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Rule of Law Vetoed by President Obama

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There are no headlines or pontificating pundits, but the real news that has become crystal clear to any but the most delusional and distracted Americans is that President Obama has no commitment to applying the rule of law where it counts. Certainly, not applying it to the large number of rich and powerful people that have violated our Constitution and plunged the nation into economic disaster.

Again and again we hear the flimsy argument from Obama and his top advisors that he wants to look forward and not backward. This is tortured logic when it comes to delivering justice in a nation supposedly cherishing the rule of law.

The fundamental logic of honoring and applying the rule of law fairly to absolutely everyone is that people who have broken the law in the past must be held accountable and placed into the justice system after they have misbehaved. In other words, there is no actionable rule of law other than by looking backward into past misdeeds. So how can rational and intelligent people follow the logic of Obama and still believe that he truly understands and honors the rule of law?

It is not believable when Obama says he will honor the rule of law in the future. Why should we trust his rhetoric when he refuses to enforce the rule of law for past actions by some of the most powerful people in America?

There is warranted and massive public disapproval of government as evidenced in the tea parties held across the nation last week. How can Americans respect government when it is so evident that the president stubbornly refuses to seek justice and punishment for those that have violated the public trust? Obama’s reluctance to seek justice for those that have damaged the nation undermines his credibility as an honest public servant.

All of this has taken on new importance as official documents from the Bush administration totally support the view that the US tortured prisoners in violation of international and domestic laws. President George W. Bush lied to us. And even before the latest events there were surely incredible amounts of evidence that high Bush administration officials savaged our Constitution. The constitutional balance of powers among the three branches of government has become a fiction.

What Americans have every right to see is a large number of former elected and appointed officials in the Bush administration as well as many in the financial sector being arrested, indicted and confronted with criminal trials. Americans want to see aggressive prosecution and punishment. They want and deserve revenge and retribution, considering the astounding pain and suffering the vast majority of Americans now experience.

We have every right to see in the public limelight what the world saw after World War II when Nazi criminals were tried and punished on the world stage.

This is not happening because Obama seems to have more allegiance to the plutocracy that brought him to the presidency than to the public that has seen thousands of Americans killed in the unjust war in Iraq and now see their families, friends and neighbors suffering loss of jobs, retirement nest eggs, financial security, personal health and homes. When any politician does not enforce the rule of law then I worry that he or she may fear having the rule of law applied to them.

We have witnessed crimes against humanity. We want President Obama to show complete commitment to the rule of law so that the many lying, corrupt and criminal Americans from both the public and private sectors that have caused so much harm are punished. That includes Bush, Cheney, Rumsfeld and many, many others in the Bush administration, including those that were supposed to regulate the financial sector.

Obama and his underlings seem to say that doing this would be a distraction and a waste of time. Nuts! It is exactly what the nation needs to rebuild confidence in government and the justice system. On the positive side, there are some in Congress showing interest in prosecuting many culprits. But the White House may be exerting pressure behind the scenes to limit their actions.

Applying the rule of law: If not now, then when? Yes, we can and should.

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About Joel S. Hirschhorn

Formerly full professor Univ. of Wisconsin, Madison, and senior official Congressional Office of Technology Assessment and National Governors Association. Author of four nonfiction books and hundreds of articles.
  • Joel sez: “official documents from the Bush administration totally support the view that the US tortured prisoners in violation of international and domestic laws”

    Well NO, the documents indicate exactly the opposite – that the Bush administration was trying hard to be scrupulous about legality. Now, these documents already prove Bush nefarious, simply because they’ve been labeled in the media as “torture memos.” If they’re writing “torture memos” then they’re torturing people.

    But in fact, they were careful legal opinions advising the CIA on just exactly what they could and couldn’t do. If it were just going to be “take ’em in the back and do whatever you gotta do,” then they’re be no need for these legal opinions.

    Plus, these documents suggest to me that even W’s people were a little on the pussy side. For example, they could put a harmless caterpillar in with a terrorist they knew to be scared of bugs – but they couldn’t even pretend to tell him that it might bite him.

    You might disagree with their legal notions of exactly where the boundaries might fall, but you can’t reasonably say that they were just disregarding the law and doing whatever – not based on these OLC documents.

  • Despite your eloquent argument, Mr. Barger, let’s face up to reality: what’s legal, what’s treason, and what’s torture, it’s the president’s lawyers who make it so.

