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Lara Jakes Jordan has a piece for the AP about how Obama’s advisers say they won’t prosecute interrogators who tortured dudes. It really ought to have mentioned how the 2005 Detainee Treatment Act, written by the noble incarnation of John McCain, basically makes it really hard to pursue any such prosecutions. I’m no Marcy Wheeler or nothin’, but check out section 1004:
In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent’s engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.
And I think the Military Commissions Act of 2006 might have strengthened this but I’m not sure. Anyway: this isn’t ironclad, as you can see, but the law is clearly weighing in on the side of protecting anyone who was ordered to torture a dude. And that’s pretty understandable. As the Iraqis say, fish rots from the head, and it’s risable to prosecute the interrogator who carried out the torture but not the policymakers who ordered him to torture someone. And as for how that might happen, be sure to check out Scott Horton’s excellent cover story in Harper’s.
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Maybe it is not prosecutable in an American court of law, but couldn’t they still be prosecuted at The Hague?
I seem to recall we prosecuted a whole bunch of folks 60 years ago who were just following orders. Hung some of ‘em too I do believe. Good to see we learned something from all those Nuremberg prosecutions: How to keep our own personnel from facing the same music.
Good point. We did the same things and deserve the same penalties. No flies on you!
Ja, I was only following orders.
There’s a lot of law that states this is not a defense.
Yes, and failure for a jursidiction to prosecute can start war crimes automatically.
“and that were officially authorized and determined to be lawful at the time that they were conducted, “
Determined by whom?
“it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful.”
Ignorance is no plea.
“couldn’t they still be prosecuted at The Hague?”
“couldn’t they still be prosecuted on Pony Island?”
Does anyone believe there is a difference between these two statements ?
Pol Pot didn’t make it to the Hague. They’re currently prosecuting the child-enslaving cannibal from an African country of little consequence. There are no torturers presently the ticket from anywhere where this is practiced with far more vigour than any American has. You either think US personnel are making the ticket or you don’t. You don’t.
The primary purpose “The Hague” seems to serve for Americans is a way to pretend that Bush administration failing to be held accountable and even granted immunity in these cases didn’t entail precisely that.
BTW, you can head on over to TBogg for some of that same self-delusion. Who knew that when everyone was bitching about human rights abuses for the past 7 years you were all only kidding and it was just about getting a Democrat elected.
You realize this comment is barely written in English, right?
massive attack
Last night I put this on my wish list for Obama. I hope they’re actually reading the suggestions.
Many war criminals and human rights violators have been prosecuted at the Hague. It is NOT impossible, and the use of that court to pursue those responsible for the US violations is very high on a number of national human rights concerns. It is, for most of us, NOT just an issue of getting someone elected but of stopping this nation from its horrific abuse of our own Constitution and our international compacts. If we have had a President and a Congress that chose to violate those standards AND make it nearly impossible to prosecute the for doing so, we should be supportive of international efforts to punish those who so wantonly violated our basic values. This is not politics. This is a fundamental basis of humanity and democracy.
Oh, come on, Spencer. You know we can’t criminalize policy differences. /snark
So the defense would be that “I am not a person of ordinary sense and understanding”?
It’s OK unless you’re German I guess.
excuse me?
no, this is NOT understandable, it’s rediculous
i appologize for his non flower like words.
Understandable from the prospective of those who wrote the law and those who benefited from it.
Nuance, remember?
In short the Obama administration wipes its ass with the Geneva Convention.
Like the Massive Attack reference.
See “Protection”
edit –
prospectiveperspectiveMSNBC.com reporting Eric Holder as AG.
So is Newsweek
They are not dudes, they are people.
Using dude, drags down the quality of your comments.
What the MCA principally did was give the President the power to interpret the Geneva Conventions. The Conventions distinguish between grave and minor breaches. So Bush could simply redefine torture techniques as minor breaches.
The MCA also adds retroactive immunity back to November 26, 1997 for torturers. It’s at the end of Section 6:
crap!
The good-faith defense is an American variant of the Nuremberg defense: “I just was just following orders, in good faith on the advice of counsel.”
Wiki already has it in the first paragraph of its bio.
It’s already in his wiki
http://en.wikipedia.org/wiki/Eric_Holder
What’s your beverage of choice at this hour?
Special guests Alliance for Justice over at the Mothership
Holder represented Chiquita in its negotiations with DOJ over supporting killers. One more motherfucker in the administration.
We gotta quit meetin’ like this.
