Free Markets, Free People

interrogation


Obama embraces his inner Bush

So how does the left feel about the 3rd term of George Bush – when it comes to prosecuting wars?

The Obama administration, which refuses to send terrorism suspects to the detention center at Guantanamo Bay Naval Base, on Wednesday defended its decision to interrogate a detainee for two months aboard a U.S. Navy ship, outside the reach of American law.

“He was detained lawfully, under the law of war, aboard a Navy ship until his transfer to the U.S. for prosecution,” presidential spokesman Jay Carney said.

Uh, wasn’t that the argument of the Bush administration?  Didn’t they say  that detaining unlawful combatants at Guantanamo was a lawful detention under the “law of war” (or similar words to that effect)?

After all, the only difference here is location.  One place is located on an island outside the US and the other is a ship located outside the US.  However, the very same thing happened in both locations – something Obama argued against most strenuously when but a mere candidate for office.

My, my … you mean George Bush might have been right about all this?  That it is indeed both legal and necessary?  How come we’re not being treated to the usual “Bush did it” this time?

Oh, and so much for Miranda rights, huh?

“Wherever possible, our first priority is and always has been to apprehend terrorism suspects and to preserve the opportunity to elicit the valuable intelligence that can help us protect the American people,”Mr. Carney said. He added that the International Committee of the Red Cross was allowed to visit the Navy vessel “and had an opportunity to interview the detainee aboard the ship.”

I’m sure the Red Cross was able to visit – after our boy had coughed up what he needed to cough up.  I love the expression of the “first priority” too.  To “preserve the opportunity to elicit the valuable intelligence that can help us protect the American people.”  But evil Bush – not so much huh?

Funny how the rules change when you get stuck with the responsibility of prosecuting a war and protecting the nation and everything is fine that you condemned previously.  Ignorance and hypocrisy are the operative terms here.

~McQ

Twitter: @McQandO


Podcast for 26 Apr 09

In this podcast, Michael, and Dale discuss the torture memos and their possible legal consequences, and the possible securities law violations that the treasury committed in administering the TARP program.

The direct link to the podcast can be found here.

Observations

The intro and outro music is Vena Cava by 50 Foot Wave, and is available for free download here.

As a reminder, if you are an iTunes user, don’t forget to subscribe to the QandO podcast, Observations, through iTunes. For those of you who don’t have iTunes, you can subscribe at Podcast Alley. And, of course, for you newsreader subscriber types, our podcast RSS Feed is here. For podcasts from 2005 to 2007, they can be accessed through the RSS Archive Feed.


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.


About Those Torture Memos…

Well, this is an unexpected revelation.  In all the imbroglio about the “torture memos” and the possibility that the justice department may look into torture indictments of various officials, Rep Pete Hoekstra (R-MI) writes that it’s a bit hypocritical for Congress to escape scrutiny.  Apparently, they knew all about it.

It was not necessary to release details of the enhanced interrogation techniques, because members of Congress from both parties have been fully aware of them since the program began in 2002. We believed it was something that had to be done in the aftermath of the 9/11 terrorist attacks to keep our nation safe. After many long and contentious debates, Congress repeatedly approved and funded this program on a bipartisan basis in both Republican and Democratic Congresses…

Members of Congress calling for an investigation of the enhanced interrogation program should remember that such an investigation can’t be a selective review of information, or solely focus on the lawyers who wrote the memos, or the low-level employees who carried out this program. I have asked Mr. Blair to provide me with a list of the dates, locations and names of all members of Congress who attended briefings on enhanced interrogation techniques.

Hmmm.  That actually might be interesting to see.  Very interesting.

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