Prosecution of the Bush Administration

[Pangloss]

You say that, and yet Bill Clinton was impeached, the Bush/Gonzales Justice Department fired prosecutors who looked too closely at Republicans, and Clinton/Reno looked the other way for countless white-color criminals who donated to the DNC. I could go on and on. I submit that we are already experiencing retributive prosecution.

 

Yes, we should prosecute criminals. It's more important, however, that we NOT prosecute people unless it can be objectively proven that they did, in fact, break the law. Not expert opinions. Not prima facie evidence. Not common public knowledge. Proven, beyond a reasonable doubt. Or it has no business in a court. Period.

 

If the issue is actually one of political ideologies, and the positions the politicians in power took were actually supported by facts, it's just that those facts are viewed differently when interpreted by the NEW party in power, then it is ONE HUGE HONKING MISTAKE to prosecute on that basis. And it WILL come back to haunt us, if it hasn't already.

[The Bear's Key]

You say that, and yet Bill Clinton was impeached

So what? Twice in the entire history of the U.S. was a President impeached. And only the right-wing did it for a stupid occasion.

 

Who cares if a politician lies, has extra-marital cigar breaks, or abuses public funds? They wouldn't be a familiar politican if they didn't, yet we can't expect to impeach on that.

 

But we can expect secretive and deliberate offenses against the Constitution to get a trial date.

 

the Bush/Gonzales Justice Department fired prosecutors who looked too closely at Republicans, and Clinton/Reno looked the other way for countless white-color criminals who donated to the DNC.

Those aren't prosecutions, yet still merit investigations -- not targeted at the relevant Presidents, but into the department heads who did the firings, and into the criminal donators.

 

Yes, we should prosecute criminals. It's more important, however, that we NOT prosecute people unless it can be objectively proven that they did, in fact, break the law. Not expert opinions. Not prima facie evidence. Not common public knowledge. Proven, beyond a reasonable doubt. Or it has no business in a court. Period.

Agreed.

 

If the issue is actually one of political ideologies, and the positions the politicians in power took were actually supported by facts, it's just that those facts are viewed differently when interpreted by the NEW party in power....

Treason has nothing to do with ideology. Or maybe it does. As in....which one is more likely to commit it?

 

And the issues/accusations were far more serious than a blowjob.

[Pangloss]

Well that was my point -- the President of the United States was impeached for a blowjob. Only they called it "lying", an excuse which provided sufficient political cover to allow the investigation and impeachment to move forward. But what really happened, of course, is that Republicans were in charge and decided to "get" the Democrat president. This is exactly my point -- we already live in an era of political and retributive prosecution.

 

Now make a pass through the liberal blogosphere, or listen to Air American for a few tenths of a second, and then listen to the way Democrats in Congress frequently pander to that crowd in exactly the same way that Republicans did, and then see if you can tell me with a straight face how Democrats are only upholding the law.

 

But hey, it's just my opinion, and I'd love to be proven wrong. For a couple of decades now I've been itching to see either party break free of the shackles of partisanship. So far I've been disappointed.

[Mr Skeptic]

But hey, it's just my opinion, and I'd love to be proven wrong. For a couple of decades now I've been itching to see either party break free of the shackles of partisanship. So far I've been disappointed.

 

So get rid of the two party system. So long as there are only two "real" parties, one party's loss is the other party's gain (ie, partisanship is the only way to go).

[Mokele]

Now make a pass through the liberal blogosphere, or listen to Air American for a few tenths of a second, and then listen to the way Democrats in Congress frequently pander to that crowd in exactly the same way that Republicans did, and then see if you can tell me with a straight face how Democrats are only upholding the law.

 

I think there's a bit more difference between "got a BJ and lied about it" and "massive civil liberties infringement, torture, and willfully lying to lead us into a war".

 

I do agree with the need for caution, but we can't let the mere possibility of partisanship dissuade pursuit of justice. That's why we have bi-partisan commissions, and why we should investigate thoroughly before even bringing any charges.

 

On the other hand, what good will prosecuting and throwing these folks in jail *really* do? The real damage they fear, the real punishment, is damage to their reputations, and all you need to do for that is just release all their secret memos and documents. Let everyone see their actions and judge for themselves. If it's that bad, they'll be condemned to a place of infamy in history, simply based on their actions.

[ParanoiA]

I think there's a bit more difference between "got a BJ and lied about it" and "massive civil liberties infringement, torture, and willfully lying to lead us into a war".

