The Pushover Presidency

To have this sort of shift in position in a single day makes them look even more like pushovers for Nancy Pelosi and the furthest Left wing of the party.

He looks that way because he is. Obama let Pelosi and Reid write the stimulus plan, then put everything they could ask for into the budget. The things they didn't like in the budget (removal of charity deductions for high income, ag subsidies) they are taking out.

A few years ago Obama was a state senator, then he was the junior senator. He's spent most of his political life running campaigns. It shouldn't surprise anyone that he will knuckle under to the party heads.

Obama's also always been given an inordinate amount of credit for being one who thoughtfully reconsiders things instead of digging in stubbornly to a position. I understand why people value that trait and sought it in him, but at some point it becomes a liability if a person is never willing to take a stand and just blows with the political winds of his party.

President Bush once had a 70 percent approval rating too. Obama is a finger in the wind politician who is soooooooooooooooooooo heavily indebted to the far left of his party that he can do nothing. He is a straw man. A lap dog. A puppet for the far left. What they say goes.

Obama is governing in the most partisan way possible. The problem is that right now more Americans are mad at business then they are at government. Obama is in a dream world for a politician. Nothing he does can get him in trouble.

Right now he could order the nuking of Iran and the man on the street would scream AIG SUCKS. Shame too. only the banking and financing industry messed up....not the rest of the corporations that provide all these jobs that give Americans 401k's, retirements and health care. But Americans dont care about that. They are just turning to a bunch of INEPT CLOWNS to fix it. Obama is leading the charge.

Lord love a duck.

What strikes me is his emerging pattern to first throw out the bluemeat statements to rile up the troops here and elsewhere in lefty land, then, start to equivocate the position as well as simultaneously delegating it off his plate as if the outcome isn't his business.

He is ultimately more a man of words than actions. Undeniably, it is working for him so far, but like Elrod says when things aren't going his way........"let's give it a few more months".

So now it's a bad thing to actually listen to other people and be able to reconsider your position? After 8 years of President Bush refusing to listen to other points of view or admit he made a mistake, having a President who is actually willing to listen to people is refreshing.

Nor does it make the AG look toothless lapdog. President Obama has said it is the AG's call - not his. Under President Bush the AG we wouldn't have had that. The President has only expressed a (IMO valid) opinion that this could easily become a partisan circus which would be bad for the country.

"it looks like President Obama’s team made a decision on how to handle this, but the hard Left in Congress and their supporters screamed for the blood of the Bush administration and Obama backed down in less than 24 hours." It wasn't just the hard left wanting prosecutions - it is most people. The former Adminstration tortured people. It violated international law as well as U.S. law. The people who initiated these programs should be prosecuted if only to make sure no one else tries to do the same thing.

Not sure where I said "Let's give him a few more months." Sounds like Thomas Friedman re: Iraq.

On this issue, there seems to be a clear distinction that you are missing: prosecuting the CIA agents who carried out torture and prosecuting the Bush legal officials who authorized it and concocted legal justifications for it. He made clear that he is not prosecuting - or allowing a prosecution to go forward - of CIA agents. But Bush legal officials like Yoo and Bybee who set up this whole regime are a different matter entirely. This isn't a one-day shift at all. This is a very important distinction between career operatives and agents who are called upon to do a tough job when told, and political appointees who abandoned centuries of legal tradition to gin up evidence for an ideological war in Iraq.

I'm not totally convinced that President Obama is about to let these inquiries go full bore. Typically of President Obama, he says things like "open to" to give the impression that he's listening. BUT, and I could be proven dead wrong on this, I don't think he will. I think his cautious manner will cause him to do a "repudiation" of the past but ultimately not go through with full-fledged inquires. I think this is the point where the Democrats/Liberals split into their own version of a party civil war and Obama's approval rating with liberals drops.

Just a feeling...

And I have to agree with elrod's point here:

On this issue, there seems to be a clear distinction that you are missing: prosecuting the CIA agents who carried out torture and prosecuting the Bush legal officials who authorized it and concocted legal justifications for it. He made clear that he is not prosecuting - or allowing a prosecution to go forward - of CIA agents. But Bush legal officials like Yoo and Bybee who set up this whole regime are a different matter entirely.

I think the Left would be best served limiting their ire to the legal officials and let the CIA do their jobs. One thing that I have accepted with my current President is that he is a professor. And one thing's about professors, they are sometimes nuanced to the point of serious irritation. One thing I liked about President Bush was his "this or that" ways of speaking (many didn't but to each his/her own). That's the way it is so we have to now break everything down that President Obama says even more.

Elrod, you're right about that distinction between the various parties involved, but his recent statements still don't comport with the spirit of what he said the day he released the memos even if they do jive with the letter of his initial statement. Consider the following paragraph from his statement on the initial day, for instance:

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America's ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

The United States is a nation of laws. My administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.

So in my mind he may have left himself the loophole of prosecuting the administration officials who wrote the memos if he felt the public reaction would support that- but he also crafted his wording on the first day to justify going the other way with it if he thought public opinion was swaying toward a forward looking analysis rather than a retributive one.

That's why it still comes across as a weak, politically motivated handling of the situation- he didn't predetermine what course he thought was correct and then stick by it, but instead left both paths open for himself and is still deciding which way to go (or passing that decision down to his AG.)

If his true conviction all along had been that the distinction was between those who created the legal justification for the policy to begin with and those who followed orders from above, that certainly wasn't clearly stated from the first and it somewhat contradicts the idea that our focus shouldn't be on finding blame for past actions.

I think the Left would be best served limiting their ire to the legal officials and let the CIA do their jobs.

This doesn't make any sense IMO. You seem to be assuming that the CIA would then not do anything we'd consider improper, if they're not given legal cover from the politicians. I'd assume the opposite- that if they don't have legally proscribed boundaries, they'd engage in even more egregious behavior but keep it all completely classified so it would never be public knowledge.

Hmm... Let me clarify that statement CStanley. What I'm trying to get at is that targeting the CIA is just bad for business because what they have to do. Targeting appointed Bush legal officials seems a more "safe target" since a pound of flesh must be taken apparently. After the necessary pound of flesh, I think then the President and CIA need to talk in the back room on what needs to be done to continue to keep this country safe.

Personally this is one time where I wish there wasn't a free press because I don't need to know about certain things. Because when I know, I'm forced to judge. And I absolutely DETEST having to judge those American men and women in dealing with terrorists. The job is dirty, nasty, and deals in alleys that just doesn't mesh at all with our regular daily lives. If I'm a communist for saying that about the free press in this issue, so be it.

I'm certainly not speaking for anybody but me, but I believe Obama must be interpreted from how a government is supposed to work. He is a Constitutional lawyer.

A president does not enforce laws nor prosecute individuals who break them. That's the job of the AG, who, the last 8 years not withstanding, is independent to the wishes of the President. Archibald Cox was fired by Nixon, but it was that very interference that was Nixon's last straw.

For Obama to call for looking ahead while the AG examines possible legal problems with Bush administration actions seems to me appropriate and not weak or contradictory.

T, what I'm getting at is that when you admit that you don't want to know so that you don't have to judge, you're proving Jessep's (Jack Nicholson's character in A Few Good Men) point: "You can't handle the truth!"

And when you turn a blind eye, you already have judged that certain things are permissible under the circumstances because you don't want to know and judge those things. By passing on the responsibility to judge, you allow the default position of "go ahead, do what you gotta do."

@ Hemm- I don't think that's correct. Article II describes the responsbility of the president to faithfully execute the law, and the attorney general serves at his pleasure as the chief attorney in carrying that out. The AG's authority there certainly doesn't supercede the president's (nor does the responsibility flow that way.) It's certainly appropriate for the president to seek counsel and advice from the AG, but not to pass the buck.

