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.
The intro and outro music is Vena Cava by 50 Foot Wave, and is available for free download here.
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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.
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.
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.
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.
We’re known here at this blog for being adamant about denouncing plans which appease terrorists. It’s a absolute no-win situation for the appeaser. Pakistan is now in the middle of learning that hard lesson:
Pakistan’s strategy of trying to appease Taliban militants is showing signs of backfiring, as extremists move within 60 miles of the capital and threaten to spread their influence throughout the country.
Really? What a surprise. They caved to the Taliban demands and allowed them to impose Sharia law in the Swat valley in return for promises the Taliban would lay down their arms.
And, unsurprisingly, the Taliban have reneged on the promise. That, of course, has Hillary Clinton huffing and puffing at Pakistan:
Secretary of State Hillary Rodham Clinton warned Wednesday that Pakistan’s government is “basically abdicating to the Taliban” by agreeing to let them implement Islamic law in the Swat region last week. Instead of putting down their weapons, as the government had hoped, the insurgents have since moved fighters into the neighboring Buner region, local lawmaker Istiqbal Khan said.
Of course that’s precisely what appeasement buys with zealots. Absolutely nothing except an even weaker position for the appeasers.
Additionally, the Taliban have turned the Swat valley into a theocratic hell while the Pakistani government stands by and tut-tuts:
President Asif Ali Zardari has blamed the Taliban for a wave of assassinations in Swat in recent months, and he condemned a recent video that showed militants flogging a young woman they accused of having an improper relationship.
There is a glimmer of good news however. There seems to be a public backlash building among Pakistanis with even conservative members of the Pakistani parliament distancing themselves from the militants. However in the complicated world of Pakistani politics, that may end up meaning nothing in a real sense as the Taliban, who recognizes no authority and certainly no obligation to live up to any promises, relentlessly pushes to expand its hold on northern Pakistan.
Or so claims David Axelrod.
Apparently Fidel Castro didn’t get the memo:
…At the press conference, as well as in the final meetings of the Summit, Obama looked conceited.
It’s an interesting little diatribe from Casto, and most of it is the usual nonsense, but what it easily demonstrates is Axelrod is as clueless as I asserted a couple of days ago.
Castro saw through most of the Obama rhetoric and unlike a vast number of Americans, figured it out:
When the US President said, in answering to Jake [Tapper], that thousands of years had elapsed since 2004 until the present, he was superficial. Should we wait for so many years before his blockade is lifted? He did not invent it, but he embraced it just as much as the previous ten US presidents did.
That’s the Cuban version of “meet the old boss, same as the new boss …”.
And my favorite:
Leaders just pass through; peoples prevail. There would be no need to wait for thousands of years to pass by; only eight years will be enough so that a new US President — who will no doubt be less intelligent, promising and admired in the world than Barack Obama- riding on a better armored car, or on a more modern helicopter, or on a more sophisticated plane, occupies that inglorious position”
Yup – completely charmed and impressed by our new leader, no?
Castro picks up on and states what he saw – conceit and superficiality. My guess is he wasn’t the only Latin American leader who came away with that impression.
Nick Gillespie at Reason is none too impressed with the new Edward M. Kennedy Serve America Act just signed into law.
At a mere 5.7 billion dollars +200 mil in “stimulus” funds – and yes I’m being facetious (and don’t worry, they’re saving 100 mil among the administration cabinet) – we get legislation that:
reauthorizes and expands national service programs administered by the Corporation for National and Community Service, a federal agency created in 1993. The Corporation engages four million Americans in result-driven service each year, including 75,000 AmeriCorps members, 492,000 Senior Corps volunteers, 1.1 million Learn and Serve America students, and 2.2 million additional community volunteers mobilized and managed through the agency’s programs.
Or an expansion of the Community Organizer’s Full Employment Act if you really want to come clean about it.
Paid “volunteerism”. Is that government’s job?
And as Gillespie points out, the language under which this is organized – and I use the term loosely – is rife with opportunities for urban entrepreneurs to “benefit” mightily from things which will be extremely hard to measure (even though it claims, in the language, to have it covered):
The Serve America Act, which goes into effect on October 1, would increase and enhance opportunities for Americans of all ages to serve by increasing AmeriCorps from 75,000 to 250,000 positions over the next eight years, while increasing opportunities for students and older Americans to serve. It will strengthen America’s civic infrastructure through social innovation, volunteer mobilization, and building nonprofit capacity. The new law is also designed to strengthen the management, cost-effectiveness and accountability of national service programs by increasing flexibility, consolidating funding streams, and introducing more competition.
Ye gods – what could go wrong with that?
And this, as Gillespie points out, in the face of attempts to limit charitable tax breaks for the income class which makes most of those donations and are the engine for much of the charitable giving. Make sense?
Well, it does if your entire focus is to see how dependent on government you can make the population, certainly. This is another example of a liberal wet dream.
But what you should keep in mind is it was begun under Clinton and survived 8 years of a Republican administration.
Tell me – whose fault is that?
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.