Funny... That's Not What I Heard the President Say...
The President made a couple of statements that I am positive some of you will simply take the wrong way, without looking at the broader picture. After all, both Keith Olbermann and Rachel Maddow did. (And who knows what CNN or Faux News will say.)
In fact, it took Valerie Jarrett, senior White House advisor to reel in Rachel just a bit. (But not for long, because she swam back to the deeper end of the pool before the end of her show, with a tow from Prof. Jonathan Turley.)
It is the Jake Tapper "torture" question: Did the previous administration commit a crime by sanctioning torture.
Obama carefully -- and wisely -- did not answer that question directly. Last week, you all will recall, you were saying the President (specifically, his administration, more specifically Attorney General Eric Holder) had to pursue criminal investigations because the "torture memos" revealed that torture (or "torture") had been committed. Mr. Holder is starting that process.
The President said the "Bush torture program," (using Maddow's language) yielded some information. But please note: the President did not say it yielded "good" information or "factual information" or "valuable" information. The "information" in question went uncharacterized.
The President used the phrase "short cut," as in, "some governments have used torture as a 'shortcut.'" He did not say he supported that idea. He said (essentially) these governments, instead of doing what is right, took a short cut -- bypassing legal means to interrogate -- to jump to using torture because it is an easy short cut. He did not say taking that short cut was okay. In fact, the whole point of the Winston Churchill anecdote was to illustrate that taking that short cut is not what everyone does -- even in far more dire circumstances than 9/11, circumstances like a world war.
With regard to saying the prior administration sanctioned torture, it is akin to claiming that a person is "guilty" before he has been charged with the crime. And if the person pointing the finger of guilt is the head of the country, one can make a reasoned argument about the prejudicial nature of the claim. A cooler head would let the Justice Department determine the crime, identify the responsible parties and charge them, try them (with benefit of legal counsel to make an effective defense) and allow a jury or judge to determine their guilt or innocence.
And finally, there is one other part of this sticky wicket we find ourselves holding: Do not forget the gyrations the Bush administration went through to create a new "class" of prisoner, er, detainee. These enemy combatants we were told, were specifically NOT prisoners of war. (That, they said, would make them subject to --- wait for it -- the Geneva Conventions.) These "enemy combatants" wore no uniforms, were not beholding to any country, were not fighting as part of a recognized standing army. They were separate "rogue, evil-doers." Since they did not take up arms to fight on behalf of a country, they were not entitled to the protections accorded to war prisoners (even though we were fighting the "Global War on Terror.") They could be yanked off the battlefield, taken to who knows where, super-secretly, held indefinitely, without charges being brought, tried in "war tribunals without benefit of counsel.
That is what AG Holder has to wade through. What if... what if, in spite of all their other F***-Ups, the Bush administration came up -- invented, found, concocted -- some crazy-ass loophole that provides those war criminals with legal cover?
Just my take...
I agree, as does another poster. The real proof will be what Holder does, not what anyone says.
April 29, 2009 11:35 PM | Reply | Permalink
Cooler heads will prevail. This situation is very complicated and was intentionally made so. This process will be ongoing and last for several years. No one knows where the process might lead. I like Rachel, but the daily cable news slog isn't good for strategic thinking.
April 29, 2009 11:39 PM | Reply | Permalink
I think if you scratch "strategic" from that last sentence it makes it better.
April 30, 2009 2:22 AM | Reply | Permalink
This certainly is no MSNBC bash, I was the first in my circle to say that Keith was right on in his initial comment about Obama not going far enough in only releasing the first four torture memos. But I think that many of us (yes I said "us") are truly angry and do want a piece of the previous administration for many reasons. I believe that many of us are still not yet used to a Politician actually being able to give a speech not filled with propaganda. Thus we will need a few dozen more Press Conferences before we can be convinced that a noun is just a noun, and a verb is really a verb.
Seat belts save lives and keep us from jumping to incorrect political conclusions.
April 29, 2009 11:58 PM | Reply | Permalink
Wise to wait before starting a civil war. But it is important to note he reacted to recent discussions about coming out and saying "torture". That question is now settled, and laying it on the table invites other parties to bring charges.
April 30, 2009 12:08 AM | Reply | Permalink
Congratulations on being (for the most part) so vague and vacuous as to be unassailable.
The one area in which you were specific, the issue of the Geneva Conventions, you were wrong. The "common Article III" is not limited to "prisoners of war," but also extends protections to civilians caught in the middle of a war.
April 30, 2009 12:44 AM | Reply | Permalink
Given that the former President and his henchmen saw no need to tell you specifically which of the laws they were intending to specifically break, circumvent, rewrite, revision, lie or otherwise obfuscate when they sold you a bill of goods on going to war, why are you demanding specifics now?
A little late to get all exercised about demanding "specifics," isn't it?
