TPM MUCKRACKER COVERAGE
http://www.tpmmuckraker.com/archives/005180.php
Anonymous wrote on January 30, 2008 7:05 PM:
I find the DoJ AG response troubling for several reasons. One of them TPMM cited: The Nuremberg defense.
Second, the AG appers to have a conflict: As a Judge, he appears to have had a requirement to have reviewed whether the FISA-captured information was used as a pretext for this abuse.
Third, the AG appears focused, as does Congress on the irrelevant issue of "torture": Geneva prohibits _abuse_: whether waterboarding is or is't "torture" is the wrong track. Self-evidently, waterboarding is abuse. AG's insistentce that this was "authorized" amounts to a slap against Geneva; and the absurd notion the President -- or someone else -- "authorized" war crimes. That isn't a defense, but _evidence_. AG needs to disclosed, as a witness, _who_ authorized the war crimes. AG needs to recuse himself.
Fourth, going back to Nuremberg, civilian policy makers were prosecuted for war crimes, and judges were indicted at the Justice Trial. AG's responses today suggest that a war crimes investigaiton needs to be opened.
Fifth, the purpose of having prosecutors is to enforce the law under the Exeuctive Branch. When the Executive Branch will not enforce the law, the Framers intended the legilsature -- through impeachment -- to have a tool to remove agents the President refused to remove. Taking impeachment "off the table" and the decision to "not impeach" leaves us back where the Nuremberg Justice Trial was: A country that refuses to either impeach or prosecute war crimes is not civilized. AG's assertions about the rule of law, investigations, and duty are meaningless when the basice premise of Nuremberg is thrown out the window.
I would prefer Congress open an investigation into the AG's response. Given the Congress' lack of interest in enforcing the law, and the DOJ AG's assertion that he will not enforce the law on this narrow issue as well -- through investigations -- I would ask that the State Attorney GEnerals be immediately contacted for purposes of drafting indictments gaainst the AG and Members of Congress for their joint decision to not enforce Geneva. If the State AGs are not going to do this, then we need to broaden the list of prosecutions/indictments to include the State AGs over alleged breaches of their oath of office, and their decision to "not protect" the Constitution against domestic enemies.
Either these people in the DOJ, Congress, and the State level enforce the law; or they are subject to prosecution for refusing to fully assert their oath. Either or. Time to stop the legislative hearings, and get on with the war crimes indictments: Either investigate to defend the Constitution and Geneva obligations as the SUpreme Law; or those who refuse, but have a duty to act, could become targets for that prosecution effort. Let's stop pretending there are legitimate excuses for inaction on these issues of Geneva: If the US refuses to enforce the law, other nations may take similarly situated persons and treat them the same: Waterboard them without trial, access to evidence, or ability to have access to legal counsel. If that's what the US goernment officials want, then that is evidence of a mental reservation, not a legitimate defense for malfeasance or inaction.
Please contact your State AG's and share with them the above. Time for the States and local citizens to do what the US Congress and AG refuse to do: Fully defend the US Constitution.
Anonymous wrote on January 30, 2008 7:37 PM:
This is non-sense: "All of that depends on whether certification was given, whether permission was given and whether it was permissibly relied on."
AG is acting as if this is speculative: Whether "certification" was or wasn't given; whether "permission" was or wasn't given; and whether "permissibly relied on" did or didn't occur. If this is "uncertain" why is there no AG plan to find out the answers? He appears to be using the "lack of infofmration" about these issues to assert, in my view incorrectly, that "no investigation" is needed.
That's, in my personal opinion, idiotic: It acts that we not _start_ an investigation until those things are known; yet, wet have the _certain_ outcome: A tape of alleged illegal abuse.
Whether certification, permission, or reliance existed is _not_ to be decided as a _preliminary_ matter _before_ starting the investigatin; but the _conclusions_ for the _court_ to make on whether to adjudicate guilt or innocense.
I would respectuflly ask the Congress to reconsider the AG's responses and ask if he's fully removed his Judicial hat; and ask that he reconsider his role: His role, is to accept that there was a a tape; there were interrogations; and the _questions that need to be investigated_ include before presenting the facts to the Court:
A. Was there evidence on the tape;
B. Was the tape destroyed to hide that evidence from the court;
C. Who provided "permission" to conduct prisoner abuse
D. Who relied on "permissions" to implement the abuse
E. Who raised the issue of "certification" -- was this _before_ or _after_ the alleged abuse was imposed on the prisoner;
F. The question of "permissibly relied upon" isn't the question, but whether the _defendant_ as a _defense_ can say that _they_ reasonably relied upon.
I'm concerned that the AG is acting as a defense counsel in re F. abuse, as it is the obligation of the _defense_ to prove that the orders were reasonable; that they defendant _did_ reasonably rely on orders; and that there was _no_ hint that the direction, orders, and guidance was illegal. This is a burden the defendant needs to provide at trial as a defense, and not an issue for the AG to consider as to whether to _investigate_.
