Matt Steinglass joins the chorus of liberals telling me that no one will care if American public officials are arrested for official actions.
This strikes me as--farfetched. American public opinion was pretty solidly against Singapore's caning of Michael Fay, who got four strokes with a rattan cane for acts of local vandalism he'd confessed to. There was, to be sure, a vocal minority that favored it, and I myself was not overly sympathetic to the obviously troubled teen. But if you can get a majority against corporal punishment of a teenage criminal at a time when lots of schools in the south still had corporal punishment . . . well, what will you see when another country decides that their laws get to judge our policy?
I quite agree that in Manhattan, where both Matt and I were raised, there would be quite a bit of support for the action. My assessment of my relatives living outside of dense city cores, however, suggests a vehement antipathetic reaction. And there are still a lot more of them than there are of us.
As I told another reader who wrote with similar objections, maybe the thing to do is measure our relative confidence levels. I have $1,000 I'm willing to put down at Longbets that if a US official is arrested by a foreign power for acts committed in his official capacity, the majority reaction will be a vicious backlash against said foreign power, not "ho-hum". Now, of course, I could simply be overconfident, or biased by the fact that I indeed have relatives who boycotted the French. On the other hand, those relatives hate Bush and usually vote for Democrats.
Sure, Americans will be indignant. But what does that matter?
Do you predict military action? Sanctions against the country concerned? Or hemming and hawing?
Does anyone remember what happened to Michael Fay? Did he actually impose sanctions or anything or was it just a bunch of sound and fury without any bite?
come up with a specific metric and I'll back the bet too. for example if an official gets arrested there will be a bipartisan push in house/senate for action and the admin. that fails to back it will lose the next election.
Yeah, I think you'd have to come up with an objective definition of "vicious backlash" to make this a real bet. Michael Goldfarb's head exploding, for instance.
I'm pretty sure that people in the US were pissed not because Fay was arrested and punished, but because HE WAS CANED. Idiot.
I'd take your bet. I'm surprised that you don't think a foreign country would be up for the indignity of arresting a low to mid ranking official. Yeah he may be back in the US in a week, but I don't see us sanctioning Spanish goods because they picked yoo, feith, or addington on a war crimes charge, or a trumped up charge of public intoxication, or something of the like. I've watched many US army soldiers arrested and BEATEN (I don't mean black eyes, I mean broken arms and ocular sockets). They weren't resisting arrest by the Carabineri either. These events never, ever made the news in either country.
Ultimately your right in that it would only extend to wounds of pride. No administration would, or could, allow it to go any further.
No duh, Rickm:
As one of the nth people have said for the nth time, would Megan do at least a cursory google before posting stuff like this?
On a related note to all those Libertarians who were outraged by this sentence: Heinlein would have approved. Thoroughly.
Megan,
It seems to me as if you are obviously correct. I know a few people who would applaud if a former US official was arrested abroad, but all the conservatives and most of the liberals would be somewhere between mad and really really mad.
The only fair way to structure a bet would be on public opinion polling. After all (regarless of public mood) a President Obama might choose to do nothing about it and a President McCain might choose to do rather a lot about it, so what we do about it wouldn't be a fair metric since it is too contingent.
David:
Tell me again, why would liberals care if Addington, Yoo or Feith were arrested abroad(I am not including Darth Cheney in this discussion)? The only people that would care are the politicians in DC(and maybe the chattering class, meaning the TradMed). Of course they'd cry like five year old children but why would I care?
You'll care when Republicans use the issue to regain their national defense creds, get everyone riled up about what a bunch of pussies all those liberals are, and make democrats pay for it for decades.
To put it another way, any politician will see that the potential downside with people who can vote vastly outweighs getting some kudos from people who can't.
"Tell me again, why would liberals care if Addington, Yoo or Feith were arrested abroad"
I think liberals will care for the same reason conservatives do: We are (mostly) patriots who belive that the United States is second to none at democracy and the rule of law. If there are to be any prosecutions, we will do it and we will do it using our laws. We do not need any help from "morally superior" forigners.
Also Matt has decided that this election will be a blowout election for Obama with an 8-10 point overhead. The only thing that could save such a statment is if it turns out correct.
I think the problem would be if the US government let other countries arrest its political enemies. If we don't always fight 'international' attempts to imprison our officials, then we'll see oppression via other countries' court systems.
We can't have policy differences resolved by sending people to jail, here or anywhere else.
If anyone from the Bush administration is arrested overseas, it will be because they weren't arrested here. It's possible that we'll muster the political will to clean house after the new administration takes office. If we don't, it will be because an insufficient number of Americans felt it important that it should happen. (Yes, I know this is a bad situation - it's politics infecting the administration of justice, and deciding who's punished and who goes free. But I'm just calling it like I see it).
