Scared Shitless of a Mouth

The other day Eric Holder was confronted by Republicans who want to prevent any nasty icky Muslim terrorists from ever being tried like the criminals they are.

Eric Holder, like his boss Barack Obama, caved in to them:

Mr Holder's response dodges the question a bit, but it also seems to suggest he doesn't like the idea, and thinks it's a Republican attempt to portray his administration as soft on terrorism.

Osama bin Laden "will never appear in an American courtroom," Attorney General Eric H. Holder Jr. told House members at a hearing Tuesday.

"Let's deal with the reality here," Holder said in response to questions from Rep. John Culberson (R-Tex.). "The reality is, we will be reading Miranda rights to a corpse."

The blogger who quotes the above says that trying Obama would be a good idea. I agree. I MORE than agree.

There must be some part of my brain that's still frozen in September 10th 2001 mode, because I just can't remember the chapter in American history where we apparently decided that criminal trials are some kind of favour we do for terrorists that proves we're postmodern multicultural cowards who lack confidence in our own civilisation, or whatever. Seems to me that if a trial was good enough for Adolf Eichmann and Saddam Hussein, it's good enough for Osama Bin Laden.

Exactly.

Let's look at the Constitutional protections for justice:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. - Article I, Section 9, Paragraph 2

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. - Article III, Section 2, Paragraph 3.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law... - Amendment V.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. - Amendment VI.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. - Amendment VIII.

...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. - Amendment XIV, Section 1.

You will notice that, in every single quote here, there is no mention whatever of citizenship. The Republicans claim that all of the above protections only apply to American citizens... yet this is utter bullshit. These are not privileges granted only to citizens, to be ignored when dealing with foreigners; these are restrictions on the federal government. These are either things the federal government MUST do, or CANNOT do, when dealing with criminals.

It is unconstitutional to revoke the writ of habeas corpus except in case of domestic rebellion or armed invasion by a foreign power- PERIOD.

The Constitution demands a speedy public trial by jury for those accused of crimes.

The Constitution (Antonin Scalia's beliefs notwithstanding) prohibit cruel and unusual punishments- and also prohibit self-incrimination. That means, twice over, NO TORTURE.

And finally, after the Civil War, the Fourteenth Amendment passed all of these protections down, imposing them on the states- and, again, making the most basic ones available not solely to American citizens, but to any person whatever held within the jurisdiction of the United States, by any level of government.

And yet the Republicans claim that we need to overturn all of this, and hold people accused of terrorism- not convicted, merely accused by a single person- in prison indefinitely without trial or even legal counsel. Why?

Because of what these people might say at their trial.

PLEASE.

We tried Hermann Goering in an international court. We gave him full legal representation. We let him testify. We let him talk as much as he wanted- and oh, boy, did he talk. And then we proved, beyond all doubt, that he was an integral part of the Nazi war machine that killed millions of soldiers and tens of millions of civilians- including millions of German citizens.

And along with Goering we tried von Doenitz, Albert Speer, and dozens upon dozens of other Nazi leaders and commanders and officials, giving them all the opportunity to speak. This had some unusual results- Speer, for example, effectively pled guilty and gave testimony to both the evil of the Third Reich and the intense charisma that Hitler used to gain and hold power. In a few cases- Hjalmar Schacht, for example- were even found innocent of Nazi Germany's crimes against humanity.

And that's not all. We also tried Japanese war criminals- over five THOUSAND of them.

But, you say, these were not terrorists? We also tried the perpetrators and mastermind of the first World Trade Center bombing. We tried Terry Nichols and Timothy McVeigh for the Oklahoma City bombing. We tried Richard Reid, the "shoe bomber."

And why did we give all of these people, who in most cases richly deserved what was coming to them if not more, a trial?

Because that is what we Americans call JUSTICE.

Because we, as a nation, are BETTER than these people who commit murder on a mass-production scale. Because our forefathers, having firsthand experience of a government which denied jury trials and which occasionally imprisoned people with no legal recourse whatever, wrote it down, and then reinforced it, that these things would NOT BE PERMITTED in their new country thenceforth.