 

Two can play this game. I think there's a bit more difference between "listening to private phone conversations" and "mass expansion of federal goverment buying private banking institutions with tax payer money despite their consent".

 

Spin is so much fun.

 

Democrats and republicans are a freaking joke. They are competing federalists trying to outspend and outpander each other for power. They are thieves and salesmen in nice suits that validate prejudices. Anyone who tries to make believe one is better than the other is part of the problem - the partisan problem.

 

Skeptic had it right, and still has it right, and will continue to have it right that the two party system is a monopoly. It's like General Motors competing with Chevy. They capitalize on your aversions and your tendency to "group up" and choose sides and they always win.

 

When the president breaks the law, for real, he'll get tossed out on his ass or put in a cell. There will be no room for interpretation. Until then, any pretense created from zealous execution of the office by partisan hackery is just that. And it's horrible for the country to repeat Rome's mistakes.

[The Bear's Key]

Two can play this game. I think there's a bit more difference between "listening to private phone conversations with no warrant" and "mass expansion of federal goverment buying private banking institutions with tax payer money despite their consent".

Fixed.

 

Major difference: the one act wasn't kept hidden from everyone until leaked.

 

(There's no spin in that)

[bascule]

Two can play this game. I think there's a bit more difference between "listening to private phone conversations with no warrant" and "mass expansion of federal goverment buying private banking institutions with tax payer money despite their consent".

 

Another difference: one of these sucks, but the other is unconstitutional.

 

During WWII waterboarding was considered a capital offense. We executed Japanese who waterboarded Americans.

[Pangloss]

At this level these objective determinations are irrelevant, in my view. This is politics. Even if we objectively establish the above-described difference, it doesn't matter because the people doing the enforcing are political entities.

 

(That is, by the way, why character matters in elections.)

 

 

So get rid of the two party system. So long as there are only two "real" parties, one party's loss is the other party's gain (ie, partisanship is the only way to go).

 

IMO that would just spread the problem wider. But it's a reasonable supposition and I keep an open mind about it.

Edited May 7, 2009 by Pangloss

[Mr Skeptic]

So get rid of the two party system. So long as there are only two "real" parties, one party's loss is the other party's gain (ie, partisanship is the only way to go).

 

IMO that would just spread the problem wider. But it's a reasonable supposition and I keep an open mind about it.

 

The following assumes you start with n parties with about the same chance of winning (an n-party system):

Look at it from a game theory perspective. Suppose you can badmouth your opponent so as to decrease public opinion of them by 10 points, but decrease public opinion of yourself by 9 points. In the two party system, this is beneficial to you -- more people will hate the both of you, but it will win you more votes. In a three party system, you will just take away more of his votes than of your votes, but it would strengthen the third party. But if you could badmouth them at a -10 them, -4 you, then you could badmouth both of them for a total of -10 for each of them and only -8 for you in a three party system. However, the more parties there are the less beneficial badmouthing them will be, as anything you do to reduce public opinion of yourself will benefit all the other parties. This applies with sabotaging other parties' projects as well.

 

The more parties (with a good chance of winning), the more they must focus on increasing public opinion of themselves rather than decreasing public opinion of their opponents -- hence, the less of this partisan BS that they do.

[ParanoiA]

I think there's a bit more difference between "got a BJ and lied about it in a court of law" and "massive civil liberties infringement, torture, and willfully lying to lead us into a war".

Fixed.

 

The president of the executive branch blatantly lied in court; he violated the laws of the land to undermine the duty of the judicial branch. That's an affront to our balance of powers and structure of our government.

 

But I don't really care. I don't care about what GWB did either because it's too open for interpretation. There is enough muddy water in both scenarios here. Neither is worth splitting the country over.

 

If we can't even agree, after the fact, then how in the world can you really hold people accountable for such decisions at the time?

 

That's not the reason we prosecute bad leaders.

[iNow]

There's nothing wrong with letting the truth come out. Nobody is above the law. This isn't about right versus left, nor democrat versus republican. This is about legal versus illegal, and right versus wrong.

 

We prosecuted others who performed these same activities on our people (the Japanese in WWII, for example) so it's rather clear where we stand on these practices. Current circumstances and declarations of wars on terror do not change our history nor our standards. These practices were previously illegal, and just because a couple of unscrupulous lawyers found micro-loopholes allowing us to temporarily ignore the Geneva convention does not mean what we did was suddenly legal and a-okay.

 

We should look into it. We should do like we did with the 9/11 Commission. Put out the full report, and move forward. Sweeping the issue under the rug will only prolong it.