CS

It's simply incorrect to say that the President has any legal say in the disposition of legal cases being investigated by the AG or department of justice. He may pardon after the fact, but he can't legally block investigations.

OK, here's my take on this (FWIW). First, as I mentioned when this first started, Obama has many priorities. I believe he saw this as a quagmire of flaming proportions, as we see here, that would increase political division in an already deeply divided country he wants to unify. He tried to do what was lauded at first, a move that pleased no one. Release the memos because we need to get back to transparency, then move on.

Nope. That proved to be a non-starter. We, and that includes me, one of Obama's strongest supporters here, won't abide that. We supposedly aspire to be "leader of the free world" and "a nation of laws". So Obama tried to "look forward", which I understand but don't support. War crimes are not Whitehouse blowjobs. They are the most reprehensible acts of cruelty and perversion. What our President, vice president, lawyers, attorney general, CIA and soldiers did was WRONG, and THEY KNEW IT. Oh, I mean "allegedly did". They are entitled to make their cases to a judge and jury, just as I would have to if I tortured someone.

Now flame Obama all you want, but look in the mirror. It is YOU who are weak. Weak in conviction and morals and basic human decency, if you think what was done was not wrong, and a criminal abrogation of all we believe in. That's not MY America that does those things. War criminals do those things. They get punished.

T-Steel, what do you mean "a pound of flesh must be taken apparently?" You think that this is "retribution" for it's own sake. How many of you feel that way about Nuremberg? You really think this is excusable?

Sure, but as happened with Ford pardoning Nixon, if the president grants the pardon before the fact of an investigation then the investigation never happens. So it's still within his purview to pardon or state his intention to do so at the outset, and that would have been more in keeping with the spirit of his statements about looking forward rather than back.

GD

So are you saying Obama has any power to stop legal proceedings? If the AG goes ahead, short of firing him, Obama has no part to play in this, does he?

All the political machinations about why he called for looking forward or instituted proceedings are pointless. He doesn't have the right. Am I wrong?

One thing that I have accepted with my current President is that he is a professor. And one thing's about professors, they are sometimes nuanced to the point of serious irritation.

I agree with you, but taken to the next degree they can be nuanced to the point where what they say has no meaning at all. I agree with CStanley that Obama's original statement seemed pretty clearly to be one of moving forward. To claim now "I only meant moving forward as it applies to the CIA employees" goes against the spirit of his original statement, although possibly not the letter. We should not be expected to parse out what Obama really means.

I think it's more likely the OP is right that Obama saw how the political winds were blowing and waffled.

Yes you are correct CStanley. My problem is that I see both sides and I'm trying to reconcile when I really can't. I am a "go ahead, do what you gotta do" person. When I coached high school football and played college football, I said "things" and done a few "things" that would probably raise eyebrows (nothing involving drugs and beatings). But I did "what I had to do". Worlds apart from what the CIA has to do but my general point sticks.

It's a helluva issue (CIA) with all kinds of gray areas. Color me "shrugged".

CS
Looking forward means looking forward. That is what Obama said. My entire point is that what his intentions are concerning this issue and what the AG's are are two different and distinct things.

This thread rests upon the false assumption that Obama is pulling the strings to answer left wing critics or calm the right. He can't do either as far as the case going forward. Praising or blaming him for this doesn't make sense.

What our President, vice president, lawyers, attorney general, CIA and soldiers did was WRONG, and THEY KNEW IT.

But they also knew that the reasons that they did these things was to prevent attacks, and the Obama administration knew that the CIA clearly felt that the actions had that effect.

And whether you believe it or not, and whether you agree with it or not, a lot of people see that as justification for the acts; plus, an even larger number of people would have seen it as justifying the acts at that time even if they've now thought more clearly about it. If you don't believe me, then how do you explain the Democrats' reticence for exposing it, and the fact that none of the political leaders who were briefed on it expressed any dissent, instead asking if the techniques were tough enough? To me it seems obvious that fear was overriding ethical concerns among the majority of US politicians, and that those politicians must have had reason to believe that their constituents felt the same way.

To me, that's why a backward looking mentality would be unjust- because it makes the officials involved take full responsibility for what was a national failing (even if you and a small number of others might have been the exceptions.)

T- I agree with you on the gray areas. Personally though I think it's important to say that we do need to know, and to then judge right and wrong even though we also see the gray- allowing some latittude on the details. And I happen to think that's what the Bush DOJ was trying to do, but I just disagree with them on where they drew the lines (they reasoned backwards from what were some unacceptable practices, and found a legalistic exuse for them, and then left some parameters undefined which made it even worse when these techniques were used.) They left too much gray- but I feel we have to have the courage to say we want more clear guidelines even if we have to accept more risk of attack.

Hemm- You seem to have a very hamstrung idea of the president's powers in executing the law. He has at his disposal the power to fire the AG (naturally, since the AG isn't directly accountable to the voters) and to use the pardon power to effectively block investigations (I presume that technically an AG can still open an investigation if the president had pardoned the individuals being charged, but that would be nuts and everyone would see it as a waste of taxpayer money since the investigation's conclusion would be nullified by the pardon.)

Wow, the payroll bloggers are really earning their keep today!...lol...

Here's a thought, maybe Obama isn't worried about this tiny glitch in public perception of himself as compared to the exploding volcano that will erupt as result of the inquiries into who was responsible for torture..among other illegal activities..

It's like watching a guy brag about how he socked you in the nose when just behind him a terradactyl is about to sink its talons into his neck. His insults somehow just don't matter anymore..

I always found it curious that Obama, a lawyer, was actually against prosecuting the people who broke the law. It doesn't mesh with his training. But we got the indication he would take such an action even before he was in the White House.

Obama took a huge risk by making the memos public. He could very well have kept them confidential citing "national security reasons". So he had a reason to make them public, which he has claimed to be bringing these actions to light so we can move on.

The more this unfolds the more I'm beginning to think that Obama has planned it this way all along. He knew the American people would have a lot to say in this manner and so this might be his way of letting the American people make the decision.

He already took the heat for releasing the torture memos, and we've seen the GOP attack him relentlessly on this.... Imagine the attacks if Obama had released the memos AND announced he was prosecuting those responsible in the first place... He would have been labeled partisan by the GOP and the GOP would have made it all about Obama using terrorism to split the country into two, to his own political advantage.

Instead Obama released the memos, saying he wasn't going to prosecute. But it turns out that he is now open to the idea.

So I can't help but wonder if he knew this would be the reaction. Or if he wanted to let the country decide. After all if there was no interest in by Americans to prosecute Bush, then Obama would not have done so.

So I guess the real question (assuming Obama used this as an opportunity to gauge American's reaction) is WHO is calling for the heads of the Bush administration? Is it just those on the far left or are more moderate people also calling for justice? I would imagine that Holder will prosecute if the more moderate Americans want to see laws followed.

I think it's a pretty smart move politically on Obama's part. And it leaves the choice as to how to proceed (whether or not to prosecute) in the hands of the American people.

Of course this is just one thought and I'm not saying I'm right.... But it is interesting.

As I said earlier GreenDreams, I just have to shrug my shoulders on this debate simply because I just don't know. I'm waffling too much so I'm putting a cork in it. LOL!

I run off to class to teach about the rise of Nixon in 1966-68 and come back to 28 new comments! Democracy is alive!

CS

"He has at his disposal the power to fire the AG"

Of course he does, but only at great political peril. Ask Nixon.

"and to use the pardon power to effectively block investigations"

Of course he can, but only at great political peril. Ask Bush.

Obama has done neither, so why bring these up?

My point is a simpler explanation of events than comments from left and right have implied in this thread.

Obama made his declaration for moving forward.

Holder let him know that his intent was to proceed with an investigation and possible prosecution.

Obama may have even asked who the targets were for this investigation.

