as far as I'm concerned. We can hold them for eternity. Remember Osama and others like him have made declarations of war on us. So lets give Osama and the others what they're looking for. Status. We'll treat their foot soldiers like POW's. Which means we detain them in prisons according to the rules of the GC until the end of the war. Hmmmm I wonder how long it will take to end violent extremist Islamic hate towards the West and specifically the USA? At least 1 generation maybe 2 or 3. That's a lot of POW's ;-). OK so maybe that doesn't make sense. So lets try the other humane thing. Turn them over to the country they were captured in to face the legal system there. I'm OK with that too. I mean Afghanistani courts and jails are much more humane than GITMO and water boarding. Wait wait wait....no they aren't. OK so maybe that doesn't make sense either. How about repatriating them to their home countries. Hmmmm China and Uighers doesn't work. Yemeni government doesn't want them back. Saudi Arabia is willing to take some them to be "re-educated" and then released back into the public. OK maybe that's not a great option either. Oh how about we pay countries to take them! YEAH! Great idea! In fact lets not even inform the parent country (we didn't inform the UK that we were dropping off a couple of Uighers for an extended vacation) of our plans. Lets just let them find out for themselves. OH by the way....potentially Uighers can now hold UK citizenship because of Bermuda being part of British territory. Oh those sweet innocent Uighers. They were only captured at Tora Bora during one of the bloodiest battles in the early days of our invasion of Afghastan. Oh and P.S. they're so innocent and child like and happy go lucky that ummm well....the Obama Admin has put a travel restriction on them preventing them from entering the US. Gee...I thought they weren't dangerous.
ReplyDeleteAll humor aside, the Obama Admin is following the Bush Admin step for step. Obama is holding military trials. Obama is engaging in invading sovereign countries and killing it's civilians without any provocation. Obama is denying it's civilians the right to due process (Padilla still hasn't had his day in court I don't think correct me if I'm wrong). Why hasn't he commuted little Johnny Taliban's sentence? Maybe Johnny would like to be catching some of Bermuda's sunshine? So please spare me the hypocrisy. Until you guys are serious about justice and not partisanship you're arguments fail. You can't clamor for human rights under one admin and go silent when another is perpetrating the same crimes just because 1) he's your man and 2) it's less frequent. Or do you guys really want to state that rights are rights only when they're good for my side and not for all people? THE OBAMA ADMIN IS VIOLATING HUMAN RIGHTS OF PEOPLE RIGHT NOW. Stand up against it or be painted a hypocrite. Stand up for it or risk everything you believe in being ripped apart. Americans are growing weary of Obama. Especially the great mass of Independents. It is SPECIFICALLY because he is a little "b". I'm referring to a little bush. If this continues. If the blind partisanship persists. If you guys insist on coloring everything bush did as dictatorial and everything obama does as being saintly you'll find yourselves in a heap of trouble. I have no problem with debating the wrongs done by Bush and his ilk. I fear though that some of you loose sight of what's important just for a little blood letting. Partisanship is not good for our democracy and republic. If you continue down this path before you know it 2010 will arrive and O will be packing his bags. I'm no fan of O nor his politics so I'd happily show him the door out. However, I think that 3 more years of partisan back biting will only serve to weaken us as a country.
Both the left and right should take note of that.
I have said repeatedly that the prisoners at Gitmo should all be given trials in a US District Court. If they are found guilty of an offense, they can serve their sentence in a US Prison, at the discretion of the US Bureau of Prisons, like any other prisoner. If they are found not guilty (unlikely, but possible) then they should be repatriated. By the way, Jose Padilla was charged in aiding terrorists and was tried in a US District Court. The Bush Administration decided to charge him less than 24 hours before the Supreme Court was to rule on whether it was legal to hold an American citizen without charges, without counsel and without trial. When the Bush administration charged Mr. Padilla, the case before the Supreme Court was therefore moot, and the Bush administration dodged a politically embarrassing bullet.
ReplyDeleteI personally can't think of any criminal charges that would be attributable to Mr. Yoo. However, the civil matter I have discussed at length above, and I think we may be in agreement, Jas. If a government engineer builds a bridge to government specifications, and obeys all of the government regulations, its true that the engineer probably can't be held civilly liable if the bridge fails. However, that's comparing apples to oranges. Mr. Yoo did NOT obey government regulations. An attorney is bound to obey the rules of professional responsibility which are made part of their obligation when they obtain a license to practice law. Mr. Yoo violated at LEAST two of them, and possibly three. (Competence and independent judgment were undoubtedly broken, we will probably have to agree to disagree on aiding in the commission of crimes)
Jas, the Bush administration as a whole was generally incompetent. Some members of the Bush administration were also evil. Was the Bush administration itself diabolic? No.
