For the record, I never attended law school. Also for the record, neither did Justice Jackson.]

really?

I did not know that

Excellent opening statement, Peterr.

Question (but I think I already know the answer): Can Holder overrule the report’s findings and recommend prosecution, anyway?

Or is the report simply CYA for him (and by extension, Obama)?

Bravo Peterr, well done!

Now if only the prosecutors who can actually bring such a case to court would get off their waffling complicit behinds and get a move on…

Excellent job. Wish you could be the prosecutor.

OT from ABC:

A senior administration official tells ABC News that as part of the White House report investigating the April 27 Air Force One flyover of Manhattan, White House Military Office director Louis Caldera has submitted his letter of resignation and President Obama has accepted.

As I understand it, recommending prosecution is beyond the purview of OPR. The Office of Professional Responsibility investigates whether or not DoJ lawyers have done their jobs properly and professionally. It is not their job to recommend criminal prosecution. It is their job to make referrals to bar associations for disciplinary action.

So the OPR should not mistaken for a Special Prosecutor. That is why we need a Special Prosecutor, to do the investigation that no one else can properly do.

Superb post Peterr! Bravo!

Yes, Holder could overrule it.

But I wouldn’t hold my breath waiting for it to happen, unless there’s a lot of public outrage.

The President of the United States calls it torture. The Attorney General of the United States calls it torture.

Under the UN Convention Against Torture, the United States is required to investigate and prosecute all known instances of torture occurring under US jurisdiction.

[This can go two ways at this point:]

A. That is why these defendants have been arrested by the FBI and delivered to this court for this proceeding.

B. Because the US has refused to prosecute, and threatens to invoke the American Servicemembers Protection act to return any detained personnel from the Hague, these proceedings are taking place with the defendents in absentia.

[What’s it going to be, Barack, A or B?]

Oops, I see now Peter set this up as a US trial. As you can see from my bit, I assumed it only would take place at The Hague. –added in edit

So let me get this straight, a guy who mishandles a PR flight is forced to resign, but CIA officers who tortured prisoners get to keep their jobs and will never be prosecuted? Those are a fine set of ethics you got there Mr. President.

The irony continues

That Justice Be Done, an OSS film on Prosecuting Nazi War Criminals

http://www.youtube.com/watch?v=isiXNh6NpNs

For those that might not know – the OSS is the forerunner of the CIA

Thanks for the responses-that’s what I thought.

“…unless there’s a lot of public outrage.” Or Nancy has a change of heart.

Actually, I have less problem with declaring them incompetant and prosecuting their ‘clients’ who ordered the torture.
I don’t buy into the argument that getting a mallable attorney to endorse immoral acts lends even the scantest ‘cover’

Following the links back from that YouTube, there are a lot of other Jackson YouTubes, put up by the Robert H. Jackson Center.

Thanks, John!

Brava Reverend and Amen !

Great post, and very nice links.
Thanks Peterr

I echo puraviada at # 2, Superb opening statement, Peterr. Let’s not stop there. FDL Boards of Inquiry have been ongoing since I first lurked here. We should pull it all together in the form of a Citizens’ Court, try these bastids, and convict ‘em. Might have a problem finding a “Judge” unless we went outside the community. And as for any body to defend the torturers, well – definitely have to go outside the community for that.

Let the thought simmer a while….it could produce a lot of recruits to the side of Justice and the return of the Rule of Law, not men.

Posted this over at emptywheel earlier here. These are quotes taken from a speech, which might as well have been a tribute to Justice Jackson, who is credited with creating vision of Nuremberg and who is quoted directly near the end of the speech:

The Rule of Law should be all encompassing. The rules need to be
enforced by international tribunals with no exceptions, as was the case at
Nuremberg. This was, indeed, what made Nuremberg so historically
important because this approach had never been followed before. It is why
Nuremberg remains inspirational today, in spite of gaps in prosecuting
crimes against humanity.
…
Nuremberg marked, indeed, the birth of the concept that all
individuals have certain inalienable human rights which transcend the
boundaries of nation-states.
…
In the war crimes area, Nuremberg punished those surviving top Nazi
leaders whose policies and actions were responsible for the commission of
war crimes against civilians and prisoners of war.
…
The Nuremberg
principles have been firmly enshrined in our military field manuals and the
Uniform Code of Military Justice (UCMJ). However, by violating the
Geneva Convention in its treatment of captured combatants through
torture and indefinite detention without trial, the United States is
committing the same crimes as the rogue nations we oppose.
…
Nuremberg marked a
revolution, stripping officials of their absolute impunity and holding them
individually accountable for their policies and acts.
…
The Nuremberg judgment laid the groundwork for
the concept that some crimes, particularly crimes against humanity, were
so egregious that the accused could be tried anywhere without any
jurisdictional connection between the trial court and the situs of the crime,
because they were crimes against all humanity.
….
Nuremburg was an American invention, and Supreme Court Justice
Robert Jackson, who created the vision of Nuremberg, has stated:

“To pass
these defendants a poisoned chalice is to put it to our own lips as well.”

