The Heavens May Fall

[Winstonm]

The argument (selected exerts from: http://www.fff.org/blog/jghblog2009-01-13.asp)

 

If a person has a good reason for committing a crime, that doesn’t constitute a defense to the crime but rather something to consider in mitigation of punishment.

 

Thus, no matter how sincere Bush and Cheney and their associates might have been in violating the criminal law, assuming they did, that should not preclude them from being charged and prosecuted.

 

Historical lessons:

 

Recall the henchmen who operated under Augustine Pinochet, the strongman who took power in a coup in Chile. They were ultimately prosecuted for doing many of the same things that people in the Bush administration have purportedly done — torture, sex abuse, murder, and disappearances of detainees.

 

Yet, Pinochet and his people claimed that it was all necessary to keep Chile safe.

 

Much the same thing occurred in Argentina, where the ruling military junta, before relinquishing power, immunized military officials for crimes relating to kidnapping, torture, murder, and disappearing people, which had been committed in the purported attempt to keep Argentina safe.

 

The American people are now facing the same issue that the Chilean and Argentine people faced: Should public officials who purportedly broke laws against torture, sex abuse, kidnapping, and murder be charged with those offenses or should they be permitted to escape justice because of supposedly good intentions?

 

The answer is reflected in the words of British judge Lord Mansfield, who stated in Somersett’s Case in 1772: “Let Justice be done, though the Heavens may fall.”

 

It is a difficult question - of that I do not dispute. But the questions I keep asking myself are these: if not us, then who? If not now, what stops it next time? If not us, then who really is to blame?

[pigpenz]

we have selectively decided who we want to prosecute and in many cases after the US has used the same criminals for their own uses, eg Noriega, Bin Laden.

 

No one should be above the law not even the President of the US.

 

There were alot of innoncent people killed in Iraq by starting a war that never should have been started...that is a crime in itself.

[jtfanclub]

No one should be above the law not even the President of the US.

Disagree. The President is pretty much defined to be above the law. That's the whole reason for impeachment- no court can try the President.

 

Yes, I know that makes us hypocrites when it comes to Noriega etc., but then I think it was wrong to charge him with crimes.

[blackshoe]

Noriega was not the President of the United States, so did not enjoy (and should not have enjoyed) the protection of the US Constitution against trial in a court of law afforded to the President of the US.

 

OTOH, the capture in his home country and removal to another country for trial by that country sets a rather unfortunate precedent. B)

[Winstonm]

No one should be above the law not even the President of the US.

Disagree. The President is pretty much defined to be above the law. That's the whole reason for impeachment- no court can try the President.

 

Yes, I know that makes us hypocrites when it comes to Noriega etc., but then I think it was wrong to charge him with crimes.

I believe this misinterprets the role of the President, Congress, and Judiciary. The inability of the Judiciary to prosecute the President is part of the checks and balances of our form of government - but that does not make the President above the law or able to create law or ignore laws at his whim.

 

The reason the President cannot be tried by the Judiciary is to free that office from undo influences from the courts.

 

Congress has the obligation to impeach and remove a President who commits high crimes and misdemeanors. Once the President is out of office, the judiciary can bring charges and try him for acts he commited as President.

[jtfanclub]

I believe this misinterprets the role of the President, Congress, and Judiciary. The inability of the Judiciary to prosecute the President is part of the checks and balances of our form of government - but that does not make the President above the law or able to create law or ignore laws at his whim.

 

The reason the President cannot be tried by the Judiciary is to free that office from undo influences from the courts.

Don't you think putting him in prison after he left office qualifies as an undue influence? Besides, I defy you to find in the Constitution where it says a President cannot pardon himself.

 

For crimes committed as President, there is one solution- impeachment. The Courts have no power to judge what a President does in office, whether he's still there or not.

[Winstonm]

Don't you think putting him in prison after he left office qualifies as an undue influence?

 

No. Around here we call it justice.

 

Besides, I defy you to find in the Constitution where it says a President cannot pardon himself.

 

I never claimed he could not. The debate is not about a self-pardoned President but simply of the President.

 

For crimes committed as President, there is one solution- impeachment.

 

I believe that is exactly what I said.

