Civil Liberties

Holder Makes Lindsey Graham Smile and Civil Libertarians Cringe

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At his confirmation hearing yesterday, Eric Holder, Barack Obama's nominee for attorney general, said some reassuring things about the rule of law and the separation of powers:

I will use every available tactic to defeat our adversaries, and I will do so within the letter and the spirit of the Constitution.

Adherence to the rule of law strengthens security by depriving terrorist organizations of their prime recruiting tools. America must remain a beacon to the world….

President-elect Obama and I respect Congress and we respect the federal judiciary. We will carry out our constitutional duties within the framework set forth by the founders and with the humility to recognize that congressional oversight and judicial review are necessary.

All that could be dismissed as boilerplate, except that Holder backed it up with several specific positions. Like Attorney General Michael Mukasey (and unlike John Yoo), he said the president is obligated to obey laws regulating the treatment of suspected terrorists, including the ban on torture. But unlike Mukasey, who bent over backward to avoid answering the question during his confirmation hearing, Holder unambiguously stated that "waterboarding is torture" and therefore illegal.

Also unlike Mukasey, who dodged this question too, Holder said President Bush had no right to ignore the Foreign Intelligence Surveillance Act's warrant requirement for monitoring communications between Americans and people in other countries. Although he deemed Bush's so-called Terrorist Surveillance Program "useful," he said the president should have asked Congress to revise the statute instead of secretly breaking the law. That is pretty much the position taken by Obama, who voted to change FISA so executive branch officials can unliterally authorize surveillance of communications involving people in the U.S. if the ostensible target is believed to be located abroad.

Holder said the Bush administration's military tribunals for suspected terrorists do not provide due process but left open the possibility that they could be tweaked to address that concern. According to A.P., "Holder said the administration was considering prosecuting the detainees in civilian courts, military courts or in some new hybrid court." Is that what we need? Yet another newfangled justice system, bound to be portrayed (probably correctly) as rigged against defendants and guaranteed to be challenged for years?

Another troubling sign: Holder's declaration that "we are at war" with terrorists. Unless it is simply empty rhetoric, the whole point of that formulation is to justify legal short cuts and limits on civil liberties. Sen. Lindsey Graham (R-S.C.) was delighted by Holder's martial metaphor, declaring, "I'm almost ready to vote for you right now." If you worry about perpetual war as an excuse for perpetual constitutional compromises, you may have a different reaction.

The hearing continues today.

NEXT: When Sandinistas Clash

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  1. When do we get to the really important stuff?

    Like Elian Gonzalez and Marc Rich?

  2. At least he wasn’t there during Waco.

  3. Like Elian Gonzalez

    Why is he important? It’s not like he was taken out at gunpoint or anything. Holder said so, so it must be true.

  4. Joe laughs, but Gonazlez probably cost Gore the 2000 election.

  5. This is completely off topic. I noticed the love for sea kittens around here and I thought the news of their site being hacked would interest everyone here.

    http://seakittens.com/

    Check it out before it is fixed.

  6. There you go, Other Matt.

    All lovers of liberty must rise up and make sure that the Republicans in Congress spend as much time as possible talking about the things that really pissed them off during the Clinton administration.

    And also too, I do not wish to be thrown into a briar patch.

  7. Any DOJ stooge is going to be an asshole; it comes with the territory. Holder is no different.

    They should just ask him when he stopped beating his underage illegal immigrant Guatemalan bang-maid and get things really rolling.


  8. All lovers of liberty must rise up and make sure that the Republicans in Congress spend as much time as possible talking about the things that really pissed them off during the Clinton administration.

    Not at all joe, they should simply ignore past positions, past statements, past actions, and past decisions, shout “Change!” and apply Vaseline liberally.

  9. When do we get to talk about Whitewater?

  10. …a pony, a Red Rider Air Rifle, and a Republican caucus as easy to manipulate as Other Matt.

    And a bicycle for my sister.

  11. When do we get to talk about Whitewater?

    Oh please oh please oh please oh please oh please.

  12. It won’t be a real 90s nostalgia trip unless someone brings up fundraising in Buddhist Temples.

  13. Split up, guys! Split up!

    You’d better check the basement. In your underwear.

    A noise behind you? Turn to face it, then back away slowly!

  14. Bill Clinton and all the Dhimmicrats will go to hell for sending those thugs to Waco.

  15. joe-
    The blogs on your ideological side are itching for prosecutions of the Bush administration. The more extreme wouldn’t mind at all senior officials extradited and put before the Hauge. The only difference between the left and right as far as ‘justice’ is concerned is that on the left the politically tone deaf are not actually running their party.

  16. Kolohe, I think that’s partly because as long as the blogosphere has existed the Democrats haven’t been in the White House, and the Kossack morons don’t know what to do without Bush to blog about. So a prosecution drags this out.

  17. The blogs on your ideological side are itching for prosecutions of the Bush administration.

    Yet another reason what I’ve made them “my side.”

    Prosecuting Bush administration officials? Oh, my, people would HATE that!

  18. You really want Bush executed, joe? Really?

  19. Imagine what we would be dealing with if some horrible twist of fate brought Ron Paul or Bob Barr and their ilk to power. Personally, I happy when libertarians cringe.

  20. I’m against the death penalty, BDB.

    And also too, Kolohe wrote “extradited.” That’s something different.

  21. Well, at least your consistent.

    It’s very funny to see liberals who are anti-death penalty write about hanging Bush and how awesome it would be.

  22. BTW–no one will be prosecuted, let alone Bush or Cheney. Just get that fantasy out of your head now.

  23. BDB | January 16, 2009, 1:48pm | #

    BTW–no one will be prosecuted, let alone Bush or Cheney. Just get that fantasy out of your head now.

    Hillary owns the Democratic Party. And also too, a black man named Hussein Osama will never win North Carolina against a war hero. Get your head out of the clouds!

  24. Dude, joe, most of the country just wants to move on from the last eight years rather than re-live them in trials, regardless of how they feel about Bush and Cheney.

  25. Then of course if Obama leaves office to a Republican successor in 2013 or 2017, the Republican is going to try to investigate and prosecute Obama as revenge…and so on.

