It appears that there is no limit to our hypocrisy on torture. While blocking any criminal investigation or prosecution of American officials for our torture program, the Obama Administration is demanding to question the Sri Lanken Army Chief Sarath Fonseka over allegations of the torture in Sri Lanka.
The State Department is demanding answers to determine culpability for the crimes. Fonseka is visiting his daughters in Oklahoma and the US State Department wants him to testify against Sri Lanka’s powerful defense secretary, Gotabhaya Rajapaksa. After all, we cannot allow torture to go unpunished — so long as it is not an American official.
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BIL: “I do think willing has something to do with the likelihood of success. If the state AG is against your stance, that’s going to pull weight.”
Only if the court directly contradicts its own constitution. A successful Article 78 against the State AG would mean a court order denying prosecutorial discretion and compelling the AG to prosecute.
“Those Washington types would try to paint a private citizen bringing this type of action with the Orly brush and you know it. You’re not naive about the nature of smear in the media.”
The private citizen’s sole reply is point to the state constitution and say “res ipsa loquitur.”
“The composition of the State Sup. Ct. factors into this as well.”
Sure does; and, to paraphrase Good Will Hunting “my chief judge is wicked smart.”
Chief Judge Kaye: “In our dual system, the Supreme Court’s growing dominance necessarily affected constitutional law as applied by state courts. While state courts have at all times been important contributors to the body of constitutional law, they too became involved in the application of federal law. So long as the federal floor, or national minimum, was satisfied, state courts could have imposed ceilings in the form of greater rights applicable within their own borders under their own constitutions, and these judgments would then have been conclusive, beyond Supreme Court review.[28] But as a practical matter, the federal guarantees as then interpreted by the Supreme Court in general not only satisfied but often exceeded their view of the requirements of comparable state provisions.[29]
This same fundamental dualism has more recently sparked the heightened interest in state constitutional law, but now it is the state courts that are expressing dissatisfaction with the Supreme Court’s role in the enforcement of constitutional rights.[30] While state courts interpreting parallel provisions of their charters may have been satisfied in particular cases that the federal floor also established their own ceiling, reformulation of the floor cannot help but bring the rest of the structure into question. The point to be drawn from history, however, is that in a system of government that is founded upon dual sovereignties, independent state court adjudications based on state constitutions-two layers of constitutional protection-are hardly revolutionary or illegitimate.”
http://www.nycourts.gov/history/elecbook/kaye_cardozo/pg3.htm
BIL: “I doubt you could seriously challenge the Federal government in Virginia or Maryland and hope to win.”
Especially when I’m not admitted in those states.
BIL: “It’s the kind of challenge one must either win out of the gate (possible, I see nothing but ever increasing challenges to Fed authority over State’s Rights) or at least make such an impressive showing (which is possible here) as to not only come off as not just another version of the “bitter birther” but to actually acquire public sympathy for the action.”
Do you mean, like, when addressing the media, you should come off as Columbo? “Uh, just one more thing…and pardon me for asking, but exactly when did the states specifically empower the chief executive to amend the constitution by executive order? What’s that article? Article IV? No, that’s the guarantee of a republican form of government… Article V, isn’t it?” Etc., etc.
“It’s not just a legal battle you are talking about undertaking, but a media battle as well. I don’t know about you, but I like as many big sticks in my arsenal as can be carried.”
I have it on good authority that the media can be tamed by luring them into questions they claim to know the answers to and illustrate on live television, using the 1L Socratic method, that they haven’t been paying attention all along.
The biggest problem isn’t so much the ability to do it, but caring enough to do it.
Here’s where I am on the caring scale lately:
Ed Norton: “Hey Ralph, mind if I smoke?”
Ralph Cramden: “I don’t care if ya burn.”
Bob,
I do think willing has something to do with the likelihood of success. If the state AG is against your stance, that’s going to pull weight. That’s why I’d prefer a high level agent of the court initiate suit. If not state AG’s, I’d settle for large city City Attorney backed prosecutions over actions by private citizens. Those Washington types would try to paint a private citizen bringing this type of action with the Orly brush and you know it. You’re not naive about the nature of smear in the media. The composition of the State Sup. Ct. factors into this as well. I doubt you could seriously challenge the Federal government in Virginia or Maryland and hope to win. It’s the kind of challenge one must either win out of the gate (possible, I see nothing but ever increasing challenges to Fed authority over State’s Rights) or at least make such an impressive showing (which is possible here) as to not only come off as not just another version of the “bitter birther” but to actually acquire public sympathy for the action. It’s not just a legal battle you are talking about undertaking, but a media battle as well. I don’t know about you, but I like as many big sticks in my arsenal as can be carried.
Buddha,
I said writ of mandamus (Article 78 Proceeding in NY).
Willing’s got nothin’ to do with it.
The only way I see any prosecution of anything we’ve been discussing is to cut prosecutorial discretion at its knees with a state constitutional ontological argument.