It cannot be seriously argued by _defense_ counsel that permission, certificaction, or legality of orders existed when Geneva bars _all abuse_. It appears the AG is pretending, out of convenience as are the alleged defendants, that there is "confusion" about whether waterboarding is or isn't torture as a _preliminary_ issue, as a bar to all investigations. Non-sense. The reverse is true: Geneva, in barring all abuse, would put the burden on the defendant to prove at trial the orders were reasonable. Yet, tape destruction is evidence that is contrary to intersts: The tape was destroyed _after_ the court ordered it be retained; adverse inferences in cases of spoliation are relevant: The tape was destroyed to hide relevant evidence to answer the questions of certification, permissions, and defenses -- the act itself is evidence the certification was not lawful; the permissions were contrary to Geneva; and the reliance was not reasonable.
*snip*
Anonymous wrote on January 30, 2008 7:41 PM:
The fundamental qustion is: Has the President or anyone "authorized" the CIA to commit Geneva violations?
If they're waterboarding, yes.
Anonymous wrote on January 30, 2008 8:00 PM:I'm surprised to hear of the uncertainty, given the Geneva issues: " But as Mukasey made clear, that may or may not happen." How can it be _unclear_ whether they need to _investigate_ to determine whether the _conduct on the tape_ was or wasn't illegal? If there's lack of clarity, then an investigation needs to occur to _determine_ that answer. Or what method does the AG's staff divine to arrive at a clear answer outside an investigation?
Anonymous wrote on January 30, 2008 8:10 PM:LarryB wrote on January 30, 2008 7:37 PM
"The CIA was explicitly authorized to torture "Al Queda" detanees by their chain of command. No one is suggesting that they were operating as rogue agents."
This starts with a false permise: That the basis for the analysis is "torture". Incorrect, the issue under _Geneva_ is whether there was or wasn't _abuse_. How can anyone say that the CIA was _lawfully_ "authorized" to commit war crimes, and impose abuse? That's absurd.
The way the CIA operates overseas: They violte the law all the time. But the issues of war crimes, when not resolved, has a boomerang effect: Each time the US government agent commits a war crime, but the US refuses to prosecute, other nations may through the principle of reciprocity and retalation commit _like_ abuses against similarly situated prisoners.
The problem: The US, by detaining and abusing non-combatant civilians, held them without access to lawyers, and on accusation alone without evidence, is that other nations' fighters may do the same to US persons accused, without getting access to lawyers or evidence of being illegal combatants. Any American could be charged as being an illegal combatant, and abused.
People who "authorize the CIA to commit Geneva violations" are issuing illegal orders; it's the burden of the CIA agent _at trial_ to show that the order was reasonable; that they rasonably relied on that order; and that the order was lawful. Yet, when tapes are destroyed, it suggests the opposite: That they knew the orders were "authorizing" illegal abuse; that they could not reasonably rely on the defense of "legality" and "reasonableness" to justify following direction to violate Geneva; and that they knew, or should have known, the expectation that the evidence of that abuse would be hidden/destroyed was not reasonable as "clearance" to proceed with the abuse.
It appears the CIA agents believed that they thought the tape would never see the light of day; that someone working with the tapes made some sort of certification that they would not disclose the content of the tapes; and that the CIA agents believed that they could rely on this certification of non-disclosure as a shield to further discovery. Once we're moving outside the narrow lane of covert operations, but expanding to the broader umbrella of war crimes, simple agreements bewteen CIA agents and other contractors are not arguably enforceable.
If the AG will not investigate the tape's destruction or the contents of the tape, then he needs to answer the opposite issue: Whether he will investigate the _disclosure_ of the tape, and the fact that the tape was destroyed. If there was "no crime" in destroying the tape, and the tapes' contents were "not a problem," then the issue turns on its head: Who has allegedly "disclosed" the exitence of the tape? That question won't get answered as the disclosure of alleged war crimes evidence is not, in theory, actionable. The opposite is true: There is likely a statute the DoD-DoJ-CIA personnel were relying on to justify disclosing the existence of the tape.
*snip*Anonymous wrote on January 31, 2008 12:54 AM:
I hope the public can see the absurdity of this: "Whitehouse to Mukasey: Why Not Investigate Torture?": This, from a Congress that refuses to investigate the President. Public to Congress, "Why, before asking the AG to investigate, are you not investigating?"
There is nothing stopping the Senators asking these questions of the AG from communicating to the House: "We would like for you to investigate the President." Inter-branch communications are not binding; but they are possible. The Senate needs to go on the record: They've asked the AG why he's not investigating; they need to do the same with the House: "Why is there no investigation of this President's impeachable offenses?" Indeed, the Senate committees do have the power to, independent of the House, to review the illegal activity. But rather than conduct fact finding, they're pleading with a separate branch of government. That is not a check, that is assent and subservience by the Senate to the AG. Enough!
Indeed, when Congress refuses to investigate the President's impeachable offenses, why should the AG bother responding to questions about why the AG is or isn't investigating. This Congress, rightly or wrongly, has said with its words and actions: "We are not going to investigate; but we are going to waste time asking why the AG isn't investigating what we refuse to independently investigate." Hypocrisy!
The Congress is a separate and co-equal branch of government: It does not report to the AG's timelines. Yet, this appears lost on these Members of Congress despite their oath to enforce the Constitution against domestic enemies.
