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Daily Archives: April 24, 2009


Torture Memos: Prosecute who? For what?

Patterico WLS, posting at Petterico’s “Jury” blog points out that, despite all the calls for prosecuting “former Bush officials” over the torture memos and the actions taken under their aegis, he wonders, as an actual prosecutor, who would be charged with a crime, and what, exactly, the crime would be.

In mulling over the news of the past few days, I’m curious as to what the critics of the Bush Administration see as plausible criminal charges against the officials who were responsible for the drafting/authorizaiton [sic] of the “Torture” memos.

It would be one thing to actually prosecute the CIA officials involved in carrying out the interrogations…[b]ut they would likely have the time-honored defense of “advice of counsel” which works to negate the mens rea (”guilty mind) necessary to establish knowing criminal conduct.  When the top law enforcement officials of the US government tell another component of the US government that the conduct they are proposing to carry out on behalf of the government is not prohibited by statute, it’s exceedingly difficult — if not impossible — to mount a successful prosecution against any government official who acted in accordance with the advice…

Prosecuting the officials who offered the advice is a different question.  But what would be the charge?  It can’t be “Torture” under the statute — they didn’t do anything.  They simply responded in their official capacity to a question raised by another governmental entity… Why is the ANALYSIS of the specific technique described in the memos — concluding it would not fall within Sec. 2340 — wrong?

Fair questions indeed.

The officials who wrote the memos were acting as lawyers providing legal advice over the meaning of a statute.  Perhaps that advice was wrong.  But is providing an erroneous legal opinion a crime?  If so, what, exactly, would the crime be?  You would have to prove that the advice was completely and knowingly concocted from whole cloth and/or that the concocted legal advice was part of conspiracy to commit torture.  In that case, you’d have to find evidence of specific collusion between the CIA and DOJ to knowingly concoct  spurious justifications.

Absent such evidence, all you have is lawyers providing legal advice that the current administration doesn’t like.  In that case, I don’t see what the prosecutable offense is.

Taking it further, the CIA officials who actually conducted the torture have a very good defense, namely, that the formal legal advice they received from the government’s top lawyers at the DOJ was that the specific techniques they used fell outside the meaning of §2340.  In that case, they cannot have known they were committing a crime, but rather, they believed they were, on the advice of counsel, acting entirely within the law. So, unless there’s evidence that the interrogators went off half-cocked and began using non-approved techniques in the questioning, it’s difficult to see what the crime would be on the part of the interrogators themselves.

With the above in mind, it’s difficult to construct any other scenarios in which any of these of officials are prosecuted without it becoming, in effect, a criminal prosecution for partisan policy differences.

Whatever else that might be, it is not the Rule of Law as it is commonly understood.


Obama’s First 100 Days

USA Today says the public sees Obama’s first 100 days as a “strong opening”.

But when you get in the number of the USA TODAY/Gallup Poll, it’s not quite as strong an opening as you might expect:

Now, 56% say he has done an “excellent” or “good” job as president vs. 20% who rate him as “poor” or “terrible.” An additional 23% say he has done “just OK.”

His excellent/good rating on national security is 53%. On the economy, it is 48%.

“He is seen as someone who was handed a large array of challenges and is dealing with them in a sensible way,” adviser David Axelrod says.

Those are lower numbers than I expected. And certainly very interesting numbers on the most pressing interest of the day – the economy. Those numbers also signal to me that this is now considered the “Obama economy” now, whether deserved or not.

As for national security, I’m not sure what rates the number – he’s really not done anything concerning national security except do a little talking about the subject. And, despite claims to the contrary, SEALs taking out three rag-bag pirates who botched a highjacking was not a victory on the national security front.

~McQ


Economy: No Longer In “Free Fall”

While I appreciate the fact that we’re hearing a more positive spin from the Obama administration concerning the economy, the so-called “glimmers of hope” aren’t really anything but outliers.

Worse-than-expected news on unemployment and home sales Thursday dampened optimism that a broad economic recovery might be near.

Jobs losses aren’t expected to bottom out until the middle of 2010 and the housing market hasn’t bottomed out yet either:

Meanwhile, the National Association of Realtors said sales of existing homes fell 3 percent in March to a seasonally adjusted annual rate of 4.57 million units, with February revised down to 4.71 million units. Sales had been expected to fall to an annual rate of 4.7 million units, according to Thomson Reuters.

Per the analysis, the best reading of these economic indicators is that perhaps the “free fall” is coming to an end.

“The economic downturn remains intense, but it is no longer intensifying,” said Mark Zandi, chief economist at Moody’s Economy.com. “We are still falling, but we are no longer crashing.”

So, while we may have passed what some are terming the “crisis stage”, the economy is still contracting. I’m coming to believe that we may not see any real and meaningful “glimmers of hope” until mid 2010.

~McQ


Couldn’t Happen To A Nicer Guy

Patterico brings us some good news about Ted Rall:

I don’t normally gloat when someone loses their job, but for this tool, I’m willing to make an exception. Especially given that his “job” consists of comparing U.S. soldiers to suicide bombers; mocking widows of terror victims; profiting from Pat Tillman’s death; assuming the voice of Iraqi soldiers talking about killing American soldiers; making leftist political hay out of the Nick Berg beheading; lying about lefty blogger vitriol; and suing a guy for making him appear to be a “rude, petty, self-absorbed writer/cartoonist” (which is what he is).

I normally don’t celebrate anyone being laid off – but in Rall’s case I’ll make an exception.

Rall will reemerge, unfortunately, but for the time being, he hasn’t the well funded platform from which to spread his crap. I personally find that to be a net positive.

~McQ

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