April 30, 2009 11:14 AM | Reply | Permalink
And one more thing, since you got my dander up this early in the morning... go back and re-read (or hell, read it for the first time) what I wrote. The Bush administration -- not me -- claimed their new definition of "enemy combatant" exonerated them from compliance with a whole slew of inconvenient legal stuff.
From the Council on Foreign Relations (http://www.cfr.org/publication.html?id=5312)
Enemy Combatants
Author: William Haynes
December 12, 2002
Council on Foreign Relations
MEMORANDUM
To: Members of the ASIL-CFR Roundtable
From: William J. Haynes II, General Counsel of the Department of Defense
Subject: Enemy Combatants
There is no doubt that the attacks of September 11, 2001 constituted acts of war. They possessed the intensity and scale of war. They involved at least one military target, the Pentagon, and they came on the heels of a decade of attacks by al Qaida on U.S. military and civilian targets. Congress on September 18, 2001 authorized the President to use force in response to the attacks. And both the United Nations and NATO recognized that the attacks were “armed attacks” within the meaning of the UN Charter and NATO treaty. Since September 11th (and perhaps before then), we have been at war – both legally and in fact.
War implicates legal powers and rules that are not available during peacetime. Among other things, the war context gives the President the authority to detain enemy combatants at least until hostilities cease.
Enemy Combatant
An “enemy combatant” is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict. In the current conflict with al Qaida and the Taliban, the term includes a member, agent, or associate of al Qaida or the Taliban. In applying this definition, the United States government has acted consistently with the observation of the Supreme Court of the United States in Ex parte Quirin, 317 U.S. 1, 37-38 (1942): “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.”
“Enemy combatant” is a general category that subsumes two sub-categories: lawful and unlawful combatants. See Quirin, 317 U.S. at 37-38. Lawful combatants receive prisoner of war (POW) status and the protections of the Third Geneva Convention. Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention. (The treatment accorded to unlawful combatants is discussed below).
The President has determined that al Qaida members are unlawful combatants because (among other reasons) they are members of a non-state actor terrorist group that does not receive the protections of the Third Geneva Convention. He additionally determined that the Taliban detainees are unlawful combatants because they do not satisfy the criteria for POW status set out in Article 4 of the Third Geneva Convention. Although the President’s determination on this issue is final, courts have concurred with his determination.
Authority to Detain
The President has unquestioned authority to detain enemy combatants, including those who are U.S. citizens, during wartime. See, e.g., Quirin, 317 U.S. at 31, 37 (1942); Colepaugh v. Looney, 235 F. 2d 429, 432 (10th Cir. 1956); In re Territo, 156 F. 2d 142, 145 (9th Cir. 1946). The Fourth Circuit recently reaffirmed this proposition. See Hamdi v. Rumsfeld, 296 F.3d 278, 281, 283 (4th Cir. 2002). The authority to detain enemy combatants flows primarily from Article II of the Constitution. In the current conflict, the President’s authority is bolstered by Congress’s Joint Resolution of September 18, 2001, which authorized “the President . . . to use all necessary and appropriate force” against al Qaida and against those nations, organizations, or persons he determines” committed or aided in the September 11 attacks.” Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001) (emphasis added). This congressional action clearly triggers (if any trigger were necessary) the President’s traditional authority to detain enemy combatants as Commander in Chief.
Presidents (and their delegates) have detained enemy combatants in every major conflict in the Nation’s history, including recent conflicts such as the Gulf, Vietnam, and Korean wars. During World War II, the United States detained hundreds of thousands of POWs in the United States (some of whom were U.S. citizens) without trial or counsel. Then as now, the purposes of detaining enemy combatants during wartime are, among other things, to gather intelligence and to ensure that detainees do not return to assist the enemy.
Who Decides
The determination of enemy combatant status has traditionally resided with the military commander who is authorized to engage the enemy with deadly force. In this regard, the task ultimately falls within the President’s constitutional responsibility as Commander in Chief to identify which forces and persons to engage or capture and detain during an armed conflict. Of course, there is no requirement that the President make such determinations personally, and in the vast majority of cases he does not do so. Rather, consistent with longstanding historical practice and applicable rules of engagement, the task is normally a function of the military command structure.
In the current conflict, military personnel ordinarily make enemy combatant determinations during combat operations, under the combatant commander’s direction. With respect to individuals captured in the United States, to date DoD has detained only Abdullah al Muhajir, also known as Jose Padilla. The President, as Commander in Chief, determined that Mr. Padilla is an enemy combatant.