Seems like people missed this the first time.

[Pangloss]

There's nothing wrong with letting the truth come out. Nobody is above the law. This isn't about right versus left, nor democrat versus republican. This is about legal versus illegal, and right versus wrong.

 

At this level these objective determinations are irrelevant, in my view. This is politics. Even if we objectively establish the above-described difference, it doesn't matter because the people doing the enforcing are political entities.

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Here's another political reason why this may ultimately go no where. Evidence emerged today that Congressional Democrats may have been briefed in advance about the plan to use waterboarding, and did nothing to stop that from happening.

 

http://www.foxnews.com/politics/2009/05/07/report-pelosi-briefed-enhanced-interrogation-methods/

 

That certainly doesn't lay the blame at that doorstep, but it does create a political problem that they will have to address. This, again, is why these problems are not simple matters of objective justice. Once you get to this level it becomes about politics, even if you don't want it to be.

[bascule]

Here's another political reason why this may ultimately go no where. Evidence emerged today that Congressional Democrats may have been briefed in advance about the plan to use waterboarding, and did nothing to stop that from happening.

 

"Democrats" were briefed meaning Nancy Pelosi?

 

"As this document shows, the speaker was briefed only once, in September 2002," he said. "The briefers described these techniques, said they were legal, but said that waterboarding had not yet been used."

 

I mean, I guess shame on her, but it's certainly understandable.

 

Republicans have already accused Pelosi and other Democrats of having selective and politically motivated amnesia when it comes to who knew what, and when, about the Bush-era interrogation programs. Those accusations were leveled in light of a Washington Post story published in 2007 that quoted two officials saying the California Democrat and three other lawmakers had received an hour-long secret briefing on the interrogation tactics, including waterboarding, and that they raised no objections at the time.

 

You didn't object to it back then, so how dare you object now! Zuh?

 

I mean, this stuff has been dragging on for years. If Bush were a Democrat the Republicans would've been trying to impeach him back in 2006. I guess because Democrats don't have a spine that makes torture ok? I'm confused... but it's not too surprising coming from Faux News.

[Pangloss]

No, the point of my raising that article is that it shows how politics is the overriding concern of Democrats in Congress, not justice. Therefore if a prosecution were to take place, regardless of its objective merits, it would be a political prosecution. If you allow politics to determine the who, when and why of prosecutions, then we all lose.

[iNow]

Therefore if a prosecution were to take place, regardless of its objective merits, it would be a political prosecution. If you allow politics to determine the who, when and why of prosecutions, then we all lose.

 

So the alternative you propose is to do nothing at all? I really am struggling to understand your end goal, Pangloss. I understand your point about caution and doing what we can to avoid ideological bias, however, you're declaring by fiat that no prosecution will ever be okay, will always be political, and so we should never prosecute the wrong doings of those in political life. I find that unacceptable and weak.

 

Help me understand how you think this can be done better. If you cannot offer alternatives, I suggest you stop railing against the only viable option available to us... That being bipartisan investigation, full disclosure, and upholding of our nations laws. Otherwise, all you're left with is to completely sweep illegality under the proverbial carpet, and that's hardly a defensible position at all.

 

I don't think I'm misinterpreting you. You seem to feel strongly that no prosecution should ever take place when politics are involved. You state that if it is "proven without a shadow of a doubt" that wrong doing was done, you'd be okay with punishment... but there's hardly any such thing as absolute proof, so that's a bit of a false hurdle you're asking be cleared... if you ask me.

Edited May 8, 2009 by iNow

[Mr Skeptic]

At least what he is proposing would become legal if they passed a law that politicians can't be prosecuted.

[Pangloss]

I don't think I'm misinterpreting you. You seem to feel strongly that no prosecution should ever take place when politics are involved. You state that if it is "proven without a shadow of a doubt" that wrong doing was done, you'd be okay with punishment... but there's hardly any such thing as absolute proof, so that's a bit of a false hurdle you're asking be cleared... if you ask me.

 

I'm sure it was unintentional, but unfortunately you've misquoted me. Marking the appropriate bits in bold above and below, what I said was:

 

Yes' date=' we should prosecute criminals. It's more important, however, that we NOT prosecute people unless it can be objectively proven that they did, in fact, break the law. Not expert opinions. Not prima facie evidence. Not common public knowledge. Proven, [b']beyond a reasonable doubt[/b]. Or it has no business in a court. Period.