The public is not well served by a Congress that, with the promise of elections, does not deliver. There is no need for the Congress to "discuss with the AG whether or not to investigate": There are standing committees in Congress that can independently investigate, but refuse.
The pattern of abuses aren't telling us new information: It's from the same criminal element recklessly running this nation's governance into the ground. How dare the Senate lazily inquire as to whether the AG is or isn't doing something, _while_ the Congress continues to vote for war funding to export a system of governance that even the US Congress doesn't take seriously.
The Congress well knows the importance of investigations, but refuses. Inaction, on top of an oath compelling a defense of the Constitution and Geneva Conventions, is not a defense but evidence of alleged malfeasance in re war crimes.
Some may believe the public is stuck with this charade of governance. We're not. There are ways to punish lawfully the Members of Congress: Grand Jury indictments can be issued against Members of Congress for their alleged malfeasance. Time for the public to move lawfully outside Congress, the Executive Branch, and courts, and work directly with the grand juries to organize evidence related to Member of Congress alleged complicity with these war crimes.
Nuremberg established that new laws can codify retroactively things that people should know are illegal. Before Nuremberg there were no explicit laws binding Geneva as a legal obligation to the specific jurists. Similarly, in the wake of this disaster, other laws can be retroactively codified that will fully promulgate the legal responsibilities of the legislature: Things that they should have known to do, but refused.
Arguably, any agreement to not investigate is not one that the courts or Congress or the President will dare to examine seriously: They view inaction as a higher calling. This charade needs to end: Inaction is evidence of not fully meeting one's 5 USC 3331 oath of office obligations. The public needs to openly discuss gathering evidence of Member of Congress alleged 5 USC 3331 violations; prepare indictments; and remind the Members of Congress: Either you do what you are expecting of the AG -- to lead an investigation; or you're facing the prospect of jail time where you can think about what you should have done, but refused.
We could go on and on about how the Secret Service daily protects the Magna Carta; how the sworn officers faithfully defend the Constitution each night as it descends into the bowels of the capitol. The sworn officers of the Capitol Police, Secret Service, and other uniformed officers need to examine their oath: Are they fully defending the Constitution and the Supreme Law against all domestic enemies in all the branches? The case can be made that they know full well there's a problem; and are not -- as they could -- securing search warrants to prosecute the President, Members of Congress, and lawyers for their alleged complicity for these war crimes.
The law isn't something people take into their own hands. It is something that should daily be asserted as a starting point; not as a questionable, debatable, possibility. This Congress and AG appear to have it backwards: The oath binds them to certainty; and this late in the game -- 2008, seven years after this non-sense started -- it's not credible that the Senate and AG are still debating whether or not there should be an investigation. This late in the game, the reasonable grand jury would conclude: The prosecutions of Members of Congress and this second AG are long overdue.
Then let's have that. Let's see some leadership by the unformed officers of the Secret Service; and let's see some real discussion within the Senate and House Sergeant at Arms office: How much longer are you going to let this arrogance, reckless disregard for law compel you to remain silent, not take action, and refuse to serve search warrants upon all three branches of government? Daily, American citizens -- on accusation alone -- are forced to assent to this abusive intrusion _without warrants_. Surely, the law enforcement professionals policing the nation's capital could discuss and secure warrants to defend this Constitution against the domestic enemies wandering, confused in the District of Columbia.
It is time to stop shirking, and not fear whether we are offending anyone. This leadership has offended its oath, the rule of law, and its good name: As a Republic. But we the People are above this. As _the_ sovereign, We the People can work with the grand juries, guide them, and well communicate that we fully support grand jury indictments against the Members of Congress who know enough to challenge the AG on investigations, but feign confusion over whether investigations should or shouldn't occur against the President. We don't have to wait for the 2008 election, because this process isn't linked with the voters: It's linked with We the People and oversight. If it takes one week, or four years is irrelevant: It needs to start now. Not maybe, not perhaps, not "when we feel like it", but now.
Anonymous wrote on January 31, 2008 1:06 AM:I have trouble with this assertion: "Please don't be led astray by the red herring of worrying about the agents. In spite of their Nuremberg defense for their actions, I can't see how it benefits anyone to prosecute them, when the real criminals are those who gave the orders."
There's nothing before us -- as a public, outside the investigation -- to know whether the agents are or are not red herrings; or that they should be given preference to go after "bigger fish." That asks that we ignore the current decisions to not go after the big fish.
The above approach would ask that we ignore the agents as "red herrings"; but pretend that the real trail is somewhere else. Indeed, Congress and the AG refuse to follow the real trail. Getting them to awaken using a red herring appears to be a good start. If they're going in the wrong direction, they might adjust; but if they're still asleep, their idea of adjusting is to roll over.
Anonymous wrote on January 31, 2008 1:33 AM:The Senate debate on telecom immunity fails to consider the alternative: That, without immunity, there must be an investigation into criminal activity. Time for the telecom immunity-debate to discuss also the AG's refusal to investigate all alleged illegal activity in re the contents of the CIA tape.
These are not separate incidents, but part of the same pattern of abuses which warrant an impeachment investigation.
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