As I stated above, I don't approve of all things Obama. I think he has made some serious mistakes, and I am profoundly disappointed that he seems to be following some of Bush's mistakes. As I said in an earlier post, I think the rule of law applies to everyone, and the Obama administration needs to ensure that.
I don't know what the terrorists thought they would receive for killing so many people, but since they're dead along with thousands of their victims, we will never know what they thought. Regardless, it doesn't make them mercenaries. That's a specious argument and you know it.
ReplyDeleteK-Rod, this is getting wearisome. Either you didn't read what I said or you deliberately misunderstood it. I said that I think the Bush administration was generally incompetent. I also think some individuals in the Bush administration were/are evil. The Bush administration itself wasn't diabolic, however.
Ttucker, Mr. Yoo, if the case goes to trial, will have an opportunity to provide the court with the reasons he wrote the memos, and will have an opportunity to show why he wasn't incompetent or negligent. Remember, this is a civil matter, and its a long way from going to trial.
K-Rod, you need to read more closely. I have very, very clearly, on more than one occasion, said that I don't agree with President Obama on many things. I am disappointed in a number of policies he as put forth, and I've said so. The fact that you haven't read what I wrote or misunderstand it is not my problem.
Jas said, "So let’s call them POW's. What's the harm in that? Nothing as far as I'm concerned. We can hold them for eternity. Remember Osama and others like him have made declarations of war on us. So lets give Osama and the others what they're looking for. Status. We'll treat their foot soldiers like POW's. Which means we detain them in prisons according to the rules of the GC until the end of the war. "
ReplyDeleteAgreed entirely, which was what Colin Powell advocated, and Bush refused to do, instead getting John Yoo to issue specious legal briefs.
As for 20 vs. 241 - I was pretty plain, I OBJECT to the tribunal system. You may not have seen it with all the drivel that gets typed in between the commenters actually looking for discussion.
TTuck said:
Pen, I wasn't saying the ends justify the means I was saying that accusing someone of doing something without allowing them to talk about why they did it is not very fair. There was a recent case where a special forces soldier in Afghanistan captured a Taliban guy. While he was handcuffed he told them he was the guy who set a female archeologist on fire for wearing a sleeveless shirt, took her a month to die. The soldier shot him in the head. He was brought back and tried for murder, the jury found him guilty of manslaughter, the judge said the crime did not call for jail time and gave him time served and a yr probation. Basically he lost his career in the military. The jury obviously thought he did something wrong as they found him guilty but judge and jury both could understand why he did it. If he had not been able to tell the jury why he did what he did then he would most likely be sitting out a life sentence. I would even say that the trial should be moved to a non-public courtroom, no media allowed, and let the judge and jury hear why Yoo wrote the memos and what was gained by what they accuse him of."
I agree completely, but it is the nature of military courts to NOT consider mitigating circumstances unless the board of officers is inclined to do so. However, you seem to have indicated he was tried in a civilianr court. That is highly unusual, and I had not heard of the case - that said, not allowing him to explain his emotional state would be a pretty severe violation of juris prudence as I understand it, certainly in the sentencing process, and I object to it without reservation - we agree entirely.
BTW - KR, you are allowed to say FAR more than you should be allowed to - if you continue to insist that this blog is nonsense, ocntinue to insult, continue to duck questions and comments, continue to insult it's authors genuine attempts and tremendous patience with your insults, the only person you are indicting, is yourself. You specifically took TTucks words and used them to misreprsent both the truth and his intent - he wasn't talking about this blog - and he wasn't looking to offer you something to quote from to type a distortion or dishonesty (your choice) about this blog.
KR said "Yes, I remember what those mercenaries did on 9-11, do you?"
No, they weren't mercenaries - you are misusing the word, you were given a definition which didn't include 'spiritual rewards' any more than it included 'good feelings' as forms of compensation.
However, I remember, as anyone over the age of about 4 on 9/11/2001, the day just fine, but your question certainly is insulting as hell.
Jas said:
ReplyDeleteAll humor aside, the Obama Admin is following the Bush Admin step for step. Obama is holding military trials.
Well, that's both true, and exageration. He's doing many things similarly, but he's not attempting to a. cover it up b. Lie about it or c. claim anyone who disagrees with him is a traitor.
As well, he's attemptint to wind down, not up, most of Bush's policies. I agree with you that he's doing wrong too, as I've said before.
" Obama is engaging in invading sovereign countries and killing it's civilians without any provocation. "
I'm sorry, which ones? Do you men Pakistan? I think there is provocation - and the indiscriminate killing of civilians is hardly the result of Obama's choice of targets any more than when it happened under Bush, it was Bush's fault, except that both are ULTIMATELY responsible as the Commander in Chief. If we weren't there, the bombs wouldn't have a chance to fall indiscriminately.