  • Oh now, Roger. The president’s lawyers are just lawyers. They’re not the SCOTUS. And really, what exactly are the CIA supposed to do? They come to the White House seeking confidential (thanks for blowing that one, O) advise on exactly what the boundaries are. Or should they not ask for legal advice, and just not seriously interrogate anyone – just presumptively rejecting any technique that they guess might make the wimpiest member of the public disapprove?

  • Brother Hirschhorn could use a little time in church praying to Jesus to lift the oppressive spirit of hate and vengeance that causes him to write stuff like “They want and deserve revenge and retribution, considering the astounding pain and suffering the vast majority of Americans now experience.”

    For one thing, this is exactly the opposite of that “rule of law” that his title supposedly calls for. There’s not really any list of particular crimes, or any specific people. It’s just that people are mad and hurting, so it’s time to nail some SOBs to some crosses.

  • you can’t reasonably say that they were just disregarding the law and doing whatever

    No you can’t, you’d have to conclude they were very fastidiously trying to protect their own asses–legally.

  • Joel,

    I’m not interested in rebuilding confidence in government and the justice system or in revenge. Still, this article said a lot of important things very well. I thought it was excellent.

  • Mr. Hirschhorn says that he would like to see President Bush and a whole lot of others “tried and punished on the world stage.” He thereby misapprehends the rule of law and the proper functions of the executive and judicial branches of Government which are charged with enforcing it. Such trials would, indeed, be low tragedy or comedy fit for a stage, and would more than likely bring great pleasure to an unfortunately large number of zealots. It would not, however, advance the rule of law one iota; to the contrary, it would make a mockery of it. The rule of law is not, and should not be reduced to, a theatrical spectacle of the sort which he urges.

    Despite the loud reference to “international and domestic laws,” the article offers no citation to any law, international or domestic, violated by President Bush or the others from the former administration whom the author would have “tried and punished on the world stage.” That lots of people are now unhappy with President Bush, et al does not lead inexorably or even remotely to the conclusion that their disenchantment warrants a show trial of the sort envisioned.

    To claim that the recent “tea bag” protests were in some curious way prompted by public hunger for a show trial of officials of the former administration is a specious although possibly unique stretch of the imagination. It may deserve an A+ for cleverness, but deserves an F- for accuracy. It corresponds to the notion that the validity of the author’s thesis is “clear to any but the most delusional and distracted Americans.” Were this latter assessment valid, the country would be in far worse shape than I think is the case.


  • Hi Dan S.(Miller,

    Here you go. A few of them, not comprehensive, I’m afraid.

    That lots of people are now unhappy with President Bush, et al does not lead inexorably or even remotely to the conclusion that their disenchantment warrants a show trial of the sort envisioned.

    I agree. Bush should not be tried for people’s unhappiness or disenchantment with him. It’s his criminals acts that warrant it. He should be tried with the same seriousness one would try anyone who committed crimes against humanity.

    * Deception of Congress and the American Public
    o Committing a Fraud Against the United States (18 U.S.C. § 371)
    o Making False Statements Against the United States (18 U.S.C. § 1001)
    o War Powers Resolution (Public Law 93-148)
    o Misuse of Government Funds (31 U.S.C. § 1301)
    * Improper Detention, Torture, and Other Inhumane Treatment
    o Anti-Torture Statute (18 U.S.C. § 2340-40A)
    o The War Crimes Act (18 U.S.C. § 2441)
    o The Geneva Conventions and Hague Convention: International Laws Governing the Treatment of Detainees
    o United Nations Convention Against Torture, and Cruel, Inhuman and Degrading Treatment: International Laws Governing the Treatment of Detainees
    o Command Responsibility (for known illegal acts of subordinates in the military)
    o Detainment of Material Witnesses (18 U.S.C. § 3144)
    * Retaliating against Witnesses and Other Individuals
    o Obstruction Congress (18 U.S.C. § 1505)
    o Whistleblower Protection (5 U.S.C. § 2302)
    o The Lloyd-LaFollette Act, or “anti-gag rule” (5 U.S.C. § 7211)
    o Retaliating against Witnesses (18 U.S.C. § 1513)
    * Leaking and other Misuse of Intelligence and other Government Information
    o Revealing Classified Information in Contravention of Federal Regulations (Executive Order 12958/Classified Information Nondisclosure Agreement)
    o Statutory Prohibitions on Leaking Information (18 U.S.C. § 641, etc.)
    * Laws Governing Electronic Surveillance
    o Foreign Intelligence Surveillance Act (50 U.S.C. § 1801, et seq.)
    o National Security Act of 1947 (50 U.S.C. chapter 15)
    o Communications Act of 1934 (47 U.S.C. § 222)
    o Stored Communications Act of 1986 (18 U.S.C. § 2702)
    o Pen Registers or Trap and Trace Devices (18 U.S.C. § 3121)
    * Laws and Guidelines Prohibiting Conflicts of Interest (28 U.S.C. § 528, etc.)