If that's the case, I think the end result of a possible foreign arrest will be closer to Megan's vision than Matt's. There won't be rioting in the streets, or a declaration of war against France (or wherever), but there will be repercussions - sanctions, possible strains within NATO, that sort of thing.
"It's possible that we'll muster the political will to clean house after the new administration takes office. If we don't, it will be because an insufficient number of Americans felt it important that it should happen. (Yes, I know this is a bad situation - it's politics infecting the administration of justice, and deciding who's punished and who goes free. But I'm just calling it like I see it). "
I'll wager come 2009 everyone will be so relieved (ding-dong the wicked witch is dead) nobody will care our allies or our fellow Americans. It will be time to fix the problems caused by this administration. Not to bring the disgraced back to the stage.
"It's possible that we'll muster the political will to clean house after the new administration takes office. If we don't, it will be because an insufficient number of Americans felt it important that it should happen."
OR
We value a system where it is possible for the opposition to win an election and peacefully assume power. If we live in a country where a new administration prosecutes the previous, there won't be peacefull transitions--or any transitions at all eventually.
'I think liberals will care for the same reason conservatives do: We are (mostly) patriots who belive that the United States is second to none at democracy and the rule of law. If there are to be any prosecutions, we will do it and we will do it using our laws. We do not need any help from "morally superior" forigners.'
I tend to agree, however, we must be sure to make our opinion of ourselves accurate.
There are two tendencies that I think we must weigh, and perhaps dismiss. On one hand, some in opposition will call for criminal investigations at the drop of a hat. On the other hand, we try to avoid criminalizing policy decisions - individual corruptions, or conspiracies are fair game - but policy has been off limits.
The problem is, war crimes and human rights violations occurred. The victims were at the mercy of US power. Our own government admits that, and has held specific, low-ranking, individuals responsible. It is feasible that policy, rather than bad actions by these individuals, was the cause of these crimes, and possibly more. The investigator assigned by the government has recently claimed that it is the case. Until these possibilities are investigated by an independent and credible entity, which can not be dismissed as politically vindictive to the administration nor in the administration's pocket, we can not rest assured that, "If there are to be any prosecutions, we will do it and we will do it using our laws."
David: "We value a system where it is possible for the opposition to win an election and peacefully assume power. If we live in a country where a new administration prosecutes the previous, there won't be peacefull transitions--or any transitions at all eventually.?"
You made a fundamental difference in my world view. Thank you.
Personally, I would advocate actions against any country that arrested any member of the US government (or any other domestic government) for official actions performed while in their jobs. I do not want the US to be subject to foreign governments, period. I don't care who they arrested or for what. If they are unwilling to return them to the US for trial here, then I would advocate going and getting them by whatever means were necessary, including overt military action.
I don't include normal crimes committed by anyone, though I would include violations of diplomatic immunity.
I know a lot of people who feel the same way. But then we're all just a bunch of hicks and rednecks by coastal liberal standards. But there are a lot of us... and we have all the guns.
Until these possibilities are investigated by an independent and credible entity...
Which entity is most certainly not some kangaroo court in a foreign country.
I think, however, that we will let it slide, because criminalizing policy differences is too dangerous, and this is too close to the line. Yes, SoV, I do think the pardon of Nixon was a good thing. The man should have gone to prison, but the cost to the country would have been too great. Clinton should not have been impeached (something I supported at the time) for the very same reason.
What are the chances that President Obama would acquiesce to an trial that would set precedent for his arrest and that of his officials once his term was over? Do you think his Secretary of Defense will think it's a great idea to let a foreign court try Rumsfeld?
David, I understand where you're coming from there, but there's another thing that concerns me - the very American value that all people should be equal under the law. If a President can commit any horrendous act whatsoever while he's in office, and never worry about being prosecuted for it, what's to stop any person from abusing that office?
Yes, we probably shouldn't remove a President for jaywalking, but where's the line? Falsifying intelligence in a press release? Probably not; might count as psychological warfare. Carrying out a war (or "use of force") that the Congress authorized? No. Perjury? Depends on what the meaning of "is" is, I guess. Falsifying intelligence before Congress (but not under oath)? ... maybe, but remind Congress to put everybody under oath. Authorization of torture (even against the worst, evillest, awfullest, Nazi/Communist/Fascist/Terrorist puppy-kicker in history)? I'd say, yes.
Given the likely political pushback European prosecutors are going to arrest someone like John Yoo ONLY if they believe they have a solid case against him. In that circumstance there would be enormous blowback in Europe if the United States tried anything other than a strenuous diplomatic offensive.