Obama is denying it's civilians the right to due process (Padilla still hasn't had his day in court I don't think correct me if I'm wrong).
Actually, I think he has, but I don't give Obama credit for it, I give that to the SCOTUS. That said, Obama ISN'T stonewalling legal cases like the BUSH DOJ did, keeping people in jail without recourse for years - until he is about to be ruled against in court, and then backing off.
"Why hasn't he commuted little Johnny Taliban's sentence? "
There hasn't been a trial, so there is no sentence, unless you're talking about John Lindh - my guess here - in which case, I don't think the guy's sentence needs commutation. Some folks would say that he had a right to go to another country and back a government he liked, and WE made war upon it - but he wasn't a citizen of the country - so I think his legal status was sufficiently ambiguous that he could be charged. I might not think he deserves as much time as he got, but he doesn't deserve commutation.
"Maybe Johnny would like to be catching some of Bermuda's sunshine? So please spare me the hypocrisy."
Are you speaking to me, or just speaking broadly about Obama?
I've answered your question about what I think.
" Until you guys are serious about justice"
I'm plenty serious - but I'd ask the same of you, do you mean what you say here, do you think Bush committed war crimes?
Obama is a deep dissappointment to me, I oppose tribunals on their face. They are decidedly NOT just.
" and not partisanship you're arguments fail. You can't clamor for human rights under one admin and go silent when another is perpetrating the same crimes just because 1) he's your man and 2) it's less frequent. Or do you guys really want to state that rights are rights only when they're good for my side and not for all people? THE OBAMA ADMIN IS VIOLATING HUMAN RIGHTS OF PEOPLE RIGHT NOW. Stand up against it or be painted a hypocrite."
Jas - I think the same comment could be made about people who complain about Obama 'doing what Bush did' without recognizing he is NOT doing anything close - though he is doing some - and who denied for 8 years it was wrong, don't you?
K-Rod,
ReplyDeleteWell, let's see:
1) I disagree with President Obama's decision to hold ANY military tribunals at Gitmo. As I have said repeatedly, the US District Courts have the ability to try those prisoners and should be allowed to do so.
2) I disagree with the unwillingness of the Obama administration to move forward on investigation and possible prosecution of war crimes committed by various officials of the Bush administration.
3) I disagree with a number of Bush's financial market initiatives, including the most recent stimulus package. I think that in the financial matters, Mr. Obama is continuing some of the same disastrous policies of the Bush administration and I'm profoundly disappointed.
4) I disagree with the Bush administration's continued use of the State Secrets Act to prevent otherwise legitimate lawsuits from going forward.
I think I've made it clear that I don't blindly support President Obama.
On the matter of the 911 terrorists: They weren't mercenaries, and neither you or I know what they were promised. I also know that Islam didn't commit that act of terrorism, the actions of a madman named Osama Bin Laden and his henchemen did. The issue of the 911 terrorists is not germane to this topic and I won't discuss it further with you.
As far as President Bush: I believe him to be a well educated but very gullible man who relied on some extraordinarily incompetent and evil people. He also lied, (if not through direct commission then by omission) to the American people and Congress about the need for the Iraq war, resulting in the loss of thousands of American service men and women. Now, in fairness to Mr. Bush, Congress should have investigated more thoroughly, and the news media was little better. But, the original lie came from the Bush administration and they are the ones who are ultimately responsible for the results.
In short, given your two choices: I would say Mr. Bush made idiotic decisions with indifference to the results.
KR - your comments about it being 'a bitter pill' is yet simply more unproven invective. What TRUTH do you think you've pointed out? You have no substantiated evidence that I can see
ReplyDeleteYou don't speak the truth - you speak questions and make comments which you neither substantiate nor express clearly.
In short, you are taking credit for something not in evidence - your comments are far from truthful, but they are certainly full of invective.
KR wrote:
ReplyDelete" K-Rod said...
TOE, obviously you are bitterly against any of Bush's policies.
Let's put Bush's policies aside for the moment and let you honestly answer the question again. It will then be clear that you blindly follow the policies of Obama. Sorry if that truth is so hard to swallow."
I cleared this post for publication so I could reply to it.
KR, yes, ToE is highly critical of Bush's policies - as am I, as is Pen. I take exception to the use of the word 'bitter' in that context, or accusations of hatred that you have made elsewhere. Our feelings may indeed be intense, but not hatred, and I would strongly suggest that bitter does not correctly describe them either.