  • Dan

    I think the authors desire is to make some new monty pythonish legal definition of torture, and then expostfacto go after Bush.

    It’s a ridiculous pursuit from a legal standpoint, besides time consuming and expensive.

    The Obama teams political sophistry is to give the perception of a guilty Bush and a magnanimous Obama. Which it seems this author has, in part, succumbed to.

    Obama’s releasing classified secrets against the near unanimous advice of national security high-ups, for mere partisan political exploitation, reveals the amateurish nature of this presidency, as well as an immaturity of character.

    Dick Chaney’s response to this lame high jink was to authorize the release of critical beneficial terrorist operations information obtained from waterboarding, caterpillar proximity placement, and the withholding of ice-cream. Information that would not receive an objective, professional reporting of in the NY Times.

  • “Oh now, Roger. The president’s lawyers are just lawyers.”

    Al, you’re missing the point. They’re doing his bidding. And then, everything else follows suit.

    But you understand that.

  • Cindy,

    1. If they are “insane,” they have an excellent defense.

    2. The list of laws you claim were violated is interesting. Perhaps you will be kind enough to explain how they — or even a few of them — apply in the present context.


  • Bush challenges hundreds of laws
    President cites powers of his office

    By Charlie Savage, Globe Staff | April 30, 2006

    WASHINGTON — President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.

    Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ”whistle-blower” protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

    Legal scholars say the scope and aggression of Bush’s assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government. The Constitution is clear in assigning to Congress the power to write the laws and to the president a duty ”to take care that the laws be faithfully executed.” Bush, however, has repeatedly declared that he does not need to ”execute” a law he believes is unconstitutional.

    Isn’t that worrisome? (What I bolded.)

    What about just saying, the law doesn’t apply? What happens when a president challenges laws and says he doesn’t have to obey them?

    When I challenge the law…I have to go to jail or court!!

    Keep letting people in power get away with this and what do you think happens?

  • Presidents are above the law, that’s the new doctrine.

  • Dan S.(Miller),

    Here you go. There’s plenty of discussion in this 350 page report:

    The Constitution in Crisis (pdf)

    …and this 500 page report.

    Reining in the Imperial Presidency (pdf)

    Today, House Judiciary Committee Chairman John Conyers, Jr. (D-Mich.) announced the publication of the final version of the Democratic Committee staff report on systematic abuses of presidential power during the Bush administration. The report, titled “Reining in the Imperial Presidency: Lessons and Recommendations Relating to the Presidency of George W. Bush,” contains 50 separate recommendations designed to correct the imbalanced separation of power that characterized the George W. Bush presidency. Chief among Conyers’ recommendations include continued congressional investigations like those the Judiciary Committee has pursued concerning Karl Rove’s interactions with the Justice Department, a blue ribbon commission similar to the panel proposed in Chairman Conyers’ H.R. 104, and independent criminal probes to be conducted by federal prosecutors.

    …the administration still has much to do to restore the rule of law to its rightful place. A nonpartisan, independent accounting of what happened must take place, and the new administration must do more to roll back its predecessor’s policies on issues ranging from signing statements to the state secrets privilege.” (link)

  • The Other Dan,

    Ugly self-serving thinking.

  • Cindy, thank you for providing 850 pages of text for me to study. I shall do so at leisure and get back to you. In the meantime, perhaps you will be kind enough to cite at least one criminal statute which you deem to have been violated, and the factual basis for that belief.


  • DS

    I’ll choose this one. I’ll need a bit of time to support my argument. (After all, I am only a mere non-lawyer.)

    Statute Title 18, U.S.C. § 2441, War Crimes

  • (M) <---there it is

  • Cindy, thank you for providing 850 pages of text for me to study.

    lol Oh, btw, you’re welcome. I know how much you lawyers love that stuff.

  • Clavos

    Al, you’re missing the point. They’re doing his bidding. And then, everything else follows suit.

    No, Roger, you’re missing it.

    As Al pointed out, the President (and by extension, his counsel) is NOT the highest law in the land. That’s the beauty of our Constitution: all three branches have their specific areas of authority and responsibility, and where the law is concerned, the SCOTUS trumps the President.

    Put another way, “Even the President is not above the law.” Although most of ’em try to be, sooner or later.

