Maybe apples and oranges but I think the Senate’s coddling of Lieberman is indicative of the party’s mindset regarding any action which might be perceived as vindictive. Bottom line, the Bushniks will all walk, with or without a pardon.

In the end, I suspect that Bushie will play safe and pardon everyone in sight. Why not? Save his legacy???

There’s a joke!

The fix is in. Obama has no intention of prosecuting or otherwise holding anyone accountable. His BFF, Cass Sunstein, announced it last July at Netroots Nation, and reiterated it, somewhat angrily, in response to me and the next 3 questioners.

I’m really starting to think that shrub may be actually be stubborn enough not to issue wholesale pardons, ’cause he’s right, he’s always right, and and constitution an’ everybody else is wrong, and he’s just enough of an arsehole to sacrifice all (or most) of his friends to his own ego. The only people who’ll get pardons would be the smaller subset of folks who have enough goods on the misadministration to send shrub personally to jail.

hehe.. and I’m sure the mere thought of a Holder AGship has all of the shrub malefactors quaking in their boots. Not.

Yes, but did it occur to you that the “let bygones be bygones” is a perhaps bit of a smokescreen?

Let me be clear: I *don’t* envision Obama going in and trying to haul every damn one of these folks before a grand jury and a judge. Not. Going. To. Happen.

On the other hand, the fact that the various transition team task forces that are descending on the different agencies, asking all kinds of pointed questions about policies and personnel and problems, shows that Obama’s not simply going to step up on Jan 20, draw a line across the past, and move ahead. He knows mistakes have been made, and is trying like hell to figure out exactly what they were, so that he can fix them and/or avoid repeating them.

Mukasey has the uncomfortable suspicion that he may be sitting on a lot of those problems and mistakes — and he would be right.

I really, really hate to be a cynic, but I’m afraid this will all lead to a “let the healing begin” moment as the nation “moves on” from the Bush years. Holder as Mukasey’s replacement does not bode well for aggresive prosecution of “alleged” war crimes.

I wish Congress could force Obama’s hand, but I very much doubt that’ll happen without some kind of signal from him to proceed with investigations.

This is a trial baloon. Mukasey wants everyone’s reaction, most especially Obama’s. But, he’d like to see the Washington press corp close ranks behind his plea to let “move forward rather than get side-tracked with partisan witch hunts.”

BTW, this is a concerted and coordinated effort coming out of the chain of right-wing think tanks, e.g., Kristol had an op-ed suggesting that the war criminals of the Bush Administration be given Medals of Freedom.

There is another factor about pardons to be considered: the pardoned will be open to international prosecution under the doctrine of “universal jurisdiction.” The Hague Invasion Act of 2002 offers some protection against such prosecution but it only applies to the International Criminal Court. Eichmann, for example, was tried for crimes against humanity in a venue that didn’t exist at the time of those crimes.

Well, ir certainly seems that Mukasey is pushing the “kumbaya”, “let’s put all this behind us”, “our long national mightmere is over” crap.

One more thing: timing.

If Bush is going to issue torture/warrantless wiretapping pardons, he has to act before noon on January 20th. Similarly, there’s nothing Obama can do about that until 12:01 on 1/20/2009.

Most poker players prefer to have the last bet, rather than the first one, so they can see how everyone else is playing the hand. Since he’s locked out of the process (as the transcript of the interview makes clear), Mukasey has to (a) make his play first, and (b) make it in public, rather than quietly over the desk in the oval office.

Bush has the next play — pardon or not — and then it’s up to Obama. Until then, he’s going to sit back and smile quietly about all of this, to see what bubbles up from the AG and WH.

Mr. Mukasey told reporters that there was “absolutely no evidence” that anyone involved in developing the policies “did so for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful.”

Did Mukasey say anything that could not as truthfully have been said of the defendants at Nuremberg?

Republicans only want to move forward, without “witch hunts” into past practices regardless of the corruption level, when they are in trouble and know the light of day will expose them to justifiable criticism and potential prosecution. Please remember that they couldn’t let anyone in the Clinton administration off with a warning. The rule of law was too important to ignore when Democrats could be held accountable. President elect Obama, you owe it to Michelle, Sasha, Malia and countless present and future generations of Americans to hold Republicans accountable for their actions, pardon or no.

