Sen. Christopher “Kit” Bond (R., Mo.), the vice chairman of the Senate Select Committee on Intelligence, has told The Washington Times that Eric Holder privately assured him that there would be no prosecution of Bush officials for torture or unlawful acts. The story is reminiscent of last week’s statement by Gen. Michael Hayden that he was assured by President Obama that there would be no investigations or prosecutions allowed for war crimes committed by the Bush Administration. I discussed this story and the recent ACLU demand for the release of the torture and surveillance memos on this segment of Countdown.
Sen. Bond says that Holder secured his vote with the promise and the story has added to concerns by civil libertarians that the Democrats are playing another game of bait and switch on the issue: pretending to consider prosecution while privately assuring Republicans that no one will be held accountable.
While Holder denies the statement (and Obama denies the statement to Hayden), these concerns would be put to rest if the Administration would simply say that any alleged crimes will be investigated and, when the evidence warrants it, any accused criminals will be prosecuted. War crimes are not matters of discretionary politics. The fact that they are still not making that simple statement adds credibility to such accounts.
For the latest story, click here.
Jason,
The sanctioning of torture is de facto illegal in light of the 8th Amendment, existing statute and case law. You CAN’T decriminalize it without throwing the Constitution out the window. The attempt itself violates the Constitution. The Rove driven conspiracy to stack the DOJ with Regents “lawyers” was an attempt to cover this illegal action.
He was definitely on either or both Barney Frank Chris Dodds payroll.
Leave it to the dems to pay some poor imigrant to erase the evidence of their crimes.
In case there is doubt that not punishing the guilty will result in something like Project Mayhem, take a look. It’s already started.
http://www.usdoj.gov/usao/md/Public-Affairs/press_releases/press08/FormerFannieMaeContractorEmployeeIndictedForComputerIntrusion.html
Mespo:
“other than pain or suffering incidental to lawful sanctions” if the Bush admin. lawfully sactioned whatever was done isnt that a get out of jail free card? At this point isnt the arguement about whether or not it was legal to legalize torture?
Mike Appleton:
“Jill, my exchange [regarding Holder] with mespo is on the California prostitute thread for whatever reason.”
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I thought the lawyer turned prostitute thread was the perfect place for that discussion!
Jason2L:
So the question I have is can prosecution even take place even if the Obama administration decides to move forward. How hard would it be to prove that they acted “barbarically”?
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“Barbaric” is not the legal standard. See 18 USC Sec. 2340 et seq.:
“(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.”
A good rule of thumb is not to let the Press do your legal research for you.
Jonolan,
Actually in Hamdan v. Rumsfeld SCOTUS ruled that Article III applies to all prisoners in the War on Terror.
Article III reads (I skipped the definition, since SCOTUS rule that all the prisoners in the WOT met that definition and the clauses that aren’t relevant to the discussion on water-boarding):
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
I understand the concern about Holder and Obama not being more forthright about their intentions to investigate and/or prosecute the former administration, but….
1. Eric Holder would have experienced even more contentious confirmation hearings than he did, and his appointment could have been held up even longer than it has been.
2. Making clear statements too soon that prosecution was a possibility prior to Holder being confirmed and in charge could have led to a wholesale destruction of evidence.
Whether we like it or not, politics is involved here. And while I would agree that there has been a certain coyness on the part of both Obama and Holder, neither of them have clearly taken investigation or prosecution off the table, which means it’s still there. We are just going to have to be patient, get Holder in office and then see what happens.
From another political angle, it might even be better for there to be a bit of reluctance on the Obama administration’s part. They are going to be pressured from internal and external forces. They may be thinking that for it to appear as though they have no choice is better than it appearing that they are gung ho and chomping at the bit.
Flack jackets anyone?
“…there’s a really easy way for Holder and Obama to not get set up–they can say they will follow the law. Neither has done so.”
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Wrong again.
My ‘listening’ is obviously very different. Give this clip of Holder’s confirmation hearing another try-with different ears.
Common sense tells me that in the first days of the new administration no good purpose would be served by showing up with an obvious prior agenda, such as prosecution (OR invading Iraq), when you’re not yet privy to all the facts AND when your first priority is really to just get yourselves up and running.
Holder: Prosecution BushCo + Presidential Powers Inherent Authority + Guns (Hatch)
Jill, my exchange with mespo is on the California prostitute thread for whatever reason. Neither of us have concluded that Holder has been set up. I hope I have made it clear on several posts that none of the questions asked him by Republican committee members are appropriate for a variety of reasons. His job will be to enforce the laws and follow the evidence wherever it leads. None of his public comments or written responses to questions suggests anything else. I did state that what the Republicans are doing sounds a bit like premature plea bargaining.
Kit Bond’s history is such that he makes George Bush look like Diogenes by comparison. General Hayden is also not someone whose public comments would be anything more than self-serving sound bytes. Until we actually see Holder’s performance as AG and Obama’s future actions, it’s all speculation engendered by the MSM and the DC elite. Much sturm und drang, little substance.
“America’s antitorture statutes are narrowly written to punish willfully barbaric treatment, which no one alleges here either”
From WSJ article.
So the question I have is can prosecution even take place even if the Obama administration decides to move forward. How hard would it be to prove that they acted “barbarically”?
jonolan,
See US v. Lee as Dredd mentioned. Also see Bugliosi’s book on prosecuting the Bush crime family for murder. There are also the various violations of the 1st, 4th, 5th and 8th Amendments.
There is more than one way to skin this cat.
Gyges,
The Geneva convention is not applicable to the detainees at Gitmo due to their own actions. We might wish it were applicable for the sake of morality, but it currently isn’t and that is why this situation has been allowed to exist.
Frankly, under the Geneva Convention every one of the “illegal combatants” was a criminal in a warzone and subject to “summary military justice.” That would be field execution ala shoot on sight…
I’m not endorsing the above; I’m merely pointing out that the laws and treaties in question just don’t address this situation.
rc,
Glad you’re getting over the glitch. I’ve been wondering why you’ve been so quiet lately.
Jason 2L,
What mespo said. Jump on in!
Sorry to the regulars for the “t” post above. For some reason my posts for the last few days have not shown up, so I’ve been trying a test. It apparently finally worked. I actually cannot post now, but since my system is back working correctly I’ll have plenty to say later.
rcampbell,
That was a cryptic response!
Jason 2L:
Not to speak for Professor Turley, but I’d suggest you just jump right in. The water’s fine.