  • It was tongue in cheek, Clavos, a line from “Elizabeth” movie.

  • zingzing

    clavos has no tongue. only fingers. but, oh, what he does with what he has…

  • pablo

    First off let me say that it has become blatantly obvious that the great libertarian Mr. Nalle has chosen to stay away from this subject, a fact that I pointed out on another article on the same subject matter. It speaks volumes about his so called libertarianism.

    I must say that I absolutely love it when so called libertarians (actually right wing extremest republicans) such as Barger will stoop to anything to support their ignorant claims, including defending inhumane criminal acts such as TORTURE.

    So I want to thank you Barger for that as it truly made my day. In my mind’s eye I see Barger upside down with water being poured down his throat simulating drowning as he cries like a baby. After that he is forced to stand for a week.
    You go boy, thank you for showing all the world publicly what you the great libertarian Barger are all about. I have known it for some time. 🙂

  • pablo

    I would like to add, that it is indeed nice to see Barger casting his lot with such other notable libertarians such as CFR Cheney, and former CIA director Michael Hayden CFR, who said that the fourth amendment requires no probable cause for warrant. Thanks again Al! It is always a pleasure to call a spade a spade buddy. 🙂

  • zingzing

    holiday, celebrate, come together, in every nation.

  • Pablo,

    There hasn’t yet been an evil, however defying the imagination, that there haven’t been people justifying and excusing it. And that’s a fact.

  • A perfect case in the study of ignorance, or how the gung-ho team from Texas has hijacked the country.

    More of the same.

  • And more.

  • Clavos

    Blah, blah, blah…

  • pablo

    Torture is now known as blah, blah blah, isn’t that special…..:)

  • Clavos

    Not the torture itself, Pablo, just all the ineffectual blathering about it.

    Talk on the internet ain’t gonna stop it, Pablo. You want it stopped — do something about it, though that might be difficult from the Philippines.

  • Well, but it was as a result of public pressure on Obama, and the media, that now he’s shifting gears as regards possible prosecution.

  • I suppose no one remembers Nixon was pardoned, and his crimes were much worse in my book. But then with the patina of 20 years or so, and all is overlooked and he’s a great statesman. It worked for some, but it didn’t work for me.

  • But don’t forget, Joanne. Nixon stepped down before the impeachment proceedings. And I truly don’t know what’s worse. Most engage in cover-up, and Bush’s team came awfully close a number of times. Perhaps they just haven’t been caught.

  • Baronius

    “Perhaps they just haven’t been caught.” There it is for you, Dan(M). We’re not arguing about the law here, we’re arguing about articles of faith.

  • You can’t presume to be that naive as to think that law can’t be skirted, can you now, especially by the higher-ups?

  • Baronius

    We don’t prosecute on the basis of the possibility that the law has been skirted. We shouldn’t accuse on that possibility either.

  • But that’s what the trial is for, Baronius, as the term indicates. “Being charged” is one thing; “being convicted” another. So why not bring ’em all to court – on whatever charge. And then let’s see if we can make it stick.

    Do you think it’s unfair? I’d say that suspicion of crime is sufficient to instigate legal action. If only in the interest of discovery.

  • Baronius


  • I know it may remind you of “witch hunt” or a “fishing expedition.” But stranger things have happened, even in the history of the good ole US of A. So why not again, with the proviso, of course, that the courts be fair and just?

  • Roger,

    Great idea! Presumably, then you deem suspicion that President Obama may not be a natural born U.S. citizen and is, therefore, not Constitutionally qualified to be President, is sufficient to instigate legal action. If only in the interest of discovery.

    Let’s roll! Let the witch hunts and fishing expeditions begin!


  • Baronius

    Dan(M), that sounds a lot like witch talk. I’m keeping an eye on you.

  • I don’t happen to think that’s much of an issue; but the possibility of circumventing the law is.

    So yes, we have to be guided by the gravity of the possible offense. And you’re not going to deny now, are you, that these so-called abhorrent practices (such as witch-hunts) are the sole invention of my brain cells? We had them before, and we’ll have ’em again.

    Unless you want to believe, of course, that we’ve transcended our usual human condition and landed on a higher plane. I never took you for an idealist.

  • Baronius

    And once we get rid of the presumption of innocence, we can do away with all the other rights of the accused, including the freedom from torture, which would then make all the claims against the Bush administration moot.

  • Unreasonable searches and seizures, not to mention your hobby horse, “presumption of innocence,” have become daily diet of the “Patriot Act,” for which, if you have not directly voted, certainly approve. So what’s the big stink now when other than the hoi poloi are subjected to the same unconstitutional tactics?