What he meant was that the United States and the other allies who sought
justice at Nuremberg were going to have to abide by the Nuremberg
principles in the years that followed.”
…
The problem, basically, is that the government of the United States
does not want to submit itself to the same rules that are applied to other
countries, and it has convinced the American people that this is the only
way to keep them secure.
…
For the remarkably low price of making our leaders live up to
American values and commit to the international standards we helped
create, the U.S. could lead the world in agreeing to new playing rules,
which could effectively counter genocide, terrorism, and the threat of
rogue states.

In addressing you here today, I have spoken to you as an institutional
memory of Nuremberg and as a citizen of the world. I believe profoundly
that Robert Jackson’s vision at Nuremberg is as timely today as it was
then.

We need to move forward with a deep sense of urgency in bringing
Jackson’s vision to reality in today’s world—not only for ourselves, but
for future generations. I am confident that we can do so if we will it into
our future.

That entire speech is worth a read. Whether we do this at home or via something like the Nuremberg trials, it is a necessity. And we cannot shirk it!

IANAL either. But when an issue becomes this big that so many of us need to bone up on legal principles, then we’ve gone way past a tipping point. I add my kudos on this post!

I realize this post is calling for an international tribunal, while Peterr is calling for a national one. It matters not me to. Though the threat and impending actuality of international calls for war crimes prosecutions may go a long way to getting us where we need to be.

Well, I’m still not convinced he’s letting the torture designers go. Aren’t we to expect some new photos soon?

Thanks for this post Peterr,
It must have taken a lot of work to write this. What, you aren’t preaching on Sunday? Kidding.
I know you’ve been writing sermons a lot longer than writing front page articles here, but while you’re doing the sermons, do you ever wish you could just link to the factual support?

and recommend prosecution, anyway?

reminding all this was something NYT and WaPo sloppily assumed.

there has been nothing leaked to date showing OPR recommends against criminal proceedings

OPR is not charged with finding criminality, they are all about ethical lapses of DOJ attys.

also important to remember it is the Bush OPR doing the writing in this case

firedog stalwart Mary (catch her on the EW threads) reminds us all that even if they were charged to look in to possible criminalty, how in the hell can they do that when they can not look in to CIA, DoD, DIA, Blackwater, etcetera, etcetera, it would go nowhere.

please don’t think for a moment I am all sunshine, lollipops, and roses about what AG Holder is gonna do – but until the report is published and the AG makes a public statement as to where he’s headed, we can not assume he’s going nowhere based on tidbits from an unpublished Bush DOJ report

personally, I really effin’ hate it when someone tells us yet again to keep our powder dry – but we are gonna have to wait in this case

May 28th, iirc. FWIW, I haven’t given up on Obama yet, but if he is waiting for pressure to build to give him the political room he needs to do the right thing, then I’m happy to rise to that occasion. So I’ll keep complaining about his tolerance of torture until he proves me wrong ; )

Sermons are mostly to be heard, not read, so they’re a different kind of thing than a FP post here at FDL. But when I preach, I’ve got the links ready in my head (so to speak), so that if someone greets me at the door and asks (either in a friendly “I’d like to know more” or a more doubting “where’s you pull that from?” tone, I’ve got an answer.

Superb post Peter!

I would like to add there has been a string of things recently that undermine the Bushies’ claim of good faith. For instance Zelikow’s statement about at least one instance, and evidently at least one or two more, where he wrote and lodged formal objections and eviscerations of their shoddy legal reasoning, and they not only disregarded it, but cravenly attempted to destroy all evidence that it ever existed. Also it is known that Bill Taft submitted at least one, if not more, of the same, with the same result. Instances such as these, and there are more out there to be found for sure, just about destroy the good faith justification they rely on.