This is a trial baloon. Mukasey wants everyone’s reaction, most especially Obama’s. But, he’d like to see the Washington press corp close ranks behind his plea to let “move forward rather than get side-tracked with partisan witch hunts.”

DING Ding ding!

While it is doubtful any other administration is likely to demonstrate the wholesale contempt for the law that Bush has, under intense scrutiny probably even well-intentioned administrations (if such exists) commit potentially prosecutable infractions. If he prosecutes Bush officials, Obama would establish a precedent which might affect members of his own team at some future date. By giving the Bush admin a pass, he probably thinks he is covering his own ass.

Depends on the what the meaning of “is” “lawful” is.

“Bush has the next play — pardon or not — and then it’s up to Obama. Until then, he’s going to sit back and smile quietly about all of this, to see what bubbles up from the AG and WH.”

ding!

And what I’ve seen of Obama so far, he does know how to play poker.

Mukasey’s been pushing this for a while, but as the end of BushCo draws closer, it’s becoming more visible. From the interview transcript:

QUESTION: On the night of your speech, the entire speech contained some language that seemed to be a warning to the next administration about the issue of prosecuting people who were involved in some of the anti-terror policies that came into place after 9/11. Can you tell us anything about whether or not you have consulted on any of these issues, whether or not there should be pardons, and whether or not — any thoughts you have on this?

ATTORNEY GENERAL MUKASEY: I certainly haven’t been consulted. I mean I have — What I have said is that there is absolutely no evidence that anybody who rendered a legal opinion, either with respect to surveillance or with respect to interrogation policies, did so for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful. In those circumstances, there is no occasion to consider prosecution and there is no occasion to consider pardon. If the word goes out to the contrary, then people are going to get the message, which is that if you come up with an answer that is not considered desirable in the future you might face prosecution, and that creates an incentive not to give an honest answer but to give an answer that may be acceptable in the future. It also creates some incentive in people not to ask in the first place.

(Emphasis added)

Certainly sounds like he’s been cut out of the specific discussion of pardons at the White House, and he’s pushing this publicly to get his position heard there.

I have always thought that ignorance of the law was not a defense. If an attorney says it is ok and you rely on that if it is wrong to bad. Sue the attorney but. This seems to be what Mukasey is saying with regards to these individuals. If this is permitted could anyone who has ever had a conviction on anything where they were unaware of the law bring an equal protection action?

I can’t find it right now but the other day, Jack Goldsmith did an “Op-Ed” in the WaPo0 about how it wouldn’t be right for their to be ongoing investigations of the DoJ and Bush Admin after 1/20.

Think he’s a little paranoid as well?

mukasey is also denying the transition team access to some OLC memos. Gee? Could those be the John Yoo torture and warentless spying memos, you ask?

I’m gonna bet “yes”.

Which means that Obama et al are in NO POSITION yet to opine about whether or not there are crimes. They cannot know until they have analized the opinions.

Tres cute, no?

It’s all an elaborate dance

Certainly sounds like he’s been cut out of the specific discussion of pardons at the White House, and he’s pushing this publicly to get his position heard there.

Alternatively, he wants to have his cake and eat it too. Not be consulted onthe pardons, so he won’t share in the blame and can claim he was left out of the loop, while still having his say.

BTW, I claim that impeachment convictions (even post-term) nullify pardons, details here.

I hope bush takes this gamble and I sure hope obama is as good a poker player as he’s been reported to be

he needs to keep a cool hand till it’s too late for bush to do anything, then he needs to lay down his royal flush and send these guys to trial

this is a pure fantasy, obama has disappointed us too many times for me to believe that is what will happen

but a boy like me continues to dream

Mukasey is trying to rehabilitate the Nuremburg Defense: “We were just following orders.”

That scares me.

There is dofference between ignorance of the law and taking good faith steps to find out what the law is. Often, if you get an opinion memo, even from a private lawyer, and you reley on it in good faith, you will have some measure of protection.

That was oneof the claims made by the telcoms.