I would also respectfully suggest to you that none of the three of us BLINDLY follows Obama either, however much you may disagree with the areas where we do support him, conditionally.
KR said:
ReplyDelete(c) Is motivated to take part in the hostilities essentially by the desire for private gain...
You left out significant additional text - but let's deal with your OPINION.
check 72 virgins... open spending accounts... the money that was handed out to those mercenaries is more than I would know what to do with...
First, under international or US law, spiritual reward would never be constituted as 'gain' - it needs to be financial. However, your second point deserves SOME consideration. Was the gain out of context to other soldiers in a similar position - not established , but possible.
Y'all been taken to task once again. -
No, you've made a claim for why you feel the way you do. There are no cases supporting your position, and a LOT supporting ToE's. You've been corrected by someone with a much greater knowledge of the law, and now you are arguing that his knowledge doesn't matter, your opinion is more factual (my words not yours), and seemingly therefore in your eyes only, more correct. That's not being taken to taks, it's showing you have a particular view only.
BTW, since I posted the original GC text on this - frankly, you're not educating people, you're making claims of opinion only.
About the rest of the conformance to 'mercenary' status, I agree, but you've also failed to account for this.
Not being a lawful combatant does NOT allow for the capturing party to treat the person however they desire, it allows for them to be TRIED for such conduct, AND it does not allow for torture, no matter what - so back to the ORIGINAL topic, and ToE's supporting points, Yoo's arguments ARE and were specious.
next part - KR, I am delighted with this part of your comment; it is EXACTLY the sort of writing I have hoped to see from you. Well DONE! I look forward to more of the same, and will address the elements of it here - although length may require dividing it into parts.
ReplyDeleteArticle 47.-Mercenaries
1. A mercenary shall not have the right to be a combatant or a prisoner of war.
2. A mercenary is any person who:
(a) Is specially recruited locally or abroad in order to fight in an armed conflict;
check terrorists/mercinaries from abroad have been trying to take down America/WTC since 1993...>>
I believe that Pen may be better able to address the terminology than I, but let me take a whack at it. I believe that there is a problem in this usage with how armed conflict is technically defined which in turn affects the applicability of the term mercenary.
While terrorists may seek to do harm, we are not engaged in the usual sense with terrorists in an armed conflict. Armed conflict can be exemplified by events such as WW II, where there are armed forces in combat, as distinct from police officers who happen to be armed but whose job is not defined as military in nature.
I defer to Pen, but I believe at the time of 9/11, we could not assert an armed conflict.
"(b) Does, in fact, take a direct part in the hostilities;"
check You might not think changing the NYC skyline was hostile enough, then I guess we would just agree to disagree.
Terrorist hostilities directed at a single target, even a large one, that are not part of a much larger conflict, with participation by both sides, do not, to my understanding meet the criteria for hostilities. And yes, it was a hostile action, but we have many words to describe the specifics of different kinds, levels and degrees of that hostility that are significant here.
"(c) Is motivated to take part in the hostilities essentially by the desire for private gain..."
check 72 virgins... open spending accounts... the money that was handed out to those mercenaries is more than I would know what to do with...
While some of the more unusual aspects of Islam have posited 72 virgins, who do you assert provided those virgins to the terrorists? The imams? I doubt any of them had 72 virgins for each terrorist. A belief or hope that GOD would (more properly MIGHT) provide them is different than 'payment' of them. Mainstream islam repudiates this interpretation.
Mercenaries act EXCLUSIVELY for payment; while these individuals may have been paid (cite source? just curious) their principle motivation was religious faith, not money. Again - doesn't properly fulfill the definition of mercenary.
(d) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
check
True, they were not a national; again, the problem is the definition widely used in the context of what is or is not a mercenary for 'conflict'
(e) Is not a member of the armed forces of a Party to the conflict; and
check
Actually, this is another of those tricky areas. The resistance fighters in WW II for example, met this criteria, but were specifically excluded from consideration as mercenaries in the application of agreements and traties such as the Geneva convention (although this whole discussion parallels in very interesting ways one Pen and I had over the phone recently)
(f) Has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.
check
agree with this statement - but it is not enough by itself for the terrorists to be considered mercenaries. Words have meaning, but they are also defined by their accepted use.
But THANK YOU! An excellent post!
KR wrote:
ReplyDelete"Y'all been taken to task once again."
Now that one line in all of this I could do without, but...fine.
"I am trying to help you people see the truth; I am trying to help you become better, more informed, smarter citizens; I am trying to help you see your errors and correct them."
I applaud your intention, and the articulate way you have expressed your intent. Agree or disagree, forming replies causes me to be thoughtful. I hope we see more of this kind of post / comment, and less of the extraneous hostility.
Again - thank YOU!