Detainee Rights
All of the detainees are unlawful combatants and thus do not as a matter of law receive the protections of the Third Geneva Convention. However, the United States armed forces are treating, and will continue to treat, all enemy combatants humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Third Geneva Convention of 1949. Among many other things, this means that they receive: three meals a day that meet Muslim dietary laws; medical care; clothing and shoes; shelter; showers; soap and toilet articles; the opportunity to worship; the means to send mail and receive mail, subject to security screening; and the ability to receive packages of food and clothing, also subject to security screening. In addition, the International Committee of the Red Cross has visited and will continue to visit the detainees privately. The detainees will be permitted to raise concerns about their conditions, and we will attempt to address those concerns consistent with security.
The non-citizen detainees in Guantanamo have no right to habeas corpus relief in U.S. courts. See, e.g., Coalition of Clergy v. Bush, 189 F. Supp. 2d 1036 (C.D. Cal. 2002), affirmed on other grounds, 2002 U.S. App. LEXIS 23705 (9th Cir. Nov. 18, 2002). As noted above, however, we have permitted the ICRC access to the detainees, and we have notified each detainee’s country of origin that the detainee is in DoD control.
U.S. citizen enemy combatants who are detained in the United States may challenge their detention by a petition for habeas corpus. In the view of the U.S. government, enemy combatants have no right to counsel to challenge their detention. Providing enemy combatants a right of access to counsel could thwart our ability to collect critical information and could imperil efforts to prevent further terrorist attacks. It might also enable detained enemy combatants to pass concealed messages to the enemy.
In Padilla v. Bush, 2002 U.S. Dist. LEXIS 23086 (S.D.N.Y. December 4, 2002), the U.S. District Court for the Southern District of New York recently upheld the government’s ability to detain U.S. citizen enemy combatants in the United States but required the government to provide access to Padilla by his attorneys for limited purposes. We are currently reviewing the court’s decision.
Length of Detention
Many have claimed that enemy combatants are being detained “indefinitely.” The suggestion appears to be that they are being detained lawlessly and without limit. That is not true. As explained above, the constitutional power to detain during wartime is well settled. In addition, international law – including the Third Geneva Convention – unambiguously permits a government to detain enemy combatants at least until hostilities cease. There may be uncertainty about when hostilities cease in the novel conflict with al Qaida. But disquiet about indefinite detention is misplaced for two reasons.
First, the concern is premature. In prior wars combatants (including U.S. POWs) have been legally detained for years. We have not yet approached that point in the current conflict. Second, the government has no interest in detaining enemy combatants any longer than necessary, and the Department of Defense reviews the status of all enemy combatants on a case-by-case basis to determine whether they should continue to be detained. Since we first captured or came to control detainees in Afghanistan, we have released many thousands, and we recently released additional detainees from the United States Naval Base in Guantanamo Bay, Cuba. But as long as hostilities continue and the detainees present a threat or retain intelligence or law enforcement value, no law requires that the detainees be released, and it would be imprudent to do so.
--------------------------------------------------
Capturing and detaining a U.S. citizen, or any other human being, is not an activity DoD takes lightly. As in other armed conflicts in which our Nation has been engaged, the detention of enemy combatants serves a vitally important protective function. Equally important, however, the deliberate, conscientious, and humane manner in which we designate and detain enemy combatants reflects our values and character as a Nation. We are committed to defending the United States in accordance with our constitutional responsibilities, while preserving the constitutional rights of United States citizens.
End of memo
April 30, 2009 11:48 AM | Reply | Permalink
SMACK! Nicelty done, Jade!
April 30, 2009 12:39 PM | Reply | Permalink
Boumedienne rejected that, as did Hamden (Geneva and habeas still apply) but not definitively I believe. And of course, congress tried to provide cover with the MCA. Padilla, a US citizen, was scheduled for review by the SC when Bush charged him with a crime making the SC case moot. Padilla was charged because there was no way their theory of some special class of enemy or criminal would hold up. Obama essentially did the same with Ali Al-Marri, for different reasons, of course.
April 30, 2009 5:20 PM | Reply | Permalink
Crystal clear to this reader Ecc. Maybe you need a second cup of coffee before you take a second shot at reading comprehension.
April 30, 2009 12:40 PM | Reply | Permalink
I thought from a professional perspective the President did a good job of dodging the substance of the question. His people had anticipated the issue and prepped him well on it. Thus, I think it was one of his worst answers of the night from the viewpoint of honesty and clarity.
He did some real fancy bobbing and weaving because politically it is clear he wants neither any investigations or prosecutions if that can be accomplished. On the other hand, he sought to give encouragement to people for whom this issue is a concern by making it clear he did not approve of torture (though he refused to call it that) and will not engage in it. He is hoping there are enough people out there who will judge him worthy of their trust and not think of the long term implications of allowing those who did this to be let off the hook and never have to take responsibility for their lawless, criminal behavior.
His analogy with Churchill was okay until he tried to provide the rationale for Churchill's stalwart refusal to torture. Very simply, Churchill had been a soldier and understood that torture was illegal and outlawed because it was barbaric, not because of the corrosive effect on the national character as the President said (though it is corrosive on the national character). Churchill, like most in his generation supported the notion that no civilized nation engages or should ever engage in torturing prisoners.