    Plus, I’m not talking about abrogation of rights or Miranda rights or etc. Just taking the rascals to trial, in the interest of finding the truth.

    Any honorable person ought to subject themselves to a trial – if only in the interest of honor alone. So are you worrying perhaps that the usual suspects shan’t be able to withstand it?

    If that’s the case then I grant your concern. Because they’re liable to be guilty as charged.

    Carry on.

  • Obama has been unfairly criticized by several sides in this issue. His release of the torture memos, accompanied by assurances that agents will not be prosecuted, seems imminently sensible. But Karl Rove, Dick Cheney and company practically cried treason over it.

    Then yesterday the president was falsely accused of reversing this position, by saying it is up to the Justice Department whether to pursue charges against the Bush Administration’s lawyers who wrote the disturbing and twisted justifications of torture. He also said it was up to Congress whether to establish a bipartisan, 9/11 style commission to establish facts.

    I don’t see the contradiction and I don’t see the problem. This president continues to address the excesses motivated by the “War” on Terror in a moderate, reassuringly sane way. If it makes Rove, Cheney, and the furthest-left reaches of the Dems all unhappy, that’s a sign of a good policy.

  • Baronius, I guess it all depends on which witch is which, and whether the witch is to the left or right of center*.


    *wherever center may be.

  • Handy,

    He did switch gears. It was only after an outpour of public opinion that the possibility of prosecution was brought up. Which isn’t to criticize him, but facts are facts.

  • Just taking the rascals to trial, in the interest of finding the truth.

    Any honorable person ought to subject themselves to a trial, in the interest of finding the truth.

    See my comment #41.


  • It’s not up to the president to order the Attorney General to prosecute people or not to.

    The contradiction, such as it was, was between what Rahm Emanuel said on Sunday and what the president said on Tuesday.

    I imagine Obama would prefer not to have such trials occur, because they stoke partisan rancor in a potentially destructive way. But his ‘clarification’ yesterday was meant to emphasize that it was never his intention to sweep anything under the rug.

  • Baronius

    Maybe we should build a big camp to keep all the administration officials we’re not sure committed crimes, and then we could figure out what to charge them with….

  • But that’s a political reason, Handy, and ultimately of lesser interest than administration of justice.

  • #39,

    If some people want to make it an issue, perhaps. But I wouldn’t confuse matters of technicality with potentially substantive offenses.

    Of course, my remarks presume a universe in which honor rules. That’s hardly the case today, so the argument is somewhat theoretical.

  • Baronius

    Roger, the whole point is that we live in a country where law rules, or we don’t. You can’t give up on the technicalities of the law in pursuit of the law. You’re proposing that we give up on the technicalities of the law in pursuit of those people we think might have given up on the technicalities of the law in pursuit of those we think broke the law. There’s no justice in that; there’s no logic in that.

  • Joel Hirschhorn

    How did this website get hijacked by far right fanatics? Just curious.

    Let everyone understand that ordering the torture of prisoners DID violate US and international law; period, end of story. Water boarding was a crime that the US prosecuted after WWII. From Bush on down there were high level officials who broke the law. There were also countless actions by Bush that violated the Constitution.

    As to the economic crisis, understand that there were a host of high level officials in the Fed Reserve and a number of regulatory agencies that did not do their jobs and, for the most part, rewarded their pals in the private sector by overlooking gross misdeeds.

  • Joel, if what you are claiming were true, Obama would not have released the memos.

  • Baronius

    By my count, Joel, there have been 20 comments out of 55 that were from the right.

  • Baronius and Dan M:

    Who is talking about conducting a vague witch hunt, except you?

    If and when the Justice Department does this, then complain — loudly. I’ll join you.

    Roger’s argument is fuzzy and hypothetical. Cindy is not making a legal argument, but a moral one. But Obama and Holder, thus far, are outside the reach of your complaints.

  • “Roger, the whole point is that we live in a country where law rules, or we don’t. You can’t give up on the technicalities of the law in pursuit of the law. You’re proposing that we give up on the technicalities of the law in pursuit of those people we think might have given up on the technicalities of the law in pursuit of those we think broke the law. There’s no justice in that; there’s no logic in that.”

    Baronius, I’d buy what you say in a perfect universe. But it’s not and never will be, as your own Catholic faith ought to teach you. So I don’t see why you’re so intent on defending all those who in all probability, as evidence unfolds day by day, are guilty.

