I have concluded that there will be no prosecutions for the use of torture, its justification, condoning and enabling by the US government under the Bush administration. I think President Obama will live to regret that decision and will find himself, ironically, spending far more time looking backward than looking forward on this issue.

And, so, I think that explicit - VERY explicit - pardons are the only way left to go.

But, I would hope that those pardons would be structured in a way which would, for all intents and purposes, practically guarantee that any future act of torture by any US official or its proxy, within the US or abroad, be prosecuted for the criminal act that it is, from the torturer him- or herself right on up the chain of command, as far as it may go.

I wasn't impressed by Romero's OP-ED. I found his logic tortured, which makes for good irony but bad policy.

The first 6 paragraphs summarize the facts, which are well established. The 7th introduces the concept of a "Tacit Pardon" which is just another term for "Declining to Prosecute."

Paragraph 8 notes that tacit pardons "open the very real possibility that officials will resurrect the torture policies in the future." Well, yeah, that's obvious enough, and Romero gives obvious examples of the hazard. Five paragraphs left, and point wise, Romero is beginning to look like Peyton Manning did last Sunday. I'm waiting for the magic to happen......

Paragraph 9, Obama could still prosecute, yeah, yeah.

Paragraph 10 is where Romero tosses the long bomb. "If the choice is between a tacit pardon and a formal one, a formal one is better."

Why?

"An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted." This is crazy. The law is the marker showing future offenders could be prosecuted. Romero's notion of Obama "taking ownership" lays down the marker that prosecution is not very likely because it's politically unpalatable. It's a tell signaling that we are a government of men more so than laws.

Romero's Civil War precedent ignores the facts that 1: the South was subject to military occupation and 2: the constitutional law of the land was changed.

Pardons churn my stomach because:

The facts are already well established,

and

a more parsimonious logic says signaling low risk of prosecution increases the likelihood of future Tenets, Rumsfelds, Woos, Bybees, Cheneys and Bush's will opt to torture as they deem fit.

I read that when it was first published and I'm conflicted. He makes a good argument, but I think pardons would be very divisive domestically and a total disaster internationally.

Unfortunately, torture and drone strikes are popular with Americans as long as they don't have to hear the details. I think this and all future presidents will continue to grant that head in the sand wish as we conduct our war without end.

Thanks. I was pretty sure that was what I'd done wrong.

I'd be interested in hearing what you both think about an article from my year-end link dump:

http://www.nytimes.com/2014/12/09/opinion/pardon-bush-and-those-who-tortured.html?_r=2

It's by an ACLU guy who reluctantly has decided that pardons for torturers are the best option left to have some sort of legal accountability.

Like I said, it's germane to your discussion, and I'd be interested to hear both your feedback.

-CW

Just to remind you, if you post more than one link per comment, it gets held for my approval. Post a single link per comment, and it'll go through...

:-)

-CW

... over on the Barbara Boxer piece ...

As I have said, there is quite a lot about what this administration is doing with respect to counter-terrorism that I think is morally wrong and strategically ineffective.

Solitary confinement in a small, windowless, bug-infested cell in a basement dungeon in Mogadishu for months on end w/o charges or contact with any outsiders. I'll bet they're partying down there! Seriously, w/o knowing anything else, this fits the UN Convention.

"You know, JFC, it surprises me how much hatred there is on display at this blog for your country."

Hey, I apologized for that little outburst, you know ... well, sort of. :)

Besides, you keep asking why there have been no prosecutions. What is your theory?

I chalk most of it up to political cowardice.

You know, LizM, I'm not the thought police, so you can interpret my comments that way if you please, but it's actually pretty meaningless and very Bush era.

Besides, you keep asking why there have been no prosecutions. What is your theory? I've offered one explanation that makes good sense and is backed up by a respected reporter and human rights organizations.

