TomB raises an interesting point by mentioning the 2001 anthrax attacks. In 2002, the FBI was turning the life of Dr. Stephen Hatfill, a ‘person of interest,’ into a living hell. He was subsequently cleared, but not until after being personally and professionally destroyed. Imagine if you will if the Bureau had be able to use on him the methods that were used on Jose Padilla, another American citizen. It’s likely Hatfill would have ‘confessed’ to the anthrax attacks and any number of other crimes as well. And I concur, it makes no sense to prosecute the low-level CIA and military personnel, and not the high officials who authorized these methods.

Hatfill put HIMSELF into the cross-hairs of the FBI with all his lies, boasts, forgeries (letters of reference, Diplomas and a Ph.D. degree Certificate), association with racist regimes (Rhodesia and apartheid South Africa and membership of the neo-Nazi paramilitary wing (Aquila/Brandwag) of the South Afican racist AWB. That has all been revealed in the released Court documents from the case of Hatfill versus the DOJ/Attorney General. However, Simon Cooper exposed the man for what he is way back in 2003 – read the SEED Magazine article at:
http://luigiwarren.blogspot.com/2005/12/just-some-asshole-who-has-too-much-to.html
He destroyed himself……………….

Seriously though, I believe that there are reasons of state that come to bear on when and to what degree you reaction to bad behavior. I think this is especially so when fighting savages.

The left is at its most dangerous when it advances under the banner of virtue. Of course we are all against torture. But I believe that the course of action Holder is following is neither necessary or done from high principle. And it will damage the morale of people who out there on our behalf.

“After the anger over 9/11 cooled, the left was free to apply its ACLU standards….”

You keep saying things like this Thom and maybe I’m missing your point but the only argument I can perceive from same is a kind of reactionary one. Thus and again all I’d say is that merely because the Left believes in gravity doesn’t make it either right or smart to attack Isaac Newton, true?

Fight ‘em when they’re wrong, I say. Or like Twain said about doing right, it’ll not only confound your enemies but astonish your friends.

Cheers,

Firstly let me apologize for mangling your name in my last post. Secondly however and in response to same you wrote:

“That is correct. I would no longer argue the case only from the Rule of Law perspective, but that argument – for investigations – is currently air tight and irrefutable. Torture is alleged to have taken place, torture is illegal, torture allegations mandate investigations – case closed.”

I see from this that while you are now saying that “investigations” are mandated I have apparently persuaded you at least that *prosecutions* almost certainly aren’t and so I guess we’ve narrowed the issue somewhat. And of course Thom Meehan has now noted that some investigations have already been made, even if administrative and not criminal in nature.

I dunno; 9/11 was, however foolishly, a big shock to this country, and in retrospect I guess it was asking too much that we and our elected leaders would respond in a more moderate fashion. That’s not to say there isn’t some validity to your idea that regardless same the law is the law and we ought to just go back and apply it to its limits. But unthinkingly applied the law can be an ass, and mechanically applied it would clearly be an absolute tyranny. (For instance it would surprise me if every single one of the people reading this today didn’t in some way violate some law; making a lane change without signaling, swearing in public, failing to bring in their trash cans yet another day, having an unlicensed pet, and/or etc., etc.)

In addition, there’s also the question here about the wisdom of perhaps establishing a precedent of every new Administration of a changed partisan stripe going back and criminally prosecuting whoever it can from the last, different one.

Accordingly I don’t know that the best result here wouldn’t be a wise special prosecutor coming out and while indeed prosecuting anyone who seemed to go wildly beyond the bounds of reason, otherwise just detailing what happened. And appending to their report the notation that while the shock of 9/11 and the new urgency (if not criticality) of getting information about terrorism and the uncertainty about what constituted torture and etc. formed extenuating circumstances, those circumstances have passed so that our interrogators and etc. should know that a prison jumpsuit will be the reward for going postal on any captives in the future.

Cheers,

That is correct. I would no longer argue the case only from the Rule of Law perspective, but that argument – for investigations – is currently air tight and irrefutable. Torture is alleged to have taken place, torture is illegal, torture allegations mandate investigations – case closed.

“In essence then, as I at least took it, acknowledging that yes, in war today we do some God-awful things, but it’s clear that there’s something about torture that just grabs many people by the guts and so why the hell not just rule this one damned additional God-awful thing out of bounds?”

We already have.