    Standing trial is no condemnation. It’s an acceptable procedure going back to times immemorial. As I said, honorable men submit willingly; those who are not … well

    So are you saying now that we would descend into barbarism to see justice done? Because if that’s the import of your remarks, then I must say that all the sophistication we’ve acquired as regards our legal system and all such count for naught – including the technicalities you’re so keen on relying on – because the ultimate reason behind law, any law, is to see justice done.

    But you’d rather fall on the process even if it means a (possibly) guilty party go.

    Not only it is unrealistic, because the common folk don’t usually have that privilege, but smacks of a double standard as well (because the privileged ones do).

    I might go along with your argument if you had expressed similar sentiments with respect to the underclass, but I haven’t seen it thus far. All I’ve seen is that you bleed for justice on behalf of the well-to do and the powerful. So excuse me if I don’t take your complaint seriously and that your appeals to “justice” sound hollow to me.

  • Handy,

    You misunderstand. “Witch-hunt” was just an analogy.
    I’d never suspect your fearless leader to succumb to such a repulsive idea.

    Come on, give me some credit.

  • Handyguy, #58 — I have responded to what I consider strange statements by the author of the article and in various comments by others reflecting what I consider unfortunate misconceptions of the rule of law in the United States. I have not, as far as I know, confused President Obama or Mr. Holder with those expressing such views, nor am I aware that either of them holds such views. If either of them does, then the situation is quite a lot worse than I think it is.


  • Mr. Dock Ellis

    Just another Oblahblah political distraction manuever. The winners (Dems) of 2008 try the losers (reps) He needs this cause the economy continuing to tank and the tea parties struck a nerve.

    And this guy wants a Nuremberg trial for Bush? Total quackery.

    Should we have read the Somali pirates their rights before shooting them? Does the pirate in custody get a visit from the Red Cross a la’ the Geneva Convention? Oh, please. What has been the response over the years to those who lived outside the bounds of civilization and preyed upon it. The pirates, bandits, terrorists etc . . . met one fate.

  • Despite the loud reference to “international and domestic laws,” the article offers no citation to any law, international or domestic, violated by President Bush or the others from the former administration

    This is the key point here, Dan. In fact, the Bush administration did NOT violate the Geneva convention or other international laws in their treatment of prisoners, because no matter how much Joel and others don’t want to accept it, the prisoners in question were terrorists by definition and not prisoners of war. No ambiguity about it.

    As for torture, the argument that US domestic law does not apply to foreign prisoners is hard to dispute, and the various international declarations on torture don’t carry the weight of law, except the Geneva convention, which doesn’t apply to terrorists.

    So what I have to ask is how Joel plans to try these devils of the Bush administration? I’ve got no problem with trying them, but to convict them you need a law to apply, or else you’re the one playing havoc with the rule of law.


  • pablo

    Thanks for showing us your libertarian stuff Dave, it is always appreciated. 🙂

  • Dave,

    “I’ve got no problem with trying them, but to convict them you need a law to apply, or else you’re the one playing havoc with the rule of law.”

    Isn’t this what this dispute is or ought to be about? To try to convict anyone prior to the legal process would be prejudging the case. And I don’t think any reasonable person would disagree.

    But let the facts come out in the course of due process and let the courts decide whether the law was violated.


  • Pablo, I’m a libertarian because I’m a rationalist. I believe in the rule of reason. That means that I look at facts, try to analyze them objectively and draw conclusions from them. Being a libertarian does not suddenly make me abandon reason or lose my grip on reality, or want to hold show trials with no legal basis for them.

    And the point, Roger, is that it’s hard to start a legitimate trial process if you can’t find a law under which to charge the supposed criminals.


  • Well, then your point, Dave, in the last paragraph of your #63, was a rhetorical (or a theoretical) one. Why bring it up, then?


  • Dan S.(Miller),

    I’m still working on my case. I’ll put my evidence here some time when I get time.

  • How ’bout this. If you don’t want to prosecute Bush for war crimes, then we should at least be able to extradite him to a country that will.

  • Dan

    “And the point, Roger, is that it’s hard to start a legitimate trial process if you can’t find a law under which to charge the supposed criminals.”—Dave

    Someone should break the news to Scooter Libby.

  • Well, I don’t have a problem with the appointment of a special prosecutor to look into possible violations. Do you?

  • Dan S.(Miller),

    I think Elizabeth Holtzman’s case will work. It’s a one page article. (It’s better explained by a lawyer than by me anyway.)

    The Case Against George W. Bush
    By Elizabeth Holtzman

    I’ll add the evidence that exists that Bush and Cheney did have the forged document created to falsely link the 911 terrorist and Iraq, in order to wage a war.