We know that our intelligence officials lied to congress and they tried to smear Feinstein. Obama did not intervene. They lie all the time about drone strikes when they talk about them at all. There's really no good reason to believe that we're getting any accurate info from them about torture and secret dungeons.

Incidentally, the definition of torture as outlined in the UN Convention against torture is a sound one, needless to say.

I didn't get a good sense, though, of what is happening in the interrogation rooms in Mogadishu. But, there was no implication that torture had been used by US or Somali officials ...

That's really kind of circular. I'll just go with the definition in the UN convention against torture (Part 1 article 1).

http://www.un.org/documents/ga/res/39/a39r046.htm

http://blog.amnestyusa.org/africa/obamas-alleged-link-to-secret-prisons-and-extraordinary-rendition/

http://blog.amnestyusa.org/africa/obamas-alleged-link-to-secret-prisons-and-extraordinary-rendition/

"When I say 'torture', I'm talking about a detainee in a room being interrogated by US officials, in the US or abroad, engaged in torture."

That's really kind of circular. I'll just go with the definition in the United Nations Convention against Torture.

http://www.un.org/documents/ga/res/39/a39r046.htm

I don't know this, but that stuff is classified after all. I believe what Jeremy Scahill reported.

As for indulgences ... I don't know anything about that. :)

As for indulgences, the way I remember it is that you have to be saved by the sacrament but then you go to Purgatory (made up out of whole cloth by the Catholics, no scriptural basis). Indulgences just cut out your time in Purgatory for an offense. You still have to confess it and repent for it.

I'm talking about "extraordinary rendition". I can't see how you can draw a line between US officials doing hands-on work and farming it out. What difference does that make?

It makes no difference, whatsoever. I thought my references to "in the US or elsewhere" and " in the US or abroad" were self-explanatory references to extraordinary rendition, Gitmo, etc.

But, you're right, I left out an important reference - 'US officials or their proxies' - because I make no distinction between "hands on work" and "farming it out".

And, so ... how do you know that extraordinary rendition, where the US government is farming the torture out to other entities, is still going on under the Obama administration?

Bleyd [15] -

OK, now THAT was funny!

:-)

4Crawford [20] -

Before I give my own take on your excellent question, wanted to toss this out there for you to comment on: what do you think of Jimmy Carter's "blanket pardon" of draft dodgers? Can a pardon not name who is being pardoned?

OK, I've got to go look up Catholic "indulgences" to really form my answer to your comment. Be back later...

:-)

-CW

I'm talking about "extraordinary rendition". I can't see how you can draw a line between US officials doing hands-on work and farming it out. What difference does that make?

Which was the good point, that law school in Georgia probably doesn't count?

No, the point you made about how can one pardon a person who is innocent of any crime??

While Georgia is our northern neighbor, I don't know much about it.. I don't get out much.... Anymore.. :D

Michale

The way I think of laws is that they define the limits of what government is authorized to do. If you haven't been convicted of violating any laws, then government has no business imposing criminal penalties on you. Likewise down the spectrum of severity of offenses and stringency of standards of proof.

You can't make government enforce laws, without running into trouble as you try to force the people to do their jobs who are supposed to force the enforcers to enforce. (Even saying it turns into word-spaghetti, although not word-salad.) At best you can set it up so that government is likely to enforce laws fairly thoroughly and fairly impartially most of the time.

Which was the good point, that law school in Georgia probably doesn't count?

I don't know. Gold can be hammered very thin. I emailed What If (the xkcd guy's column for scientific answers to silly questions).

That is a damn good point!

By the bi...

"Welcome to the party, pal!!!!"
-John McClane, DIE HARD

Been a while since I done did that.. :D

Michale

Ooops. Silly me. Laws are just for us common folk.

I had only one year of law school (as it was in Georgia, it likely doesn't count). I was under the impression that someone could only be pardoned from a conviction of a crime. When Nixon was pardoned without conviction, for any and everything, even ones that may not then be known, I had a suspicion that old Gerald has gone several steps beyond his power. To this day no one has been able to justify to me a pardon prior to conviction, as a person is presumed not to have committed a crime until that point. How and why would you pardon a legally innocent person?