  26. Prosecuting Bush administration officials? Oh, my, people would HATE that!

    Some people would love it. Some people would hate it. The marginal voter would likely find it distasteful. And it would serve both as a distraction to suck all the oxygen out of the room that Obama needs, while simuataneously giving the 41st republican the spine to fillbuster anything the Democrats want to do.

    Clinton caught a bit of a break by having the Iran Contra pardons just before he took office, and having the Ollie North prosecution botched. He could be ‘troubled by these developments’, but not actually have to spend any political capital on the battle, and more importantly wouldn’t have to ‘stop thinking about tomorrow’ Yesterday wouldn’t be gone, it would be re-lived. (of course, he wound up generating his own distractions in those first two years)

    This was also the wisdom of Ford’s Nixon pardon. It cost him re-election – although if WIN would have won, it may not have, but in any case allowed the country to ‘move on’. Otoh, an overiding desire to make people pay , like radical recontruction for example, while more sucessful and satisfying in the short term, wind up not working in the long term.

  27. The only think more important than getting to the bottom of who let that commie have custody of Elian Gonzalez would be to determine Eric Holder’s opinion about forensic testing of head-like objects.

  28. Drawn out Bush administration trials: bad

    Spontaneous combustion of key officials: good

  29. I would find prosecutions distasteful and distracting, and I dislike Bush. It would look like cheap political revenge. Only a Republican President would have had the cover to do that.

  30. “to do that” means to investigate Bush.

  31. Kolohe,

    Some people would love it. Some people would hate it. The marginal voter would likely find it distasteful.

    Don’t you think that would depend on what information comes out about the crimes that were committed?

    If maintaining the rule of law of making sure that future Presidents won’t dare order human beings tortured for information means the Democrats have to take a hit, like when they backed desegregation and lost their majority for a generation, so be it. There are more important things than partisan politics.

    The next president, and the one after him, and the one after her, need to be able to look back and see that they will suffer personal consequences if they commit human rights violations.

  32. It also begs the question: why was impeachment “off the table” if Bush was such a big criminal, enough to warrant investigation after he leaves office?

  33. Personally, I would find prosecutions of Bush admin people wonderful. Washington would be a fucking circus, nothing would get done (excellent!), it would steal Obama’s thunder, and it would make the DC crowd even more unpopular. Plus, there is always the possibility of Bush and Co actually paying for their deeds.

    Where’s the down side?

  34. It would look like cheap political revenge. Only a Republican President would have had the cover to do that…”to do that” means to investigate Bush.

    It could, depending on how it was done.

    It would probably be best to begin with investigations and hearings to bring out all of the facts, and go slow on prosecutions. Making Bush, Cheney, Tenet, Myers, Gonzo et al have to scratch a whole bunch of countries off their future vacation plans, like Pinochet, would be nice.

  35. Where’s the down side?

    Increase TV presence of Paul Begala.

    “Paul Begala! You look like a fetus!”

  36. If maintaining the rule of law of making sure that future Presidents won’t dare order human beings tortured for information means the Democrats have to take a hit, like when they backed desegregation and lost their majority for a generation, so be it. There are more important things than partisan politics.

    The next president, and the one after him, and the one after her, need to be able to look back and see that they will suffer personal consequences if they commit human rights violations.

    This. There will never be a perfect time to pick these sorts of scabs. Somethings you should do even if it costs you politically.

  37. I also expect him to issue a blanket pardon on his last day in office, FWIW, if there’s even a HINT this might happen.

  38. Don’t worry, Elemenope, Harry Reid’s on the case.

    HA HA HA HA HA HA HA HA HA HA HA HA HA HA!!!!

    I will send that prick’s primary challenger and his Republican opponent $50 each if there’s any chance of booting him.

  39. BDB,

    …if there’s even a HINT this might happen.

    But remember, the only possible explanation for why Obama and Holder are talking in vague terms about the subject is their commitment to do nothing. There can be no other reason.

  40. So joe, why was impeachment “off the table” if Democrats are so into prosecuting Bush?

  41. BDB,

    Who said Democrats were “so into” prosecuting Bush?

    Which Democrats do you mean, anyway?

    Sheldon Whitehouse? Eric Holder? Dawn Johnson?

  42. Where’s the quote where Obama or Holder says that investigations and prosecutions are off the table?

  43. Nancy Pelosi.

  44. And Nancy Pelosi is not a pussy, so there’s no Reid/Daschle defense.

  45. BDB, I nominate Lowtax for Special Prosecutor.

  46. Don’t you think that would depend on what information comes out about the crimes that were committed?

    Forget it joe, it’s Chinatown D.C.

  47. All this talk of clapping the Bushites in irons reminds me of this corollary to RC’z Law No. 5:

    Anything the government does to your enemies today, it will do to your friends tomorrow.

    Seeing as Obama shows absolutely no signs of doing anything materially different than Bush on the national security front, I doubt he will have any interest whatsoever in criminalizing practices and policies that he intends to continue himself.

    This time, I am happy to deliver the epitaph:

    Aint. Gonna. Happen.

  48. Nancy Pelosi.

    Not part of the administration. Never addressed the subject of investigations and prosecutions after Bush leaves office – not that I’ve seen, anyway.

    Remember the outcry over Obama’s first nominee for CIA Director – the one whose name was withdrawn? That guy didn’t even authorize any torture.

    There’s a great quote from FDR going around the left blogosphere. Some groups approached them about a policy they wanted, and he said “I like this idea. I want to do it. Now make me.”

  49. Also unlike Mukasey, who dodged this question too, Holder said President Bush had no right to ignore the Foreign Intelligence Surveillance Act’s warrant requirement for monitoring communications between Americans and people in other countries.

    I thought some Bush kangaroo court just ruled that this was legal some how?

  50. Holder said the Bush administration’s military tribunals for suspected terrorists do not provide due process but left open the possibility that they could be tweaked to address that concern.

    I’m not sure its entirely accurate to call those the Bush administration military tribunals, as if no one else had anything to do with them. Wasn’t there Congressional action on this?

  51. Anything the government does to your enemies today, it will do to your friends tomorrow.

    Exactly why we can’t let the government get away with saying “But we only tortured terrorists.”