And yet the Republicans are scared shitless that, because the accused has the right to testify in his or her own defense, that these terrorists would open their mouths in court and thereby, just possibly, persuade people to join their cause. For this threat- the threat that a man, in shackles and an orange jumpsuit, who may or may not even speak English, could undermine our country with words alone- the Republican Party, as a whole and virtually without exception, is willing to throw out our entire system of justice.

COWARDS.

Pathetic, bullying cowards, so convinced of the fragility and weakness of the republic they claim to hold dearer than all other things that they will throw out everything that makes the republic worth having in order to defend it.

COWARDS!

And yet... they are not the biggest cowards.

The biggest cowards are the people who keep caving in to Republican bullying- who support indefinite imprisonment of Guantanamo prisoners, military trials or no trials at all for many of them, and who are willing to abandon their attempt to try even one of these men for his crimes- and to even ridicule the idea of trying anyone in the future.

Cowards like Eric Holder, and Barack Obama.

Democrats, Republicans... cowards, all.

We need something else.

Blatant Politics Trumps Justice in Justice Department

As all of you should know, the Department of Justice's Office of Professional Responsibility finally issued a report stating that John Yoo, Jay Bybee and others committed legal misconduct in drafting legal opinions on torture not based on the law, but on what their bosses- George W. Bush and Dick Cheney, and Cheney's chief aide David Addington- wanted.

And also as all of you should know, the assistant attorney general in charge over OPR, David Margolis, overruled the OPR investigation and said that since Yoo and Bybee honestly believed that the office of the President holds unlimited and absolute power, they were only guilty of being wrong- not of deliberate misconduct- and thus should suffer no penalty whatever.

Well, both the original report (heavily redacted) and David Margolis's sixty-seven page memo basically overturning the findings of the report are being reviewed by thousands of bloggers. Possibly the best review of both documents comes from David Luban of Slate, who completely demolishes the legal reasoning Margolis used to get Yoo and Bybee out of jail free:

Both the OPR report and Margolis agree that (in Margolis' understatement) "these memos contain some significant flaws." There they part company. The OPR report finds that Yoo and Bybee violated two rules of professional conduct: Rule 1.1, requiring competence, and Rule 2.1, requiring lawyers to "exercise independent professional judgment and render candid advice." Margolis rejects OPR's analysis and concludes that "poor judgment" rather than professional misconduct "accounts for the entirety of Yoo's work" on the torture memos.

But that's not the right characterization for memos that used extravagant legal reasoning to approve torture. It's like saying that Iago's advice to Othello showed poor judgment. OPR made a powerful case against Bybee and Yoo. In response, Margolis went after OPR like a defense lawyer, upped the burden of proof beyond what the ethics rules require, and minimized the liberties that Yoo and Bybee had taken with the law.

OPR's analysis changed between the drafts and the final report, and Margolis goes on for pages about that, quoting liberally and uncritically from Bybee's and Yoo's objections and insinuating that OPR's efforts to respond are worrying signs of "a shift in OPR's reasoning"—although he admits that he was the one who recommended that OPR solicit and review the objections. . . . In a catch-22, Margolis faults OPR for switching to the framework he insists is the proper one.

. . .

Bybee and Yoo objected that these standards do not come from the case law on Rule 2.1. That is true, because the case law simply has never dealt with lawyers tailoring their advice to yield the client's desired result: the lawyer as absolver or indulgence-seller. Margolis concludes that the absence of case law on standards of candor means that the standard is ambiguous. But that certainly does not follow. Otherwise, any law that has never been interpreted by a court would automatically be ambiguous.

Margolis also isn't even sure that standards of candor apply to OLC lawyers. He approvingly quotes Jack Goldsmith's testimony that it's an unsettled question whether OLC should offer "neutral, independent, court-like advice" or something "more like ... an attorney's advice to a client about what you can get away with. ..."

. . .

