The Big Obama Administration Thread

Remove all ads!

Yes, the Republicans threw everything they could find (or invent) at Clinton; they spent millions of taxpayer dollars and tried him in the Senate. Then he was found NOT guilty. A number of Republicans (but not all of them) were guilty of one of the most partisan "abuses of power" in my lifetime. Of course, those were the days when a Republican could be a member of the Party and still hold a different opinion than the "Party line." Those days are gone.

 

The most ironic thing is that while Newt Gingrich was paralysing the Clinton administration over Clintons severe crime of adultery, he was merrily committing adultery himself.

 

Yeah, I'll bet there were quite a few politicians of the time (and probably still are) committing that particular sin. I was actually more concerned myself with Clinton lying to Congress about it.

 

It may be beside the point, but it's really none of Congress' business.

 

"Thought it was too much trouble" implies laziness, and that's not what I'm driving at. "Knew it wouldn't succeed anyway so declined to waste the resources on a futile endeavor" is more what I am trying to say. Half of the evidence that the prosecutors would likely bring forward would be disallowed on various "executive priviledges" and those prosecutors know that. I know that most liberals (and even me!) believe that the evidence is damning but in a court of law the rules for determining whether a piece of evidence is admissable are a little more strict than they are on the Internet or even in the print and broadcast news. Even with highly competent prosecutors, Bush and his fellows will have defense lawyers who are just as competent. It's a futile effort that in addition would be an unhealthy burden on the taxpayer at a time when we can ill afford it. In an imperfect world, tough decisions have to be made regarding the allocation of limited resources.

As for your precedent comment, as any prosecutor if he's ever declined to press charges because he knew there was no chance of conviction. I'd bet dollars to doughnuts he'll (or she'll, gotta keep the NOW ladies happy) say it's happened.

 

LKD, executive privilege can only work against the Bushies now, since it is Obama -- not Bush -- that is currently the chief executive. If Obama wants to release something, there's nothing that Bush or Cheney can do to stop him.

 

That was not quite my point, LKD. While the particular details in the case may lead to insufficient details for a successful prosecution, or the prosecutors themselves may be inept, any of the acts I mentioned are still considered crimes that are taken seriously and, if proven,lead to at least a long prison sentence. They are not waved off as "something that happens". Neither should abuse of power, whoever may be committing it.

As for Clinton, I personally think it was no one's business to even look into who was having sex with him, oral or otherwise, at the time. However, if he was put through all the crap of the Lewinsky affair for an alleged blowjob during his time as office, then Bush sure as anything deserved to be put on trial for an alleged war crime now that he left. With all due respect for the US legal system - which from what I know is one of the better ones - anything less is a disgrace to it and the reputation of the United States. It might be cliched, but few politicians have harmed their country's image abroad as Bush and Cheney did.

 

One big problem, if you decide that waterboarding is torture & want to try cheney for it, you have to try everybody that has participated in it. Whether it be the CIA interrogators or the SERE & special forces drill instructors.
If you look at the torture statute there is no "training" exemption, so if waterboarding is torture they are all guilty.

 

martaug,
near miss. The salient point is that in SERE training the trainee consents to the training that includes the water boarding. When someone goes to the doctor for painful surgery, or perhaps chemotherapy, that treatment would arguably constitute assault, in any case violate the physical or even psychological integrity of the patient, wouldn't it be for his consent.

Where you are quite correct in your observation is this: When torture is a crime then you indeed do have to prosecute and punish all culprits. The consistent application of the law mandates it. This conclusion is indeed inevitable. And indeed, in Nuremberg the Allies too didn't accept acting on orders as an excuse. There is no reason to hold the US armed forces to a lesser standard than the Wehrmacht.

It is for that very reason that JAG lawyers were so appalled by the ghastly mess Bush and Cheney caused when they ordered the detention and interrogation policies against the law, and against all warnings from the military itself. The JAG corps knew full well what the law meant and that the policies coming from top were in contradiction to the law - and were to produce a sh*tload of follow-on problems, like criminal prosecutions and the like. That also explains the persistent opposition of the JAG officer corps to Bush's interrogation policies. The Justice Department memos were the means chosen to quell that dissent.

Still, the problem of, say, sending the entire executive branch to trial doesn't occur ... a retroactive presidential pardon was Bush's response to that dilemma. The pardon itself speaks a clear language. When the Bushies were forced to issue a pardon, then their case for the legality of their techniques was weak and they knew it (which didn't keep them from in bad faith claiming the opposite, with a straight face - denial is the lawyer's way to say 'Prove it!'...). Anyway, the pardon means for US prosecutions the 'foot soldiers' are largely out of the hot water, in the US that is. That means they're fine if they don't travel abroad.