 

The Courts have no power to judge what a President does in office, whether he's still there or not

 

You are right about in office; you are incorrect about out of office. If there was no threat to a President after he has left office, Ford would have had no reason to issue a pardon to Richard Nixon.

[inquiry]

Presidential pardons only prevent US prosecution. US immunity with such a pardon might prevent us (give us a legal reason) from turning him over on such charges to an international tribunal however.

[kenberg]

Largely the presidency is settled by election and I favor keeping it that way. In 2004 Mr. Bush was reelected. Correct me if I am wrong, I may be, but I think it was known by then that waterboarding was part of our interrogation technique. So if the country as a whole wants to do a massive mea culpa then so be it, although you can leave me out of it.

 

I can't say I think much of prosecuting the guy for doing what apparently he was elected to do. That doesn't mean I voted for him, I didn't. But I have no wish to see him in prison. What's the name of that liberal organization that keeps sending me things? Oh yes. Move On.

[Winstonm]

Americans by their nature are a forgiving people, especially when those who have erred are humbled and apologetic. Had this administraion at any point explained that they had been shocked by 9-11 and afterwards overreacted in an effort to keep Americans safe but now see that some of what they did was in error - I think we would all embrace their difficulties and responsibilities and be totally understanding of the plight they faced.

 

Problem is this bunch refuses to acknowledge any wrongdoing - instead trying various lies to cover their tracks and deflect any blame. From Don Rumsfeld's attampts to pass off Abu Ghraib to the actions of "a few bad apples" to Dick Cheney's outright claim that "We don't do torture" it has been lie after lie after lie.

 

I don't want to put the President or the President's men in jail - but unfortunately, we have to - they give us no choice. We ignore this and we ignore the concepts of law and order. The scope of the lawlessness is breathtaking - from paying bounties to ensure a supply of "enemy combatants" who may or may not have ever even thought about the U.S. much less attacked the country to the unholy renditions to ensure torture was accomplished our leaders have gone to extremes in assuring their contempt for law was well established and their contempt for any form of justice was unwavering.

 

I say justice must now be done, though the heavens may indeed fall.

[Gerben42]

Even if the presidential office is "above the law", justice can sometimes be patient and wait until he is an ex-president.

 

I think the new government should get those who ordered the torturing, I don't care if it's the president, vice president, generals or whoever, in the Hague for trial.

 

The real question is not if one should prosecute those responsible, but in what way the congress is an accomplice, after all they failed to file for impeachment.

 

BTW if my boss tells me to break into a competitor's premises and I get caught, I am still guilty. This should be also the case in the army. The whole chain from top to bottom should be prosecuted.

[Al_U_Card]

When someone crosses the line, do you just move the line?

 

If you do so openly, after debate....not so bad.

If you cave automatically then you deserve what you end up with.

[Winstonm]

From Glenn Greenwald's article: http://www.salon.com/opinion/greenwald/200...tius/index.html

 

There is just a yawning disconnect between the nature of the crimes allegedly committed (and, in many cases, essentially admitted): waging aggressive war, torture, secret prisons, illegal wiretapping on a massive scale, obstruction of justice, perjury, conspiracy -- to the point where it would probably take an army of Patrick Fitzgeralds and a full-time war crimes tribunal a year just to catalogue them all -- and how the story is being treated in the corporate media. . . .

 

This being the case, I have a strong hunch the political-media complex (i.e. the Village) is going to want to move fairly quickly to the post-Soviet solution I described earlier -- skipping right over the perestroika and glasnost to get directly to the willful amnesia and live-in-the-moment materialism of mid-1990s Russia.

 

Which means, in turn, that Bush, Cheney, Rummy, Feith and the whole noxious crew are about to get flushed straight down the memory hole: banished fairly quickly from public discussion and corporate media coverage -- in much the way the Iran-Contra scandal (go ahead, Wiki it) was almost immediately forgotten or ignored once it became clear that the fix was in. America apparently had its big experiment with truthtelling and reform in the post-Watergate era, and the experience was so unpleasant that nobody (or nobody who counts) is willing to go there again. That would be like expecting the Baby Boomers to start dropping acid again.