Holder told him not the CIA operatives, but those who ok'd the acts.

Obama "waffled," and publicly stated essentially what his AG told him.

I admit this is supposition on my part, but it accounts for the time line and contains very little if any political attributes which is my point about this whole thing.

I don't think Obama read the "political tea leaves." and told Holder to proceed, do you?

"So I guess the real question (assuming Obama used this as an opportunity to gauge American's reaction) is WHO is calling for the heads of the Bush administration? Is it just those on the far left or are more moderate people also calling for justice? I would imagine that Holder will prosecute if the more moderate Americans want to see laws followed.

I think it's a pretty smart move politically on Obama's part. And it leaves the choice as to how to proceed (whether or not to prosecute) in the hands of the American people."

Yep, this is exactly it. Investigations and prosecutions will take a lot of political will, and so they are waiting to see if it's there. Plus how much international support/pressure there is. After all pretty much all the European states and the UN have pointed out that we are breaking multiple treaties by not investigating.

"He has at his disposal the power to fire the AG"

Of course he does, but only at great political peril. Ask Nixon.

"and to use the pardon power to effectively block investigations"

Of course he can, but only at great political peril. Ask Bush.

Obama has done neither, so why bring these up?

Why bring these up?? Because you just explained my point- that the only thing really constraining Obama from being more decisive (instead of passing the buck to his AG) is the risk of political fallout. Which was the point of the post, which was what I was agreeing with and you disagreed. You seemed to be asserting that the manner in which the execution of the law is carried out is completely at the discretion of the AG and there's nothing that the president can do about it- which is false. The power rests with the president, but with power comes political risk.

I think it's a pretty smart move politically on Obama's part. And it leaves the choice as to how to proceed (whether or not to prosecute) in the hands of the American people.

Check the polls on this Stockboy. These cut just about 50/50. As a result, you will amplify divisiveness and, like most every AG/Congressional Hearing project, you will get to eat divisiveness leftovers for the next 2 years until the moderate Americans are completely fed up. Whatever "justice" itch is scratched will be replaced by the "fed-up" infection.

So, best of luck to you as a political advisor.

In any case, if prosecutions go forward, they will probably be under a Special Prosecutor and not the AG.

"I don't think Obama read the "political tea leaves." and told Holder to proceed, do you?"

I dunno about "told" but I'm sure he said whatever he does to make sure the political winds are aligned for it.

mikkel-I'm not averse to accepting your version of it, and due to the extreme volatility of the issue it may not be the wrong approach to follow the will of the people on this rather than lead them.

I just find his manner very offputting, personally- I feel like I'm being played.

And as a pattern, I do find reason to criticize a president following instead of leading, even if it turns out to be the correct way to approach this particular problem.

A few points:
The Attorney General is supposed to operate independently of the President. The President can and should set broad goals for the Justice Department, but they are supposed to evaluate legal matters (including who to prosecute) independently of the law. That's why it was a big deal when Nixon tried to fire his AG for not following his orders, and when Karl Rove was seemingly picking and choosing people to go after for Alberto Gonzales.

To me, that's why a backward looking mentality would be unjust- because it makes the officials involved take full responsibility for what was a national failing (even if you and a small number of others might have been the exceptions.)

If the torture programs weren't being done in secret, then I would agree with you. But by making the decisions without our consent, they assumed responsibility.

Oh, and mikkel- doesn't CO have a valid point too? With the division being so nearly even and the two sides having talked passed each other on the issue for years now, is it really likely that the people are going to come to a consensus? Theoretically having more information should help, but I think we're passed the point where people from each side can even read the same set of facts and agree on what they are.

If the torture programs weren't being done in secret, then I would agree with you. But by making the decisions without our consent, they assumed responsibility.

Kind of circular logic though because these decisions would necessarily be classified, not to protect from public view but for national security reasons. And I think it's safe to assume that those who consented did so with a belief that they were representing the interests of their constituents not only in outcome, but in approval of the process. They may or may not have been correct in the way they presumed voter intent on the interrogation techniques, but I think it was a reasonable assumption if they did make it on that basis.

"But they also knew that the reasons that they did these things was to prevent attacks, and the Obama administration knew that the CIA clearly felt that the actions had that effect."

I'm sorry CS but there is no justification for breaking laws based on "we had good intentions." You know what road is paved with those.

Quite frankly it's clear that investigations need to take place and try to sort out people into different groups: the people that crafted the policies, the frontline people that did it and the people that aided it because they knew but did nothing. All of those are addressed by different laws, directives (field manuals explicitly cover all these things) and treaties...and yes that means several Congressional figures -- both Democrats and Republicans -- should probably be up for investigation.

"To me it seems obvious that fear was overriding ethical concerns among the majority of US politicians, and that those politicians must have had reason to believe that their constituents felt the same way."

I don't see how you can complain much of the time about politicians not being good leaders because they are too wishy washy with the political winds about policy decisions, while saying that we should move on from crimes, not only crimes, but ones that have a slew of both international and prominently domestic ones.

That the public was stupid about it makes no difference...it's up to officials to smooth and counter the primal nature of the public mob, not give into it and retroactively justify it. I mean you say that all the time about welfare, taxes, etc....again, policies as opposed to blatant crimes.

CS

Now put this into context. We are discussing this in a thread entitled the Pushover President.

If you wish to attribute Obama's "waffling" to political calculations, go ahead. I merely provided a possible explanation for his two different statements.

My explanation belies the underlying assumptions of this post. Your explanation provides lots of juicy political possibilities and political analysis. I merely submit that a President's choices do not include directly deciding if an investigation should or should not go forward.

Nixon was desperate enough to stop the Watergate investigation that the Saturday night massacre remains infamous. I don't think Obama is that desperate.

What has been called "waffling" is what I call the correct execution of government based upon the executive branches right to lead and the Justice departments right to investigate possible crimes.

Kind of circular logic though because these decisions would necessarily be classified, not to protect from public view but for national security reasons.

If these people were proud of the torture they were doing, and thought we'd agree, they could certainly have asked Congress to abolish our national bans on torture and withdraw from the various international conventions against it. That wouldn't require an airing of specific techniques.

And I think it's safe to assume that those who consented did so with a belief that they were representing the interests of their constituents not only in outcome, but in approval of the process.

I'm sure that every torturer in history thought they were doing it for the greater good and safety of their people. That's why most countries, including ours, have made torture a crime despite exigent circumstances and regardless of motive.

mikkel

Your scenario requires Obama to come out for moving forward, but then "waffle." I see no reason to believe that Holder made it known that the Justice department was going forward according to their right.

Why make Obama the great Machiavellian president when a simpler explanation accounts for the events that we Know transpired?

I think it's a pretty smart move politically on Obama's part. And it leaves the choice as to how to proceed (whether or not to prosecute) in the hands of the American people.

It may be a smart move politically but the "American People" are not in the best position on whether or not to prosecute. As others have said the people are already divided so it's not likely there will be a consensus, not to mention this is a legal decision and not a vote for prom queen.

mikkel

sorry, the above comment concerns

"I dunno about "told" but I'm sure he said whatever he does to make sure the political winds are aligned for it.
"

I wasn't justifying making it political, I was just explaining what I think he's doing. Of course Holder should open investigations, there is literally no room not to, and Obama should be on the forefront of the political edge, leading the populace into rejecting torture and seeing who was responsible for what.

The fact that it is 50/50 shows that our nation is really really sick. I mean this is the most nationally hypocritical, jingoistic, infantile national viewpoint I've ever heard of. It completely validates the international view that Americans are self centered bullies.

Seeing the Daily Show have a segment on this, where they trotted out people that were whining that a) now people know and b) we can't do it anymore was sickening. I also find it quite amazing that literally every single person I've read that has been part of intelligence or special ops (through SERE) said that it was a given that it was an inviolable moral position that separates the "evil" countries from the "good..." and that they were often told this and taught about historical cases and uses...i.e. how it's only used to control and punish rather than extract anything.