    Seeing as Obama shows absolutely no signs of doing anything materially different than Bush on the national security front…

    HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA…

    *gasp gasp gasp*

    HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA!!!!

    RC Dean, January 2009: I’m in my happy place. I’m in my happy place. George Bush was going to shut down Guantanamo, ban torture, and withdraw from Iraq on a strict timeline irrespective of conditions on the ground, too! Happy place, happy place oh my God this can’t be happening….

  52. I thought some Bush kangaroo court just ruled that this was legal some how?

    The Foreign Intelligence Surveillance Court of Appeals ruled that the law Congress passed, allowing the interception of international phone calls, was constitutional. They did not rule on, and were not asked about, the Bush administration’s illegal wiretaps during the period before this law was passed.

  53. Joe, do you really want to take two hated and unpopular people (Bush and Cheney) and trasform them into War on Terror martyrs? Cause that’s what putting them in jail would do.

    “They kept us safe, but it wasn’t good enough for those Democrats…”

  54. The martyrdom issue was a big reason why we never really prosecuted former Confederates.

  55. BDB,

    Have you ever looked at any polling about torture?

    It’s worth checking out.

  56. They would deny it’s torture and call it “discomfort”.

  57. There was a meaningful chunk of the populace that still supported the Confederates’ cause, and their leaders.

  58. They would deny it’s torture and call it “discomfort”.

    That hasn’t worked yet. But people would find that line MORE credible when investigators, and not people seeking to defend and justify the torture, were presenting the information about what happened?

    Maybe, but I wouldn’t count on it.

  59. Anything the government does to your enemies today, it will do to your friends tomorrow.

    If my “friends” had committed war crimes, I wouldn’t have a problem with them being hauled off in chains.

    Would you?

  60. So joe believes Barack Obama is going to blow all his political capital on prosecuting the outgoing administration, even if it means the destruction of the majority the Democrats have carefully built up since 2004?

    Ok, I don’t think so.

  61. BDB,

    Why haven’t Obama and Holder publicly ruled out investigating and prosecuting torture by government officials?

    Why hasn’t there been an outcry insisting that they do so?

  62. I agree somewhat with BDB that there is risk of creating martyrs. On the other hand, if it is handled properly (i.e. Nuremberg trials) that sort of shit can be kept to a minimum.

  63. So joe believes Barack Obama is going to blow all his political capital on prosecuting the outgoing administration, even if it means the destruction of the majority the Democrats have carefully built up since 2004?

    Actually, joe doesn’t think it would blow his political capital.

  64. Ok, I don’t think so.

    I don’t either. But that has no bearing on whether or not it is the right thing to do.

  65. Actually, joe doesn’t think it would blow his political capital

    if done right.

  66. You know who would have had the perfect amount of political cover to prosecute Bush if he wanted to?

    John McCain. Not that he was going to, but if he had done it there would be no downside for him.

  67. Oh, and I really like to know how he figures Obama is doing the same exact things on national security Bush did. What?

  68. Not that he was going to, but if he had done it there would be no downside for him.

    Are you kidding? Not like the GOP is very together these days, but that would have precipitated the most spectacular and violent destruction of a major political party…ever. Cats and dogs, living together, and Republicans would have eaten their Young Republican spawn. Mass hysteria.

  69. Elemenope not only was he a victim of torture himself, but he would have been a one-term President so he wouldn’t have cared. Again, he probably wouldn’t have done it, but if he wanted to…

  70. Uh, isn’t there a possibility that a serious investigation would also touch more than a few high-ranking congressional Democrats?

    Personally, I’d love to see it, but somehow I think it’s off the table. And of course Obama shouldn’t rule it out, regardless of whether or not he ever intends to move forward with an investigation. It’s like a get out of jail free card for the first year of his administration.

  71. President McCain, upon being chastised by his former Republican colleagues for…well, for anything, would have dropped more F-bombs that Mrs. Blagojevich.

  72. Republicans would have eaten their Young Republican spawn

    They’re called “pollywogs,” you under-educated buffoon. And a clutch of them is known as a “Haldeman.”

  73. Anybody wanna put the odds on a blanket self-pardon on Bush’s last day in office? Anyone?

  74. Oh, and I really like to know how he figures Obama is doing the same exact things on national security Bush did. What?

    No problem. Let’s go off joe’s list of the Change We Can Believe In.

    George Bush was going to shut down Guantanamo,

    Obama will pay lip service to doing so, but I doubt it gets shut down anytime soon, unless they do something purely symbolic like transfer the prisoners to military bases elsewhere.

    It seems to me that, if you are looking for material change rather than purely symbolic gestures, transferring prisoners from one military holding cell to another won’t cut it.

    ban torture,

    Obama is proving remarkably elusive on just what interrogation practices will be banned under his administration, with the sole exception of waterboarding, which hasn’t been used for years.

    Again, no material change has even been committed to on this front, although I’m sure the weak-minded, for whom purely symbolic gestures are sufficient, will be delighted with whatever loop-hole filled evasions the Obama team puts out on this issue.

    and withdraw from Iraq on a strict timeline irrespective of conditions on the ground, too!

    Bush never said he would do that, and Obama has joined him in this position. Obama = Bush does not add up to a material change.

    About the only real change Obama has signalled is a desire to put more troops at war in Afghanistan.

    While that may be Change I Can Believe In, but I’m a little surprised that more war would give an anti-warrior like joe the happy pants, especially since it doesn’t really fit his professed template of humanitarian wars, but only where we don’t have any national security interests, and only if it doesn’t look too hard.

  75. Uh, isn’t there a possibility that a serious investigation would also touch more than a few high-ranking congressional Democrats?

    You betcha. They were briefed and nodding in unison on nearly everything that Bush should be strung up for.

  76. We routinely kill al qaeda members with missiles in foreign lands. Without trial.

    How is that not “war”?

  77. There WILL NOT be impeachment proceedings against Bush and pals. I’d love to be wrong, so if I am, feel free to point to this post.

    But the people at the top don’t go after each other like that. It’s too close to home and could one day bite them personally on the ass.

    If Bush was actually going down, don’t you think he’d take as many Congressional scumbags down with him as possible? They can’t risk that.