One of the standards when evaluationg the claim of protection, is whether the opnion, on its face, is such bullcrap that no reasonable person would believe they could rely on it–which is what the Judge in the telcom case said.

The torture issue gets weirder, because the CIA, NSA, pentagon were NOT ALLOWED TO SEE THE OPINION, so how could they claim justifiable reliance on it?

krazy world

“but a boy like me continues to dream”

A-yep, you and me both.

I read that piece. It sounded like Goldsmith was sweating bullets. he did his position more harm than good with that piece, IMHO

There will not be pardons. It’s a calculated gamble by The Legacy Project ™. The assumption is that Obama will not pursue criminal charges, and a set of pardons by Bush would tarnish his legacy (as if more patina were possible).

For his part, BHO is thinking that he needs to fix so many things and wants to accomplish so many things, that he doesn’t want to waste political capital on a fight over “who shot John” (as GHW Bush loved to say). I happen to think that he is wrong to think this way–the restoration of the rule of law is one of THE MOST important things the next Prez needs to accomplish–but I bet that this is Obama’s rationalization.

Yes, this

“and in the belief that he or she was doing something lawful.”

No one could believe waterboarding was not torture. No one.

Certainly the slection of Holder would seem to support you view

Maybe Kucinich or someone could start a bill to hire an independent prosecutor?

I don’t think anyone could believe holding someone for days in extremes of heat or cold is not torture either.

Nor subjecting them to cattle prods. This isn’t fine parsing here, it’s clear, obvious stuff

You’re talking about my dream job

Mukasey is trying to rehabilitate the Nuremburg Defense: “We were just following orders.”

John McCain has already done that. It’s called the good-faith defense. Per the DTA Section 1004. PROTECTION OF UNITED STATES GOVERNMENT PERSONNEL ENGAGED IN AUTHORIZED INTERROGATIONS.

(a) Protection of United States Government Personnel- 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. […]

You’re talking about my dream job

BRING ‘EM TO JUSTICE !

Jet to the Hague is ready and waiting…..

Wasting political capital is indeed at the heart of Obama’s actions on all this. Clearly, he’s not willing to spend it prior to any pardons being issued, or we’d have heard much more about accountability by now.

But if whistleblowers start to come out from their hiding places, and more pieces of this story become public, then the dynamic would change dramatically. The same holds true if/when the torture/wiretapping memos are no longer locked in Mukasey’s safe. If Congress gets a hint of documentable evidence that they were lied to, they’ll be happy to spend their political capital on this.

well .. just flip it over.. if a dem administration had done these things.. don’t we just know the incoming repubbies would just kiss and make up .. ???

yep .. you betcha .. eh ??

also: when pigs fly [they’ll be republicans with wings] damn tootin’ ..

Yep, but if they never got to see the memo, how could they possibly have relied on it?

Sadly, I doubt they will give that job to some lefty blogger. Pity.

See, this is why I like Peterr sooooo much. He keep smy spirits up.

Though is right, until the Obama folks SEE the memos, they have no standing to contend that crimes have been committed.

Likewise the number and caliber of whatever whistleblowers emrege after Jan 20th can really cause the story to veer of its currently cynical course

Digg is open

Also, those opinions are so sophomoric and contrived that there’s no way in hell any sane person would believe that they were written in “good faith.” They are an exercise in casuistry.

What I wonder is if folks like Seymour Hersh have been in contact with Obama.

Sy Hersh has already stated publicly that he’s been inundated with messages from mid-level Bush admin people in NUMEROUS agencies who are lining up to call him on January 20th. They can hardly wait to unburden themselves, they’re like little kids dancing from foot to foot, they have to pee so badly.

What if Sy (and others) are giving a heads-up to the new sheriff in town, and that, furthermore, the revelations will be so stunning (even to a nation inured to the long litany of Bush scandals), that there will be a PUBLIC OUTCRY for prosecutions?

That’s the scenario I’m hoping for — where Obama is seen as listening to THE PEOPLE — and a much more widespread selection of the public to include anyone, even Repubs, not totally brainwashed as a follower of Dear Leader — when they demand justice.

Any future whistleblowers-to-be who might be lurking and are looking to share their story can drop a note to firedoglake (at) gmail.com.