However, the pardon doesn't protect them from prosecution abroad, but that situation is something they have to thank Bush for. In light of their pretty blatant illegality it was utterly predictable that the interrogation policies the Bushies pushed down the chain of command set the 'foot soldiers' up for this. The Justice Department memos are deeply flawed legal work. Illegality aside, ordering that program anyway is what I call a grave failure of judgement and leadership on part of the Bushies, and shortsighted to put it charitably. They failed their 'foot soldiers'.

Finally, Bush, Cheney, Addington, Yoo and Bybee weren't foot soldiers. The president can pardon the foot soldiers, but he can't pardon himself and his most senior officers retroactively for their violations of the law. Pardon or not, they remain accountable, must remain accountable.

A nation of laws would make a mockery of itself could the top executive officers violate the law to then pardon themselves.

 

Doesn't matter as you can't legally consent to torture, otherwise every single instance would see a signed "consent" form brought forward.

 

You don't understand. When you consent, it is not torture. It is the lack of consent that turns a treatment into something legal systems sanction as ethically wrong. In that respect torture is an offence is just like battery.

Legally it is so that when there is consent for the treatment in question, it is, generally speaking, per definition not a crime. That is why SERE trainees don't need to undersign that they agree to be tortured - because they aren't going to be.

SERE trainers aren't torturers who are only justified through the consent of their trainees. It is not as if surgeons at work are serial offenders who commit battery or assault all the time, and are only justified through consent of their patients. Both SERE trainers and doctors will rightfully object to such a view. It is through consent that there is no crime in the first place. Consent makes the elements of the offence inapplicable. That applies to torture, too. Looking beyond medicine, or SERE training, if you think of them SM people you'll see that that makes sense.

 

Nope, reread the torture statute Ragusa.
torture definition
If waterboarding is torture, it is torture no matter who inflicts it.
Just like you can't consent to spousal abuse or rape, you can't consent to torture.

 

Martaug, I find myself wondering if you really did serve in the military. For the love of God, man, SERE training exists to show our troops what it's like to be captured by a nation that doesn't follow the Geneva Conventions. I thought everyone in the military knew this...and more importantly, knew what it meant. The troops consent to it because completing SERE is a necessary step for Piloting, Aircrew, SEALS, Special Forces, Ops, SWICC, etc. To quote Jesse Ventura (former SEAL, Pro Wrestler, and Governor of Minnesota):

It was torture, but because he consented, it didn't fit the legal definition of criminal torture. No soldier, sailor, marine, or airman is actually required to undergo SERE training since all the positions that require it are voluntary. Quitting is an option (and many, in fact, do fail or quite SERE) and while no one that I'm aware of has died in SERE training, more than a few soldiers have been hospitalized for serious medical conditions that resulted from their "simulated torture".

A soldier is briefed before he is tortured about what will be done with him, how long it will last, and he even signs a waiver stating that he understands the very real risk or serious and even permanent injury that he is taking. The soldier is presented the option -- several times -- to say "No, I've changed my mind." Individuals tortured in GITMO get no such briefing, they do not consent, and they do not sign a waiver. If this is the best reason you can come up with for why waterboarding no longer constitutes torture*, then you've already conceded defeat.

* I state it this way because all existing legal precedent prior to the Bush administration makes crystal clear that waterboarding constituted torture. We charged and imprisoned the Japanese for doing it to our soldiers and we court-martialed and imprisoned at least one US soldier for doing it in Vietnam. Whatever you think now, waterboarding was unquestionably and unequivocally torture before Bush came into power.

 

Drew you cannot give consent to a criminal act to make it legal.
Even if you sign a consent form saying your buddy can shoot you, if he shoots you, he will still be charged.
I personally don't think that any instructor or interrogator should be charged, i was using it as an example.
Jesus, if you aren't smart enough to figure that out . . . . . . WOW, just WOW.

 

Drew is absolutely correct

Again ... through your consent the act doesn't become a crime in the first place

That the actions would constitute torture in the absence of consent is another matter, and that's precisely why your relativistic comparison about SERE training of soldiers and using the torture techniques applied to sailors in SERE training in earnest on prisoners falls short. It misses the essence of what constitutes a crime and what doesn't.

 

Sure Ragusa, you go try that line of thought with a buddy & see what the cops say. Post when you get out of jail.

 

martaug,
it is really not a difficult thing to understand.