Toddard admits that there have been reviews already. Those carrying out the reviews, (that is, competent authorities) took taken no action beyond the administrative. He also admits that the investigation will not focus on those who brought us to war or wrote the memo’s authorizing what we now admit is torture. He insists that the government has no discretion in the matter despite President Obama’s position to the contrary until a few days ago. Of course one interrogator who killed a detainee was recently found guilty and is on his way to jail. Doesn’t that suggest that there were “competent authorities” out there after all.

It’s hard to see this as anything beyond malicious posturing at the expense of people paid to protect us.

Toddard is one of those Secular Right blog folks who have no source of authority save the letter of the law. So throwing a few low level operatives to the wolves seems to comfort him. But the letter of the law is pretty inflexible, and it’s far more appealing from the sidelines than it is when you have to implementing it.

For instance. When I was sworn in as a peace officer in the Seventy’s. I had to learn the whole criminal code in my home state. I was amused to find a statute outlawing blasphemy, defined as “denying the devinity of our lord Jesus Christ.” Now it so happened that the Chief justice was a fine jurist named Weintraub. Not surprisingly, I and everyone else in the state decided that the that law was better left unenforced. Are you listening Toddard? When the law is an ass, you don’t have to jump up and ride it.

Why not go back over to the American Spectator and make another impassioned plea for more gentle eulogies for Ted Kennedy?

It strikes me that you guys are not getting at what really divides you.

For instance if the U.S. exercised its right to withdraw from the Convention and then voted to overturn the statute that was meant to execute its provisions I doubt that you, S.L., would suddenly have no problems with the U.S. using the kinds of methods it apparently has now been shown to have employed.

And as to you Thom I have no doubt you appreciate Stoddard’s point that because of the Convention the U.S. signed and the law that it passed that to not follow same does implicate the problem of picking and choosing which laws are to be followed depending on whose ox they gore.

The issue then seems to me to just get back to the fundamental question of whether the U.S. ought to be able to use the kind of very tough interrogation methods that we now see it has employed. And I don’t think that one can deny that at some point some of same did indeed constitute torture: Can anyone say, for instance, that if they were waterboarded time after time after time for days on end that they weren’t being tortured?

After thinking it through then Thom I wonder if in a way Phil Giraldi’s comment here didn’t kind of point the way towards as valid an answer as possible. That is, like you I hate to see this matter being used as a mere partisan political issue now, but in the end of course we can never keep people with bad motives from disingenuously attaching themselves to doing the right thing. And as per my first comment I see lots of hypocrisy being present in talking about torture given all the terrible other things we now routinely do in wars today. But I thought Giraldi made a point wonderfully in that while acknowledging that such hypocrisy exists he said it still wasn’t an argument in favor of going any further to “institutionalize barbarity” by sanctioning torture.

In essence then, as I at least took it, acknowledging that yes, in war today we do some God-awful things, but it’s clear that there’s something about torture that just grabs many people by the guts and so why the hell not just rule this one damned additional God-awful thing out of bounds? Especially if, at best, it can seem only somewhat efficient?

Almost like an argument that “okay, so yes we’ve descended into damn near every other kind of butchery, so let’s just try to at least remember our ideals by banning this relatively smallish thing even if, in the final analysis (just like bio-chem warfare maybe), it isn’t all that different from all of what else we routinely do.”

Plus, in thinking it over further I think one can also rather easily conclude that it’s simply and clearly in our own long-term national interest to honor a ban. Was there anything else that we did in these recent years that half so much brought us the disgust of the rest of the world as those pictures from Abu Ghraib and these stories of waterboarding and God knows what else? And of course when you torture you are just inviting your enemies to torture your own people too when they get captured.

Persuades me at least. That “institutionalizing barbarity” line carries a lot of validity, and power too I think.

I do believe that Thom Meehan makes some fair points though Mr. Stoddard and think that in denying the idea that any U.S. prosecutorial discretion exists in these case you are putting more weight on that Convention language you cite than it can bear. At least insofar as what constitutes binding U.S. law.

After all what that Convention language says that the U.S. must merely “*submit* the case to its competent authorities for the purpose of prosecution.” (Emphasis mine.) And in addition to that mere “submission” language I could just never see the U.S. Supreme Court ever saying that in ratifying that treaty the Congress meant to abolish the absolutely unbroken historical understanding that prosecutors do indeed have large amounts of discretion. *Especially* since in its executing statute I have no doubt Congress was absolutely silent about same, thus of course further and enormously bolstering the idea that of course it did not mean to try to abolish—if it even could given that same is an *executive* function and thus implicates the Separation of Powers doctrine!—that unbroken long historic understanding of what constitutes valid prosecutorial parameters.