    I’ll add the violoation of the:
    Convention Against Torture, signed by Reagan

    which states…

    Article 2

    2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

    3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

    Okay so, I think those few things are a start.

  • Dan

    The most relevant point to come from Obama’s questionable release of highly classified documents is that sloshing water in the faces of people who saw off heads worked very well.

    The documents reveal that a ‘second wave’ of airline attacks was planned for the Library Tower, the tallest building on the West coast.

    The information obtained prevented this from happening. That’s a good thing isn’t it?

  • Dan, what this brings up is the eternal conflict between the lesser and greater evil. The reason we have people in positions of leadership is so that they can make the unpleasant decision to occasionally do something immoral in order to prevent a greater evil.

    When they do this they run the risk of being held accountable in the judgment of their successors or in the judgment of history. What happens, quite often, is that they are held accountable in the immediate aftermath and then exonerated by the court of history, which tends to be more dispassionate.

    Now, I’d like the protections of the US constitution to apply to all people in the world with no reservations. But under the law as it has been practiced, that has not been the case, and there has never been a US law or an international treaty which the US has agreed to which prohibits torture of foreign nationals. If I were Obama and I were serious about this issue I’d make fixing that oversight the main priority.

    You will notice that when Cindy brings up the Convention on Torture she conveniently omits clause 1, which states:

    “1 Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”

    Which makes it clear that the convention itself does not ban torture and does not have the weight of law. It is merely a guideline which states are supposed to follow in passing their own laws banning torture, a requirement which the US did not follow through on.

    Our failure here is not the actions of the Bush administration — which some like Joel and Cindy and Pablo would like to punish out of spite rather than legal justification in some sort of McCarthyite witch hunt. The real failure is not having clear and applicable law prohibiting agents of our government from torturing those not protected by the Constitution.

    That omission is hardly accidental. It has been an unstated matter of policy for decades. If we don’t like it, let’s change the policy. And I’d hope we would do it by extending the FULL protection of all elements of the Constitution to all people regardless of nationality or geography.


  • Dave!

    The reason we have people in positions of leadership is so that they can make the unpleasant decision to occasionally do something immoral in order to prevent a greater evil.

    Why does it say in the constitution that the president must execute the law then?

    “The Constitution plainly states the president shall ‘take care that the laws be faithfully executed.’ The president must obey and uphold the law, not take it into his own hands. Case law on this is clear.” –Elizabeth Holtzman (see the link above)

    The intent of the law here is to prevent torture.

    It’s also clear from the War Crimes Act of 1996.

    (A) Torture.— The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.

    The intention of the law is again reiterated in the McCain torture ban 2005-2006, signed by Bush. And I argue, in this case, it is specifically introduced because of actions by and policies of the Bush administration that would counter the clear intention of the law.

    That Bush makes a signing statement which has the simple effect of justifying what he and a few other people think and putting himself above the law, is unacceptable. Why even have a law if it is so essentially meaningless that the very person it is aimed at controlling is the one who gets to decide to break it–using reasoning the law itself says he cannot use!

    The intent of the law is apparent by all the strong language used. It reiterates ideas that under no circumstances, none, zero, ever…is torture acceptable.

    To do anything to try to circumvent this intention is to fail in the duty to faithfully execute the law.

    If this is not true. Then we are completely lost. It means a president can justify anything he wants to.

  • Cindy, the 1996 act you refer to applies specifically to the Geneva Convention. Again, you need to read the context of the clause you quote, not just the clause itself. And since it refers to implementing the Geneva Convention, it does not apply to these particular prisoners who are not qualified for the protections of the Geneva Convention.


  • Bliffle

    I read that text, and can’t find how the context minimizes the scope. In fact, it seems to expand the scope.

    Please explain your argument, using actual citations.

  • Lumpy

    bliffle needs a remedial reading class, perhaps.

  • #76 – Dave,

    I am familiar with the argument about definitions. I’ve read the UN legal committee discussion from March about why definitions now need to be clarified. Despite its failure to provide meaningful information, the heads of some nations want to reserve the use of torture, for terrorists–as demonstrated by the actions of Bush (for one thing). This makes clarification necessary to close ‘loopholes’.

    To say that terrorists don’t belong to a sovereign military or don’t carry their weapons in the open and therefore it’s acceptable to kidnap civilians (most of whom were innocent) and subject them to torture and deny them habeas corpus is clearly not what was intended.