The President is trying to walk a fine line on this issue and it doesn't put him in the best light. It appalls me, of course, that he would compromise his fealty to the rule of law on this issue. On the other hand, I think he is perceived as trying to do what he believes best by most people. I don't think his answer on this or the ultimate outcome of this whole issue will be crucial to most people (though I believe it should be).
As for the Bushies concocting legal cover for all this, international law specifically prohibits such actions so even if it held up under our laws (which I don't believe it does or could) it would still be illegal under international law regardless of how skilled any efforts to provide cover might be.
April 30, 2009 2:48 AM | Reply | Permalink
Jade,
I agree with you that President Obama did not say anything last night that would preclude prosecutions for torture -and both myself and my wife agree with you that Ms Maddow mischaracterized what the President said about the 'ticking bomb " torture being is some cases EFFECTIVE - Obama did not say that - he said even if we got good information by torture -which is VERY questionable - there are other means to get that same information in a timely fashion -and we will not torture anymore because it corrodes our character as a nation ( By the way Beit Shin ,Mossad , and others stopped torturing period as it does not work -even for 'ticking time bombs" ) .
Jade would you also agree with me that perhaps the President is letting this torture controversy air itself out well & thoroughly before AG Holder takes action against the Article 3 violators ?
And while we debate this stateside - a Spanish judge has proceeded with the next phase of indicting Bush adminstration officials for torturing Spanish detainees at Gitmo /
IMHO our friends on the far left like Ms Maddow will simply have to take a deep breath -and have a little more faith in Mr Holder & President Obama to get this very complex issue resolved and the perpetrators punished .
April 30, 2009 5:06 AM | Reply | Permalink
Long time no see, Al. And once again we're on the same page!
April 30, 2009 9:22 AM | Reply | Permalink
Hello TheraP ,
Yes the downturn has caused many of us to have to work longer and smarter-haven't been posting much - but Jade's very thoughtful post needed to be butressed .
I bet our same page also reads that President Obama is letting this whole kettle of 'Article 3 " violation simmer as we wait for the indictments to come in from overseas . And my bet is Ms Johnson is staying busy until she is confirmed . There are many many moving parts here and maybe the Brazillian friends of Ickyma will just have to practice more patience for awhile .
TheraP in the end you , me and many others will see our faith rewarded we will return to our better angels - but not before we have a full accounting from all of our recent demons ..
( And its probably going to be worth keeping track of John Durham 's final submissions too - just as a quick postscript )
April 30, 2009 9:44 PM | Reply | Permalink
Although I pretty much agree with you in the end... I take exception the the mischaracterization of Maddow et.al. as "FAR LEFT"
I've heard (and read) some folks that are WAY FURTHER to the Left than Ms. Maddow. Ohhhh.... Jello Biafra comes to mind at the moment... I saw him speak once (many moons ago) and he is certainly FAR to the left of Maddow...
With that in mind, I'd submit that Maddow (and many others) are left of center... The "Liberal Dems", if you will. It was these very same Liberal Dems that got VERY EXCITED about Obama very early on in the Primaries... It was the Liberal Dems who hit the pavement and knocked on doors and worked VERY HARD to help their candidate beat Hillary Clinton (No Easy Task!)... then they worked hard to beat McCain (A pretty easy task)...
And perhaps we could have run a potted plant on the Dem ticket and we'd have still won... But a potted plant couldn't beat Clinton, that's for sure.
The point is: It was the Liberal Dems that made the difference... It is because of the Liberal Dems that Obama is in the White House right now... and now Obama is making a mad dash to the center where he's likely to be roadkill come next election if he alienates those same Liberal Dems. They'll still vote for him... but they won't be as vocal and full of energy, time, and money to support him.... Just sayin'...
There's still time... He is a VERY BRIGHT fella and he's got a lot to do... I will certainly give him some space and time to get things done right. But he's GOT to do them! Punishing War Criminals who acted in OUR NAME'S has GOT to be on the list.
Spain is looking into it... that's fine... But this is an American problem and WE need to deal with it if we're ever gonna right the wrongs and restore our reputation and, indeed, our country.
April 30, 2009 10:24 AM | Reply | Permalink
Don't forget Poland! They are looking into one of those rendition sites where torture occurred. And looking for the smoking gun of an agreement between the Polish govt and the US govt. The prosecutor has been working on this for a year there.
April 30, 2009 10:44 AM | Reply | Permalink
If you're saying Obama owes liberal Dems a prosecution, which seems to be at least implicit in your comment, I'm going to have to part company with you. Criminal prosecutions cannot, must not and should not ever have anything to do with what particular constituiencies who worked to get a president elected want. We took several steps too far in that direction under Bush.