Ahh, where is “Deep Throat” when we need it. No, not that! I mean the whisletblower. No, no, no, I mean…

Ahh, forget it.

. . . which would go nowhere. . . [sigh]

Aha!

It took me a while (with interruptions) to write my comment, Peter, and once I posted I see that you are thinking along the same lines as I am.

Great minds, etc.!

[And for good measure, the nightly prayer in the K8 household (”Lord, help trip up those who love evil in the snares of THEIR OWN EVIL AND LIES, that they may be publicly brought low.”) continues without ceasing.

MrsK8! How lovely to see you!

Peterr,
you sly dog ;-)

egregious, dear pup-pal!!!

Good to see you, too.

I was laid off the day before Thanksgiving, and am now attempting to put together my resume (gadzooks, I hate writing them) to help salvage the K8 family income level (modest as it may be). This makes us one more casualty in the enormous community of the Bush economy walking wounded. Still, we remain hopeful at the start of the new admin.

How are you??? I haven’t been able to keep up with the current fortunes of all my favorite pupsters….

Scott Horton really wrings the chicken’s neck and tosses it over for plucking when it comes to Mukasey’s spiel.

When Mukasey was making the Federalist speech (during which he later collapsed), he spent time castigating members of Congress who had sent a letter seeking a special prosecutor. Horton, quoting Mukasey from that event at TPM Cafe:

Members who signed this letter offered no evidence that these government officials acted based on any motive other than a good-faith desire to protect the citizens of our Nation from a future terrorist attack. Nor did they provide any evidence or indication that these government officials sought to authorize any policy that violated our laws. Quite the contrary: as has become well-known, before conducting interrogations, the CIA officials sought the advice of the Department of Justice, and I am aware of no evidence that these DOJ attorneys provided anything other than their best judgment of what the law required.

Horton responds:

…it shows how preposterously weak is the position of the Bush Administration in resisting the charges which have been leveled. His defense all boils down to an assertion that his lawyers acted in good faith, and that they gave the issue their best possible analysis. That’s it. The problem, of course, is that the introduction of torture was a violation of a federal criminal statute, and a war crime to boot, and the law knows no “good faith” defense to the crimes which could be charged. Just the contrary, when this species of crime is committed, it is usually the handiwork of people who are committed to act in the zealous defense of their country; only very rarely would the conduct suggest sadism, for instance. Furthermore, Mukasey’s claim that the DOJ attorneys gave it their “best judgment” is equally prone to attack. Mukasey has kept the key OLC memoranda secret in the face of demands that they be published, he has also held on to Stephen Bradbury in OLC when the Senate refused to confirm him. The Administration recognizes that it can only sustain its defenses by keeping the public in the dark.

Reaching back to philosophy (also from Horton, via his No Comment blog at Harpers) Plato left us this insight into Punishment of the Unjust:

Let the truth be told, then. They are what they fancy they are not, all the more for deceiving themselves, for they are ignorant of the very thing it most concerns them to know: the penalty of injustice. This is not, as they imagine, stripes and death, which do not always fall on the wrongdoer, but a penalty they can never escape

I guess you could even go back in time to before Tom Cruise was so publically nuts, and the end of A Few Good Men Jessep, Dawson, Downey.

Pure aside for LHP – did you know this:

Jamie Gorelick, a former key Clinton Justice Department official who, according to intelligence community sources, took a whopping retainer from the CIA to counsel and protect the psychologists who crafted the guts of the Bush torture program.

Obama’s not simply going to step up on Jan 20, draw a line across the past, and move ahead. He knows mistakes have been made

Not mistakes, crimes, in fact, war crimes. I agree with lhp. If Obama does not move aggressively to proscute them, he will become complicit in them.

Best of luck with your future endeavors, MrsK8. I am working with a well known progressive blog to help turn things around for this country. It’s keeping me pretty busy. Thanks for asking!

Tula a couple of flights upstairs “Here’s Why We Need Employee Free Choice Act”

Knowing and being able to prove are two different things. Unless and until Obama sees the secret OLC opinions, for instance, he only suspects. He might have lots and lots of good reasons to suspect, mind you, but it’s only a suspicion until there’s some kind of proof to verify it.