In the event of any military-style attack to free the individual there would be enormous public pressure in Europe to shred Status of Forces agreements with the United States. While the gung-ho types here may not care about US bases in Europe I suspect the DOD would be pretty miffed about losing overflight rights across Europe.
The idea of putting on 6 guns and a swagger clearly jazzes some people here but will serve no purpose other than putting the United States in an even deeper hole than it has been for the last few years.
I believe the most likely response is that the United States and the relevant European Nation would come to an agreement whereby John Yoo, or whomever, would be indicted in the United States - where he may benefit from jury nullification but would end up with a justifiably destroyed reputiation. At that point his peers might as well tear up their passports.
I've watched many US army soldiers arrested and BEATEN (I don't mean black eyes, I mean broken arms and ocular sockets). They weren't resisting arrest by the Carabineri either. These events never, ever made the news in either country.
Hmmm...by any chance were these soldiers out on the streets in a state of drunken stuper while mistaking random, upstanding female citizens for the hookers they were trying to solicit?
Anyone who believes that the arrest of high-ranking officials or foreign officials for trial in a foreign tribunal on definitioneered charges of "war crimes" would NOT produce a generally negative and aggressive response from the US, has been living in a far-left-wing echo chamber for much too long.
Sure, Obama has better-than-even odds of defeating McCain in November, and he will no doubt track a distinctly left-of-center course in his administration's policy goals. But that will be on account of the American people tiring with the power-hungry tactics of the present Republican party and looking for a change, not because they've adopted some coastal liberal's rhetorical bloodsport fantasies against the existing administration and its officials. If something like this happened under Obama's watch and he did nothing, or did nothing but engage in empty talk, he and his administration would quickly undergo a Nixonian flameout.
Fortunately, this is all empty rhetoric anyway, because only a country staffed by complete idiots would actually try to accost former US officials for alleged crimes of power without US cooperation (and an immediate extradition thereto). Talk about it to score cheap-talk political points for consumption in the home market, sure. But try it? Not without a death wish.
I suppose the time has come again for my evergreen request: can somebody identify a crime that John Yoo has committed?
If not, then could somebody consult his "torture memos" and provide a link and a page number (one of them is something like 80 pages) to where he makes a legal error?
Rob L's earlier point (about criminalization of policy debates) is critical. The point of soverign immunity isn't that it's fair, it's to facilitate the peaceful handover of power.
This was the problem with Pinochet; not that he was innocent, but that prosecuting him made it clear to every other dictator that they were riding the tiger and there was no point in handing over power peacefully.
While most of the time your right. The 3 instances I had in my mind did not involve Alcohol, women, or a late hour. I am not so foolish to mislead people with such an obvious omission. I can't spell them out only because the details would be embarrassing and incriminating. One involved a gerber type multi-tool a kid had on him (I was driving him home from work we stopped, carabineri came up, saw it, and well lets just say there was no warning in any language). Another was straight racism. And the last one I'm thinking of involved recovering payment of a debt. And I don't mean a traffic ticket. These never made any newspaper, no apologies to my knowledge were ever issued, and if it was handled it was all done in-house and discreetly.
Back to the equality under the law statement. If the US were going to prosecute a former high ranking government official performing tasks in the course of any kind of duty. It would require Rodney King like evidence showing that in such a particular case he had a moral duty to not perform according to his orders or instructions. For example; if Rumsfeld was aware of execution type murders occurring under interrogation and somebody could prove it, beyond a reasonable doubt. Then I could see such a case being brought.
I highly doubt that any such evidence exists, because I highly doubt the deaths of these detainees went so simply as a gun to the head. It is not an excuse, but intent is the difference between murder 1 and murder 2.
the arrest of high-ranking officials or foreign officials
Whoops...that should have "officials or former officials".
Thank you for making it very, very clear the problem is not the man in the street, but Repbulicans seeking partisan advantage by any means possible.
Rob, I'm curious, given that impeachment is a specific provision inserted in the very beginning by the likes of Jefferson, et al, under what circumstances should impeachment be used? Apparently none, according to you. What was wrong with Jefferson's reasoning?
It seems that certain people are laboring under the misapprehension that if a president knows he is going to be impeached, he'll do anything to maintain power and avoid it. With all due respect, this is the United States of America. If he's impeached, he really doesn't too many options, and refusing to step down is _not_ one of them.
Finally, Rob, nice gloss over with the terms 'policy differences'. What sort of war crimes in your estimation couldn't be covered under that term?
Ben, I just plain disagree with you there. Murder 1 and up, plus video evidence, isn't an appropriate standard. I do think there are other acts, short of murder 1, where it's appropriate to indict officials. Basically, acts that violate the trust that the office needs in order to function. War crimes, bribery, and election fraud are on the list for me. So are destruction of evidence and selective amnesia.