"Why make Obama the great Machiavellian president when a simpler explanation accounts for the events that we Know transpired?"

Um because he kinda is, or wants to aspire to be. There is a lot of first person accounting that Obama is a huge admirer of Lincoln who did that sort of thing constantly and Obama specifically studied how they went about it.

Even Glenn Greenwald admits "Given the magnitude of these questions, I think it's unreasonable to argue that the President should refrain entirely from opining on such questions." While pointing out that the actual decision isn't his.

I obviously have no idea what Obama and Holder have said to each other, and I'm also unclear on what is proper for the AG to say. I mean can they discuss it with the President? But what I do know is that Lincoln repeatedly took the "consensus" position while making it clear privately to the people that could do so that it was up to them to reframe the debate and make it look like Lincoln was "forced" into a new position.

This fits perfectly with that type of play, as literally the cards are with Holder, and Obama can be wishy washy and just let Holder do all the heavy lifting. Most of what Obama has said to me sounds like BS that he's just stalling for time, because he'd rather everyone talk about him rather than focus on Holder who's doing the actual investigation...but I find it highly unlikely that Obama would let all the stuff be released without it playing strategically into what Holder wants.

Jazz says it makes the AG look like a lapdog, but I see it the exact opposite where it lets him do what he is going to do away from the spotlight. I think that Congress has very little influence in it as well -- although they should start their own investigations. Which again Obama's position plays into that. He can act like it's not a priority so Congress starts all these hearings and gets all this evidence out into the public which then the AG can pick up on and use.

Quite frankly, I can't blame him, and contrary to the opinions here, I really don't think it influences people's perception of Obama in the slightest. As the information keeps coming out in dribs and drabs and they have a massive parade of the congressional witnesses to give context to what went on, no one is going to think about Obama at all.

mikkel

"I wasn't justifying making it political, I was just explaining what I think he's doing."

I'm not sure anything points to Obama being political at all about this. If Holder informed him that Justice was going forward, Obama's second statement, "the waffle," just demonstrates the fact that regardless of his presidential inclinations to "move forward," he supports the reality that his AG feels legal questions must override.

If that's "political," then so is supporting the police fight crime or the army fight bad guys.

mikkel

if the difference of our opinions is demonstrated in our last two post, then I'm happy to move on.

Either explanation is plausible and acceptable by me. Without fly on the wall verification, it's all a guesstimate anyway.

That's a fair enough criticism, mikkel. I suppose my opinion is that it's predjudicial to start with the assumption that laws were broken because I don't think the statute was clear enough in the definitions of torture. My personal opinion is that the letter of the law may have allowed for the parsing, even though I don't agree with the parsing or think it was morally or ethically correct to do it.



You're right that I want politicians to be held accountable when they don't lead people past sentiments that are harmful to public policy- so I'm not saying I think it was correct that those politicians who were briefed didn't do so. I'm only asserting that I believe it's a fair reading of intent to assume that the political will factored into the actions taken or not taken by those individuals. And I think that the political process can take care of that- if we judge them in the court of public opinion as having been too craven in their motivations, we can punish them by removing them from office.



IOW, if I believe a politician should have acted in a way that wasn't in accordance with the majority of constituents, I think that loss of their seat should be the appropriate punishment for that, not punishment of that as a crime, unless the acts are well above the threshhold of criminality. I realize a lot of people already do think that these acts met that standard, but I don't- and I think the real solution is going to be to strengthen the language of the laws.

Best analogy I can think of is the civil rights era- when politicians and law enforement officials used the law for cover for discriminatory acts, and many politicians initially used their political constituents as cover for not changing the laws. Eventually those who had the courage of their convictions pushed forward with the changes- but we didn't retroactively convict anyone once the Civil Rights Act went into effect. So it really hinges on what the law currently says, which I think is vague enough to justify Obama taking a stance against prosecution by asserting his pardon power- particularly by also pointing out the divisiveness to the public.

I have to admit that when I read some allegations like I'm seeing today, I start to feel that investigations should go forward (referring to the reports that Rumsfeld and Cheney put pressure on interrogators to step up the waterboarding in order to try to extract confessions about links between al Qaeda and Iraq.) I guess I've heard so many unsubstantiated claims about that kind of stuff though that I'm skeptical of whether the current reports are based on evidence or someone's opinion- and although investigations that are impartial should make that clear, I'm doubtful that such impartiality is possible.

So I go round in circles- wanting investigations if they don't become witch hunts but feeling that I'm not likely to believe that this wouldn't turn into one.

The fact that it is 50/50 shows that our nation is really really sick.

I disagree mikkel. It shows that many in our nation view this issue as black or white. Hardly an indication of sickness on an issue like this.

"I realize a lot of people already do think that these acts met that standard, but I don't"

How do you know? We don't really know what happened, who was involved, what all the laws are (at least I don't) etc. I'm not saying that everyone needs to be thrown in jail for life, but what I'm saying is that it is completely obvious (based on both the letter of the law and historical findings.....by our own courts nonetheless) that illegal acts happened, and therefore there should be an investigation and possibly trials.

I mean the stuff in the memos that came out had tons of stuff: hundreds of waterboardings, various new "techniques" that no one knew about, etc. Who knows how much more will be uncovered. Many detainees died...who knows who knew what and when about that.

The CIA has different things than the Military. Lawyers have different ones than the executives that ordered it. Legislators that knew have different requirements as well. I don't see any harm in starting investigations and bringing cases against the obvious good shots at convictions (and who knows maybe they'll find not guilty for some reason we don't know about) while deciding others would be too hard to prosecute at all...I'm just saying that I don't think we should try to dismiss everything away with a broad brush. As many facts should be collected as possible and each one should be judged on its merit.

A perfect example is the Congressional people. It's pretty clear under Geneva that they committed a crime by not doing anything to stop it, and we have domestic statutes that copy that whole thing directly. But, they also got it under national security briefing, and obviously it'd be illegal to expose that information. So what happens in that case, what options are there and what is required? I have absolutely no idea, there is undoubtedly tons of legal nuance and it'll take lots of investigation to determine exactly what fits and doesn't. If they did that investigation and said "well we aren't bringing charges for this reason" then fine...but I have a big problem with the idea that they are in a special position where they shouldn't at least be looked into.

Thank you, T Steel. I agree, difference of opinion shouldn't be intolerable no matter how strongly felt the anti-torture sentiment is. I can understand mikkel's disgust, but I think there's a certain amount of pretense that America and every other country wasn't always doing these things in the shadows. That's the part of the vitriole against the Bush administration that I've never agreed with- because I think they're getting the rap for what had always taken place before, because they brought it closer to the sunlight (perhaps unintentionally.) My reading of the situation is that they tried to set boundaries but I don't agree with where they set them. My reading of people on mikkel's side of the debate is that they think that this represented new techniques being used, thought up and authorized for the first time. To me it seems more like the first time that the administration said that there would be a legal ruling on these techniques instead of giving a wink and a nod to CIA. The problem was though that if they took this up at all, they would then have to have maken an honest legal assessment and not one that started with the conclusion that this stuff was legal and worked backward from there.

I suppose my opinion is that it's predjudicial to start with the assumption that laws were broken because I don't think the statute was clear enough in the definitions of torture.

I'm honestly baffled that anyone could read the definition of torture in our law, the various treaties we've signed, and the precedents we've set prosecuting foreign nationals and come to the conclusion that the law wasn't clear enough to say definitively that Bush authorized torture.

There are a lot of things that I strongly disagree with and can't understand how anyone could think how they do, but ultimately have to chalk it up to a difference in outlook. I might try to convince people to not have that outlook, but I don't think it means they are a bad person (I have an insanely high tolerance for who I think are decent people compared to the vast majority of the populace).