  78. Pollywogs, of course, need a lot of wiggle room.

    …I doubt it gets shut down anytime soon

    … unless they do something purely symbolic like transfer the prisoners to military bases elsewhere

    …Obama is proving remarkably elusive on just what interrogation practices will be banned under his administration, with the sole exception of… the only one he has been specifically asked about.

    Bush never said he would (withdraw from Iraq on a strict timeline irrespective of conditions on the ground) except for that one time he signed a Status of Forces Agreement with the Iraqi government committing to withdrawing forces from Iraq on a fixed timeline regardless of conditions on the ground. And that was when he was drinking again.

    While that may be Change I Can Believe In, but I’m a little surprised that more war would give an anti-warrior like joe the happy pants

    That’s odd, since I’ve been saying we needed to do that for a good five years, frequently, on these very threads, including ones you’ve read and commented on.

  79. Obama is proving remarkably elusive on just what interrogation practices will be banned under his administration, with the sole exception of waterboarding, which hasn’t been used for years.

    He is just going to keep the things that are ok and stop the things that are bad. DUH!

  80. If my “friends” had committed war crimes, I wouldn’t have a problem with them being hauled off in chains.

    Would you?

    Probably not, but consider this:

    (1)An administration full of consciousless thugs who kill babies for sport (that is, the Bush administration and its inevitable war-crime-committing successors), is unlikely to leave office peacefully if doing so exposes it to prosecution and jail. Jailing, etc., former government officials is a hallmark of banana republics, and places orderly transitions in grave danger.

    (2) But we really aren’t talking about prosecuting Bush for war crimes, so much as we are talking about criminalizing policy differences. And that, especially, is a precedent that we should be very, very wary of setting.

  81. They were briefed and nodding in unison on nearly everything that Bush should be strung up for.

    And had no command authority or legal exposure.

    There WILL NOT be impeachment proceedings against Bush and pals. You mean between now and Tuesday? I agree. George Bush will not be impeached.

  82. But we really aren’t talking about prosecuting Bush for war crimes, so much as we are talking about criminalizing policy differences.

    See, some people think government officials should be bound by the law, and some don’t. Policy differences!

    Some people think that the government can torture people in violation of federal statutes and international treaties, and some people don’t. Policy differences!

  83. It can’t be a war crime, if it was Policy.

    Duh!

  84. And had no command authority or legal exposure.

    Take that! They could not even vote against funding it or investigate it because the unitard executive was watching their children.

    Bush = Evil
    Congressional Democrats = VICTIMS!

  85. Bush never said he would (withdraw from Iraq on a strict timeline irrespective of conditions on the ground) except for that one time he signed a Status of Forces Agreement with the Iraqi government committing to withdrawing forces from Iraq on a fixed timeline regardless of conditions on the ground.

    Point taken. More accurately, Bush always said that he would withdraw as and when requested/agreed to by the Iraqis. Obama, on the other hand, started out with a unilateral withdrawal, and has since indicated he will abide by the Bush SOFA agreement.

    Either way, Obama = Bush on Iraq, so my original point stands, even if the cranky and tendentious defense of it has been, shall we way, refined.

  86. Nope, try again.

  87. More accurately, Bush always said that he would withdraw as and when requested/agreed to by the Iraqis.

    Huh. All of this time, I’ve been using the term “accurately” wrong. I never knew it meant “in Bizarro World.”

    Let me try: MORE ACCURATELY, George Bush never, ever intended to, said he intended to, or took actions to, establish permanent bases in Iraq to replace those we left in Saudi Arabia, so as to provide for the permanent stationing of American forces there.

  88. They were briefed and nodding in unison on nearly everything that Bush should be strung up for.

    And had no command authority or legal exposure.

    They do have plenty of political exposure, though, and if we are talking about Crimes Against Humanity, then should we really be sticking at whether someone had “legal exposure”, or should we be looking at whether they were in a position of power, had knowledge of the Crimes Against Humanity, and did nothing? Are they not accomplices?

  89. Obama, on the other hand, started out with a unilateral withdrawal, and has since indicated he will abide by the Bush SOFA agreement.

    See, when Bush realizes he’s beat and capitulates to the Iraqis’ demands, it’s no longer “unilateral.”

    Which is true: when Bush was forced to adopt Obama’s position on Iraq – leaving on a timeline with a date certain, without stationing American combat forces there permanently, like they were in Saudi Arabia before the Iraq War – it ceased to be the “unilateral” policy of the Iraqis, and became the muliti-lateral policy of the United States and the Iraqis.

  90. C’mon, joe. Use your famous linking skillz to take me to a pronouncement by Bush that contradicts my characterization of his position.

    Saying we would like permanent bases in Iraq is perfectly consistent with also saying we will withdraw as and when requested/agreed to by the Iraqis. Especially considering that the SOFA agreed to by Bush calls for, you guessed it, no permanent bases.

    But, again, regardless. The discussion was about whether Obama was signalling any material change from Bush on national security. Obama has said he will stick to the Bush SOFA, rather than his original unilateral withdrawal plan, and so I think my point stands

  91. You mean between now and Tuesday? I agree. George Bush will not be impeached.

    Whoops, prosecuted. You knew what I meant.

  92. They do have plenty of political exposure, though…

    One of the best things about this new Department of Justice will be watching “political exposure” become much less of a concern. “Right Thinking Americans (RTAs)” be damned.

    …and if we are talking about Crimes Against Humanity, then should we really be sticking at whether someone had “legal exposure”… Yes. Actions by the legal system should be based on legality.

    Are they not accomplices? Not legally.

    I love that word. Legal legally illegal illegally. I HOPE things CHANGE, and it becomes a much more important part of how the Justice Department works.

  93. C’mon, joe. Use your famous linking skillz to take me to a pronouncement by Bush that contradicts my characterization of his position.

    I trust that you can find the funding bills for the Iraq War as easily as I can.

    Saying we would like permanent bases in Iraq is perfectly consistent with also saying we will withdraw as and when requested/agreed to by the Iraqis. You forgot to write “MORE ACCURATELY” at the beginning of that sentence.