(Personally I'd love for the courts to be able to order someone who "can't recall" a thing about the case to be classified as mentally incompetent and confined to a psych ward until those symptoms abate. Either take the 5th, or say nothing; this "can't recall" business is ridiculous).
Mike Earl:
This was the problem with Pinochet; not that he was innocent, but that prosecuting him made it clear to every other dictator that they were riding the tiger and there was no point in handing over power peacefully.
Scott Adam's blog is quite flip, and most of his suggestions or conversation starters are only half thought through, but I like the way he started this one
Adam's post goes on to talk about how maybe instead of hauling dictators in front of international tribunals, we should allow them to retire quietly with immunity. I don't like it--it offends my sense of justice--but maybe he's on to something. If (for example) Mugabe could be convinced to put the reins of power down and walk away, it might save more people than if he has to be ousted with a civil war (or just hangs on, screwing up the economy until he dies), even if the son of a bitch doesn't get his in the end.
And that's what "Preview" is for. The URL is in my nick.
Rob, I'm curious, given that impeachment is a specific provision inserted in the very beginning by the likes of Jefferson, et al, under what circumstances should impeachment be used?
I didn't say Nixon shouldn't have been impeached, I said it was good to pardon him, that is, not to prosecute him criminally in Federal District Court. Participation in actual crimes warrants removal from office; regarding said removal as an adequate retribution for such crimes facilitates easy removal and avoids unnecessary political polarization. Nixon in the dock would have been a much more sympathetic figure than Nixon in the Oval Office.
It pisses me off that Clinton lied under oath--you might surmise that I take civil lawsuits pretty seriously--and I think it is to his everlasting discredit that he didn't resign. But his impeachment was ultimately destructive. Some things just can't be above politics, even if we wish they were.
On the "war crimes" question, if there's adequate proof of, say, actual torture (not irritating music or panties on the head), then I support prosecuting those responsible up to a high level, and I've offered before to pass anything substantive anyone has along to either military or civilian prosecutors of my acquaintance. But FISA squabbles, the "illegal" invasion of Iraq, or Yoo's memo writing: those are all policy differences which some people would like to prosecute.
Tel-
I was going with what seemed practically applicable criminal law in this specific instance. Yes theft, fraud, purchasing a prostitute I would agree you could and ought to be removed from office for such malfeasances.
However, as much as I loathe the sheer "this is politics therefore this is how it must be logic." It is the agreed upon standard of stupidity in every country of the world. Its the kind that says, "if I prosecute Addington for his role in orchestrating renditions, torture, lying (not under oath), and generally being a malicious ass. What precedent does it set? What do I open myself up for? If we have someone who wants to be mean and say hires some actors and actresses, uses some crappy video system brings in a suspected terrorist (of whatever variety the future offers) who hasn't been getting the recommended 8 hours a day of solid sleep. And they proceed to mock execute and beat these people posing as the man's family. Even though nobody actually got hurt, and it was all an elaborate hoax meant to coerce information out of a detainee. Would it now be a crime after what I've done."
As filthy as I feel in breaking down such self-serving logic. And even better topping it of with such a superfluous idea of what may be torture. That is the logic of politics, impunity is the rule. And that goes everywhere, getting away with as much as you can and never having to account for it except with your own conscience. I personally don't want to try Bush for War Crimes, because I'd rather have fired him for being the epitome of a bad president. To me that would have been the cherry on top. George W. Bush the first president so terrible he was fired. I would have liked to see that line in a history book.
What sort of war crimes in your estimation couldn't be covered under that term?
I don't know, something more than writing a legal memo?
American public opinion was pretty solidly against Singapore's caning of Michael Fay
Was it? I was opposed to it, but I sure felt like I was in a minority of one.
This is a bit of equivication, is it not? Are you seriously saying that the authors of the Constitution thought that impeachment was okay, but that actually trying the President for crimes was off the table? What makes you think that? And if you don't think that, why are you making this argument?
Something tells me that if Nixon shot Little Orphan Annie on live TV, the punishment envisioned was more than just removal from office.
I might also note that you seem to have an idiosyncatic definition of 'polarization'. It's not synthetic outrage manifested for ratings points and partisan gain, no matter how much it's played up that way.
I notice that you very carefully avoided the charge of perjury, councilor. And, unlike you, the practicing lawyer, I know that there is a very good reason why lying under oath when it is not perjury is not a crime. It's to prevent fishing expeditions. It's to deflect any attempt to humiliate the witness, etc. And Clinton did _exactly_ the right thing in this instance. Save your phony primness.
One question, and consider it well: Is waterboarding torture? If you say yes, then all you've been doing is trying to muddy the waters between sham trials for non-crimes, and real, actual, very serious crimes. I'm surprised you would even condone anything like that.