This is not one of those issues. To me it's the equivalent of being 50/50 about burning witches. Torture isn't an affront for specific cultures or times, it is consistently "evil" and I say that as someone that doesn't believe in evil. It not only destroys the people tortured, it destroys the torturers. If you have read the investigations and memos, they talk about how they often had to rotate guards and "interrogators" because they started getting PTSD and mental breakdowns. It is a supremely psychopathic act.

So yes, the fact that it is 50/50 does show our nation is really really sick. I don't necessarily mean that I think we're a nation full of psychopaths, but just a sickness through combination of extreme narcissism, laziness and ignorance. It shows we have very weak moral character.

And I think people know this. There is so much pressure to "move on" because a lot of people are genuinely disgusted by the torture itself, but have cognitive dissonance about it and just want it to go away so they don't have to think about it. One of the primary problems with Americans in general is our extreme dualist outlook about the world. As a country we seem incapable of comprehending anything other than "totally good" and "totally bad" and I've had many foreign friends point this out. We don't want to admit what's happened or expose it because it is hard to reconcile with the America Is Good viewpoint.

Europe is much more in tune with the idea that morality is an active process...although there are complaints that is starting to get lost as the older generations die off. Heck modern Spain, Germany and Japan are built from the ground up with that viewpoint. I have friends from Kosovo that experienced it first hand. They have seen what happens when a "sick" nation (even if it's just through ignorance or wanting to keep up with your daily life) undergoes immense strife and we're fools if we think it's impossible for that to ever happen here.

Again, I'm not calling for everyone to be thrown in jail as a form of catharcism, but to at least expose it and investigate it to see what's just.

I don't see any harm in starting investigations and bringing cases against the obvious good shots at convictions (and who knows maybe they'll find not guilty for some reason we don't know about) while deciding others would be too hard to prosecute at all...I'm just saying that I don't think we should try to dismiss everything away with a broad brush.

That just sounds like an awfully broad brush of predetermining that crimes were committed and it sounds like a presumption of guilt when you say "who knows, maybe they'll find not guilty for some reason."

As you started off the comment saying, neither of us really knows enough to say whether any or all of the individuals involved broke laws (vs. doing things we feel are wrong but not beyond the letter of the law as it existed at the time.) I realize that is why you make the case that investigations have to be opened first, but before that even happens there's certainly a review process and since that involves tons of classified material we really don't know the whole basis on which Holder would be making the decision. And no matter what, Obama does retain the pardon power to effectively block investigations if he sees an overriding interest of the country in doing so.

Probably the best argument you're making for "obviously laws were broken" is that the US has prosecuted against other nations for waterboarding- but I don't know the details of that well enough to say if it's a precedent that applies exactly here or not. Beyond the use of that precedent, I don't see that it's at all 'obvious' that laws were broken, even if we agree that what happened should have been prohibited by law.

Torture isn't an affront for specific cultures or times, it is consistently "evil" and I say that as someone that doesn't believe in evil. It not only destroys the people tortured, it destroys the torturers.

And the vast majority of people would agree with that, but the difference of opinion comes in on the definition of torture and whether or not these acts fit the definition.

While I don't agree with this line of thinking, I do believe the SERE training line of reasoning has helped people rationalize waterboarding. 'It can't be torture if we do it to our own guys', is what I hear. Of course when you think that through, you realize that the two situations are completely different and the psychological effects can't really be compared because of the difference in situation- but I think a lot of people heard that and then stopped thinking further from there.

Well CS, of course it's a huge problem that they created the legalisms for it. As I said from the very beginning, the most alarming aspect about surveillance, this, etc. is the attempt to codify it into law. There is a very good reason for this...most people operate morally on the "law and order" level, which is that the law represents what's moral (this frustrates me extremely as it's also the underpinning of things like gay marriage and other "moral" issues, where most people have a hard time separating pluralistic legal arguments from individual moral ones) and thus are more likely to support insanely immoral things that are legal. This is why so many dictators don't come in as tyrants, but slowly change the legal infrastructure by relying on appeals to "well it's hard to say" or "I'm trying to protect you" until they have the legal authority to do what they want. That's how they defang the populace's moral outrage to injustice, and when people are getting dragged off the street and disappeared for very minor crimes [no I'm not saying this is the intended end state here, it's just saying how powerful this effect is] then the people around rationalize it by saying "well he broke the law. If he didn't then he would have been fine." It gives the whole idea a false sense of self empowerment.

By codifying these things into law (and to a worse extent in Britain) they are (inadvertently or not) setting up the populace to accept the new norms and knock out a very important pillar of American Republicanism.

So yeah, that's why I'm so caustic about this. That said, I also support bringing in things from the past and putting a stop to it once and for all. Hell I've said that if the anecdotes are true then Clinton and Gore should be investigated.

Chris- You and I went a few rounds on that the other day. My position is that the US statutory law is pretty weak- most legal definitions are extremely tight, and I would expect a legal definition of torture to not allow for the kind of parsing that the Bush DOJ was able to do. Normally I'd expect a legal definition to have subparts that define each of the terms on which the main definition hinges, like 'pain', 'duration', etc. And although that kind of legalese is annoying to laypeople, there's obviously a reason for it.

Hell I've said that if the anecdotes are true then Clinton and Gore should be investigated.

Exactly- but that's why I argue that investigations into individual's acts are futile because rather than individuals willfully breaking laws I see it all as a mindset that needs to change among the whole populace, and needs to then be codified.

Don't you think that the net would be cast so wide that it would be all consuming? Or if focused more narrowly it would appear partisan? Or if started narrowly and then expanded as the facts were tracked, it would seem like partisan tit for tat?

I guess I don't see justice being served by any of that, not only because of the distraction from current immense problems but also because we'd be seeking to extract punishment on individuals for what was really a crime of society.

mikkel- what's interesting about your scenario of codifying immoral acts so that they become accepted as 'just' is that- this is just my opinion, mind you- to me it seems like certain people in the Bush administration may have been doing that purposefully (Cheney, Rumsfeld) while Bush himself, I believe, may have been looking at it the way I do (better to codify the behavior that was already going on in the shadows and delineate the boundaries of it.) There's no way to really know if I'm judging intent there correctly, but that's just my take on it.

"I don't see that it's at all 'obvious' that laws were broken...but the difference of opinion comes in on the definition of torture and whether or not these acts fit the definition."

CS no offense, but as Chris pointed out, there are literally dozens of statues and hundreds of years of precedent that covered pretty much every single thing they did. Many of the things that they did were designed for the Spanish Inquisition. The Nazis and Stalinists used them, with the KGB bragging about how much it completely destroyed the targets. People in US custody died from it or are permanently disabled.

I don't mean this to you specifically, as it is kind of the whole theme of the discussion, but there is a false intellectualism that appears when this topic comes up. Having being guilty of this a lot in my life (and actually learning how to use it as a positive) this is completely a byproduct of people hearing about something "new" and feeling that they should really sit down and think about it logically and it's important to have an independent opinion based on first principles. All of the "well what about ticking time bombs" and "it could be effectual, we don't have enough proof it's not" or even the "well we were scared so it's understandable" is a perfect example of this.

The question for people that want to be contrary isn't "whether" it's torture, it's how are we different than dozens of actors that have done the exact same things for over 400 years. So they had a legal memo...big deal, so did everyone else that did it. Doesn't stop us from calling them torture. It just completely unmasks that we think we're special, especially as Bush berated North Korea for sleep deprivation and standing positions as torture, even after it came out we did this!


