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mburbank mburbank is offline
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Old Apr 28th, 2008, 11:11 AM        Dahlia Lithwick; Getting away with Torture
I urge you guys to read this. Even those of you hear who think torture is justified have to take into account that it is illegal. This is yet one more fetid hunk the Bush administration leaves us. Prisoners we have no clear path to justice or release or legal status and perhaps never will, and high officials who broke national and international laws who will never be held accountable though their guilt is a matter of public record. Bush will go but how does the country deal with and move past stuff like this? How does it get fixed?


Getting Away With Torture The failures of the legal system for both the torturers and the tortured.

By Dahlia Lithwick
Posted Monday, April 28, 2008, at 10:41 AM ET Dick Cheney
It's pretty much a given that our "terror trials" aren't working. The long-awaited prosecutions of a fistful of prisoners at Guantanamo Bay—proceedings just getting under way after more than six years of tinkering—are barely moving forward, for reasons now having more to do with politics than law. Evidence is flimsy and stale, and prisoners claiming to have been aggressively interrogated and subject to involuntary use of drugs are now refusing to participate in their trials. There may yet be verdicts at Guantanamo. But following years of abuse, neglect, and extreme secrecy, there won't be justice.
The other place we won't see legal accountability is at the upper levels of the Bush administration, where evidence of lawbreaking is largely dismissed or ignored. I want to be clear that there is no moral equivalence between the actions of members of the Bush administration and those of alleged "enemy combatants" at Guantanamo. But both the tribunals at Guantanamo and the wrongdoing in the Bush administration reflect how legal processes can fail under extreme political pressure.
Outside of the Bush administration, there is near-universal bipartisan agreement that Guantanamo should be shut down and the military commissions scrapped. Certainly a compelling case could have been made for Nuremburg-style trials for some of the prisoners held there—such as Khalid Sheikh Mohammed, alleged mastermind of the 9/11 attacks. But the CIA has admitted that Mohammed was water-boarded, rendering his confession unreliable and any possible subsequent conviction a sham. And even if we do press forward with this clutch of trials for terrorists at Guantanamo, there still remain almost 300 detainees at the base who've been jailed there for years without charges. At least some of them were turned in by Afghan captors for bounties, averaging $5,000 per head. Others are held based on the coerced testimony of their confederates. Some have been subjected to multiple preliminary status hearings (known as Combatant Status Review Tribunals) when they weren't found to be "enemy combatants" the first time around.


Full and fair trials might have happened for enemy combatants swept up after 9/11, but political missteps too numerous to detail have resulted in a process that now exists solely to prove to the world that these detentions were justified; that the captives are—as former Defense Secretary Donald Rumsfeld famously called them—"the worst of the worst." That's a political conclusion, not a legal one. And it's why Col. Morris Davis, former chief prosecutor for the military commissions at Guantanamo, resigned last fall, claiming political interference in the trials had created the perception of a "rigged process stacked against the accused." Davis later told The Nation that in a conversation with then-Pentagon general counsel William Haynes in 2005, Haynes told him flatly, "We can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions." Haynes resigned shortly after that conversation was reported.
Bad evidence, tortured testimony, delay, error, the guilty prisoners jumbled up with merely unlucky ones, and the necessity of politically motivated convictions over truth-seeking. But politics won't keep just the Gitmo prisoners from getting a fair trial. Politics will also keep those responsible for any alleged lawbreaking at Guantanamo from ever having to defend their actions in a court of law.
The legal question should have been a straightforward one: If prisoners were illegally tortured at Guantanamo and Abu Ghraib, who was responsible? On April 1, an 81-page "torture" memo produced by John Yoo, second in command at the Justice Department's Office of Legal Counsel from 2002 to 2003, was declassified. Along with its assertions of nearly unchecked presidential power, Yoo's 2003 memo argued that military interrogators could subject suspected terrorists to harsh treatment so long as it didn't cause "death, organ failure or permanent damage." (Yoo's memo was rescinded in December 2003.)
While it's arguable that Yoo was merely producing a theoretical, lawyerly opinion regarding the line between aggressive interrogation and abuse, the possibility is arising that—as Columbia Law School's Scott Horton suggested last week—"the Bush interrogation program was already being used before Yoo was asked to write an opinion. He may therefore have provided after-the-fact legal cover."
Yoo's bloodless legal analysis—he calls it "boilerplate"—may well have opened the floodgates to multiple instances of prisoner torture and even death. Yet virtually nobody suggests he should be subject to legal consequences. Indeed, even the notion that he be relieved of his teaching post at University of California-Berkeley's Boalt Hall has been dismissed as a threat to "academic freedom."
Yoo's possible contributions to the normalization of torture at Guantanamo and beyond almost pale in comparison with another story that was all but ignored this month, when ABC News revealed that top Bush administration officials, including Dick Cheney, Condoleezza Rice, John Ashcroft, George Tenet, Colin Powell, and Donald Rumsfeld met several times in the White House to discuss specific torture techniques to be used against al-Qaida suspects in U.S. custody. This group together signed off on sleep deprivation, slapping, pushing, and water-boarding, in a manner "so detailed … some of the interrogation sessions were almost choreographed, down to the number of times CIA agents could use a specific tactic." Days later, President George W. Bush confirmed to ABC that he'd "approved" of these tactics.
According to a forthcoming book by Phillippe Sands, it's just not very hard to connect the dots here: "The fingerprints of the most senior lawyers in the administration were all over the design and implementation of the abusive interrogation policies. [David] Addington, [Jay] Bybee, [Alberto] Gonzales, [Jim] Haynes, and [John] Yoo became, in effect, a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse." Yet, despite the fact that senior members of the Bush administration may well have violated the War Crimes Act of 1996, the Geneva Conventions, and the Uniform Code of Military Justice, there is scant serious talk of any accountability there, much less future legal prosecution. Yes, the Justice Department's Office of Professional Responsibility is investigating whether agency attorneys provided the White House and the CIA with faulty legal advice on interrogation. But as my colleague Emily Bazelon has observed, that's a little bit like setting the local meter maid at them.
Barack Obama recently pledged that if elected, he'd have his Justice Department immediately review whether crimes had been committed in the Bush White House. But virtually nobody truly believes that high-level architects of the American torture policy will face domestic criminal prosecution, even if domestic laws were broken. As Yale Law School's Jack Balkin pointed out, the political costs are too high: "One can imagine the screaming of countless pundits arguing that the Democrats were trying to criminalize political disagreements about foreign policy."
High-ranking administration officials and enemy combatants have little in common, and their respective acts of lawbreaking are not morally comparable. Still, their legal situations are weirdly parallel and show how the rule of law can fracture under the strain of politics. Those alleged lawbreakers at Guantanamo will never be acquitted for purely political—as opposed to legal—reasons. The alleged lawbreakers in the Bush administration will never be held to account on precisely the same grounds.
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Harry Paget Flashman Harry Paget Flashman is offline
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Old Apr 28th, 2008, 02:50 PM       
It would have been better to triage justice in the field when those terrorists were caught in the act overseas. But Dahlia does have a point in that six years is too long of a wait for a path to justice. I advocate putting some habeas corpus on their asses. Simply walk them to the front gate at Guantanamo with a voucher for bus-fare and a few meals and let them make their way back to Afghanistan or Detroit. Of course, we'd have to tell all their friends that they found Jesus during their stay and should be accorded the courtesy to worship in peace.