That said, if he does learn things and then refuses to pursue them, you are absolutely right: he becomes complicit in them.

Pure aside for LHP – did you know this:

Jamie Gorelick, a former key Clinton Justice Department official who, according to intelligence community sources, took a whopping retainer from the CIA to counsel and protect the psychologists who crafted the guts of the Bush torture program.

No I did not! Mary, really I wish I had half you google skills. Wow.

THAT explains a lot.

Nor did they provide any evidence or indication that these government officials sought to authorize any policy that violated our laws

This argument procedes from the crazy premise that somehow waterboarding, forced positions, sleep deprivation, sensory derivation, and hypothermia were not on their face obvious and blatant forms of torture. It is also a riff on the Nazi defense of just following orders. Finally, it perpetuates the obscene fiction that if the Bush Administration did not call torture torture, it wasn’t.

How can there possibly be any kind of a

restoration of the rule of law

if bushco.inc gets to walk away from their violations of the law & the constitution? Wouldn’t that actually be direct confirmation that the ‘rule of law’ & the ‘government of laws, not men’ is in fact stone cold dead by proving once & for all there are classes of people in certain positions of power to whom mere laws do not apply?

Also, nice to know tha Horton agrees with my Church Committee type proposal.

I think such a committe–if populated with serious people (unlike the tainting of the 9-11 Commssion) could serve two purposes:1) true and reconcilliation commission; 2) vet out prosecutable cases and turn them over to a Special Prosecutor if warranted

Also: I used “mistakes” as a broader term, to encompass the wide range of things that these transition team task forces are looking for. In no way am I intending to minimize those policies and actions of the Bush administration that rise to the level of crimes — especially to the level of war crimes.

Not only do we have to resore the rule of law inthis country, but we alos have to rstore the “words have meaings” concept.

Have you noticed how much of the power grab by Bushco was accomplished mereley by changing the wording?

totally naive question: can the OLC opinions be “disappeared”?

some sort of extra stength pixie dust to ensure they never make it into the obama administration’s hands?

BTW – I think it helps to put all this in context of the foreign proceedings. Supposedly the Brits are going to investigate the Binyam Mohammed torture and if that starts some ripples, under the torture conventions I think (although I’m not an expert) that they may end up with an ability/requirement to investigate other interrelated torture facts, under the concept that the conventions are supposed to “allow no harbor” to torturers.

The Italian case is on a temporary hold, but proceeding. The Germans have spun cases saying that there wasn’t proof, yet, that the Americans wouldn’t act and they should be given that chance first, but the Sup Ct has turned down el-Masri’s case and pardons pretty much seal the ‘not gonna act’ deal.

BTW – wth are people talking about with a “truth and reconiliation” commission, where the VICTIMS are left out of the process? This isn’t an internal US situation – it’s one where we’ve globe trotted torture like a basketball team.

57 – almost all I know, I know from reading Scott Horton. Seriously.

Who knows anymore. You have the VP ignoring the presidential records act.
According to Barton Gellman’s book the Yoo memo authorizing the warrentless wiretapping was kept in Addington’s safe not at DOJ.

They do whateverthefucktheyplease

Knowing the OLC opinions would be nice but they really aren’t needed. As I say in my #58, the techniques used are not close calls. No lawyer was needed to determine if they were torture. It falls into the realm of common knowledge. Anyone would know these were torture. No amount of DOJ pixie dust will change that. It is rather like asserting that 2 + 2 = 4 is a close question and that a legal opinion was necessary to confirm it. First, it is not a close question. But even if you wanted a second opinion, why in the world would you ask a lawyer before you talked to a mathematician? The same with torture. These guys knew what these techniques were torture just by bring reasonably intelligent adults. But even if they wanted further information, why not a historian, a doctor, a psychologist, or a psychiatrist? The consultation with the lawyer is superfluous except to construct a legal defense for an illegal act.

In short, if it is torture (and it was clearly, obviously, and unequivocally was), no legal defense it possible.

Maybe truth and reconcilliation is not the right phrase. I go back to my Church Committee beginning.