I don't know. Sad to say, I wouldn't be terribly surprised if the next round of leaks showed that we are. An aircraft carrier can have a pretty big turning radius. But I'm not jumping to accuse us of it either.

Well, except in Weigantia.. :D hehehehehehehe

Michale

Heheh. Congratulations, Michale!!!

I have to say I am honored indeed though I can't claim to have been the first to have said this it is a piece of advice I've tried to take to heart in my own marriage.

Sometimes I even succeed! :)

-David

Baa daa da...

:D

Michale

One would think that airborne soldiers would want to avoid golden parachutes, as such a thing would be excessively heavy and almost certainly ineffective.

The "suffered enough" spin is greatly diminished by the multinational private equity firm KKR & Co. L.P hiring Patreaus as director of their Global Institute (2013) AND making him a partner in 2014. With KKR total assets slightly north of 4 billion, that's a golden parachute any airborne soldier would envy. :)

Yes, you are absolutely right about that and, maybe he will.

I just wanted to be clear about where I'm coming from on this issue. Many will equate war, including drone strikes, with torture. I have a big problem with this administration's drone and war policy but I don't equate it with torturing a detainee.

Do you think the US is still torturing detainees, in the US or elsewhere?

I'm working on the assumption, naïve or imbecilic as it may be, that the US is not currently engaging in the torture of its detainees, here or anywhere else, and I hope it never will again. Because, I guess, I still believe in that quaint little thing called the promise of America.

Given that you're questioning his claim that torture is continuing, isn't it more relevant what he's talking about when he says "torture"?

When I say 'torture', I'm talking about a detainee in a room being interrogated by US officials, in the US or abroad, engaged in torture.

If you insist that this is still happening under the Obama administration, I want to know how you know about it. What are your sources?

Hatred and cynicism and ...

How do you know torture is still being practiced by the US government?

His silence on Benghazi for no prosecution..

And Obama will have to deal with the political fallout of being a flaming hypocrite..

Apparently, it's never bothered him in the past..

I doubt one more time will make any difference..

Michale

Glad ta see ya around..

"Yer hair?? Yer here!!!"
-Steve Gutenberg, IT TAKES TWO

:D

Michale

It will be interesting to see how these political overtones play out...

My guess is that Patraeus will cut a deal.

His silence on Benghazi for no prosecution..

Michale

Glad ta see ya around..

http://www.chrisweigant.com/2015/01/07/what-to-expect-from-the-114th-congress/#comment-55910

Thought ya might get a kick out of this, if ya hadn't already seen it. :D

Michale

Because it hasn't stopped.

If there aren't any prosecutions for that, then it's very hard to take seriously calls for the prosecution of General Petraeus. As far as I know, he's against the use of torture.

Torture is a pretty specific crime, too.

While I agree with the overall point of the article, it is not that astonishing that Petraeus still holds his clearance. The quote as you have published from the Guardian makes it sound like nothing was done to his clearance when in fact it is quite possible his clearance has been restricted to access to information prior to the commencement of an investigation or adjudication of a clearance issue. While denying access to any new or current information.

It is important to remember that the higher the security clearance the more compartmentalization is possible and required. In order for the Justice Department and DISCO to complete an investigation Petraeus must hold a level of clearance that enables him to discuss the information with other people (in this case investigators) that have access to the information or the information must be declassified to allow the investigators to discuss the matter with a non cleared person.

Unfortunately we will probably never know as who holds what clearance is not a matter of public record.

I think that you are correct in the fact that the administration has left little latitude for not prosecuting Petraeus without furthering the point that many have of the Imperial Obama picking and choosing laws to enforce. it is equally important to recognize the spin for the spin.

Amen. Baraconian? Heheh.

-David