And no, it doesn't even make a difference if what that constituiency wants is moral and right.
April 30, 2009 10:54 AM | Reply | Permalink
No... I'm NOT saying that he should prosecute because Liberal Dems say so. You're correct, however, that my post wasn't very clear on this at all... I started of crying foul wrt Maddow being called "Far Left"... and then I sorta veered off course...
President Obama himself said he believes Waterboarding IS Torture. At the very least there should be investigations based on that alone... and if there's credible evidence then he CERTAINLY must prosecute.
I guess I'm having a lot of trouble with how he answered those questions last night:
- Yes, I believe waterboarding is Torture
- Yes, Torture is a violation of International Law
- No, it doesn't matter what legal arguements you come up with, "It's not who we are"
- So... Such arguments were a "MISTAKE"?!?!?
Phooey...
If President Obama believes the things he said, then he simply can't dismiss it as a "Mistake".
And, based on this, Obama has got to move forward and investigate and, if warranted, prosecute. Anything less will certainly ensure he loses a LOT of political capital.
April 30, 2009 11:22 AM | Reply | Permalink
You are correct. He is leaving his liberal supporters in the cold on this.
Obama is doing the typical DC Democratic DLC dance of running away from his hard core liberal support. The villagers don't like Democrats to act too much like Democrats and that makes things uncomfortable for those who wish to avoid their ire. He will continue to distance himself unless those very same people who supported him in huge numbers during the primary and who donated so much time and money make it clear that they expect him to be the change he claimed he would be and let the crminal investigations begin. That is all anyone can really ask for---criminal investigations. Only after that occurs can any judgment be made on prosecutions. Of course many of us believe prosecutions are warranted, but first things firts.
On a number of crucial national security issues, Obama has distanced himself from his liberal base the same way DC Demcorats always do. Don't forget how cowardly they were during the Bush years when it came to actually doing anything about either the war or the torture program we all knew was under way. When push comes to shove, most DC Democrats don't have much of a record of standing up to the right or standing for any of the principles they claim they are for when push comes to shove. Despite his other laudable actions thus far, our President is just one of the herd on these matters where taking on the powers that be is required, though there is some merit in leaving the possibility of investigations open though it is impossible to know whether it is being left open as an invitation or a means of alleviating the pressure they are feeling.
My guess (ever the cynic) is they will leave that door open for a while and unless there is a huge demand on the part of the public to actually pursue the investigations, they will try to sweep it all under the rug in 5 or 6 months (maybe more) if they think they can get away with it politically. I hope I'm wrong, but that would certainly fit the pattern of behavior we have seen over and over and over again from DC Democrats of which, our President, is one.
April 30, 2009 11:45 AM | Reply | Permalink
Point taken Ickyma, but liberal dems are only part of the Obama Mosiac that we all need to support - but point taken ..
BTW - the "Liberal Democrat leader " Kerensky during the overthrow of the Czar noted -and I paraphrase here - " The difference between right wing extremism and left wing extremism is the difference between dog poop and cat scat " That was just before the Trotsky /Leninist showed up and purged ie killed all the moderates ,including Kerensky ,,
so Icky maybe we can strike a deal in our Obama neighborhood townnhall here - I will refrain from making broad statements about Ms Maddow's leftist leanings-and you can make room for me and my 2nd amendment - " more then I probably need but not as many as I would like . " ,, collection - that way IF and WHEN the Trotskys - or more likely given our history "the brown shirts wrapped in a flag & carrying a bible "show up on our shared collective doorsteps we can have the necessary party favors ready to say hi to our guests .
You might google Kerensky he was a very smart thinker . And icky if I was to label myself politically it might be somewhere along the lines of a radical centrist - ready to defend the best practices of our pluralist comity - our better angels as President Lincoln so eloquently stated .
April 30, 2009 9:27 PM | Reply | Permalink
Great post Jade. I have to admit I was initially a bit disappointed with the answer. However, after talking about with my wife, who is certainly more reasonable, I realized he couldn't answer it much differently. Coming out and directly saying yes Bush and crew are guilty and they all should be in jail would create a fire storm and place him in the position of being both judge and jury. As to the the does it work? I think he did an effective job of saying yes I've heard that argument and there is no proof that it is true.
April 30, 2009 8:32 AM | Reply | Permalink
President Obama said, "I believe waterboarding is torture..."
Well... I suppose it's not a definitive statement... he said he "BELIEVES" it to be torture...
But if that's true, then it seems the cat's outta the bag. I'm sure he'll avoid any personal involvement as long as possible by deferring to Holder, but when the President makes such a statement I'd think it should carry some weight.
At this point I'm reminded of a very quaint and dainty little saying my Brazillian friends use from time to time: "Fu*k me or get off of me!"