But you know...it's refreshing to see outfits like PETA, pro-abortionists and Canadian harp seal activists remain silent on this issue. They seem to have their priorities well in order.
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Geggy Geggy is offline
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Old Apr 28th, 2008, 03:24 PM       
its pretty amazing how many people out there still have no fucking clue why they have not been held accountable.
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Old Apr 28th, 2008, 04:27 PM       
I'm surprised that a pro-torture lawyer can keep a job at UC Berkeley. I've never known those hippies to reign it in when it comes to stuff like that, academic freedom or otherwise.
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Old Apr 29th, 2008, 10:18 AM       
Apart from firing him, I can't believe their isn't an active campaign to shame the guy into hermithood.

I mean, there are few things I can imagine more despicable for an academic to do than write a pro torture legal brief. I guess he could go further by writing a pro forced incest legal brief, but that's about it.
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Old Apr 29th, 2008, 12:35 PM       
Cheney lawyer claims Congress has no authority over vice-president

This article was first published on guardian.co.uk on Tuesday April 29 2008. It was last updated at 03:37 on April 29 2008.

The lawyer for US vice-president Dick Cheney claimed today that the Congress lacks any authority to examine his behaviour on the job.
The exception claimed by Cheney's counsel came in response to requests from congressional Democrats that David Addington, the vice-president's chief of staff, testify about his involvement in the approval of interrogation tactics used at Guantanamo Bay.
Ruling out voluntary cooperation by Addington, Cheney lawyer Kathryn Wheelbarger said Cheney's conduct is "not within the [congressional] committee's power of inquiry".
"Congress lacks the constitutional power to regulate by law what a vice-president communicates in the performance of the vice president's official duties, or what a vice president recommends that a president communicate," Wheelbarger wrote to senior aides on Capitol Hill.

http://www.guardian.co.uk/world/2008...dickcheney.usa
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Old Apr 30th, 2008, 07:01 PM       
That seems like exactly the sort of thing power of inquiry should be able to uncover.
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Old May 1st, 2008, 12:09 PM       
It's just baffling to think that a concept as simple as Checks and Balances can be dismissed without even a hint of explanation.
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Old May 2nd, 2008, 08:21 AM       
And that it turns out there isn't any speedy way built into the constitution to deal with one branch simply refusing to cooperate.

I mean, there are ways, certainly, but they take time, momentum and cooperation. I don't think the founding faters thought a lot about whole branches of government simply refusing to play by the rules.

If Dick Chenney won't go before congress. If he won't go, you subpoena him, if you have the votes on comittee to do it. If you do that and he won't obey, you have to ask the cops to drag him in or you find him in contempt of congress. If you ask the cops, that's Department of Justice, which is the executive branch, which isn't cooperating. If you find him in contempt, and you have the votes on committee to do that, and he won't go to show up in court or go to jail, again, you need the department of Justice. It can take years to get this stuff before the Supreme court, which as it's currently comprised seems to be of the opinion that the constitution favors the executive branch over the others during times of 'war'.

This is literally the stuff we fought a revolution over.
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Old May 2nd, 2008, 01:19 PM       
Revolution ..... hmmmm, now there's an idea.
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Old May 2nd, 2008, 05:55 PM       
So as we stand now, the executive branch has untold power due to our being in a war. And we're in a war against an ideal, which could potentially last forever.



And yet people think that The Daily Show is what's making young people apathetic about politics.
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Old May 8th, 2008, 07:32 PM       
Quote:
Originally Posted by mburbank View Post
I urge you guys to read this. Even those of you hear who think torture is justified have to take into account that it is illegal.
The same douchebags who want to punish pot-smokers to the fullest extent of the law?
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Old May 14th, 2008, 03:38 AM       
So if I'm reading my clock correctly I've been back on this site for about thirty-six minutes, and already I think we need to burn sleazeappeal at the stake. Remarkable, truly remarkable.
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Old May 14th, 2008, 04:36 PM       
It would've been much sooner if the first thread you saw was his "WAIT!!" thread.
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