 

As to why the obama admin wont be filing charges,
torture hypocrasy

A better statement of what i was getting at,
intent

Spoiler

There was a little noticed bombshell in Washington’s waterboarding melodrama last week. And it wasn’t Nancy Pelosi’s implosion in a Capitol Hill press room, where she yet again tried to explain her inexplicable failure to protest the CIA’s “torturing” of detainees. No, this one detonated in the hearing room of the House Judiciary Committee. There, Attorney General Eric Holder inadvertently destroyed the warped basis for his claim that waterboarding, as administered by the CIA, amounted to torture.

As originally reported by Connie Hair of Human Events, Holder’s undoing was the result of deft questioning by two committee Republicans: Dan Lungren, California’s former state attorney general, and Louie Gohmert, the former chief judge of a Texas appeals court. The two congressmen highlighted a fatal flaw in Holder’s theory. Moreover, they demonstrated that — despite having accused the CIA and the Bush administration of war crimes by cavalierly branding waterboarding as “torture” — the attorney general has still not acquainted himself with the legal elements of a torture offense, particularly the required mental state. This is remarkable, given that Holder’s own department explained these elements less than a month ago in a federal appeals court brief.
Rep. Lungren pointed out that if the attorney general truly believes “waterboarding is torture,” he must also think we torture our own Navy SEALs and other special-operations personnel when we waterboard them as part of their training. “No . . . not in the legal sense,” countered Holder. You see, said he, it’s “a fundamentally different thing,” because

we’re doing something for training purposes to try to equip them with the tools to, perhaps, resist torture techniques that might be used on them. There is not the intent to do that which is defined as torture — which is to inflict serious bodily or mental harm. It’s for training. It’s different.

But it’s not different because “it’s for training.” Look at the torture statute (Sections 2340 and 2340A of the federal penal code) and try to find a “training” exception. There isn’t one. What removes an act from the ambit of torture (besides lack of severe pain) is intent. Lungren pressed this point, and Holder admitted that the training was “not torture in the legal sense because we’re not doing it with the intention of harming these people physically or mentally.” Intent, he acknowledged, was the key question.

Then, Lungren pounced. The CIA interrogators who questioned top al-Qaeda captives like Khalid Sheikh Mohammed and Abu Zubaydah intended no more harm to them than Navy instructors intended to their SEAL trainees. In fact, we know that the CIA went to great lengths, under Justice Department guidance, precisely to avoid severe harm. Their purpose, Rep. Lungren observed, was to “solicit information,” not to inflict torture.

Holder was trapped. He responded with some blather about how “when the Communist Chinese did [waterboarding], when the Japanese did it, when they did it in the Spanish Inquisition, we knew then that that was not a training exercise they were engaging in. They were doing it in a way that is violative of . . . all the statutes that recognize what torture is.”

Let’s put aside that it’s unlikely the Spanish Inquisition had a torture statute — after all, the United States managed to get along without one until 1994. Let’s even ignore the fact that the regimes Holder cited are not known to have rigorously limited their practitioners to no more than six applications of water (none longer than 40 seconds long) during any interrogation session (none longer than two hours long) on any day (during which there could be no more than two sessions) in any month (during which there could be no more than five days on which waterboarding occurred). Let’s just stick with intent. Holder’s exemplars involve the sadistic, programmatic infliction of severe, lasting, and often lethal pain — “water treatment” nowhere near as benign as the CIA’s, frequently coupled with atrocities like beating, rape, burning, and other unspeakable abuses. The practices of those regimes were designed exactly to torture, whether out of vengeance, the desire to intimidate a population, or the coercion of false confessions for show-trials — not to collect true, life-saving intelligence for the protection of civilian populations.
When Rep. Gohmert followed up on the issue of intent, it became starkly apparent that our attorney general is either badly ill-informed about the law, or simply willing to misstate it. Gohmert asked: “If our officers, when waterboarding, had no intent to do permanent harm and, in fact, knew absolutely they would do no permanent harm to the person being waterboarded, and their only intent was to get information to save people in this country, then they would not have tortured, under your definition. Isn’t that correct?”

Holder summarily rejected this assessment, lamely attempting to fend it off by saying it would depend “on the intention of the person.” But of course, Gohmert had already stated the intention, very exactingly, in his hypothetical. In a corner again, Holder blundered. Whether Gohmert’s example would constitute torture, he surmised, suddenly depended not so much on the intention of the officers but on whether their act (i.e., waterboarding) would have the “logical . . . result” of “physically or mentally harm[ing] the person.”
Gohmert demurred, asserting: If “someone has to believe that they are doing harm to someone in order to . . . torture, then if . . . you knew without any question there was no harm being done, then there’s no torture.”