Yoo and Bybee are very capable, intelligent, and well-trained lawyers. If they produced an opinion riddled with weird arguments, cherry-picked quotations, and inexplicable omissions, the natural inference is that they weren't being candid. The famous "empty head, pure heart" defense simply doesn't wash when you are talking about OLC. Much of the OPR report tries to show—at elaborate length—that the arguments in the torture memos are so bad and so tendentious that lawyers of this caliber could not have produced them in good faith. . . .. Margolis' response is that the arguments in the torture memos are bad, but not that bad. . . .

Yoo cited legal authorities (often with dubious interpretations) to support his conclusions. Yet somehow he managed to omit all the authorities on the other side—dissenting judicial opinions, later opinions by the same courts he did cite, and even Supreme Court decisions. . . . Margolis reads all this as merely a failure to be "thorough" and responds that "the requirement to be thorough does not necessarily require that any memorandum setting forth the attorney's opinion communicate to the client every countervailing argument and every non-controlling fact." . . .Cherry-picking authorities so that you mention those on your side and leave out the rest is not a failure of "thoroughness." It is evidence of bias.

Sometimes Margolis uses a divide-and-conquer strategy to downplay instances in which the Yoo-Bybee memo states a position one-sidedly or omits opposing authority or (in one instance) falsifies what a source actually says. . . . Yoo's falsification of what a law review article said (it stated that the law of self-defense does not work for torture; Yoo cited it for the opposite proposition) is "too inconsequential to support a finding of misconduct in and of itself." The problem with Margolis' pooh-poohing is that all these separate grains of sand really do add up to a heap.

Margolis also makes short work of the Yoo-Bybee memo's strategic omissions. United States v. Lee is a 1981 case prosecuted by the Reagan Justice Department dealing with a Texas sheriff and his deputies who were convicted for water-boarding . . . Neither Bybee memo mentions the case, but this does not trouble Margolis, who blows off the omission of Lee because "the opinion does not describe the technique." True enough, but the government's brief in the Lee case does, and the brief is readily available on legal databases.

. . .

The second road OPR took to establish that Yoo and Bybee gave bad-faith legal advice allowing torture was to look at the circumstantial evidence. If Yoo and Bybee were under pressure from the CIA and the White House to produce an opinion that is as permissive and reassuring to interrogators as possible, the natural inference is that the opinions are shoddily one-sided because the lawyers needed to reach a desired result.

. . .

Margolis objects to OPR's inquiry into whether the OLC lawyers were being told what result their client wanted—after all, lawyers usually know what result their clients when they go to draft a legal opinion. Again, though, this misses the point. If the OLC lawyers were being pushed by the White House or CIA to reach a certain result, that would be evidence that the contorted lawyering in the memos was deliberate.

Of course, the best evidence of what the lawyers were thinking, who they were talking to, and what pressures they faced, might be their e-mail traffic. But the OPR report informs us that "most of Yoo's emails had been deleted and were not recoverable."

Unfortunately, Luban concludes that, even if Margolis hadn't been working quite deliberately- and shoddily- to defend Yoo and Bybee, nothing much would have come from it:

Even if Margolis had followed OPR's recommendation, the cases would almost certainly have wound up in the dead letter box. Nonetheless, this is a bitter outcome for those who think that torture devised at the highest levels of government disgraces us as a nation.

Scott Horton, who has been investigating the Bush torture regime and the Obama administration's cover-up of that torture regime, adds:

Over the past two years, I have consistently been told by insiders at Justice that an elaborate game was played to try to slow down or block the OPR’s report. Efforts were made to pressure OPR to rewrite its report, to adopt softer standards, to allow Yoo and Bybee to respond internally, and to require OPR to address the responses. I was told that one man was consistently behind these tactics: David Margolis. So, far from being an objective and impartial analyst, Margolis became engaged in the process at least by the fall of 2008, as an advocate for Yoo and Bybee and opponent of OPR.

The first question is simple: Why is a career Justice Department official with well-documented sympathies being put in the position of final reviewer? Margolis not only lacks serious grounding in professional ethics rules; his prior decisions reflect an attitude that borders on overt contempt for them.

. . .

Margolis makes a great deal of OPR’s changes in its text. He suggests that this reflects a lack of clarity in the process and standards they apply. This is a dishonest argument, because the changes in the text resulted very largely from David Margolis’s own prodding and perversion of proper procedure. He was, we can now clearly say, setting them up for the fall.