April 30, 2009 9:01 AM | Reply | Permalink
I read it pretty much as you did, Jade. Thanks.
April 30, 2009 9:22 AM | Reply | Permalink
After much discussion, I believe the consensus was that crimes are investigated by DOJ, not the White House. Obama has wisely handed this off to Holder.
April 30, 2009 10:06 AM | Reply | Permalink
Well.. the DOJ is not Legislative or Judicial... So I guess that means they're part of the Executive, right?
Obama can certainly ask them to investigate if he wants to.
April 30, 2009 12:01 PM | Reply | Permalink
He's not stopping them. Maybe they are gathering things together and trying out different angles to approach this. The Bush Regime left a lot fo smoke in the air when they left. I think, like those guys on the USS Bainbridge, Holder and his Dept. are looking for a clear shot. But this is not about enthusiasm, this is about justice and it is moving forward very clowly and methodically. By the time we get to a trial, the villagers will be accepting of a verdict against torture, rather then perceiving this as some gratuitous Bush bashing. I remain optimisitic. We're going to wake up one day down the road and there will be arrests.
April 30, 2009 12:50 PM | Reply | Permalink
He's not stopping them... True. But he's also not (publicly) asking them, either... Quite the opposite, actually.
April 30, 2009 1:24 PM | Reply | Permalink
Maybe, and I know I'm just being hopeful here, he's giving them cover so they have time to prepare before the firestorm of public debate begins to control the direction things will head. He's making a delaying tactic to give the AG time.
April 30, 2009 2:10 PM | Reply | Permalink
I'll join you in your hope.
April 30, 2009 2:31 PM | Reply | Permalink
Correct again. He's buying time.
People also seem to be forgetting it was the President himself who "ruled out" any prosecutions for members of the CIA who participated in the torture program. It is exceptionally clear that the President is not interested in either investigation or prosecution for anyone involved despite the fact that he understands the law quite clearly and he knows very well what ought to happen.
People, understandably, are looking for any straw to hang onto that gives them a glimmer of hope the President and his administration might do the right thing regarding the torture program. I recall a large cadre of his supporters doing the very same thing when it came to FISA and when he flip flopped they forgot their initial concerns and accepted the very weak reasoning he provided for the flip flop. Many of them now deny that he even flip flopped on FISA when he clearly did. I think realistically, we're looking at a similar scenario on torture unless citizens prevent him from following that path.
April 30, 2009 2:43 PM | Reply | Permalink
I agree... The "Sovereign Immunity" and Wiretapping bullsh*t really upset me... If this turns out to be more of the same, then I think Obama's gonna have real problems LEADING... and I envision one helluva cynical future for all.
April 30, 2009 3:08 PM | Reply | Permalink
The United States Attorney General is the head of the United States Department of Justice (see 28 U.S.C. § 503) concerned with legal affairs and is the chief law enforcement officer of the United States government. The Attorney General is considered to be the chief lawyer of the U.S. government. The Attorney General serves as a member of the President's Cabinet, but is the only cabinet department head who is not given the title Secretary, besides the now defunct Postmaster General.
April 30, 2009 12:06 PM | Reply | Permalink
Good "take," Jade.
Did you see this?...According to HP our President may have channeled, Andrew Sullivan re Winston Churchill and torture.
"Is Barack Obama reading blogs, particularly the site of one of his campaign's most committed supporters, Andrew Sullivan?"
Is Obama Reading Andrew Sullivan? References Similar Torture Post During Presser
April 30, 2009 10:55 AM | Reply | Permalink
As we have seen with Obama, his responses are careful and measured. Bringing charges against our former Pres. is huge and unprecedented, and I would expect that there is already an investigation underway. The Holder Justice Dept. isn't going to tip its hand unless there is something rock-solid to present.
Remember how long it took Pat Fitzgerald to announce anything in the Scooter Libby case? I'm thinking that the same wheels are turning, slowly, and patience is needed, while at the same time we must keep the pressure on.
April 30, 2009 12:44 PM | Reply | Permalink
Sometimes, I should just read the whole thread before commenting. Agreed.
April 30, 2009 12:52 PM | Reply | Permalink
"Bringing charges against our former Pres. is huge and unprecedented."
Thank you.
While I don't think bringing charges will 'tear our country asunder', I do think these charges are a whole lot more serious than the blue dress ordeal.
April 30, 2009 9:39 PM | Reply | Permalink
It seems to me this labelling of people is unprecedented and irrelevant. It's some of that smoke I reference up-thread. The Bush Regime referring to these people as "enemy combatants" does not make them some newly created category. There are soldiers and civilians. These people were entitled to certain protections under the law that we provide every human being. I do not believe the courts can ignore these crimes because they were committed off our soil, or against this newly constructed "enemy combatant" title. The laws still apply. I would think their efforts to somehow remove these people from either category, soldier or civilian, will have been made in vain.