As for my "getting off somehow" comment...that's because these things are definitely in violation of the spirit of the law for all the reasons I stated. They are guilty. Period. But we don't convict based on the spirit of law, we convict on the letter of law. Just as I support a criminal being found not guilty due to evidence mishandling or whatever (as a necessary evil to protect the innocent) I too could understand if there was something that prevented them from being found guilty on this. I don't know what it would be...but there could be something.

And whether you believe it or not, and whether you agree with it or not, a lot of people see that as justification for the acts; plus, an even larger number of people would have seen it as justifying the acts at that time even if they've now thought more clearly about it.

I hope you don't think there's any justification or excuse for it. I don't. ZERO excuse, no matter what:

"Together with other detainees, we were made to sit on the floor and were dragged to the interrogation room. This so called room is in fact a toilet (approximately 2m by 2m) and was flooded with water and human waste up to my ankle level. I was asked to sit in the filthy water while the American interrogator stood outside the door, with the translator. After the interrogation, I would be removed from the toilet, and before the next detainee is put into the toilet, the guards would urinate into the filthy water in front of the other detainees."

CS, that is NOT my America. I do not respect people who do that. I despise them.

If you don't believe me, then how do you explain the Democrats' reticence for exposing it, and the fact that none of the political leaders who were briefed on it expressed any dissent, instead asking if the techniques were tough enough?

They were forbidden by law to say A WORD about what they were told, and would lose their security clearance if they leaked it.

CStanley,
You're ascribing, for lack of a better term, mystical qualities to legal documents. The definition of torture in the US legal code, and established by international treaties is very plain in language, I would assume to avoid the sort of wiggle room Bybee and others tried to create. You don't have to be a lawyer or a judge to understand that the memos describe treatment that would cause "severe physical or mental pain or suffering" under even the most generous reading.

What you're doing, for whatever reason, is tiptoeing around what's obvious:
1) Bush ordered torture
2) Torture is illegal
3) The memos were garbage

I can only assume at this point that you don't want to see prosecutions and you're grasping at straws to find a justification.

"Exactly- but that's why I argue that investigations into individual's acts are futile because rather than individuals willfully breaking laws I see it all as a mindset that needs to change among the whole populace, and needs to then be codified. "

At the end of civil wars -- especially that involved murder of civilians and when lots of people were involved -- they often have Truth Commissions that expose everything at once and try to find out everything. The idea isn't to prosecute everyone because there are so many (and so people will be honest because they have little to fear), but to make sure that everyone knows everything that happened and is so disgusted that theoretically they will never forget and change how they do things. I think if the US had one and everyone knew the sorts of things that the US has done (not to mention how many times it's gone horribly wrong) then I think people would realize it's not a partisan issue and be forced to confront it.

I've read several ex-intelligence officers that believe the CIA-foreign policy apparatus is a failure and want to do exactly this in order to get enough support to disband it. They have several arguments that support the idea that peace time intelligence is almost always a failure and it should be relegated to wars.

The question for people that want to be contrary isn't "whether" it's torture, it's how are we different than dozens of actors that have done the exact same things for over 400 years. So they had a legal memo...big deal, so did everyone else that did it. Doesn't stop us from calling them torture.

First, one can have a different opinion without being described as 'wanting to be contrary', no?

Second, I think you're being completely dismissive of the idea of statutory law, unless your previous assertion of 'dozens of statutes' is correct and those 'dozens of statutes actually prohibit the specific acts like waterboarding (and I do realize that a definition of torture is not necessarily going to be able to define every possible form of torture, that some must be inferred- but there still should be some much clearer reference to how any individual act would fit the definition.)

Can you show me a US statute that more clearly defines torture than the one that is constantly cited (and which sources that I have no reason to doubt have said is the one that this hinges on)?

Or for that matter, any other US statute that would be used for a legal definition of torture? Maybe I'm wrong to believe those who have cited this is the one definition. But I'm not more inclined to accept that there are dozens of others, having not seen anyone cite any besides this.

But when I heard that, and then looked at it, I was appalled that it was such a brief and vague definition. On the face of it, it seems open to all sorts of exploitable loopholes.

Again, I think it's immoral to have exploited the loophole- but 'rule of law' means you first define clearly what the law is before you can accuse someone of breaking it.

I can only assume at this point that you don't want to see prosecutions and you're grasping at straws to find a justification.

Chris, I really regret having spoken at all if that's how it comes across, because that honestly isn't my intent. Well, that's not quite right- I do feel that prosecutions would be wrong in the sense that the culpability in my opinion is spread through society and not on individuals- but in the sense that you probably feel that I have a partisan desire to see certain prosecutions avoided, that's truly not it.

mikkel- well, the Truth Commission construct didn't seem to be what you were advocating. And I don't see how something like that can overcome the divisions in a society where tensions are high- you're comparing it to situations where wars have been fought and ended, when the passions have been drained.

CStanley sez Waterboarding someone 183 times ≠ "severe physical or mental pain or suffering"

And why is that? Because "pain" isn't sufficiently defined?

Even the Bush administration knew this was bullsh*t, that's why they rescinded the memos.

but in the sense that you probably feel that I have a partisan desire to see certain prosecutions avoided, that's truly not it.

Thanks for clearing that up. But are you sure it isn't even subconscious? :-)

Point of clarification--I interpret the 50/50 split on whether it does this nation more good to relive the past or just move on and make things better, clearer, going forward so there is less ambiguity. I think the 50% opposed is saying they would prefer Obama to prohibit whatever techniques bother him and not go backwards.

There is obviously no sentiment for torture in the abstract.

Nonetheless, in the context of stopping the next American Airlines jet being flown into a building in NY, a lot of reasonable people would have unclear definitions.

Um well other than the drugs, they definitely did everything in that statue. Also when I said "dozens of statutes" I didn't mean against torture specifically. I didn't even mean statutes, I should withdraw that comment. I should have said regulations or something, because I was referring to the different areas of law that are applied in different contexts. There is a lot of overlap in the military code of justice, the more general laws that talk about obeying all the various treaties and how that affects legal decisions, etc. Let's say for example that they decided that it didn't fit torture under that statute...that doesn't mean that everyone is off the hook. If it was interpreted to be against Geneva then different things kick in. Similarly there is obviously no statute that says "Lawyers can't give legal opinions that waterboarding isn't torture" but there can be an argument again using precedent that their opinions were contrary to law/treaties in such a way that they should be held accountable.

This is why I'm saying that there needs to be an investigation to figure out what all the roles are and what laws apply to which roles. I have no idea frankly.

@mikkel:This is why I'm saying that there needs to be an investigation to figure out what all the roles are and what laws apply to which roles. I have no idea frankly.

Well, can you see at least why I objected to your statements that 'laws were obviously broken', then?

GD: I find those acts completely reprehensible too, but your arguments remind me of prolifers who wave dismembered fetuses in front of other people and say "how can you possibly defend this?" I'm disgusted by abortion as well but I can distinguish between what I believe is immoral and what is strictly illegal.

Which is why I feel the main emphasis should be on amending the legal definitions so that those kinds of actions are prohibited in an ironclad manner.

Another knock on the idea that we're all too blame so no one should be held accountable:
http://yglesias.thinkprogress.org/archives/2009...

Yeah well like I said up there, they "obviously broke" the spirit of the law. Like I keep saying, they can't really claim what they did wasn't torture unless you ignore all of the historical stuff. But still they have to apply individual nuance for each person depending on their role and there are different standards of judgment that I don't know what will happen. Like my dad always makes sure to note, there is a difference between innocent and not guilty.

And why is that? Because "pain" isn't sufficiently defined?

Yes. Mental pain and suffering is incredibly ambiguous, and I find it incomprehensible why it was left without further definition (unless of course the intent was to be vague.)

Now, obviously in layman's terms, we all feel we know 'mental pain and suffering' when we see it, but it's not normal for legal statutes to leave such concepts up to individual interpretation.