 

Continuing along the same vein, to try and answer your question better:

 

So the alternative you propose is to do nothing at all?

 

What I'm trying to say is that it shouldn't take place unless the evidence is substantiated on a reasonably objective level. I will support a prosecution on that basis. I do understand that that is a difficult thing to measure accurately and all I can say is that if an indictment is handed down I won't leap to the conclusion that it's politically motivated -- I'll listen and wait to understand what's going on before I pass judgment.

 

Fair enough?

 

 

If you cannot offer alternatives, I suggest you stop railing against the only viable option available to us...

 

Bah. I think you know me well enough by now to know that I'm sufficiently stocked up on anti-freeze such that I will be continuing to offer my opinions long after hell has frozen over. (grin)

 

But sure, I will stop ranting about the dangers of political prosecution for now. I've made my point and people have been kind enough to acknowledge it. No point in beating a dead horse, after all.

[JohnB]

We prosecuted others who performed these same activities on our people (the Japanese in WWII, for example) so it's rather clear where we stand on these practices.

I know what you mean, but it's not actually all that clear, is it?

 

Just using Wiki for the basics.

 

My Lai.

 

347 to 504 unarmed civillians murdered. March 16, 1968.

 

26 soldiers charged.

 

1 convicted and served 3 years of his life sentence.

 

No penaties to the military commanders who actively tried to cover up the massacre.

 

Earlier this year threads were started against the use of WP munitions in Gaza by the IDF. This was deemed close to a war crime. Yet the use of WP munitions in the same or very similar fashion by US forces during the second battle of Fallujah didn't rate a mention.

 

Unfortunately the position of the US on some matters is not quite as clear as it perhaps should be.

 

I happen to be one who thinks that most Americans are fair minded and actually believe that there is such a thing as right and wrong. That they are honestly appalled when their own do something disgusting. However, you have a system that gives many a free pass.

 

jackson, you might believe that "following orders" is a defence, but Australia certainly doesn't. Section 11 of the Crimes (Torture) Act states;

No defence of exceptional circumstances or superior orders

It is not a defence in a proceeding for an offence against this Act that:

 

(a) the act constituting the offence was done out of necessity arising from the existence of a state of war, a threat of war, internal political instability, a public emergency or any other exceptional circumstance; or

 

(b) in doing the act constituting the offence the accused acted under orders of a superior officer or public authority;

 

but the circumstances referred to in paragraphs (a) and (b) may, if the accused is convicted of the offence, be taken into account in determining the proper sentence.

 

For the US, I found this report.

http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf

 

Warning: 16 meg pdf.

 

I haven't read it all yet, but it appears detailed and interesting.

 

America is a ratified signatory to the Convention against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment.

 

America did have reservations, none of which I can see absolves anybody:

 

Regarding Section 1 which says;

1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Reservation:

(d) That with reference to article 1 of the Convention, the United States understands that the term `acquiescence' requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity.

 

Those are the words of the US Senate. A public official who has prior knowledge of the intention of torture has a legal responsibility to prevent it.

 

Sounds like there could be court cases after all.

 

A full list of the US reservations (and everybody elses) can be found here.

[Mokele]

What I'm trying to say is that it shouldn't take place unless the evidence is substantiated on a reasonably objective level. I will support a prosecution on that basis.

 

But what about the investigation needed to uncover the evidence? That suffers from the same problem: it's politically beneficial justice to one side, and a political witch-hunt to the other. Without the evidence, you can't tell which is right, but without the investigation, you can't get the evidence.

[iNow]

But what about the investigation needed to uncover the evidence? That suffers from the same problem: it's politically beneficial justice to one side, and a political witch-hunt to the other. Without the evidence, you can't tell which is right, but without the investigation, you can't get the evidence.

 

And I think this has been the point with which I've been struggling.

 

Pangloss, I know you are reasonable enough that you'd be fine with a prosecution if the evidence were proven beyond a reasonable doubt, but you seem to regularly attempt to tamp down attempts to investigate and find said evidence.

 

You can't have it both ways. Either you allow the investigation and go from there, or you attack and try to prevent investigations before they've even occurred by leveling claims of partisan and ideological bias.

 

To Mokeles point, though... The investigation, by definition, must come before the prosecution based on evidence. If step 1 is not allowed, then step 2 will never happen either.