    Especially considering that the SOFA agreed to by Bush calls for, you guessed it, no permanent bases. You mean the one that he fought against agreeing to, tried repeatedly to renegotiate, and eventually was forced to capitulate to? His agreement to which codified his abandonment of his previous position of maintaining a permanent military presence in Iraq to replace the one we left in Saudi Arabia, in order to allow us to project power more easily througout the Middle East?

    The discussion was about whether Obama was signalling any material change from Bush on national security. Actually, on this particular point, the discussion was whether the shared position (as of August) of withdrawing from Iraq according to a strict timeline, including a date certain for the removal of American combat troops, represents Barack Obama adopting Bush’s position, or Bush adopting Obama’s.

    Personally, I’m just glad that we finally sent the message to the terrorists that we are going to cut and run, and let them know our movements, so that they can wait us out. Inshallah, the liberal/Islamist dream of seeing Iraq taken over by an al Qaeda-linked group will come to pass, now that Bush has agreed to surrender to the terrorists.

    Episiarch,

    You knew what I meant. Aw, Ep, if I can’t indluge in pointless smartassery with you, then where will I turn?

  94. I will agree with RC Dean on one thing: Ain’t. Gonna. Happen.

  95. They do have plenty of political exposure, though…

    One of the best things about this new Department of Justice will be watching “political exposure” become much less of a concern. “Right Thinking Americans (RTAs)” be damned.

    If you mean by this that the Obama justice department, and the Obama administration in general, won’t weigh the political downside of their decisions, there’s an airplane at Battery Park I’d like to sell you.

  96. Kolohe,

    I chose my words carefully, including the ones between “become” and “a concern.”

  97. Not to be nitpicky, but going after Bush for torture probably will not work because the entire administration can claim that Yoo and Gonzales advised them it was legal…and has waterboarding ACTUALLY been declared torture? I mean, I think it is, but what does or do the relevant statutes and/or treaties say?

    Also, war crimes? Like what?

  98. joe-
    I’d say they’ll be equally concerned with poltical exposure. But having a favorable political climate in the medium term gives them the opportunity to take on some more downside risk in their calcuations.

  99. TAO, we did try Japanese soldiers for war crimes for waterboarding our prisoners after WWII. Just sayin’.

  100. TAO,

    During the Nuremberg Trials, the “we were advised it was legal by lawyers” defense was attempted, and rejected.

    Also, convictions for waterboarding, in which it was declared to be torture, have been won in both international (post-WW2 war crimes trials of Japanese officers) and domestic (police officers using waterboarding to get convictions) trials.

    Kolohe,

    Good point about political conditions.

  101. But who would prosecute? Americans prosecuting an American president for waterboarding the so-called “enemy”?

  102. This thread shows what a dangerous person Joe really would be if were to ever have any authority. Congress was briefed and aproved of everything that happened but somehow are not to be held responsible for any of these “crimes against humanity”. Yeah, that defense is real valid. The bottonline is that Joe would imprison anyone who disagreed with him if he could. Thank God he is only a small minded clown who can’t really affect much. But if you want to know how tragedies happen, just imagine Joe with unchecked authority.

  103. Congress not only was kept informed of *everything* that went on, there were various members of Congress (in both parties) that proposed allowing more to be done to prisoners.

    I know, because I’m in the business. Unlike the google-foo moron.

    Enjoy your even more statist, but still empire-loving overlords – idiots.

  104. Yeah, that defense is real valid.

    You mean the one you can’t even explain beyond the word “somehow?”

    “Somehow,” John, I’m not going lose any sleep over whether your partisan hack self considers the “defense” I, supposedly, offered to be valid.

    But what is hilarious is that, on the question of whether TORTURE by the government should or should not be investigated and prosecuted, the fact that I say it should be, while you’ve spent years insisting that this TORTURE is perfectly valid, means that it would be frightening if I were to come to power.

    The bottonline is that Joe would imprison anyone who disagreed with him if he could. You think the government should be allowed to TORTURE people the imprison, and do so without a trial; who the fuck cares what you have to say?

    Thank God he is only a small minded clown who can’t really affect much. You think the government should be allowed to TORTURE people; who the fuck cares what you have to say?

    But if you want to know how tragedies happen, just imagine Joe with unchecked authority. You think the government should be able to TORTURE people without any checks at all; who the fuck cares what you have to say?

  105. John’s little outburst if what we have to look forward to as the net closes tighter around the war criminals he’s been sucking up to for the last eight years.

    Wingnuts like him, who’ve been assuring us that having the government disappear and torture people isn’t the slightest bit disturbing, are going to discuss holding government officials responsible for committing crimes as some sort of frightening totalitarianism.

    But that’s the liberty-loving Right for you: deeply committed to preventing infringements on the freedom of high government officials to abuse people and violate laws with impunity.

  106. …just as long as it done in the name of “security.”

  107. I’m allegedly a dangerous totalitarian for wanting the people who ordered and carried out government torture to face consequences, because I wrote that people who weren’t in the chain of command would have political, but not legal, exposure.

    John, on the other hand, hasn’t written a single word about government torture being wrong, nor about holding anyone – including those who directly ordered the torture – responsible.

    RC Dean describes the question of whether it is appropriate for the government to torture people as “policy difference,” and says that punishing government officials who torture, as opposed to torture itself, is the sign of a “banana republic.” Not a word from John.

    No, of course not. It’s not torture that bothers Republicans; it’s holding Republicans responsible for their actions.

  108. “Is that what we need? Yet another newfangled justice system, bound to be portrayed (probably correctly) as rigged against defendants and guaranteed to be challenged for years?”

    Are you honestly arguing that individuals who were caught on the field of battle trying to kill American troops deserve access to the American court system?

  109. “John, on the other hand, hasn’t written a single word about government torture being wrong, nor about holding anyone – including those who directly ordered the torture – responsible.”

    Show me the statute(s) that define waterboarding as torture and show me the statute(s) that define which “harsh interrogation techniques” are torture. I would be willing to bet you can’t do it.

  110. B – this is what happens when you cloak a police action under the mantle of war (without declaring war). In other words, yes, I do think that, because the so-called “War on Terror” is a war without end, without objectives, and it is incomprehensible for anyone to think that we should be able to detain people FOREVER based on the slipshod standards of evidence that are legitimate in real wars.