Some military interrogators also pulled their people because they thought it was obviously illegal. That's when the CIA brought in "contractors" to work with military prison guards instead of military intelligence.

they "obviously broke" the spirit of the law.

OK, but you can't prosecute someone for breaking the spirit of the law. And as much as you might want all of the precedent and international law to apply, those things can't be used to prosecute under US law.

Take your example about Bush's hypocrisy on N. Korea. I agree (assuming you're quoting him correctly- I missed that he'd said that so I'm taking your word on it.)

OK, so we're hypocrites if we don't have the same statutes prohibiting things that we complain about when other countries do them. So? That still doesn't mean we can start putting people here in jail for doing those things unless the statute against it exists at the time that the act is committed.

CStanley,
It was defined as "the intentional infliction or threatened infliction of severe physical pain or suffering". Notice that even "threatening infliction" is considered torture. Now you tell me, if waterboarding doesn't cause severe pain, isn't it at least the same as the threat of drowning?

At some point, even in damnable legalese, you run out of ways to define and clarify words. It doesn't get much more elemental than 'pain', 'suffering' and 'harm'. Look up 'pain' in the dictionary and you end up with the word 'suffering' to describe it; look up 'suffering' and you see it explained with the word 'pain'.

What I think you guys are missing is that I believe the one statute that I cited is the only one that would apply to CIA, while military interrogators (and presumably the FBI) have more stringent rules that apply to them.

Which again is why I believe this statute needs to be amended. But it explains why everyone else backed off, and why CIA asked for political/legal cover.

So, none of that still shows how CIA broke the law.

I do think there are legal arguments that could be made for how the actions of CIA broke the law as written (contrary to the Yoo opinions), but none of you are making those arguments. You're just stating what you think is obvious, and how you think that the international treaties should be used to prosecute as though they're the same as statutory law (or that we should infer that any vagueness in the statutes should necessarily be resolved by referencing those precedents.)

Chris: Your last comment is the first one that does what I suggest is possible in my last comment, to make an actual legal argument for how the law as written was broken. I don't necessarily disagree with you (although I think this falls under mental pain, not physical), buy my opinion is that it's just not as cut and dried as is being asserted when people say that the law was "obviously broken".

So, none of that still shows how CIA broke the law.

Because they, um, tortured people.

I do think there are legal arguments that could be made for how the actions of CIA broke the law as written (contrary to the Yoo opinions), but none of you are making those arguments.

Yes I am. Waterboarding someone 183 times = "severe physical or mental pain or suffering".

Done and done. :-)

See my previous comment that cross posted with yours, Chris.

And sorry, but "Because they did" isn't a legal argument. The definitions matter, and 'torture' is as clear as mud without further specification. When a person admits to committing an act, there's still a responsibility of a prosecutor to show how the act matches up with the legal definition of the charges. You did attempt to do that in your other comment though.

"You're just stating what you think is obvious, and how you think that the international treaties should be used to prosecute as though they're the same as statutory law"

No we're not. Chris is arguing it's clear they broke that statute (which I agree with) and I said that the lawyers, executive branch, Congressmen might be held culpable under other statutes that bind us to Geneva, etc. The military interrogators would be best under the UMCJ, which pretty much uses Geneva as the guide. I am not sure how to be any clearer and that's why I kept saying that I could see how people might be found not guilty of something even if they weren't "innocent" (i.e. if the CIA people can only be prosecuted under that statute and it's found lacking, but a soldier could be prosecuted under UMCJ for doing something less but is found guilty).

Once you get into the Administration then it gets very murky what applies.

I probably lumped you and Chris together too much in that comment you refer to, Mikkel. He and I had a previous discussion where I didn't think he was distinguishing between the possibility of prosecuting under US law vs. international tribunals (which wouldn't be AG Holder's jurisdiction.)

But still, unless I misunderstood you it seemed you were saying that the fact that the CIA stepped in with contractors to do what the military interrogators wouldn't do, meant that the military people 'knew' this was illegal. My point is that if they knew it was illegal for them, and if they were correct about that, it proves nothing in terms of whether it was also illegal for the CIA contracted interrogators to do it.

And if everyone involved jumped through hoops to make sure that they didn't break the letter of the law (as it appears they did attempt to ensure), then isn't it possible that laws technically weren't broken no matter how obvious it seems to us that the acts should have been illegal? That's my impression of it, anyway, that that's a distinct possibility.

And it's one possible explanation for the Obama administration waffling, if they think that prosecutions would be few and far between and everyone would just feel more angered by the fact that the law wasn't sufficient to convict most of the participants.

CStanley,
What legal loopholes do you think they jumped through?

Chris: Putting CIA in charge instead of military interrogators, moving detainees to overseas detention centers, plus all of the justifications that they attempt to use in the memos. The first two I'm pretty sure hold up in court, while the rest of it is still in question, but represents certainly what would be their defense case.

Yes it's possible, but I also think the proper place to determine that is in court. I mean for the CIA it's plainly written that about extreme mental pain or whatever, and I've read dozens of lawyers that have argued that is easily met. Would that be the verdict? I dunno but that's where legal arguments come in.

Obviously Congress should move to make it more clear for the future...and I don't see how investigating would be bad for that. I mean it'd make it more likely if everyone was mad that we couldn't do anything about it to write more specific laws.

CStanley,
I'm sure the CIA is still subject to US Law, and the Supreme Court decided in the Boumediene case that Guantanamo was under the jurisdiction of US courts because we have de facto sovereignty over the base.

In terms of writing better laws, my thinking is that getting the political will to do that may require anger to cool. Prosecutions might make the left less angry, but the same people who might oppose legislation to tighten up the laws would be the ones on the right who'd be much more angry about investigations and potential trials.

So, although I can see where that might seem unjust to you, to me it's the kind of grand compromise that might be necessary because I think the establishment of stricter rules is the ultimate goal and I think that backward looking investigations might jeopardize our ability to get there.

Guantanamo was under the jurisdiction of US courts because we have de facto sovereignty over the base.

Which was why they moved the detainees to the prisons in Eastern Europe, no?

Lots of good comments here by people on all sides....

With regards to "Causualobserver's" comment on my political advisement skills... I would be a terrible political advisor. :)

But what I suggested was that the American people can decide how to proceed so it's harder to be viewed as a partisan attack by Obaam on teh former Bush administration officials. I don't think Obama wants to even appear that he is donig this for partisan reasons. But if enough American people are for the prosecution of the former Bush administration officials, then so be it.

It's interesting that the polls have a 50/50 split... This shows that it's not just the far lefties who want to push for prosecution. Of the 50% who do not support prosecution I would be interested in knowing how many of those are against it because they truly feel that the Bush admin officials should not be prosecuted because they believe those officials were acting in good faith, and how many people just want to move on...

One last point.... I wonder what the people who actually "know" whats going on behind the scenes think of debates and opinions we (as outsiders) have on these issues. After all much of what we base our argument on is speculation and the own filters we bring to the conversation. None of us probably has this completely right.

Which was why they moved the detainees to the prisons in Eastern Europe, no?

Boumediene was decided in 2008 way after the torture started. Besides, other than the prisons being secret, what would the difference be between them and Gtmo?

But just to put the final nail in the coffin of the jurisdiction argument, why would the Bush administration draft legal memos saying these techniques complied with US torture laws if they believed the interrogators weren't subject to US law?

I meant the rationale for Boumediene was probably what they anticipated and moved detainees to the secret sites for procedures that would be most controversial. Wasn't the reasoning behind those secret prisons the fact that we don't have any sovereignty there, unlike Gitmo?

why would the Bush administration draft legal memos saying these techniques complied with US torture laws if they believed the interrogators weren't subject to US law?You may have a point there, I don't know. I would just have to assume that the reason for moving some people overseas like that was to change jurisdiction.