    Civilians, as well as terrorists, don’t carry weapons in hand or wear military uniforms.

    Defining civilians as ‘battlefield detainees’, ‘enemy combatants’, ‘persons of interest’, and the like, for the purpose of ‘renditioning’ them for torture does not get around the spirit of the law–which is to prevent torture. You argue that they intended to exclude actual terrorists from the prohibition. But could anyone possibly argue that they intend to exclude all civilians?

    So, I will go with the ‘reasonable person’ argument (or whatever it’s called.) No reasonable person could say this is what was intended. That is my argument.

  • Jet

    I must’ve missed something-a memo? Was this website taken over by a right-wing AM Radio station?

  • pablo


    That is an excellent post Cindy, thanks for writing it.

  • To say that terrorists don’t belong to a sovereign military or don’t carry their weapons in the open and therefore it’s acceptable to kidnap civilians (most of whom were innocent) and subject them to torture and deny them habeas corpus is clearly not what was intended.

    You seem to forget that in this case all of the innocent civilians were freed and none of them were tortured. Only 3 people were tortured and they were known, self-admitted terrorists with lists of crimes which they freely bragged of as long as your arm.


  • Within the frame of the liberal economy, trade and commercial relations between merchants are carried out by means of post-dated checks in Turkey. The banks give out blank checks to their customers and the merchants use these checks in trading of goods and services by filling them out by giving 6 months, 1 year or longer periods of maturity to them.

    The financial crisis in the world has affected profoundly our country; as a result, the merchants were unable to pay their post-dated checks on their due dates.

    According to Article 38/8 of the Turkish Constitution, as amended in 2001 taking into regard the European Convention on Human Rights, “no one can be detained from his/her freedom due to only his/her failure to fulfill a contractual liability”. As such, prohibition of detainment of freedom due to only failure to fulfill a contractual liability (i.e., provision for “no imprisonment for debt”) has been added to our constitution. This provision, taken from the Article 1 of the Protocol constituting the 4th Annex to European Human Rights Convention, underlines that imprisonment due to failure to perform a contractual relation will be contrary to the human freedom and honor.

    However, the legislator in Turkey has lately acted cunningly to circumvent this above referred provision of the Turkish Constitution. According to the current laws of our country, the businessmen who are unable to pay their checks are sentenced to imprisonment. If this is their first incident, the person who gives out a kite check is punished with a Judicial Fine equal to the amount written on each kite check and is sentenced to imprisonment only if he/she is unable to pay such Judicial Fine. To be more specific, the Judicial Fines in Turkey are fines that are paid to the Treasury of the State. In case a person indebted to the Treasury of the State because of a Judicial Fine is unable to make this payment within 30 days, he/she is punished by imprisonment for such number of days, which cannot exceed 730, equal to any unpaid amount divided by a figure varying between TL 20,- and 100,- to be determined by the judge based on the financial and other conditions of the debtor.

    However, if the incident repeats, the person is then directly sentenced to imprisonment from 1 to 5 years.

    It goes without saying that any merchant with good intentions would be able to pay out the check amount if he had the means, but if he/she could not indeed have made that payment, that merchant shall also be unable to pay the said Judicial Fine and inevitably end up in prison even as a result of his/her first incident.

    As the merchants of Turkey, we are facing sanctions of imprisonment which cannot benefit from any probation and that are clearly contrary to the principles and standards of universal law.

    In addition to that, the Constitution Court of Turkey has also resolved that the above referred sanctioning is not against the provisions of Turkish Constitution.

    In Turkey there are currently around 168.000 people in prison while the total capacity of all correction facilities is only around 80.000. Therefore, you can easily imagine merchants lying on top of each other in jail and are facing all kinds of epidemic diseases, are living in difficult conditions, and some even die due to health problems given the circumstances.

    In addition, by the effect of the financial crisis, the number of merchants who are currently sought by the authorities is around 200.000 and if all those persons are arrested, the population of the correction facilities will then reach 370.000.

    Some of the merchants facing these conditions as a result of a penalty contrary to both the European Convention on Human Rights and the human honor commit suicide. We receive the death news of several persons everyday. Several of them sought by the authorities also attempt the same practice. In addition to all that, their household goods are attached by the execution officers because of the unpaid checks. Such practice has its effects not only on the merchant himself, but also on their families resulting in the loss of their homes, suspension of their children’s education, etc.

    Please kindly try to make your best attempts to stop this cruel penalty applied to the bankrupt merchants in Turkey which is contrary to the principles of universal law and the European Convention on Human Rights in all respects. We see that as a humanity mission.