I would expect that such a committee would take testimony from victims, just like at Nuremberg. How else would you have admissable evidence of toture? You can’t put it all in through hearsay and I think the business/medical records exception will only get you so far.So, you would need victim testimony

There’s just one problem with these opinions disappearing.

Mukasey’s whole justification for Bush not granting pardons demands the existence of these opinions. If they don’t exist anymore, then how could those who claim to have depended on them use them to excuse their actions?

“We told them their actions were legal.”
“Who told them?”
“OLC”
“Show me what they said.”
“Uhhhh . . .”
“Show me the memos that they used to justify what they said.”
“Uhhhh . . .”
“Do you have anything at all to prove that they even said anything?”
“Uhhhh . . .”

Mukasey’d be hoisted by his own petard if those memos disappear.

Knowing the OLC opinions would be nice but they really aren’t needed. As I say in my #58, the techniques used are not close calls. No lawyer was needed to determine if they were torture. It falls into the realm of common knowledge. Anyone would know these were torture. No amount of DOJ pixie dust will change that.

Because how can you assert, in counter tot he arguemnt –by people who have actually seem them– that the memos contain good law, when you have never seent hem.

In your example, you get to see the equation 2+2=4. What if I say, “I’m not going to show you the equation, I’m only going to tell you ‘the answer is 4 and the equation that produced it is good math.’?”

That’s really where we are with this. I understand that it is arguably impossible that anyone could craft a binding opinin that would enable these things. But many things were thoguth impossible, until somebody actually did them.

Any reader of this site, knows I think that the portions of the Yoo opinons that have been released are pure garbage. But I am not prepared to pass judgement on someting I have never seen.

Thatwould make me just as intellecually dishonest as the Bushies.

Or it just casts even more sand in the referees eyes.

Oh shit, I cannot believed I used that analogy. I have always thought that was adoofy anaolgy

Finally, I would just repeat the point often made in this type of discussion. The Bush Administration was a blatant breaker of the law. It did not hesitate to trash even the most fundamental legal and Constitutional principles but when it is made to defend its conduct, it suddenly gets all hyper-legalistic. Someone somewhere in a ginned up, hidden legal opinion said it was OK so they should not only be given the benefit of the doubt but full legal immunity.

You said it!

Right from the beginning, and all throughout the hideously long eight years of their reign, they’ve been following George Orwell’s script perfectly:

The Clear Skies Initiative (aka Get-Your-Gasmask-Ready-Now Act)
The Healthy Forests Act (aka Leave No Tree Behind)
Voter Fraud (aka Keep the Rabble from the Ballotbox)

You all know how long that list extends.

I wonder why people called the Bush administration “failed.” For anyone who read the 1997 Manifesto of PNAC, they’ve succeeded brilliantly [with the exception of the rest of the Blitzkrieg march through the Middle East]. I was reminded of that yesterday when seeing the headline about current military personnel re-upping because they know they’ll probably be unemployed if they don’t.

68- we cross posted, but I didn’t mean what you were talking about – which is geared towards and investigatory approach that would also result in pursuit of crimes if evidence takes you there.

But in general, truth and reconciliation approaches are being touted as a bandage on the boo boo, without anyone realizing that not only is there the question of the sufficiency of a bandage, but that it is the VICTIMS who need the bandage, not the torturer. Here, we are the torturers – how do you use the kind of intra-country approaches (even the Church Commission was primarily about things being done in country to other US citizens) when the victims here have no US ties – no voice, no advocacy, or, like the “young detainee” Mayer and Priest describe as being tortured to death, no names on their unmarked graves. The only interests represented in a strictly in country quasi governmental “investigation” will be governmental interests. There is not appropriate victims advocacy in that approach as best I can tell.

BTW, my favorite part of the NYT piece is Mukasey talking about what, I guess, I think, I kinda read him as saying – would be the “negative” effect of pursuing criminal cases:

… then people are going to get the message, which is that if you come up with an answer that is not considered desirable in the future you might face prosecution, and that creates an incentive not to give an honest answer but to give an answer that may be acceptable in the future.