Are you seriously saying that the authors of the Constitution thought that impeachment was okay, but that actually trying the President for crimes was off the table? What makes you think that?
I don't know or care what they thought. I'm talking about what I think. I see no constitutional obstacle to trying an impeached president, but I see negative value in it in either Nixon or Clinton's case. As it turns out the Framers also gave us the pardon power, which Ford used, in my mind to generally positive effect.
I know that there is a very good reason why lying under oath when it is not perjury is not a crime.
Huh? Lying under oath is perjury. And it's a crime. I (the practicing lawyer) know nothing of the distinction you are drawing here between "legal" and "illegal" lies under oath. It's all perjury to me, but maybe if you explain the difference I can get some CLE credit.
As for fishing expeditions, discovery's a bitch, and then you try.
Finally, my primness is by no means phony; I really am that prim in everyday life. At least at work.
Is waterboarding torture?
There are two questions hiding in one here:
1) Should waterboarding be illegal (that is, should we consider it "torture" under the law forbidding torture)? Here, I tentatively say "yes."
2) Is waterboarding illegal under 18 USC 2340 and 2341? Here, the answer depends on whether simulated drowning constitutes "severe pain and suffering," or whether people subjected to waterboarding suffer prolonged mental harm.
I'm inclined to think it probably is severe suffering (that's what makes it effective), so it probably qualifies as torture. But I lack the conviction in that belief required to get excited about it. (Domestic) trials of those involved will not upset me, either.
Funny thing, one of the arguments against pardoning Nixon was that it would embolden further illegal activity on the part of high officials. It was ventured that without credible penalties, credible downsides, there would be relatively little restraint holding powerful would-be lawbreakers back. Given that barely ten years later, we had Iran-Contra, I'm inclined to believe those who say the the pardon was a bad thing. Not you, who maintains without the slightest scintilla of evidence that there was a 'generally positive' effect. I don't know if you were aware of the history, but yes, Nixon's crimes were seen as very serious, by Republicans as well as Democrats. This wasn't some bit of manufactured partisan snipe,
But, tell me, under what circumstances could you see a president impeached and tried?
Rob, Rob, Rob. You say you're a practicing lawyer, and you don't know the definition of perjury? I find this very, very, very hard to believe:
And in the Paula Jones case:
Now, I'm given to understand that you're the sort of lawyer who does make courtroom appearances, and that you are licensed to practice law. Are you really, seriously, with a straight face trying to tell me that you did not know the definition of perjury? Those pursed lips of yours don't look like primness, they look like a barely contained smirk saying 'you can't prove I'm lying.'
And, as I said, the reasons for the distinction are obvious; non-relevant but embarrassing information could otherwise be used to unfairly influence trial outcomes.
So. Let me get this straight. You're pretty sure waterboarding is torture. A wide range authorities concur that it is torture. It meets the accepted definition of torture. But you're not totally sure, and you 'lack the conviction in that belief required to get excited about it. (Domestic) trials of those involved will not upset me, either.' And, in any event, going after an official for instigating torture would just be a 'partisan witch hunt'.
Do you realize how ridiculous you look, hopping on one leg while spinning around blinking your eyes, rotating one outstretched arm clockwise while snapping out a 5/7 measure with the opposite hand . . . and calling other people 'partisan'?
That word simply doesn't mean what you think it does. And pounding on the table and saying you're 'outraged' is something lawyers do when they have neither the facts nor the law to pound. In short, you are not convincing.
Are you really, seriously, with a straight face trying to tell me that you did not know the definition of perjury?
No, I'm telling you I went and looked it up in the US Code, and the results may be found at 18 USC 1621.
The federal law prohibiting perjury contains no materiality requirement, at least on its face; whether the case law says something different I don't have time to investigate.
The Lewinsky affair would not have been admissible in Jones' case in chief, not because it wasn't material, but because character evidence isn't admissible to prove conduct on a particular occasion. It certainly would have been legitimate rebuttal evidence should Clinton have attempted to defend himself by calling character witnesses (an unwise but plausible strategy). For that reason it cannot be called "immaterial" to discovery, not by a long shot.
In any case, the proper reaction to an improper question is not to lie, but to refuse to answer. Any lawyer will tell you that. He'll probably even make the objection and direct you to refuse to answer, so you don't have to make the decision yourself.
the reasons for the distinction are obvious; non-relevant but embarrassing information could otherwise be used to unfairly influence trial outcomes.
You are here showing your ignorance of procedure. First, irrelevant and prejudicial information is not admissible under Federal Rules of Evidence 402 and 403. This has nothing to do with lying during discovery, a phase when all manner of inadmissible evidence gets uncovered.