April 30, 2009 12:59 PM | Reply | Permalink
Of course Obama took the conservative rhetorical line on this issue, it is his way. I just think that clearly identifying torture as what it is and calling out the Bush administration for what it did jives with reality and the rule of law. Of course, that is just my humble opinion.
April 30, 2009 1:06 PM | Reply | Permalink
I see him separating from the conservative line in small, incremental steps. We're getting there and when this is all done, we will believe we pushed him to where he takes this, when he wanted to go there all along. But I believe we, as a people, need to be a part of this process, rather then the spectators, as the American people were during the Bush era. We are becoming more active in this government, and we need to get back into it. I am perfectly willing to provide pressure to keep this going, but I do believe Obama would go there anyway, when he feels the time is right as he juggles everything else.
April 30, 2009 2:14 PM | Reply | Permalink
I understand what Obama said, and why he said it and did not say some other things. But I still believe he is treading too lightly. I agree with oleeb; the gyrations he went through last night were dizzying, and
It is true that Obama does not owe the left wing a prosecution. Prosecution for such a reason would be wrong. But at the same time, avoiding a potential "civil war" by refusing to prosecute is equally wrong; it is tantamount to saying that Obama owes the right wing no prosecution. And who is to say what would really happen if a prosecution brought the facts out -- who can predict that a "civil war" actually would follow? Just because some on the right seem to be threatening it? I believe the American people to be open and mature enough to examine the evidence if it gets to see the light of day; one can argue equally that if the evidence is suppressed, or the Bushies are perceived as being treated with kid gloves, ONCE AGAIN, that people will have had enough and might take to the streets.
Let us not forget, in our system of justice where a person is innocent until proven guilty, that prosecution is simply that process of attempting to prove guilt. Prosecuting them won't automatically make them guilty, just as refusing to prosecute them won't make them innocent. Let the prosecutions go forward.
April 30, 2009 1:52 PM | Reply | Permalink
I commend you for your support of due process and reason. And I think you are correct to be skeptical about whether a fair-minded prosecution would be successful. That doesn't mean we should sweep these mountains of dust-which-might-be-smoke under the proverbial rug. There might be some radioactive stuff mixed in with the fluff and merely political fodder.
The main problem can be put into the nutshell of "victor's justice".
Other problems will include "beyond a reasonable doubt" as to who exactly is responsible for what. It's pretty clear that the Principals Committee is a decision nexus to look at, and thus plausibly relevant moral agents rather than mere functionaries.
"But please note: the President did not say it yielded "good" information or "factual information" or "valuable" information. The "information" in question went uncharacterized."
Minor point: Actually he implies that it was valuable (without implying how valuable) in two ways: It would not be subject to discussion if it had had no value at all; that the question of it being available by alternative non-short-cut ways is raised tells us that it had some value. Obama has raised this Q.
Information is not disinformation. If a detainee provides disinformation (for whatever reason) that's not information in the relevant sense.
April 30, 2009 1:54 PM | Reply | Permalink
I am looking at it from another angle. Right now, with the help of a few judicious document releases, the media and other agencies are doing the job that needs to be done, for him. A steady stream of facts are flowing out into the public without the President having to take sides.
Call it priming the pump if you will, but if true its a brilliant strategy. It allows the President to avoid alienating a significant part of the population while still slowly shifting national opinion.
The problem here is that a certain subset of the Democratic party doesn't just want a prosecution, they want it NOW, and good legal procedure doesn't work that way. You wait until you have the facts (and possibly a suitably leaning jury pool) in your corner. The Obama administration has had about 100 days to go over 8 years of materials (and does anyone think that everything was left behind, easy to find, in a clear and organized manner?). It's going to take months and months for due diligence to occur.
I have not agreed with every one of Obama's decisions, but each time I have gotten the impression that he has thought the matter out, solicitied and considered contrary opinions and reviewed the facts at hand before deciding. I'm prepared to accept he has done so in this matter as well, and that his approach may be based on information that we are not yet privy too as a country.
April 30, 2009 2:55 PM | Reply | Permalink
Two more biggies on the way:
1. More torture photos coming in May.
2. Office of Professional Responsiblity (OPR) Report on OLC (Office of Legal Counsel). Said to be a bombshell!
I agree with your scenario. In addition to the two biggies coming, there's a motherlode of 3000 supporting documents (emails and such) that a court has ordered to be declassified. (As I recall it's part of the ACLU FOIA request.)
All of this is laying the groundwork. It's going to be a devastating case. And yes, the wheels of justice grind very slowly, as they should.
Right now, I'm feeling a sense of relief. I can see the road we must travel. And travel it we will. So now I feel it's possible to back off a bit and watch the slow, inexorable journey unfold.