 

And this:

 

Throughout the 20th Century, the U.S. has criminally prosecuted people for waterboarding -- both foreigners who did it and then were prosecuted as war criminals, and American law enforcement officers who did it and were prosecuted as ordinary criminals.  But now, in America, MSNBC devotes three hours every day to hearing from someone -- Joe Scarborough -- who just the other day spent six minutes on television explicitly defending torture.

[Winstonm]

U.S. Attorney General nominee Eric) Holder stated emphatically that he believes waterboarding is "torture," which -- when combined with the confessions by both Bush and Cheney that they authorized it -- amounts to a statement from the likely new Attorney General that the President and Vice President committed both domestic crimes and war crimes.

 

Additionally, when pressed by Sen. Hatch to agree that there is a "good faith dispute" over the legality of Bush's NSA program and therefore nobody who authorized it should be criminally prosecuted, Holder refused to do so.  Instead, he said that while "policy differences shouldn't be criminalized," it's also the case that "nobody is above the law," and he would need to know more about what this NSA program entailed and how and why it was implemented before knowing whether criminal prosecutions were warranted.  He also said, in response to questioning from Sen. Feingold, that he does not believe there is any basis for the claim that the President, under the Constitution, had the authority to violate FISA.

[luke warm]

before i jump into this one i'd like a point clarified... is the consensus that any president can, after he leaves office, be tried in a criminal court for supposed illegal acts while sitting as president?

[kenberg]

before i jump into this one i'd like a point clarified... is the consensus that any president can, after he leaves office, be tried in a criminal court for supposed illegal acts while sitting as president?

It is my view that he can be. It is also my hope that we would go very, very easy on doing this. In the case of Mr. Bush, Mr. Cheney and Mr. Rumsfeld I believe that we are nowhere close to the sort of situation where this would be called for.

 

If we were to turn loose a determined prosecutor, say of the Ken Starr sort, on this task I expect that few presidents would survive. Not in this country, not in other countries either. The fact that Mr. Bush has done things that some people think are loathsome is irrelevant. Every president has done things that some people think are loathsome.

 

Actually I am not entirely sure what the criteria should be. No doubt Mr. Clinton broke a law in that he stated under oath that he did not have sex with a woman that he did have sex with. (Yes, we can debate what "having sex" means and what "is" is and so on. Let's not.) Honestly, I don't give a damn. I mention it because clearly, to me, the fact that a law was broken is not an adequate reason to pursue an essentially political agenda of prosecution.

 

We need to provide for our security, we need to not lose our soul in the process. Some serious thought is needed. I suggest that we should not regard the answers as obvious. I am far from certain what the outcome would be of putting waterboarding before the electorate. Nor am I certain how the vote would go in England, or in France, or elsewhere. People are not fond or particularly protective of those persons who want to fly planes into buildings. The rule of law is not the only issue, since I strongly suspect most people here and elsewhere would happily alter the law to allow quite tough interrogation tactics. If the law is changed then it's OK?

 

Anyway, yes I think an ex-president can be prosecuted for illegal activities that he performed or caused to happen while in office, no I don't think Mr. Bush should be.

[orlam]

I would be happy to offer a 3:1 bet that polls in no Western European country would show majority support for torture.

[mike777]

I would be happy to offer a 3:1 bet that polls in no Western European country would show majority support for torture.

what are odds for eastern europe or asia or africa or mexico or south america?

[orlam]

I would be happy to offer a 3:1 bet that polls in no Western European country would show majority support for torture.

what are odds for eastern europe or asia or africa or mexico or south america?

I excluded them because I have no idea, not because I think they would vote in favor.

[Winstonm]

The rule of law is not the only issue, since I strongly suspect most people here and elsewhere would happily alter the law to allow quite tough interrogation tactics. If the law is changed then it's OK?

 

If these interogation tactics produced any valid information, a vote on legality may be a worthwhile activity. The problem is the methods don't produce intelligence of any value.

 

If anyone bothered to look deeply into this matter he would find that the basis for the methodology was Soviet, Chinese, and North Korean toture that was designed to get false confessions on tape. We copied their methods - was the reason the same - simply to get coerced confessions for political points?