Bob,
I agree that it’s an ontological issue that will come down to state’s rights, but since you mentioned NY, perhaps Cuomo? He’s surprised me with his willingness to go after BoA (and his ferocity too). But other then him? I can see maybe Brown from CA, but I don’t see him going to bat for the Constitution in that way before he is forced to take the Feds to task on legalizing marijuana in an effort to save their state budget. He’s got the cajones, but too much on his plate with the meltdown of the CA economy. That may be the same problem as Cuomo. How much can one guy have on his plate and still be an effective AG? Steve Six here in KS wouldn’t say boo to Washington nor would most other state AG’s.
BIL: “Ok. Then let’s expand the search criteria. Who in the country has the balls to issue one? I know for a fact no one in the government of the State of Kansas does.”
The problem is ontological.
If we deem a constitution as “that than which nothing greater can be conceived [sans amendment]” then the question becomes “How can the office of attorney general exercise more power than the document to which it is sworn to defend?”
NYS Constitution:
[Habeas corpus]
§4. The privilege of a writ or order of habeas corpus shall not be suspended, unless, in case of rebellion or invasion, the public safety requires it. (Amended by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)
[Security against unreasonable searches, seizures and interceptions]
§12. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof. (New. Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)
Yada, yada.
Bob,
Ok. Then let’s expand the search criteria. Who in the country has the balls to issue one? I know for a fact no one in the government of the State of Kansas does.
BIL: “But who on the Hill has the balls to issue one?”
Who said it had to come from the Hill?
Does Article VI empower the Executive to break state laws or disregard State Constitutions?
Bob,
Perhaps. But who on the Hill has the balls to issue one?
Buddha: “Bob has a point. The only “one shot” solution is organized revolution.”
I was thinking more along the lines of a writ of mandamus.
Jill,
Bob has a point. The only “one shot” solution is organized revolution. And when the feces hits the rotating oscillator, this will be more like the French Revolution than the American Revolution or even the American Civil War. It will be a free for all. But to avoid that, our choices are to eat this elephant one part at a time. I prefer the peaceful process oriented solution, but at this point I suspect Washington won’t get the message unless it’s written in their own blood.
Jill: “I don’t think we need choose between torture or surveillance. They have the same thing in common–they are completely against the law and counter to the Constitution.”
Yes Jill, you do need to prioritize and choose one thing at a time. There’s no such thing as a juristic machine gun that will tackle all problems at once. You need to pick one violation, determine the location of its vitals, and after listing the other suspects, dispose of the one in your sights with one shot; thereby illustrating the future of similar policies.
No one in the chain of command could or should stay out of jail if the truth were known; controlled drowning is jut the tip of the iceberg.
The below item speaks to torture as well as an under reported aspect of our national relationship with Afganistan. A short but interesting read.
http://rawstory.com/2009/11/ambassador-cia-people-tortured/
To my great surprise, I find myself in sympathy with the birthers… the desire to take legal action as a citizen against those who violate the Constitution is very strong (although I think we have a much better case that the Constitution was violated than the birthers do).
Jill,
I agree, I would choose no torture and no wiretapping – it’s truly depressing that anyone was allowed to choose otherwise.
Italy is going to try to extradite them to the US (possibly):
“The Americans were all tried in absentia. A Milan prosecutor said his office would seek to have them extradited from the United States, but a formal decision will be made later by the Italian Justice Ministry.
The case is the only instance in which CIA operatives have faced a criminal trial for the controversial tactic of extraordinary rendition, under which terrorism suspects are seized in one country and forcibly transported to another without judicial oversight. ” (afterdowningstreet.org
I don’t think we need choose between torture or surveillance. They have the same thing in common–they are completely against the law and counter to the Constitution. I don’t really know why American citizens believe we cannot be tortured, when in fact, John Walker Lindh was. Information tortured out of him was used to convict him at trial. Jose Padilla is a vegetable do to US torture. So yes, we are more likely to experience surveillance than torture as citizens, but torture isn’t ruled out. Both these actions eviscerate the rule of law. Both of them nullify the Constitution and all of them must be stopped.
Bob Esq,
I tend to agree with you. However while the IRS has the same quasi powers I am more afraid of them than the waterboarding.
Bob,
to quote a man talking about too many hops in Beer:
“I can burn with with a torch using Hydrogen, or one using Acetylene, either way you’re going to get burned.”
I think there has plenty of slapping all around. It’s time to start slapping back over all the attacks on our liberties. I for one intend to do whatever the hell I want, legal or illegal, until Cheney is in prison. It’s only fair.
Call me crazy, but I still say the executive orders for warrantless wiretapping, effectively amending the constitution to strike the fourth amendment, is a FAR GREATER SLAP IN THE FACE TO THE CONSTITUTION than the torture issue.
Nice catch, Jill. Good news indeed.
I guess this somewhat compensates for that silly horn dog Berlusconi.
Guess what? The US doesn’t always get to be the one who says who should be punished for war crimes. Some good news:
” Published on Wednesday, November 4, 2009 by Reuters
Italy Convicts Former CIA Agents in Renditions Trial
MILAN – An Italian judge sentenced 23 former CIA agents to up to eight years in prison on Wednesday for the abduction of a Muslim cleric in a landmark ruling against the “rendition” flights used by the former U.S. government.”