April 30, 2009 3:17 PM | Reply | Permalink
From a former DOJ Prosecutor friend of mine:
____________________________________________
...but Bushco is entitled to basic rights and the prosecution must follow ABA guidelines - by dumping the memos/pictures/trash talk-they are breaking ABA standards for prosecution by talking in the press and releasing evidence - Bushco will have a good argument that the Prez obama has denied them a fair trial and thus will ask for receive substantal concessions...
____________________________________________
You say a "brilliant strategy"...? Seems he (and I) would disagree...
UNLESS you're just seeking a conviction in the court of "Public Opinion" and nothing more...
April 30, 2009 3:39 PM | Reply | Permalink
I think Obama himself is being reasonably circumspect so far. If Obama wanted merely a PO court thing, he wouldn't be so careful in his press conferences (like yesterday), imo.
BTW, if Spain gets jurisdiction ABA guidelines are irrelevant.
April 30, 2009 4:14 PM | Reply | Permalink
No. For Obama to be making statements like he did a couple weeks ago, *ruling out* prosecutions of CIA who may have participated in "extreme interrogation methods" is, I think, what's pissing many of us off. It's not that we want prosecutions NOW, it's that we don't want prosecutions to be *ruled out* now, or really at any time before the prosecutions have run their course. Sure, fine, he can keep his options open by not making inflamatory comments before the facts are in, but once he's said, in effect, "CIA interrogators shall not be prosecuted", that's a really hard edict to reverse, even if he wants to. What else is he going to rule out?
April 30, 2009 4:25 PM | Reply | Permalink
Shazaam!
April 30, 2009 4:59 PM | Reply | Permalink
Exactly! It was his frankly shocking fiat about the CIA that caused all the uproar. If an honest, professional, criminal investigation yields honest, believably prosecutions or exhonerations then I think all would be satisfied. But when Obama chose to intervene on behalf of people who clearly violated the law it ignited a firestorm.
Not only that, but he has in no way indicated he will reverse his decision to shield CIA from investigation and/or prosecution. In all his public statements since his announcement precluding investigations of CIA people all his comments regarding matters involving the torture program have pertained to everyone else besides the CIA people involved. Given how publicly and emphatically he sided with those who did the actual torture, I doubt he will change his position in the future.
April 30, 2009 10:10 PM | Reply | Permalink
Yes, this is absolutely right, Jade, and aside from the question of how to proceed, it's nice to hear the President speaking bluntly. Obama appears to abhor the abuses that the Bush admin, CIA, Pentagon, DoJ and even Congress have committed or supported in the name of national security. But, all of these abuses were possible because of politicization of supposedly independent government branches.
Obama has to walk a fine line in answering any questions about this. Politically, he can’t appear to be “going after” the previous administration from the opposition party. I think he would have been right if he had declined to answer questions on this altogether. (I also think he is fudging a bit when he says, “I released these memos because…” Since the ACLU lawsuit prompted their release- but that’s nitpicking, I admit).
The problem is that Obama is saying one thing while “his” DoJ is doing another (see: the admin’s state secrets position). He sounds like an independent investigation is what he intends, but this is not what has happened so far. His words do not jibe with his actions. The DoJ must pursue this independently of politics and independent of the WH or Congress.
The WH should not have effectively granted immunity for some or even chimed in on prosecution of obvious crimes of the previous administration. They should not be pushing to have court cases dismissed and withholding evidence that isn't really a matter of national security. The DoJ has an obligation to fully investigate and prosecute all wrongdoing, and torture involving deaths seems most egregious, independently of any political considerations (and those who say proponents of investigations are politically motivated are only making excuses to protect an elite class).
If Obama wants to avoid continuation of these abuses of power, he needs to step out of it completely and let the DoJ or Congress appoint independent and competent investigators to pursue justice and roll back this expansion of Big Brother.
April 30, 2009 6:12 PM | Reply | Permalink
He can't really grant immunity. He said it, but the only thing he could do is pardon. Immunity is not his to grant!
I agree with all you've said. And you said it splendidly!
April 30, 2009 8:02 PM | Reply | Permalink
Jade, I almost missed this. Wow, what a post, what a supplemental comment from you---and what a reaction.
Well drafted, well written...
Great Post.
April 30, 2009 6:40 PM | Reply | Permalink
Jade: I continue to be dazzled by your cut to the chase analysis. Which you have the patience to substantiate with footnotes.
Please, may we believe in the administration we voted for, not only because they of the administration are smart, but also because they see the big picture and, incredibly, have patience.
Let us, also, have patience.
April 30, 2009 7:18 PM | Reply | Permalink
Jade, This has been a great post. I heard Obama on the radio last night. Because I don't have a TV when I was talking to my friend later and he told me about Olbermann's take on it I was surprised. I heard what you heard and went to great lengths to make that clear to my friend.
April 30, 2009 11:04 PM | Reply | Permalink