It may look like it still holds up when you consider things in a fuzzy general way, or compartmentalize issues in unnatural ways; but, in a court of law, I think you could absolutely slay that pretense. They have problems from an evidentiary standpoint. This kind of justification is an affirmative defense. By that I mean that if the root elements of the crime are met (they are), they have to affirmatively prove they were justified in engaging in said acts in spite of the fact that it meets the elements of a crime. Once they start alleging their facts and circumstances exhibiting their justification, they open the door to an absolute onslaught of rebuttal such as I have described. I am serious, I just am not sure their junk will fly in a properly regulated trial court anymore.

People that say it would be impossible to prosecute these crimes and/or get a conviction are either nuts or lying.

Thanks for keeping us firmly rooted in the reality based community.

“also important it is the Bush OPR doing the writing in this case”

Didn’t know that.

the whole time I was typing, I was worried about sounding like some scold. so glad it came out right :D

The opening paragraph of the first link in the post starts like this:

Bush administration lawyers who approved harsh interrogation techniques of terror suspects should not face criminal charges, Justice Department investigators say in a draft report that recommends two of the three attorneys face possible professional sanctions.

OPR does indeed have the ability to recommend that criminal charges be pursused. Generally speaking, if there’s a criminal case to be made against an attorney, it comes through other DOJ mechanisms — but they DO have the power to recommend that charges be pursued.

It appears they are unlikely to do so.

thanks for the correction Rev.

I knew that. I was kind of joking. But, of course, you have the scriptural and other documentary support.
Do you have a way for your congregants to ask you questions of faith other than verbally?

The OPR doesn’t seem to understand the definitions of the words that make up it’s title. These people need to stand for war crimes, just like their bosses. Remember it was the bosses that asked these people to commit crimes for them. They are willing participants.

I am eagerly awaiting the release of the real report, instead of depending on the self-serving leaks. Then we will know, and then we can judge the actions of Holder and his boss, Obama.

And don’t expect a quick response to the report. They are now going to have to figure out how to outflank Alabama Gen. Jefferson Beauregard Sessions III.

It’s a shame that politics has to enter into the equation, but that’s where we are after 8 years of Bush rule.

I saw earlier, was it yesterday, where you spelled out “Jeff’s” full name.
I’m giggling again. Thanks.
I should qualify this comment that on my mama’s side I’m related to the General. My name is Deborah Lee. *g*

I was sort of hoping that Obama might be the type of person who does the right thing because, well, it’s the right thing and not because of a public outcry for doing the right thing.

Maybe not. There’s the Banksters, Torture and the refusal to allow anyone to be accountable for their actions under the auspices of the lawless 1600 Crew. All this crap about “looking forward, not back” is what got us here in the first place, post-Nixon/Watergate. Had Ford allowed the prosecution of Nixon to proceed apace, much of this might never have happened, because the republicans (and others) would have learned that acting with impunity has its costs.

You know, I was thinking about the political aspect of this, also. Reminds me of a Hollywood drama/thriller in that we’ve reached the point in the script where the players realize that “somebody is going to have to pay.” The suspense lies in who and how much.

Swopa is upstairs!
The Obama/Geithner Stress Tests: Giving the People What They Want?

Oh, and “professional sanctions” still mean that Yoo, Bybee et al get to enjoy Wingnut Welfare for the rest of their lives or until they piss off Boss Limphog.

I’m guessing that they have already sent resumes to the Heritage Foundation and AEI as well as the usual suspects in ThinkTankLand.

You? Scold? No one who knows you would think that. no snark. You’re not only a schmart cookie, you’re a nice one.
And, here is what you might have been thinking:
Sunshine, Lollipops And Rainbows
Lesley Gore

Sunshine, lollipops and rainbows,
Everything that’s wonderful is what I feel when we’re together,
Brighter than a lucky penny,
When you’re near the rain cloud disappears, dear,
And I feel so fine just to know that you are mine.

It just shows his pedigree. Or his parents ambition. Either one of those speaks volumes about his formative years. He sees himself as a government in exile.

Out here in the real world if one files a criminal complaint with the local heat they are obligated to investigate and take whatever action is necessary.

We have knowledge that torture, a violation of international law, has occurred. We know who did it and we know who authorized it. We have documented evidence. Like the Nazis, the Shrubs liked to document things.

My question is: Is it not possible for one having knowledge of a violation of international law by Federal personnel to file a Federal criminal complaint with DOJ, thereby forcing them to initiate an investigation into possible criminal activity?