Wasn't the reasoning behind those secret prisons the fact that we don't have any sovereignty there, unlike Gitmo?

I thought the reasoning was that they were secret :-)

I think it's very likely the courts would use Boumediene as a precedent to extend sovereignty to any military or CIA operated facility. The US statute criminalizing torture doesn't actually specify that it has to be done on our soil, just by a US national. That would make sense with regards to the spirit of the UN Convention Against Torture which established universal jurisdiction for prosecuting torture.

CStanley,

I see, the ends justify the means. I guess if I rob a grocery store to feed my neighbor's and my starving families, per that logic I shouldn't be tried for breaking the law since I fed people and saved them from starvation. I know this is a Macintosh vs. Granny Smith apples (different, but not so different) comparison, but at what point do you justify breaking the law to a good end? I don't know about you, but all throughout my Catholic school education, it was drilled into my head that the ends never justify the means. If torture is so necessary in only extreme circumstances (the good old Jack Baur analogy), then let whoever feels it's necessary to do it then do it but they also have to be prepared to face the consequences (i.e. sacrificing themselves for the greater good). When government gives the o.k. for torture to be policy, then that makes us no better than those we are fighting.

Stockboy, as we near the 100 comment mark.......good on you, Jazzie pants........let's drop the pretenses.

Obama, as a reasonably adept politician, wants to "own" this thing about as much as you want to own a Nixon campaign button.

If "letting the American people decide" is your wink, wink, nod, nod way of acknowledging that, then OK by me.

Anna: I feel that way as well, that the ends don't justify the means in these cases. But I think that Americans have to face up to the security implications of that and agree to write tougher laws. I just don't think that what we have on the books in terms of US law is comprehensive enough to definitively prohibit a lot of these acts.

If I come across as though I personally think that the ends should justify the means, that's not it- but I do understand those who hold that point of view and I realize that politically, the people who feel that way would then hold our government accountable if it failed to prevent attacks. So, somehow we have to get past the political pressure against tougher anti-torture statutes.

For instance, during the campaign I was willing to accept McCain's stance on not making intel officers subject to the same binding rules as the military is. I understood his reasoning of not being quite so specific, so that enemies would not know exactly how to train to resist tactics which might be used. But now, seeing more detail, I'm willing to say that he was wrong and that stricter guidelines are needed or the intel interrogators will go too far. The tradeoff of whether or not we tip our hand is simply not worth it.

But all of that has to do with what I think the laws should say, not how they should be executed as currently written.

CS, how neatly you dismiss the horrors of what was done to innocent people. How quick to dismiss the murder of that taxi driver who did nothing, and the man I quoted, beaten repeatedly, losing his hearing and years of his life, then dumped by the roadside because there was not--there was never, at any time, any evidence against him. Hundreds or thousands of lives were damaged or destroyed. These are victims of crimes. They have a right to justice.

Your contention that we are all guilty is, frankly, preposterous. But if you truly believe that, I will gladly stand trial, if all these others will.

100!

CStanley

I just finished reading this entire thread and wish I could have been online. Iknow this is way late in the game, but just a couple comments.

One point did no enter the discussion on the definition of torture, "the threat of imminent death."

Waterboarding is designed to make the subject feel like he's drowning, and feeling like you're drowning is certainly an experience of imminent death. Knowing that a person feels that sensation, how can waterboarding not be torture? That seems obvious to me, but you may have another way of seeing it.

Additionally, the SERE training example you nailed exactly. SERE trainees can at any time simply say, "I quit." They also only receive 10-12 waterboarding experiences. We're talking about 183 such times with no "safe word" to stop the session.

I guess I'll have to quit work if I want to get in on these.

HemmD,
I actually mentioned something similar here in this thread: http://themoderatevoice.com/29677/the-pushover-...

Hemm, I agree with you in both instances (obviously I agree on the SERE point since I raised it first and you were seconding.)

But on whether or not waterboarding produces the psychological feeling of threat of imminent death, I agree with your ruling on that but apparently Yoo or one of the other attorneys had an overly legalistic explanation, if I understood it correctly, something about how even though there was the sensation of that, it was not of long duration which they parsed as another requirement before it could meet the legal definition.

Ed Morrissey had a post about this (he agrees with you and with me- that that's just taking the parsing to an absurd level.) If you have a chance you may want to go to HotAir and search 'torture memo' or something to locate it. What Ed correctly pointed out was that the immediate threat of death is by definition a short term phenomenon, so there's no way for that to occur over a prolonged period of time- so obviously it wasn't meant to have to meet that requirement. What's even more perverse here though is that somehow they almost managed to pull off making into a prolonged feeling anyway by repeating it so frequently over a long time.

So yeah, I agree with that and certainly that might be the nail in the coffin for any attempt at legal defense for those acts. I've been, admittedly, arguing for a harder line defense than I think even the law would provide in those particular cases (and as I think I made clear, that's not at all the way my conscience judges the acts even when I've said that the law might not be sufficient to convict.) I was basically trying to show those who argued that 'laws were obviously broken' that it might not in fact be that cut and dried according to the law as written. I mean, a lot of folks feel that the Conventions and other things we're obligated to honor by treaty have more stringent definitions but then why wasn't similar language included in our domestic law? Seems to me that if we'd take that step, then loopholes would be closed for the future.

It does seem that the parsing on that one issue was so extreme that that line of defense might get thrown out.

I guess I'll have to quit work if I want to get in on these.

Yeah, I've just had to quit vacuuming my house but I'll probably need to resume soon before the dog hair takes over. ;)

GD: I'm sorry that you can't take me at my word about what my sense of justice is, which is not to dismiss what happened to people.

casualobserver.... I'm not sure how to interpret your comments....

Obama did release the memos in such a way to for the GOP to call into question his own ability to keep (or not) the country safe. The easiest thing Obama could have done was simply say that he wasn't going to release the memos due to national security and he was not going to prosecute. Instead he raised the ire of both the far left and the right. The Republicans are attacking him for opening up the country to terrorists. But if Obama, as I think I mentioned in my original post, had gone about it differently it could very well have developed into a strictly partisan battle.

As it is we as a country (unless you're a Rush, etc. fan) are talking about torture and whether it works and whether the Bush administration should be brought to justice. We wouldn't be having this conversation if Obama had said he was going to prosecute the Bush administration. The GOP would have made it into a partisan battle and we'd be whining about how the GOP is trying to derail the issue..... Though they're still trying to derail the issue, just in a different way and not as potently as tehy could.

I don't think Obama did it in a "wink wink, nod nod" sort of way. He may be smart be he can't predict how a multifaceted debate like this would play out among Americans.

If there was one issue I could grill Obama on and find out what he truly thinks and his strategy this is it. Not just because I think it's the most important issue facing our country (do we believe enough in our values to fight for them, even if it means throwing past leaders in prison, or do we let the terrorists win by not fighting for what we believe in?) But this also goes against his training as a lawyer, one who should believe the law. If Obama doesn't believe in the rule of law, then what does he place a higher value on? It's not political favors or friendship or patronage since the most of the people who would be prosecuted are his worst political enemies.... which he appears to want to protect. So I'd love to talk with him on this, more than any other issue.

OK, CS, I'll take you at your word that you find these acts reprehensible. I'm a bit worked up about this because it was done in our names to innocent people. My God, they raped women, sodomized men and even killed a few, probably accidentally. I can't believe anyone is trying to rationalize that in any way. Now I know those weren't justified by the memos, but waterboarding was, explicitly. I'm sure most here are too young to remember, but we actually executed Japanese for waterboarding. There's no ambiguity about what we considered torture. We considered it so despicable as to be punishable by death. Now we seem to be arguing that our laws are too vague to make it clearly illegal. Well, it surely wasn't too vague for us to put foreign soldiers to death for doing it to our soldiers.