    This is not a real war. Don’t call it the “field of battle”; that just makes you a tool.

  111. Show me the statute(s) that define waterboarding as torture

    Precedent is still valid to draw legal analogies in this country. This is not Europe; not everything needs to be in a statute.

  112. B,

    Are you honestly arguing that individuals who were caught on the field of battle trying to kill American troops deserve access to the American court system? He’s honestly arguing that people dragged out of their homes in raids or captured and turned in for bounty deserve access to a legitimate court system.

    Show me the statute(s) that define waterboarding as torture and show me the statute(s) that define which “harsh interrogation techniques” are torture.

    I’ll show you that statute, just as soon as you show me the statute defining electrocution as torture. I’ll bet you can’t.

    Because, you see, they don’t actually cut your meat for your as if you were a two-year-old in torture statutes.

    I can show you plenty of cases where people have been convicted of torture for using waterboarding, from Japanese officers in WW2 to American soldiers in Vietnam to police in the United States; would that count?

    God, I’m glad people like you are now out of power.

  113. “This is not a real war. Don’t call it the “field of battle”; that just makes you a tool”

    So the individuals at Guantanamo who were captured in Afghanistan fighting American troops were not on the field of battle? Yeah, okay. Who is the tool here?

    “Precedent is still valid to draw legal analogies in this country. This is not Europe; not everything needs to be in a statute.”

    In other words, the fact that there may be no law clarifying what constitutes torture and what constitutes permissible harsh interrogation techniques should offer no impediment to prosecuting people for something that may not have even been defined as a crime.

  114. “I can show you plenty of cases where people have been convicted of torture for using waterboarding, from Japanese officers in WW2 to American soldiers in Vietnam to police in the United States; would that count”

    Then show me then smart guy.

    “God, I’m glad people like you are now out of power”

    People like me were not in power; you don’t know my political leanings, nor how I voted. And you have no idea whether I am justifying torture or not. I am asking you to provide me with clarification as to what are permissible harsh interrogation techniques and what is torture. You can either do that or go on acting like the shrill prima donna you are.

  115. So the individuals at Guantanamo who were captured in Afghanistan fighting American troops were not on the field of battle? Yeah, okay. Who is the tool here?

    You are. Here are the bare facts as best I can lay them out for you: 9/11 happened. The United States invaded Afghanistan to get the terrorists and their supporters and consequently decided to rebuild the failed state of Afghanistan in order to make sure that terrorism never flourished there again (this is what is partially known as the “Bush Doctrine”). Now, part of what is involved in rebuilding a nation is rebuilding its court system.

    However, instead of properly declaring War in Afghanistan because of 9/11, Bush and Co declared a War on Terror (a nonsensical term if there ever was one) and, instead of detaining POWs in Afghanistan until the war was over, he decided to ship them to Cuba. You see, in actual, declared wars with objectives and endings, you can figure out what to do with EPWs/POWs…unfortunately, when you declare a fictitious worldwide “war”, no one has any idea what to do. The best thing in that scenario is to either figure out when the war is going to end so these people have some chance or release, or charge them with crimes and put them through the judicial system. If these people are as so guilty as to deserve indefinite and possibly-neverending detention, what the hell are you so afraid of?

    Regardless, you are the tool: there is no field of battle in the War on Terror because there cannot be a War on Terror. Period…forever and ever amen. Neocons such as yourself have been fucking around with language long enough. Please stop.

  116. In other words, the fact that there may be no law clarifying what constitutes torture

    No. In other words, read what I wrote: “If we have precedentally prosecuted people for analogous interrogation procedures, we almost have a common-law principle for doing it again.”

    And, again, like I said, not everything has to be statutory. Did you ever stop to think why it is that, given that there is no statute, the Bush Administration invested so much time, effort and energy into denying this was torture? I mean, according to your logic, they should be able to do whatever the hell they want to, because hey, we need statutes to cover everything in this country. Fuck the precedents.

  117. So the individuals at Guantanamo who were captured in Afghanistan fighting American troops were not on the field of battle?

    This describes almost none of them. You either know this are being dishonest, or you don’t know enough to offer a worthwhile opinion on the subject.

    Then show me then smart guy. OK, I’ll do that.

    People like me were not in power; you don’t know my political leanings, nor how I voted. I know that you defend the use of torture of illegal detention, and then use weasel words and feigned ignorance of commonly known facts to defend the indefensible. I don’t have to know how you voted to say that people like you have been in power.

  118. I am asking you to provide me with clarification as to what are permissible harsh interrogation techniques and what is torture. You can either do that or go on acting like the shrill prima donna you are.

    Aw, crap, TAO pwned you before I did.

    So, there you go: cases of people imprisoned under our legal system for use the controlled-drowning torture.

    You may begin apologizing profusely, both for your ignorance, and your completely uncalled-for rudeness.

  119. I agree with John; pursuing former heads of state for crimes committed in office is unseemly.

  120. I couldn’t agree more. It’s downright totalitarian.

  121. You guys give me hope. Group hug!

  122. “I mean, according to your logic, they should be able to do whatever the hell they want to, because hey, we need statutes to cover everything in this country. Fuck the precedents.”

    Hahahaha, that is not what I have written at all. I merely want those that are gungho about prosecuting people for so-called war crimes to provide some kind of definition as to what constitutes legal harsh interrogation techniques and what constitutes torture. There is a fine line between them. What is legal and what isn’t? Nowhere in any of my posts, at all, do I even remotely claim that torture should be legal. So the notion that I wrote “fuck the precedents” is a figment of your imagination.

    And evidently you have the same exact questions I do or you would not have written this:
    “…and has waterboarding ACTUALLY been declared torture? I mean, I think it is, but what does or do the relevant statutes and/or treaties say?”

    Wow, that looks an awful lot like my question. I guess you are a tool as well.

    “… instead of detaining POWs in Afghanistan until the war was over, he decided to ship them to Cuba…”

    Yeah, thanks for the history lesson, but nothing in your long-winded explanation changes the fact the individuals caught at Guantanamo were in fact caught on the battlefield. I did not justify their presence at Guantanamo, I did not call for their torture, I didn’t make any judgments whatsoever concerning what their possible outcome should be. I merely stated a fact. Why then are you and joe hyperventilating (ok, I understand joe, he is a diva who hyperventilates over everything)over questions concerning what is torture and trying to argue semantics over what is a battlefield and what is not?

