I'd bet any amount of money Will has never read the speech.

There's a lot of noise out there distracting people from the fairly simple and straightforward issues at stake over torture. Establishing whether torture was, in fact, used in order to protect the country versus protect the political careers of Bush politicians is really an essential piece of this history. It's vital to get it right. Compared to that, MoDo can write whatever she wants.

It's not actually that hard to understand; you just have to be willing to enter into the mind of a true believer.

More importantly, even in the unlikely scenario that DOJ would one day consider such a prosecution, I think that it would be of dubious constitutionality in almost all cases. The doctrine on this is a bit complicated, but I think it is fair to say that the four leading Supreme Court cases --- Raley v. Ohio; Cox v. Louisiana; U.S. v. PICCO; and Marks v. United States -- stand for the broad proposition that criminal culpability may not be imposed for conduct undertaken in reasonable reliance upon the representation of government officials that the conduct was lawful.

Of course, the difficult question in any case is whether the reliance was reasonable. (The most interesting previous case, in my opinion, is U.S. v. Barker, 546 F.2d 940 (D.C. Cir. 1976), in which a split panel of the U.S. Court of Appeals for the D.C. Circuit reversed convictions of two of Nixon's White House "plumbers" who broke into the office of Daniel Ellsberg's psychiatrist on the "legal" advice of White House and former CIA official (and later Watergate felon) E. Howard Hunt. See especially the fascinating separate opinions of the great jurists Robert Merhige and Harold Leventhal. In my view, the Barker court got the particular decision wrong, basically for the reasons stated by Judge Leventhal, namely, that it was unreasonable for the burglars to rely upon Hunt's advice. But the panel appeared to unanimously agree that conviction would have been unconstitutional if the break-in had been authorized by the President or Attorney General.)

If the OLC memos on torture, and the subsequent CIA General Counsel directives, were so patently wrong that any reasonable CIA operative or contractor should have been aware of that fact, then the reliance would not have been reasonable. However, especially given (i) the official and historical role of OLC in providing authoritative legal advice within the Executive branch; and (ii) the continued insistence of the President and subsequent Attorneys General that the advice was not mistaken, I think it is almost certainly the case that no court would find the reliance by CIA operatives and contractors on OLC's advice to have been so unreasonable as to justify prosecution. (Compare, for example, the reliance on the informal views of much less authoritative government actors in Raley, Cox and Barker. See also, e.g., Sanger v. Reno, 966 F. Supp. 151, 164-165 (E.D.N.Y. 1997) (due process would prohibit prosecution of parties for violating statute prohibiting transmission of abortion-related information, if such parties had acted in reliance on Attorney General's opinion that application of the statute would violate the First Amendment).)

If the OLC advice was patently wrong, and if the lawyers in question knew it was -- or perhaps even if their legal advice was merely reckless, cf. the Lawyers' Case at Nuremburg -- then that would raise very interesting, thorny issues about the criminal culpability of the advice-givers, in the event that DOJ ever (i.e., in a different Administration) concludes their advice was egregiously mistaken. That, in my view, is the more pertinent and difficult question (although even here, I can't imagine actual prosecution of the lawyers, absent proof that they knowingly provided bad legal advice). [This is as good a time as any to repeat my disclosure that I worked in OLC until November 2002, but had no involvement in, or knowledge of, the events or advice in question.]

But prosecution of the waterboarders themselves? Well, I think that would be targeting the wrong government actors (we should want CIA officers to be able to rely on OLC advice) and, in any event, such a prosecution would be of dubious constitutionality. (And again, none of this even becomes relevant unless and until the President and DOJ change their views on the legality of the underlying conduct.)

http://balkin.blogspot.com/2008/02/dissenting-view-on-prosecuting.html

I think you are right that international law doesn't permit any exceptions to the prohibtion on torture, and you can make a strong argument that torture is a jus cogens norm that could be prosecuted by any state. But the conflict is between that and legitimate ex post facto (/ due process) concerns in prosecuting an official for an action taken when the highest executive branch officials were saying it was legal. Those are the bastards that really need to be prosecuted.

Which means that the only thing Obama "gave up" in this "comprimise" is, rightly or wrongly, a liberal fantasy.

I love watching 'em spread.

And you can imagine the Democratic attacks on Republicans for opposing aid for college students, emergency help for strapped homeowners, funds for medical research, and all the other non-stimulative stuff in the bill. Politics can be unfair.

Yeah Fred, it is SO unfair for Democrats to attack Republicans for opposing aid for college students, emergency help for strapped homeowners, and funds for medical research merely because Republicans are opposing aid for college students, emergency help for strapped homeowners, and funds for medical research. How dare the Democrats state the Republican position on the biggest issue of the day.

This reminds me of the conservative argument that we can't talk to Iran because it will give their government legitimacy. Look, we might prefer to live in a country where denying gay couples the right to marry was an illegitimate position. But, in fact, we don't live in that world; we live in a world in which Prop 8 passed, as has almost every other effort to ban gay marriage by petition. There might be a point where fringe ideas like a flat earth or white supremacy are so outrageous and unimportant that we can ignore them. But when a majority of the population holds a view, opponents of that view have to take it seriously.

Opponents of gay rights aren't looking for Obama or anyone else to legitimize their position, and if we don't act like we're listening to them, they aren't going to pay any attention to our argument. Which is a shame, because I think there's plenty of hope for genuine dialog on this issue.

Ugh. That's just so wrong on so many levels. If you create a wall between the gay community and the evangelical community, you might think you're walling them in, but what you're really doing is ensuring the bigotry is unthinkable on one side but unchallenged on the other - and their side is bigger. I'm not a big fan of any idea being "unacceptable" either - that strikes me as Orwellian and tending towards groupthink; all ideas should be worthy of discussion and consideration, even in disagreement.

Senate Candidate 5 was very much a realistic candidate for the open Senate seat, but that ROD BLAGOJEVICH was getting "a lot of pressure" not to appoint Senate Candidate 5

The media speculation about this appointment has been almost totally focused on Jackson Jr, not Emil Brown or anyone else. If there is pressure against Blago nominating Candidate 5, it's gotta be him, there just wasn't enough speculation about any other candidate to generate resistance.

If it is true that it's Jackson Jr, it's the end for him.