Holder replied,

No, I wouldn’t say that. . . . You can delude yourself into thinking that “what I’m doing is not causing any physical harm, it’s not causing any mental harm,” and somebody, a neutral trier of fact . . . could look at that and make the determination that, in spite of what you said, that what you have indicated is not consistent with the facts, not consistent with your actions, and therefore you’re liable under the statute for the harm that you caused.

That is completely wrong. What Holder described is the legal concept of a “general intent” crime. Most crimes fall into this category. To find guilt, all the jury (the “neutral trier of fact”) has to determine is (a) that you knew what you were doing (i.e., you intended to shoot the gun or rob the bank — you didn’t do it by mistake), and (b) the result was the logical outcome that anyone who performed such an act should have expected.

Torture, however, is not a general-intent crime. It calls for proof of specific intent. As I recently recounted, the Third Circuit U.S. Court of Appeals explained the difference in its Pierre case last year: to establish torture, it must be proved that the accused torturer had “the motive or purpose” to commit torture. Sharpening the distinction, the judges used an example from a prior torture case — an example that thoroughly refutes Holder’s attempt to downgrade torture to a general-intent offense: “The mere fact that the Haitian authorities have knowledge that severe pain and suffering may result by placing detainees in these conditions does not support a finding that the Haitian authorities intend to inflict severe pain and suffering. The difference goes to the heart of the distinction between general and specific intent.”

To state the matter plainly, the CIA interrogators did not inflict severe pain and had no intention of doing so. The law of the United States holds that, even where an actor does inflict severe pain, there is still no torture unless it was his objective to do so. It doesn’t matter what the average person might think the “logical” result of the action would be; it matters what specifically was in the mind of the alleged torturer — if his motive was not to torture, it is not torture.

One might have expected Holder to know that. The argument was used in a DOJ filing before the Sixth Circuit U.S. Court of Appeals only three weeks ago. Indeed, the Haitian example cited by the Third Circuit is quoted here, word-for-word, from the brief filed by Holder’s own department.

The bottom line is, Rep. Lungren skillfully steered Attorney General Holder into the truth: As a matter of law, CIA waterboarding — like the same waterboarding actions featured in Navy SEALs training — cannot be torture because there is no intention to inflict severe mental or physical pain; the exercise is done for a different purpose. When Rep. Gohmert’s questioning made it crystal clear that Holder’s simplistic “waterboarding is torture” pronouncement was wrong, the attorney general — rather than admitting error — tried to change the legal definition of torture in a manner that contradicted a position the Justice Department had just urged on the federal courts. It seems that, for this attorney general, there is one torture standard for Bush administration officials, and another one for everybody else.

Good to see Holder has ended all that unseemly politicizing of the Justice Department.

Hope that clears things up for some who can't seem to understand.(hmm, now who could i be talking about??)

 

I have wondered how that works with the whole BDSM community. They do some pretty scary stuff - they probably have had a few lawsuits against them.

 

martaug,
Drew and I were talking about the objective elements of the crime of torture. Problems of intent come into play after the objective criteria of the offence were met. The intent is the subjective element of the crime. It doesn't make sense to deliberate over subjective intent when the act itself didn't even met the objective criteria of a crime.

Examples: A surgeon who cuts up a patient and breaks his bones in order to open the thorax for pre-agreed or emergency heart surgery does all that with intent. He hurts his patient deliberately. Arguably, you do want a surgeon to do all the things he does deliberately. If he, now that the patient is open anyway, decides to, unasked, remove the completely healthy appendix en passant as well, then that part is not carried by the patient consensus, and thus constitutes a criminal offence.

Or in an SM example: A dom, with full intent, does, within their consensus, whatever to a sub - yet this intent is, as long as it is within the limits of the consensus, irrelevant as far as criminality is concerned. No matter what you like to call it, it does not constitute the crime of torture because the consent excludes that the objective elements of crime for torture are met. Only when the dom exceeds the limits of the consent then it becomes a crime (like when, instead of 'playful spanking', he beats the sub into a bloody pulp), usually duress, battery, assault and/or rape. That said, wouldn't it be for the consent, even the 'playful spanking' would constitute a criminal act.

Spot a pattern?

Spoiler

In both cases the essence of the offence, the essence of what is considered worthy of a sanction under the law, is that the offender exceeds consent. It is essentially a natural reflection of every individual's right of self determination, or, more loosely, individual freedom.