[jackson33]

A great number of posters are NOT differentiating US Law and the Uniform Code of Military Justice, the oaths taken and the status (education) of each individual in service. Take this once step further and the authority of the President during War Times or in some cases under times of emergencies. What you REALLY DON'T WANT during these times are a failure in action or those CHARGED with making the ultimate decisions to be concerned with far reaching implications (legality or potential outcomes). If on topic, I could go further, suggesting 'Political Correctness' has made all civil decisions impossible to make based on differences in what any one person feels is PC....

-----------------------------

When one enlists in the United States Military, active duty or reserve, they take the following oath:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.

 

Military discipline and effectiveness is built on the foundation of obedience to orders. Recruits are taught to obey, immediately and without question, orders from their superiors, right from day-one of boot camp.

 

In fact, under Article 90, during times of war, a military member who willfully disobeys a superior commissioned officer can be sentenced to death.

 

http://usmilitary.about.com/cs/militarylaw1/a/obeyingorders.htm

----------------------------

 

What constitutes an order from a superior is the actual issue or the legality of that order in the first place. This is why 'Chain of Command' exist in the first place, going back to tribal conflicts and coincidentally why in the US, 'Civilian Command' trumps military command at the very highest level. All the treaties/agreements made with regards to military actions, come from Executive Powers to negotiate/or not, then to the Congress for ratification.

 

My arguments (in regards to convicted subordinates) are based on the above and the accepted practices of the military with precedence over the years. IF, they were participating in an unauthorized revenge party for some personal reason, then were talking a different story, but all indications are they were under orders to humiliate, keep awake, physiologically breakdown certain inmates for reasons they probably never knew. Again they were denied the right to mitigate sentencing, which is a cardinal right, even under the MCOJ...

 

Here is the dilemma not having or using the 'Chain of Command' or indecisive rules, but validates your arguments with limitation IMO....

--------------------

The United States military adjusted the Uniform Code of Military Justice after World War II. They included a rule nullifying this defense, essentially stating that American military personnel are allowed to refuse unlawful orders. This defense is still used often, however, reasoning that an unlawful order presents a dilemma from which there is no legal escape. One who refuses an unlawful order will still probably be jailed for refusing orders (and in some countries probably killed and then his superior officer will simply carry out the order for him or order another soldier to do it), and one who accepts one will probably be jailed for committing unlawful acts, in a Catch-22 dilemma.

http://heartmattersnow.blogspot.com/2009/04/i-only-following-orders.html

--------------------

[ParanoiA]

When one enlists in the United States Military' date=' active duty or reserve, they take the following oath:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice, [i']except when I think that later it will be determined criminal by some people after they've had years to mull it over and argue about it[/i].

 

There, I added the missing bit inferred by the arguments in this thread.

 

Clearly the military is a bunch of yes-men pansies that choose to do wrong and hide behind their superiors with the pretense that they don't have time nor the platform or rank to have a talk about it and argue it all out on the battlefield. As if...

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The United States military adjusted the Uniform Code of Military Justice after World War II. They included a rule nullifying this defense, essentially stating that American military personnel are allowed to refuse unlawful orders. This defense is still used often, however, reasoning that an unlawful order presents a dilemma from which there is no legal escape. One who refuses an unlawful order will still probably be jailed for refusing orders (and in some countries probably killed and then his superior officer will simply carry out the order for him or order another soldier to do it), and one who accepts one will probably be jailed for committing unlawful acts, in a Catch-22 dilemma.

 

Interesting how even the most objective, obvious analysis of unlawful orders could still result in this dilemma, let alone subjective after-the-fact haggling that remains open for interpretation.

 

Too bad. Hang 'em anyway. That's a great way to promote confidence in putting your life on the line, not to mention a splendid version of 'thanks for risking your life while I sit here all comfy at home in my controlled environments, women, beer, TV, good times; judging your decision to obey your superiors is so much easier without all the sand and sweat and bullets flying'.

[Mr Skeptic]

When one enlists in the United States Military, active duty or reserve, they take the following oath:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.

 

The Uniform Code of Military Justice, of course, requiring obedience to lawful orders, and punishment for certain crimes. If someone commits a crime in following an unlawful order, then he is still guilty of the crime.

http://www.crisispapers.org/texts/UCMJ.htm

[Sisyphus]

Yeah, I'm not in the military or anything, but the oath to follow orders seems pretty clearly conditional upon the legality of those orders. The oath to support and defend the Constitution, however, is not conditional. So theoretically, there's never a Catch-22. In practice, I'm sure you could still get yourself in very serious trouble for refusing an unlawful order, but you would be unambiguously in the right, granting that the order was in fact illegal.