[Winstonm]

In the case of Mr. Bush, Mr. Cheney and Mr. Rumsfeld I believe that we are nowhere close to the sort of situation where this would be called for.

 

Ken,

 

Most who I have read who oppose prosecution argue that other presidents have broken the law and besides this president was only trying to keep America safe. As I have pointed out in quotes, keeping "X" safe has been the reasoning for other cases of torture that were prosecuted.

 

Besides, arguing an explanation for lawbreaking still does not excuse the violation. All criminals have an excuse for their actions. Excuses and reasons may have some bearing on the penalty phase of a case, but when was the last time a cop listened to a robber's excuse and let him go without arrest?

 

I do concede that the nature of the crime has bearing on whether or not it should be prosecuted: some minor-to-fairly-serious offenses may be better left unprosecuted for any number of reasons, benefit to society being most apt.

 

I recommend the documentary "Torturing Democracy" It runs 1 hour in length: http://video.google.com/videoplay?docid=-1003188675654300379

[kenberg]

I would be happy to offer a 3:1 bet that polls in no Western European country would show majority support for torture.

Sure. Even Dick Cheney knows the answer to the quiz question "Are you in favor of torture?" I am thinking more of looking at what countries have actually done in the past.

[Winstonm]

Lest we forget - this torture has been commited against SUSPECTS:

 

Guantánamo Bay - Facts and figures

James 9 January 2009, 10:38AM

 

Sunday 11 January 2009 marks seven years since the first detainees were transferred to the US military prison in Guantánamo Bay, Cuba. The following facts and figures were updated in December 2008.

 

Nearly 800 detainees have been held in Guantánamo, the vast majority without charge or trial.

Approximately 250 detainees are still held in the military prison. Nearly 100 of them were Yemenis.

26 Guantánamo detainees have been charged for trial by military commission; three had been convicted and sentenced; charges against six had been dismissed (although they could be re-charged); six were facing the death penalty.

Approximately 520 detainees have been released from Guantánamo

At least four men are reported to have died in Guantánamo as a result of suicide. Dozens more suicide attempts have been reported.

.

An analysis of around 500 of the detainees concluded that only five per cent had been captured by US forces; 86 per cent had been arrested by Pakistani or Afghanistan-based Northern Alliance forces and turned over to US custody, often for a reward of thousands of US dollars.

 

The worst of the worst as Cheney claimed or the best worst money can buy?

[orlam]

I would be happy to offer a 3:1 bet that polls in no Western European country would show majority support for torture.

Sure. Even Dick Cheney knows the answer to the quiz question "Are you in favor of torture?"

He does??

I am thinking more of looking at what countries have actually  done in the past.

Such as...Germany?

[kenberg]

I intended this to mean that if you ask almost anyone, including Dick Cheney, if he favors torture the answer will of course be no.

 

I do not think that you have to go back to everyone's favorite example of Germany under Hitler to find tough interrogation techniques. I am no expert on these matters but I understand that France was not too squeamish during its troubles with the Algerians. Or later when there were plots to assassinate DeGaulle. But they don't report their activities to me so maybe that's all just a figment of my imagination.

 

I don't mean to pick on the French in particular here. The withdrawal of Europe from Africa was a long process and I imagine we could look into many particulars.

 

In an earlier incarnation of this discussion I went on the web and quickly found a current example of British interrogation that did not look very gentle.

 

I am to saying that Ralph or Pierre or whoever did it so we can do it too. I am saying that there is a substantial gap between the virtue that some claim and reality.

 

We are, apparently, going to be fighting in Afghanistan for a while. Our (almost installed) new president supports this. I suppose some of the people that we fight sometimes surrender. I have no idea what then happens to them. My guess is that it isn't good. Probably we don't do the deed, whatever it is. Still...

 

This has been ugly, it will continue to be ugly, I don't know what we should do, I am opposed to putting Bush et al in prison.

 

I do have a prediction. Holder, if confirmed, will not bring federal charges against Cheney, against Bush, or against Rumsfeld on either waterboarding or on electronic eavesdropping. There are many reasons why Obama would not allow this to happen, one of the obvious ones being that Obama now inherits this mess, he will be making choices, and he will one day be an ex-president himself.