So, as I understand it, he’s saying that if we prosecute, it would be really bad bc people might not engage in Executive Branch directed criminal depravity in the future if they realize that, even though all their pals are on board with some ‘kidnap the tortured children and bury their parents alive’ for today, goodness gosh golly, someone might not be on board with that in the future.

IOW – don’t punish them for crimes now, or fewer people may be willing to commit crimes in the future.

That’s his argument?????

That punishment is a deterrent, so don’t punish?

Have you noticed how much of the power grab by Bushco was accomplished mereley by changing the wording?

It was like Orwell meets Humpty Dumpty.

Yes!

The very fact that they play “hide the memo” so much means they know this to be fact.

Otherwise, if they truly believed what they did was right, they’d be parading the memos around, waving them as proof of patriotism.

To answer you question abou thow to get the stories of victims outside the US to the Commission: This is where technology is our friend. Video taped testimony is accepted in most courts, whynot by the commssion? Video conferencing aloows real time questioning of remote witness.

In an age where my kid can sit in front of her apple laptop and video confernece with the kidd two blocks away, b/c she is too lazy to walk across the room to pick up a telephone reciever, I think we can beam some testimony around the world

That’s his argument?????

That punishment is a deterrent, so don’t punish?

That’s what it sounds like to me

exactly!

Yes, but M may be stepping on his own feet. Obama has a rationale for blandly avoiding making any pronouncements, with the dogwhistle “until we take office and can see the docs” which M will definitely hear.

Also, per several commenters, the environment likely will change dramatically on Jan 20, or maybe a bit before — Sy Hersh (in an interview a few weeks ago) seems to think there are plenty of storytellers out there. Maybe the federal employee/appointee of the don’t-shake-Bush’s-hand reception at the G20 photo op.

At least one can hope (when one isn’t handwringing over the fact that Obama’s supreme political strategic thinking may result in a political decision adverse to one’s wishes.)

Welcome back, haven’t seen you for so long.

I totally agree with both you and Hugh that I EXPECT that the memos, when they are revealed, will be pure crap.

But until then, I don’t actually KNOW that. Of course the chunks of memeos that have been revealed are so so so bad that my expectations will probably be born out

And you can’t get to “reconciliation” without contrition.

Here we have Mukasey not only NOT “sorry” about what’s happened,but eager to state he wants us to do it all over again.

77 – it’s not so much how you get their stories there (although I think even with declassification you’ll find that there is no way to track many of the victims) as it is a system which will have no good, solid advocate for the victims – not just a lack of Executor to pursue the claims for the America that died, which might be the worst of it if this were mostly the illegal wiretapping, but no peer group in the system for the victims, meaining no real advocate for them.

Again neither I nor anyone else need a lawyer to say that 2 + 2 = 4. It will be true no matter what any lawyer has to say about it. There can be no good legal reasoning to say otherwise, only bad legal reasoning. If a lawyer in the OLC writes a secret opinion that says general relativity no longer is operative, it would be as ridiculous. My point is that the OLC opinions are, by definition, legal fictions. It doesn’t particularly matter what their content is because they can have no legitimate content.

It’s essentially a Catch-22. Accepting that there might be a content to the opinions entails accepting that these techniques might not be torture because a legal defense of them is possible. But they are torture, so the opinions can’t have any content.

Oh, yes!

I am not disagreeing with you at all, not really. While it is a fact that their “techniques” were torture no matter how they packaged it, I also agree with you that it’s very important to drag these vile bits of paper into the light of day.

The memo-writers could stand to be put in the dock for war crimes. The evil bastards who ASKED for those memos, of course, need the full light of day. I’d love to learn of the emails and conversations which took place to SET UP the writing of these memoranda.

[It’s so good to get a chance to pop in here again, to see you and so many other pup-pals here. And you, LHP, perform such a wonderful service for this community with your thought-offerings. I wish the topics weren’t so tragic and shameful, but I’m always glad to get a chance to read your take on things.]

Two female rabbits plus two rabbits, one male and one female, might not equal four for long. The devil is always in the details – it’s why it is so telling that so many of the OLC memos that have come out omit facts. What the hell kind of legal writing is that – to omit a facts section? (not redact – just omit)

Anyway – stolen a bit from Balkinization, and a lot from Bob Dylan:

Who Killed Dave Moore

Why do you think that entities like the ACLU or law firms like Dechart that have been advocating for Gitmo detainees would not wan tto take the role for torture victims?