Second, the proper reaction is not to decide for yourself what is irrelevant and lie about it, it's to have your lawyer object and argue about it (before the judge if necessary). Then the judge can decide if you have to answer at all. If not, no problem. If so, you'd better tell the truth.
Finally, as I pointed out above, Clinton's womanizing could have become admissible under the correct circumstances, so it was a fair question.
Do you realize how ridiculous you look, hopping on one leg while spinning around blinking your eyes, rotating one outstretched arm clockwise while snapping out a 5/7 measure with the opposite hand . . . and calling other people 'partisan'?
Do you realize how ridiculous you look, putting words like "partisan witch hunt" in my mouth? I realize your single quotes aren't meant to be direct quotations of my words, but even as a paraphrase, that's a rather extreme characterization of what I have actually said. All I'm saying is that while prosecuting people involved in waterboarding may be both possible and desirable, prosecutions for any of the other hundreds of outrages, real and imagined, would be a really, really bad idea. And I'm not as rock-solid sold on the waterboarding prosecutions as you are, boo hoo.
And pounding on the table and saying you're 'outraged' is something lawyers do when they have neither the facts nor the law to pound.
I have neither pounded the table nor declared myself outraged, nor done anything which could reasonably be construed as either.
"A wide range of authorities concur that it is torture."
Well, no. In my view, it would depend on how it is done. There are a variety of techniques at issue and there is a continuum. I think any technique that carries a real risk of drowning would clearly qualify as torture. I don't think that's neccessarily true for other variants. You're talking as if all waterboarding procedures are the same. They are not.
And don't create a false "consensus" where none exists. To this day, the attorney general maintains the legality of waterboarding ... at least as practiced by the CIA. That would be the legal authority most relevant for this discussion.
See here: http://www.latimes.com/news/nationworld/nation/la-na-torture7feb07,1,3156438.story
"It meets the accepted definition of torture."
I wouldn't neccessarily say that, either. Again, it would depend on the specific method used, in my view. And the attorney general, again, does not buy your argument. So much for "the accepted definition."
At any rate, if Congress wanted to specifically ban the measure, they are free to do so at any time. The fact that they haven't is, to me, significant.
I'm sure Senator Clinton was smart enough not to want to tie her own hands if she were president during a ticking time bomb scenario. Obama, on the other hand, is too stupid to think that far ahead. Other senators are, however, and as a result, Congress has not specifically targeted waterboarding for prohibition by law.
Gee, that's funny, every definition I've looked up has had materiality as part of the definition; the only thing you can say is that you don't see where the materiality comes in 'on its face', but you haven't looked it up. I give quotes saying that the statements were ruled inadmissible by virtue of materiality, _by_the_judge_herself_, and you're second-guessing her(think highly of yourself?)
But then you go on to cover yourself by saying that it's immaterial whether it was perjury or not anyway, he just shouldn't have lied. Uh-huh.
See, this is why I really can't take your responses seriously. You're all ready to believe something that simply isn't true in the case of Clinton - Even the people going after his scalp couldn't make a perjury charge stick. But you then go on to say that there is 'reasonable doubt' that waterboarding is torture, even though you're fairly sure, pretty sure, or something. But you are sure that if someone foreign agency were to try to try an American official for complicity in waterboarding someone, that it would be, what did you say, oh yes:
Um, yeah, being upset that government officials have authorized torture is 'criminalizing policy differences'. But Clinton, lying to avoid humiliation, and lying in a way that's not even against the law? He's a bad bad bad man.
Rob, you need to get your priorities straight. Authorizing waterboarding is far, far more serious than lying about a non-material fact. That you would even for a minute try to suggest otherwise shows how just hopelessly partisan you are.
Oh - and you might want to 'look into' that materiality requirement, eh? Kind of embarrassing, a lawyer not knowing what it means.
Really? Why? Or are you saying that if the Attorney General decreed that sticking flaming bits of bamboo under the fingernails of the person being 'questioned' is not torture, then, ipso facto, it's not?
You also seem to be saying that if someone thinks waterboarding is torture, they must think so for partisan reasons. Not because, you know, it's a really nasty bit of business:
Or, we could go with the definitions of torture that have been reliably used in the past:
No, we have to go with the handpicked officer of the man who probably authorized it, according to Jason. Not a bit biased at all.
And once again, we see the usual maneuverings: putting someone on trial for instigating torture is somehow 'partisan' and 'a dispute over policy differences', and yet, rather than try to show that waterboarding is somehow not torture, despite meeting the common definitions, the has been moved to where we have to get these worthies to admit that it is.
And, though they didn't realize it, they've just shown _exactly_ why such trials are needed.