So they gave Bush license to play Humpty Dumpty:
Ah yes, the irony of a law sponsored by a Vietnam prisoner of war claiming to have been tortured himself while in captivity. No room for circumspection when it comes to advancing the cause of American imperialism. No siree, John. There was a the time war crimes tribunals that created its own kerfuffle here in the states, not so many years since the hanging bees of Nuremberg held by the victors over the vanquished.
It’s sort of like watching an election. First returns don’t mean anything but at a certain point there are enough votes in that you can tell which way the race is going. This is the way I feel about Obama. The argument that he was only doing what he needed to do is wearing mighty thin. So far we are seeing a slew of the same old same old and being told this represents change.
And as for this meme of a team of rivals it’s looking incresingly like hogwash. It looks to me more like a team of the like-minded.
“team of rivals” in ego, ambition and will to power only – not rivals in policy or ideas about governance, let alone ideology.
Forewarned is forearmed. I personally no longer have any doubt as to the direction but a couple more appointments will be the proof of the pudding. Question is, what’s our next step?
Sorry for the delay in responding. I was watching the flic two flights up.
Resist and when or if we lose, bear witness to what happened.
Damn I’m gettin’ tired of resisting. I want it my way once in a while. *sigh* Yeah, I know, go to Burger King.
So, the 2005 Detainee Treatment Act, and the MCA, make us look pretty bad. But have the Constitutionality of these been tested in the courts?
I hope that (A) Congress comes to its senses and amends these laws appropriately, and/or (B) these provisions are tested in the Courts and struck down. The Bush administration might have appealed, hoping for a favorable ruling in SCOTUS, but would Obama’s AG appeal?
Now’s not the time to give up the fight. Now’s the time to redouble our efforts to role back these perversions of American justice.
Bob in HI
While you are analyzing the DTA and MCA, remember that chunks of both have already been treated as unconstitutional – they are both poorly drafted (although the MCA better than the DTA) pieces of cya for criminals crap.
OTOH, the bigger issue is that if the head of the prosecutorial branch of gov and the CIC is someone who doesn’t choose to have their agencies pursue the crimes, they don’t get pursued. Normal people can’t file criminal complaints – you need a prosecutor. Hell, we’ve needed a prosecutor for years and years now, and the most we get are paens to people like Comey who hand off US citizens on US soil for torture and follow up that act with a finale where they file affidavits invoking state secrets over DOJ’s role in the torture of a Canadian citizen.
And the big “secret” on the DTA isn’t John McCain’s role – it’s how everyone ignores Carl Levin’s role. It’s not about the nutcase Powerline and Corner ideologues invoking ticking time bombs in support of torturing children – it’s Charles Schumer doing the verysame thing. I’m just so darn thrilled that we’ve got so many of those good Dems in office now – things are sure to change.
41/42 – cross post. The only reason some of the cases like the Uighurs have been proceeding in the US courts is bc parts of those statutes have been deemed illegal – not necessarily unconstitutional (part of the DTA issue was based on determination that the UCMJ incorported the Geneva Conventions and so they bent over backwords to find a way to interpret the DTA so as to preserve the Geneva Conventions application – something that the MCA was specifically drafted to try to supercede.
The Scott Horton article at Harper’s is subscriber-only. Anybody have a liberated copy?
ah, Spencer. i love that song. thanks for putting it so perfectly into a blog post title.
Thanks, Mary! I was hoping that you were lurking around, somewhere close!
Bob in HI
I’m not an attorney or a specialist in this area. But I would think that the US could prosecute a case based on international law in US courts. The Military Commissions Act that Spencer describes may have closed off that avenue. And it may well preclude them from prosecuting anyone under separate US law.
But I think those cases could be prosecuted in US courts.
Another factor here of course is that anyone involved in this torture business could also be brought up on charges before the International Criminal Court if they get caught in a country that adheres to the ICC.
Anyone can be tried for Torture by another country because of what is known as “Universal Jurisdiction”. The bringing of charges is the easy part. Getting them to trial is the hard part and why neither Rumfeld or Kissinger travel aboard. Both have had to have been hustled out a foreign country ahead of arrest or being served. This was discussed indepth during a Congressional hearing last year. At that hear Prof. Sands also testified he had been asked by and agree to help a couple foreign governments investigate and prepare charges for when the next US Pres. fails to clean our own house. I’m fairly sure you will see Bush charged overseas sometime in the next 2 yrs. The rumors are fairly well sourced at this point but people have yet to commit.