Hell, I’d think pro bono representationwould lineuparound the block

God love Scott Horton – he has a hot off the press blog item up that makes a nice glove for your piece, lhp.

http://harpers.org/archive/2008/12/hbc-90003957

Horton highlights calls for criminal investigations and goes again to Mukasey’s claim that a good faith belief you are acting for the benefit of national security is a good and valid defense to any crime:

He supposes that it is a defense for a criminally accused person to say he tortured in the interests of national security. But in fact torturers who have been prosecuted by the United States in the past have made just this sort of claim, and the courts have held, correctly, that the claim is unavailable.

And he points out that Conyers and Nadler have already responded:

House Judiciary Chair John Conyers and Subcommittee Chair Jerry Nadler are calling Mukasey on his statements. They note that the public record is full of evidence showing that the Justice Department opinion writers were warned that they were attempting the legitimize criminal acts and that their opinions would not withstand public scrutiny.

And despite the DOJ penchant for Nifongesque pressers, dating to at least the Comey/Padilla presser, Conyers and Nadler also raise the issue of appropriateness, maybe even the legal ethics and professional conduct issues:

The House Judiciary leaders also question why Mukasey is making these bald categorical and unsubstantiated statements when investigations are now pending with respect to the matters on which he is speaking. Mukasey is prejudging those matters and appears to be attempting to head-off a professional and complete investigation by prosecutors who answer to him.

I’d love to learn of the emails and conversations which took place to SET UP the writing of these memoranda.

As would I, though somehow I doubt that Addington was as stupid as Goodling and Schloz and put things like that in an email. Hell, he wouldn’t even let the NSA opinion sit in a vault at DOJ, he kept it in his own vault.

I suspect tha most communications about this took plaese in Addingtons Scif

Ian’s a few flights upstairs

Woot!

Thank YOU!

And thank Scott

87 – I think they would take a role, but it is a very different thing (or should be, would have been, once upon a time) to 1) have a one on one bare knuckle advocacy in a court proceeding with an impartial (don’t laugh) magistrate constrained by rules of law (don’t laugh harder) dating back hundreds of years vs. to 2) have a political investigations, by politicians who have none of the victims in their political base, or by people appointed by such politicians, playing out in a public forum where all the rules are up for grabs as the polticians mold them and where criminal culpability can be cratered by political grants of immunity and where the primary purpose/interest of the whole of the proceeding will be to make those in power look good and be able to keep power or those out of power be able to squeeze and seize, and where the actual crimes and victims have such a peripheral role as to be nonenetities. JMO.

That is an apple and oranges argument. The Nazis could just as easily have said, Hey we have this office called Das OLC and it said it was legally OK to conduct the Holocaust. Now you might want to see Das OLC’s legal opinion but you wouldn’t need it to try those who committed the Holocaust because any such opinion would lack any validity or content.

Obama appointed Gates, a very very bad sign. Any prosecution for war crimes will likely come from abroad.

Wouldn’t that actually be direct confirmation that the ‘rule of law’ & the ‘government of laws, not men’ is in fact stone cold dead. . .

Pretty much, yeah.

Again, not saying that I agree with my theoretical BHO rationale, just saying that is what I think they are thinking.

I think that their thinking is wrong.

It’s kind of uh duh here. Mukasey would not be talking if Bush were going to issue pardons. Mukasey is after the fact of Bush’s decision not to pardon. Obama is not going to authorize any criminal investigation, that’s for sure. He is not going to become the Ken Starr of torture or allow anyone in his administration to do so. There will be a commission to investigate and that is as far as it will go.

“Mukasey is definitely up to something . . . but the question is “What?”

Distraction tactics, the hallmark of the Bush presidency. Mukasey’s statement is intended to lower expectations for pardons. But come Xmas eve, Bush will grant wholesale pardons to all the administration’s bad actors.

The last thing Bushco wants is further scrutiny, and all actions will be directed to that end. All the bad actors will develop massive collective amnesia about every single question asked.