I also find it fairly ironic that the people like Rob can be upset about Clinton committing 'perjury', and they expect the rest of us to take them seriously. Well, we did.
But when the shoe's on the other foot, about something much more serious, all of a sudden it's about 'policy differences', and 'we really don't need this sort of thing to go to trial anyway - it would just be politicized.'
iow, these wights are demanding (and have already received) courtesies that they have absolutely no intention of extending towards others.
What's next? "Well, the other side does it too - or would if they could get away with it."
Gee, that's funny, every definition I've looked up has had materiality as part of the definition
Well, that's nice, but since the lawsuit was in federal court, the only definition that matters is the one to which I linked, which lacks that element. And I'm no more embarrassed not to know everything there is to know about law well outside my practice than a string theorist would be embarrassed that he couldn't write the Navier-Stokes equation from memory. Or a topologist unable to chat about Weibull distributions. Or a mathematician who apparently knows jack about federal civil procedure.
Second, if Wikipedia is to be believed, the judge ruled 'that Jones was "entitled to information regarding any individuals with whom President Clinton had sexual relations or proposed to or sought to have sexual relations and who were, during the relevant time frame, state or federal employees."'
So much for immaterial. But if the quotes you gave were accurate descriptions of events, I'd agree with the judge that the information was immaterial to a 12(b)(6) motion, given that such a motion tests only the sufficiency of the complaint's allegations--and therefore no evidence at all is material to that particular decision. Anybody in the second semester of law school could have told you that.
But hey, that's beside the point. What's important is that I said, in this very thread, that 1) Clinton, though guilty of perjury, should not have been impeached (and, though I haven't said it yet, should not be prosecuted), and 2) I am undisturbed by (although not a gung-ho supporter of) trials for those involved in waterboarding of suspected terrorists, and I tentatively believe that convictions would be appropriate. I also think that many of the things for which people would wish to try Bush--pretty much anything other than the waterboarding, or other serious abuses of prisoners--do indeed amount to policy differences.
How you go from these statements--which which I gather you broadly agree--to your bizarre interpretations and condemnation of me, I can't quite figure out.
SoV, I must admit error. My reading of 1621 was erroneous, and it does require materiality. I missed it in my haste; I apologize.
Many Americans were upset over Michael being caned, and would have said "Ho-hum," or never heard of the case, if he had merely been fined and jailed. Many other Americans thought he deserved it good and hard. And then some of paid attention to the case. Michael Fay may have nbeen a jerk, and in possession of stolen street signs, but there is no credible evidence that he vandalized cars, the crime for which he was caned. His confession was almost certainly coerced.
Hexagram 28 - no blame.
Because you apparently don't accept that this is what these officials would be tried for - that there would be 'Kangaroo Courts' involved. Or rather, that even the possibility of being convicted on 'policy differences' is enough to not have those trials. And because:
I think, however, that we will let it slide, because criminalizing policy differences is too dangerous, and this is too close to the line.
So, according to you, even though these officials have very probably committed war crimes, there's not a lot anyone can do about it, oh well. Oh, and you can't think of anything that a president can be both impeached, and tried and convicted for.
That's the sort of exercise in futility that can't be labeled as anything but enabling.
Or are you saying that if the Attorney General decreed that sticking flaming bits of bamboo under the fingernails of the person being 'questioned' is not torture, then, ipso facto, it's not?
Nope. I'm simply highlighting your intellectual dishonesty in fabricating a consensus where none exists.
Your assertion has been falsified.
As for your Wiki site, it's pure speculation. None of the Wiki editors know precisely what technique was used in waterboarding. Indeed, from a risk management point of view, it is a simple matter to create a series of countermeasures to prevent the side effects mentioned.
You're creating a straw man, anyway. I am not arguing that waterboarding is or is not torture. I am suggesting that there is not enough information available to warrant a conclusion either way in the specific cases to hand.
You're writing a bunch of checks your fund of information can't cash.
What CAN be concluded, though, based on available evidence, is that anyone who says there is a consensus among informed individuals is ignorant or lying.
Your appeals to a false authority of "consensus" are getting pretty old.
Hmmm . . . . what did I say?
Hmmm . . . . what did I say?
and:
You might try reading what I actually wrote, sometime.
Good to know, btw, that you, Jason Steenwyk, don't consider waterboarding torture. The fact that you're a stone partisan has absolutely nothing to do with this opinion, of course.
Buddy, it's precisely because of guys like you that we need to have these trials. Just think; it might come out that the courts rule that waterboarding isn't torture after all, and you'd be vindicated, and this would be a settled issue. If you're so sure that your boys are clean, I'd think you'd love the opportunity to prove it in court.
it's precisely because of guys like you that we need to have these trials. Just think; it might come out that the courts rule that waterboarding isn't torture after all, and you'd be vindicated, and this would be a settled issue. If you're so sure that your boys are clean, I'd think you'd love the opportunity to prove it in court.