    I will no longer address the question of whether these guys were doing battle against the United States because the answer is obvious. But I will get back to the question of what makes something an illegal torture technique and what makes something a legal interrogation technique. That is the heart of the argument, one for which I have not received an answer other than “precedent”. Then you should have no problem citing the pertinent precedents to back up your argument.

    Now to another statement written by you:
    No. In other words, read what I wrote: “If we have precedentally prosecuted people for analogous interrogation procedures, we almost have a common-law principle for doing it again.”
    Actually, you didn’t write that statement in any of your previous posts, but I know what you mean, even if you did erroneously put quotes around the statement you never wrote. And it’s good to know we “almost” have a common-law principle, because almost is good enough, right?

    “Oh well, looky here: The Soldiers in the second photograph were court-martialled for waterboarding.”

    Are you fucking stupid or what? Why are you acting like you got one up on me when I made absolutely no statement at all as to whether waterboarding or any other technique was illegal torture or acceptable interrogation technique.

    From an article on Yahoo News:

    President-elect Barack Obama is preparing to prohibit the use of waterboarding and other harsh interrogation techniques by ordering the CIA to follow military rules for questioning prisoners, according to two U.S. officials familiar with drafts of the plans…..

    However, Obama’s changes may not be absolute. His advisers are considering adding a classified loophole to the rules that could allow the CIA to use some interrogation methods not specifically authorized by the Pentagon, the officials said.”

    Meet the new boss, same as the old boss.

  123. “And also too, a black man named Hussein Osama will never win North Carolina against a war hero.”

    Is this the same war hero who was going to keep us in a state of constant war for 100 years in Iraq?

  124. ” I know that you defend the use of torture of illegal detention, and then use weasel words and feigned ignorance of commonly known facts to defend the indefensible. I don’t have to know how you voted to say that people like you have been in power.”

    Wrong on all counts joe. But hey, you are so brilliant you know me better than I know myself, right?

  125. “So, there you go: cases of people imprisoned under our legal system for use the controlled-drowning torture.

    You may begin apologizing profusely, both for your ignorance, and your completely uncalled-for rudeness”:

    Jesus, are you fucking blind or what? Please point out one statement in any of the posts I made above that justifies waterboarding or detainment of individuals at Guantanamo. As I wrote multiple fucking times in my posts, I want a clarification as to when an interrogation technique stops being legal and becomes illegal.
    Maybe when you are done attributing positions to me that I have never taken, I will apologize.

  126. If you’re going to make a statement, B, stand by it. Don’t be a worm your whole life.

  127. “I can show you plenty of cases where people have been convicted of torture for using waterboarding, from Japanese officers in WW2 to American soldiers in Vietnam to police in the United States; would that count”

    Then show me then smart guy.

    I then show him, to which he responds:

    “Fuck.”

    You should have stopped there.

  128. http://www.washingtonpost.com/wp-dyn/content/article/2009/01/15/AR2009011504114.html?hpid=topnews

    In the above article, Obama, says he will try and close Gitmo by the end of his first term.

    And in this article the Obama people are trying to carve out loopholes that will allow them to use interrogation techniques not approved by the CIA if it is necessary for national security:
    http://news.yahoo.com/s/ap/20090116/ap_on_go_pr_wh/obama_interrogations

    So as the above articles make clear, Obama is not only not in a rush to close Gitmo, he is also looking for ways to torture inmates and use military or “hybrid” courts to try detainees. I have a distinct feeling we will not be seeing a lot of bluster from you joe concerning the prosecution of Obama’s legal advisors and others if he does in fact try detainees outside of a civilian court after they have been tortured during their additional four years of detainment, without trial.

  129. Meet the new boss, same as the old boss.

    An unnamed source states that some aides are “considering” a loophole.

    It’s funny, you can’t seem to find any legal doctrines defining waterboarding as torture in any of the links provided, but can find in this statement convincing evidence that there is no meaningful distinction between Bush and Obama on torture.

    Partisan hack.

  130. You have a lot of distinct feelings, partisan hack.

    I don’t care about them.

  131. But keep changing the subject from whether waterboarding is torture, partisan hack.

    Don’t worry; nobody will notice.

  132. “I then show him, to which he responds:

    “Fuck.”

    Hahahahahahahaha, you are so full of shit. My entire point was to find out if individuals could provide clarification as to what was illegal and what isn’t and why. Again, nowhere do you see me justifying torture or detainment of anyone at Guantanamo.
    And I will never say “fuck” to anything I read from you joe. I don’t care enough.

  133. My entire point was to find out if individuals could provide clarification as to what was illegal and what isn’t and why

    Which was provided, via literally thousands of pieces of documentary evidence, via The Google, which I helpfully pasted the link from, reasonably assuming that someone who can’t figure out if controlled drowning torture is torture may have trouble operating a search engine.

    Jesus, are you fucking blind or what? Please point out one statement in any of the posts I made above that justifies waterboarding or detainment of individuals at Guantanamo. As I wrote multiple fucking times in my posts…And I will never say “fuck” to anything I read from you joe. I don’t care enough.

    Lol. Just go away.

  134. ” reasonably assuming that someone who can’t figure out if controlled drowning torture is torture…”

    And here I thought there was a debate raging in Washington, and the rest of the country, now over whether waterboarding was torture or not. Evidently not.

  135. You were wrong. There is no debate raging; there have never been a debate ranging. That waterboarding is torture has been an obvious and well-established fact in American law literally for a decades.

    There has been a rash of political hacks pretending that this is a question which is up for debate, but the capacity of political hacks to hide behind feigned confusion is as well-documented as the legal status of waterboarding torture.

  136. “t’s funny, you can’t seem to find any legal doctrines defining waterboarding as torture in any of the links provided, but can find in this statement convincing evidence that there is no meaningful distinction between Bush and Obama on torture”

    Once again, as is evident by reading my posts, I was trying to get a clarification as to which techniques are legal and which are not and whether it is appropriate to prosecute or not when such uncertainty exists. As is obvious by the tone of the debate in Washington and elsewhere, the precedents you link to are not proving sufficient to settle the debate. If you wish to call me a partisan hack, I could care less, because everyone on this site knows you never criticize those on the left joe, even if that means writing apologia for Castro and Chavez, which you have done on numerous occassions.