Something tells me Holder isn’t going to do anything

Holder says he approved Clinton-era renditions

http://rawstory.com/08/news/20…..enditions/

“The Office of Professional Responsibility, which reports directly to the Attorney General, is responsible for investigating allegations of misconduct involving Department attorneys that relate to the exercise of their authority to investigate, litigate or provide legal advice, as well as allegations of misconduct by law enforcement personnel when they are related to allegations of attorney misconduct within the jurisdiction of OPR.

The objective of OPR is to ensure that Department of Justice attorneys continue to perform their duties in accordance with the high professional standards expected of the Nation’s principal law enforcement agency.

The Office is headed by the Counsel for Professional Responsibility. Under the Counsel’s direction, OPR reviews allegations of attorney misconduct involving violation of any standard imposed by law, applicable rules of professional conduct, or Departmental policy. When warranted, OPR conducts full investigations of such allegations, and reports its findings and conclusions to the Attorney General and other appropriate Departmental officials. “

Intentionally ignoring ‘stare decisis‘ CANNOT be considered anything but direliction of duty.

But the key is that it cannot pursue a criminal course of action. That would be Holders call. That contradicts PeterR’s “OPR does indeed have the ability to recommend that criminal charges be pursused. ” but nowhere on the OPR site does it mention that such a recommendation can be made.

This person:
Mary Patrice Brown, Acting Counsel
Office of Professional Responsibility
950 Pennsylvania Avenue, N.W., Suite 3266
Washington, D.C. 20530

is the ‘Acting’ Counsel for Professional Responsibility; someone ought to be asking her the questions regarding criminal proceedings being recommended.

CONVINCING THE DUMBED-DOWN THAT WATERBOARDING IS ILLEGAL IS LIKE TRYING TO TEACH A LATTER DAY REPUBLICAN ABOUT EVOLUTIONARY BIOLOGY OR ECOLOGY

WATERBOARDING IS ILLEGAL

http://lawreview.wustl.edu/sli…..s-illegal/

1. Torture Act

2. War Crimes Act

3. Prohibition on Cruel, Inhuman, or Degrading Treatment or Punishment of Persons Under Custody or Control of the United States Government

4. Additional Prohibition on Cruel, Inhuman or Degrading Treatment of Punishment

“The United States has enacted statutes prohibiting torture and cruel or inhuman treatment. It is these statutes which make waterboarding illegal. The four principal statutes which Congress has adopted to implement the provisions of the foregoing treaties are the Torture Act, the War Crimes Act,and the laws entitled “Prohibition on Cruel, Inhuman, or Degrading Treatment or Punishment of Persons Under Custody or Control of the United States Government” and “Additional Prohibition on Cruel, Inhuman or Degrading Treatment or Punishment.” The first two statutes are criminal laws while the latter two statutes extend civil rights to any person in the custody of the United States anywhere in the world.”

Thanks Peterr for a great post!

One of our family names (going way back) is Sessions. Sigh…

From your comment:

Under the Counsel’s direction, OPR reviews allegations of attorney misconduct involving violation of any standard imposed by law, applicable rules of professional conduct, or Departmental policy. When warranted, OPR conducts full investigations of such allegations, and reports its findings and conclusions to the Attorney General and other appropriate Departmental officials. “

If OPR conducts an investigation that turns up evidence that an attorney broke the law, that would be one of the findings they would turn over to the AG. Along with such a finding would be a conclusion regarding the kind of charges that might be filed.

The page may not explicitly say “the OPR can recommend charges be filed” but that’s what this means.

To be even clearer . . . strictly speaking, OPR does not file charges, but recommends to the AG that they be filed.

That’s why I phrased the first paragraph of the post the way that I did.

Thank you, Peterr next to perfect ,God richly bless you and those on the lake that thirst for justice ,each and every one,.

If there was a crime per U.S.C., yes, the OPR should recommend criminal charges be brought BUT is it a crime to provide ‘counsel’ regarding the law that ignores treaties,precedent,or is in contradiction to existing statutes? Now this “Selective and misleading notification of Congress. Obstructing legitimate oversight.” DOES sound like a crime per the U.S.C.

Don’t get me wrong; if I had my way they ALL -Bush on downward- would be imprisoned in the Hague awaiting trial.

Let’s not forget that famous quote from the Bush Admin about them ‘creating reality’; Iraq WAS/IS illegal (later legal actions do not preempt intial acts taken that are illegal) and no one is being prosecuted for that crime.