And it's precisely because of this sort of thinking that I'm tepid towards the idea of criminal trials under the circumstances. In some sense I feel duty-bound to support, or at least not oppose, trials for people who have (most probably, imo) broken a pre-existing law. But a trial misses the broader social and political point.
The question we need to ask ourselves here is: how do we want to interrogate captured terrorist suspects? While this question will necessarily involve analysis of our international treaty obligations, for domestic legal purposes, we write on a blank slate. We can criminalize waterboarding by name, or we can legalize it by name. We can do the same for torture and interrogation methods of other kinds. What is the right answer?
Some (Dershowitz) have argued for legalizing torture in order to control it. Others would categorically forbid it. Some think waterboarding is obviously torture; others think it is obviously not. These are the questions we need to answer as a society and polity. But these are not the questions that will be asked at a criminal trial, which will instead be focused on a much more narrow question of the statute in question.
Criminal trials will not promote the necessary debate. The trial itself will become a proxy for the debate, as we fight about the exact meaning of "severe suffering," with differing answers conveniently chosen to give the desired result. The judge, the appeals court, and ultimately the Supreme Court will be reviled by one side or another for getting the "wrong" answer to a question which the judicial system is fundamentally incapable of answering. Some jurors may vote to convict because they hate Bush; some may vote to acquit because they think torture is a good idea. The whole thing will inevitably be a circus which erodes faith in the courts and, far from making it a "settled issue," settles nothing at all.
So, do I consider waterboarding an acceptable means of interrogation? No (provisionally). Do I think it is "torture" under the statute? Yes (provisionally). Do I therefore feel as though I must approve of trials of those involved? Yes. Do I think those trials will accomplish anything? No. Quite the contrary, I think they will make things worse, and indeed I think the push for criminal trials is a symptom of the corrosive American tendency to legalize absolutely everything.
What I would like is a robust Congressional debate on the questions I've outlined, some fairly thorough bills detailing what is and is not acceptable, and a Presidential signature or veto on whatever Congress serves up, so we can see where everyone stands. Will I get it? No chance
How far back should one go?
Was the 1990s sanctions regime against Iraq, which UNICEF says killed 500,000 Iraqi children, a war crime?
Was the 1999 bombing of Belgrade a war crime?
The German ambassador to Sudan has stated that the 1998 US cruise missile strike, which destroyed Sudan's only pharmaceutical factory, has probably caused the death of tens of thousands of Sudanese. Is that a war crime?
Was the indefinite detention of Haitian refugees at Guantanamo Bay and their repatriation without due process a crime against humanity?
Should the officials responsible for the raids on Waco and Ruby Ridge be tried by foreign prosecutors?
Obviously, one can take this process back through any number of administrations. Plenty of people still want to try Henry Kissinger and Robert McNamara.
If any and all waterboarding is clearly torture, then why wasn't there the same outcry over it in the past? Weren't hundreds waterboarded by the US during the Clinton administration, and hundreds before that? We've been doing this for a long time, to our own people.
If it is so outrageous to waterboard three hardened terrorists as a last resort to get information, I honestly don't understand why I've seen no protests over the almost-routine waterboarding of more than a thousand others. Torture is torture, isn't it?
((Good to know, btw, that you, Jason Steenwyk, don't consider waterboarding torture.))
Point out to me where I wrote, either here or on my blog (you can click on the link and search over four years of archives) where I argued that waterboarding was or was not torture. If you read rather than ASSUME, you will find that my own view is quite different.
The fact that you're a stone partisan has absolutely nothing to do with this opinion, of course.
Do you know what an ad hominem argument is, SoV? And do you understand why they are stupid?
I am no more of a partisan than you are. And my arguments stand or fall on their own merits regardless of whether you perceive me as a partisan or not.
If your side is so cocksure, then no trials are needed. See if you can bring it to Congress, accountable to the people, for a vote.
This is an information/security tradeoff much better suited for democratically elected representatives to decide rather than a court. I notice Congress has, thus far, been pretty careful NOT to criminalize the measure, by statute.
Which is, of course, one of the reasons your appeal to international justice is stupid. When liberals can't get their way in congress, they appeal to the courts. When they can't get their way in US courts, they appeal to foreign courts to oppress Americans for writing memos.
Yeah. That sounds like an electoral winner, there, sport. Let me know how it works out for you.
Actually, looking over my own writing over the years, there are a couple of occasions where I argued that waterboarding WAS torture. And that, of course, the real world is not all that simple.
So take your assumptions and shove them.