  137. When I said “almost common-law precedent”, I did NOT mean we have no legal precedent, I meant that common-law as I understand it generally does not lend itself to situations like this, primarily because conventions against waterboarding are only a couple of hundred years old. I said “almost common-law” just because the law on this isn’t old enough to rise to actual common law.

    I will no longer address the question of whether these guys were doing battle against the United States because the answer is obvious.

    You’re equivocating. You and I are currently “doing battle” via verbal conflict. That does not mean you and I are at war.

  138. “When I said “almost common-law precedent”, I did NOT mean we have no legal precedent, I meant that common-law as I understand it generally does not lend itself to situations like this, primarily because conventions against waterboarding are only a couple of hundred years old. I said “almost common-law” just because the law on this isn’t old enough to rise to actual common law.”

    And that is exactly the point I was trying to make, and one that I thought you were trying to clarify when you asked explicitly about particular prohibitions on waterboarding.

    “You’re equivocating. You and I are currently “doing battle” via verbal conflict. That does not mean you and I are at war.”

    And you don’t feel you are equivocating? Do you honestly think that since the President did not ask for a formal declaration of war that those individuals caught fighting against the United States in Afghanistan were not caught on a “battlefield”? Because you seemed to have an issue with my use of the word battlefield.
    Similarly whenever you hear individuals discussing the Korean War and Vietnam War do you stop and correct them by telling them it was the Korean police action and the Vietnam conflict?

  139. I do not generally correct people on Korea and Viet Nam, but that is because they are not trying to draw legal implications from the use of those terms!

    I’m explicitly NOT equivocating. I’m asking the apologists and the outgoing (and incoming) administration to define it one way or the other: either this is a war, meaning that it has objectives for when it is complete (these require numbers, goals, steps, not nebulous impossibilities like “when all terror is gone”), that those captured are EPWs and will remain detained until the war is over (and then they are released…you know that, right?). Alternatively, this is a police action, wherein the offenders are placed under arrest and either held under a fair justice system is in place in the home country or they are subject to United States justice.

    The Administration is trying to make up law as they go; they want their cake and to eat it, too. They want this to be a war, with all of the emergency powers and use of Soldiers and soaring rhetoric that entails, but they do not want to follow the commensurate laws.

  140. Those that were/are detained at Guantanamo were not fighting under a particular countries flag, nor were they wearing a uniform when detained, thus the designation of POW is not valid, or at least it wasn’t until recently.

  141. That first sentence should read country’s, not countries.
    And I would like to add that multiple cases clarifying what is legal, illegal, appropriate etc. have been decided during Bush’s tenure. To act like everything was so clear cut before hand is quite simply false.

  142. ose that were/are detained at Guantanamo were not fighting under a particular countries flag

    We. Were. Not. At. War.

    Had we declared war against Afghanistan, that would be a whole different kettle of fish.

    Again, B, one way or the other: Either those who were captured were combatants (irregular or illegal or whatever) and are therefore subject to the Geneva Conventions or they are not.

    This is, at root, a police action. We are simultaneously rebuilding states so they do not become havens for terrorists and hunting the terrorists. None of these look like war.

  143. “We. Were. Not. At. War”

    No, Congress had merely authorized the use of military force by the president.

  144. “Had we declared war against Afghanistan, that would be a whole different kettle of fish.”

    Also, why would we declare war on Afghanistan? Only one, perhaps two, nations in the entire world recognized the Taliban as the legitimate rulers of Afghanistan. Declaring war on the Taliban is not tantamount to declaring war on Afghanistan, and vice versa.

  145. B, should this be a war or not? If so, against whom? If not, why not? And regardless of the answer, we can then proceed down which law applies.

  146. For all practical purposes, we declared war on Afghanistan in 2001 and Iraq in 2003. I am not a big fan that Congress no longer issues a formal declaration of war, but as long as they issue some resolution that says the President is authorized to use military force for a sustained (or even indefinite) period of time, I am satisfied that all the Constitutional issues have been satisfied. Furthermore, Congress has a specific enumerated power to “make rules concerning captures on land and water”, so it shouldn’t even matter whether ‘war’ is declared or not. We did primordial ‘war on terror’ stuff at the very beginning with the barbary pirates and the quasi war, so it’s not like all this stuff is brand new to this century.

  147. As is obvious by the tone of the debate in Washington and elsewhere, the precedents you link to are not proving sufficient to settle the debate.

    Of course not, because if a politician who is on the hook for a criminal act says his case is complicated, it can only be because the legal issues are murky.

  148. You know what just hit me about this:

    (2) But we really aren’t talking about prosecuting Bush for war crimes, so much as we are talking about criminalizing policy differences. And that, especially, is a precedent that we should be very, very wary of setting.

    RC Dean (and John, and TallDave, and Shannon Love, et al) spent 2004-2008 telling us that we couldn’t prosecute high government officials for the war crimes that took place at Abu Ghraib because they weren’t “policy.”

    And now, they’re going to spend 2009 telling us that we can’t prosecute high government officials for war crimes like that those which took place at Abu Ghraib – because they were “policy!”

  149. When we win the “War on Terrorism” and have a big celebratory parade, will there be anti-terrorism precautions taken at the parade?

    If yes, then we have not won.

    If no, then you’re kidding yourself and you’d be putting everyone who attends the parade in grave danger.

    You cannot eradicate a noun, whether it be terrorism, drugs, hunger, poverty, rape, AIDS, or white collar crime. You can say we’re “at war” with it as a metaphor, but it has to be clear that it’s only a metaphor – not a literal war. We are NOT at war. We have military action going on in Iraq and Afghanistan, but we’re not “at war” against either country, nor are we “at war” with any nouns like terrorism. If you insist that we are, do you at least concede that it’s a war that we cannot win? Will you and your family attend the “Parade to Celebrate Victory over Terror” if there are no anti-terror precautions at the parade?

  150. If we ever appoint an android to head DHS, keep him away from BruceM.

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