I’ll sit with you in the corner for a little while. :)

Growing up 50 years ago was a masked man who,rode into a corrupt town, took care of business, then rode off into the sunset before the accolades could be poured out, I’ll never forget his parting words every week…..

TRUTH & JUSTICE….THE AMERICAN WAY

Honor has returned to the White House. It’s a start on the road to accountability.

Jane upstairs in the Silo!
Feinstein, Specter Compromises Pave the Way For Passage of Employee Free Choice Act

Beautiful, Peterr

5 / 28 / 09 all hell’s, which has been unleashed inside these hell holes, w/ according to the latest reports included the three rings of hell knowing you’re going for a bath in the inter circle, for Christ’s sake, 40 different sites with a new set of helpless hopeless human beings played for these clowns.

It is worth mentioning that there is no requirement that a Supreme Court Justice is a lawyer. In the past it was not uncommon to pick from amongst non-lawyers. I believe the Constitution says the President makes the appointment of someone who can render fair and unbiased judgments and that the Senate shall approve the nomination.

The reason that judges from lower courts are now appointed is so there is a sense of their prior rulings that may determine how they might rule on something in the future. Politics of this kind were not always the key for finding a SCOTUS nominee.

Obama is The President ,give him slack. Wouldn’t you hope for some if this all consuming pile was dumped in our laps with plants in Justice and the Courts.

Additionally, 98 people died while in US custody, some where identified as murder, many others, thanks to CIA and DOD obfuscation, are of unknown causation. This atmosphere of torture, which was encouraged by the efforts of these defendents, led to many if not all of these deaths.

Cheney to Yoo: (wink) Oh, who will rid me of this meddlesome prohibition (against torture)?

Holder to Johnsen: (wink) Oh, who will rid me of this meddlesome obligation (to prosecute)?

To back all of this up, there’s this post of mine, which is based on an emptywheel comment of mine from yesterday. It’s based on an analysis of OPR’s own policies and procedures, with 3 updates, the third of which discusses how the Inspector General of DoJ was prevented from being able to investigate crimes like this in DoJ.

Conspiracy to commit.

* United States Code
o TITLE 18 – CRIMES AND CRIMINAL PROCEDURE
+ PART I – CRIMES
# CHAPTER 113C – TORTURE

U.S. Code as of: 01/19/04
Section 2340A. Torture

(a) Offense. – Whoever outside the United States commits or
attempts to commit torture shall be fined under this title or
imprisoned not more than 20 years, or both, and if death results to
any person from conduct prohibited by this subsection, shall be
punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction. – There is jurisdiction over the activity
prohibited in subsection (a) if -
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States,
irrespective of the nationality of the victim or alleged
offender.

(c) Conspiracy. – A person who conspires to commit an offense
under this section shall be subject to the same penalties (other
than the penalty of death) as the penalties prescribed for the
offense, the commission of which was the object of the conspiracy.

Do any of you know what torture is? Torture is standing on a building ledge 1000 feet above the street trying to decide whether to stay where you are and be burned alive, or alternatively, to jump and be turned into a lump of red gelatin with bones. Please try to get some perspective in your thinking.

Shorter neuremberg
God damnit! can’t you see we want clean wars
There are rules here.It’s ok to starve a half a million or so but don’t be stealing their teeth

When I hear the word “torture”, I “see” images of a terrified human being, with arms bound behind their back, surrounded by 4 or 5 hooded figures brandishing long knives, being made to read a “manifesto” on video tape.

Immediately following a “proclamation” by the leader of these hooded figures, these 4 or 5 figures hold this poor soul down as they scream and plead for their life, while the leader cuts off their living head and holds it in the air by it’s hair.

OR a plane filled with terrified innocent men, women, and children knowing they will NEVER see their loved ones again.

That’s “torture”, unless “torture” comes in various “flavors” to suit the whim and the winds of political fortune.

Hypothetical, fictional moral exercise/Scenario:

Mr. Redstate’s child has been kidnapped and buried alive in a location only the perpetrator knows. He catches up to the perpetrator and has him in an abandoned house on the edge of town. He asks him where his child is and the kidnapper laughs at him. The kidnapper tells him there are only a few hours of air left for his child and that his last act of freedom before the authorities arrive will be to enjoy watching Mr. Redstate squirm as his baby girl dies. Mr. Redstate has a knife, a pair of pliers and a cigarette lighter.

What should he do? Which is the moral thing to do, let his child suffocate or try and get her location out of the man who is laughing at her impending death?

I know what I would do.