Cheers everyone,

Im no fan of patriot act and im not a neocon and im not an interventionalist ..but you guys sound like a bunch of aclu lawyers ..Why are you all so feminized? passive? why do you care about the rights of people who have zero regard to the geneva convention and behead our own people? .. If you really mean what you say then why dont you all rise up and demand the Military stop torturing our soldiers thru waterboarding ..why do you think our own men are waterboarded in the service? I never hear them complain..

The geneva convention only works if both parties agree ..if your enemy is willing to use ny means necessary it is our Goverments job to protect us Americans.. I dont even feel illegal immigrants should get the benefits of our great country …So why the hell would i want to afford those benefits to muslims who hate us?

The well-meaning anti-war .coms are being used, by the “Hate Bush/Cheney”‘s, as the stealth-anticonservatives further this agenda.

The irony is that the “hate Bush/Cheney”’s are in turn being used by the current administration to smokescreen the White House’s mis-steps, concerning energy control, economy control, and health control.

Look for much “sound and fury” (in the Shakespearian sense), and for one or two peons to get hung out to dry, while the “Independent Prosecutor” cries “it’s just too bad we can’t get Bush/Cheney”, and for both the anti-wars, and the stealth-anticonservatives, to ultimately scream in the pain of the unfulfilled when the dust settles.

Bittersweet to see deceptive people get deceived, and used, by this Presidential Administration.

I’m not sure how that’s relevant, but okay.

“If you insist on a show trial”

I don’t insist on anything – our laws do:

“The State Party in territory under whose jurisdiction a person alleged to have committed (torture)… shall… submit the case to its competent authorities for the purpose of prosecution”

“Some firings and demotions would have been enough to satisfy even the Dudley DoRights among us”

You believe *demotion* a proper punishment for someone found guilty of war crimes – of *torture*? How eccentric. Unfortunately for you most of the Dudley DoRights among us believe that our laws have meaning, and that it’s doubly important that the most powerful among us are held to those laws. We take little things like “torture”, things like “war crimes” seriously. A demotion! Haha.

“But are you are naive enough to believe that Holder is seeking justice under the rule of law?”

Not at all – if he were truly motivated by fealty to the Rule of Law the proper place to begin an investigation (and likely subsequent prosecution) would be with President Bush. As it is Holder is bending over backward to spare the former administration from accountability for their myriad felonies and war crimes.

“You accuse me of wanting to “reward” war criminals for torture”

I don’t accuse you of it, I merely note it.

“Hmmm, first you want an investigation, but you’ve pronounced guilt already”

Whether or not they are “guilty” is actually beside the point as far as whether investigations are warranted. *Allegations* of torture *compel* investigation. An investigation will determine the need for prosecution, and a trial will determine guilt or no.

“You then accuse me of assuming “motives out of thin air.” I hate to break this to you but motives are germane in criminal prosecutions, at least in the mitigation phase.”

Uh… yes, I know. That does not change the fact that you have no idea who the individual torturers are nor what their motivations were, but still concoct noble-hearted motivations for their torture. Which is to say that yes their motivations are germane, but the fantastical motivations you have constructed *for them* are not.

“I take your point about the Nuremberg Trials. It generated a lot of expost facto law in favor of one set of murderers (Soviets) over another set of murderers (Nazi’s.) In that sense it is like like our current situation. An excellent case of do-gooders serving as the pawns of leftists”

You do have a tendency to drift off into non-sequiturs. According to our own laws, “no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture”, and “an order from a superior officer or a public authority may not be invoked as a justification of torture”.

You accuse me of wanting to “reward” war criminals for torture. Hmmm, first you want an investigation, but you’ve pronounced guilt already. You then accuse me of assuming “motives out of thin air.” I hate to break this to you but motives are germane in criminal prosecutions, at least in the mitigation phase.

I take your point about the Nuremberg Trials. It generated a lot of expost facto law in favor of one set of murderers (Soviets) over another set of murderers (Nazi’s.) In that sense it is like like our current situation. An excellent case of do-gooders serving as the pawns of leftists.