And Andrew Sullivan, where I saw all this first, has the perfect conclusion:

Remember: only the Lynndie Englands go to jail in America; their commanders get to go on NPR and spin.

It is for this sort of thing that Obama, I believe, will go down in history alongside Gerald Ford as one of the worst presidents on American justice we have ever had. Margolis might have pushed for this cover-up since the OPR investigation began in 2004, but Eric Holder gave him full latitude to keep pushing back release, and both Holder and Obama back Margolis's analysis, marking the case as permanently closed in their eyes.

This is injustice- Yoo's and Bybee's injustice, Margolis's injustice... and Holder's and Obama's injustice.

Torture: Is it Emanuel, Not Obama?

This New Yorker article about Eric Holder's attempts to get a trial for Khalid Sheik Mohamed in civilian courts is fascinating reading, and I strongly recommend it.

But I want to focus on one little piece:

Emanuel viewed many of the legal problems that Craig and Holder were immersed in as distractions. “When Guantánamo walked in the door, Rahm walked out,” the informed source said. . . . But Emanuel adamantly opposed a number of Holder’s decisions, including one that widened the scope of a special counsel who had begun investigating the C.I.A.’s interrogation program. Bush had appointed the special counsel, John Durham, to assess whether the C.I.A. had obstructed justice when it destroyed videotapes documenting waterboarding sessions. Holder authorized Durham to determine whether the agency’s abuse of detainees had itself violated laws. Emanuel worried that such investigations would alienate the intelligence community. But Holder, who had studied law at Columbia with Telford Taylor, the chief American prosecutor in the Nuremberg trials, was profoundly upset after seeing classified documents explicitly describing C.I.A. prisoner abuse. The United Nations Convention Against Torture requires the U.S. to investigate credible torture allegations. Holder felt that, as the top law-enforcement officer in the U.S., he had to do something.

Emanuel couldn’t complain directly to Holder without violating strictures against political interference in prosecutorial decisions. But he conveyed his unhappiness to Holder indirectly, two sources said. Emanuel demanded, “Didn’t he get the memo that we’re not re-litigating the past?”

Read more: http://www.newyorker.com/reporting/2010/02/15/100215fa_fact_mayer?currentPage=all#ixzz0f5gj78gX

So, the question is: is it Rahm Emanuel who has Obama's ear regarding torture issues? Is it Emanuel, and not Obama, who strongly believes that accountability is less important than getting along with the Republicans?

Both Rahm and Obama have records of bipartisan collegiality- Obama in the Illinois legislature, Rahm in the US House. Both probably share the same belief in the importance of good relationships with the opposition. (The problem, of course, is that the opposition put no importance in that at all- Republicans want all their opponents destroyed, and have never been shy about saying so since Nixon.) Given their mutual desire to "play nice" with the enemy, combined with Emanuel's reported hard-ass tactics against his allies, the fact that either, or both, would seek to protect their "friends" across the aisle from the consequences of their own actions makes sense.

If Obama is allowing Emanuel to be his Cheney- the power behind the throne- then the ultimate responsibility is still the President's. Still, it would be interesting to know if Emanuel's influence is the dominant factor in Obama's decision to block all investigation of or prosecution for war crimes, particularly torture.

Because Emanuel, at least, can be fired without an election.

The Obstruction of Justice on Torture Continues

The as-yet unreleased Office of Professional Responsibility on the torture memos has been altered to remove any claims of misconduct on the part of those who wrote those memos.

Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.

In short: "You're really crappy lawyers, but you did nothing that was actually wrong."

Wanna bet?

Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo... Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.

This is pretty damn clear evidence of legal misconduct- ruling not on the actual law, but on what those in power want to be legal.

But Margolis- and almost certainly his bosses Holder and Obama, given this White House's acts thus far on torture- is deliberately ignoring this evidence. Instead he- and Holder, and Obama- have decided to protect those who ordered torture from any possible legal sanction. No jail time, no disqualification from public office, no impeachment in Bybee's case- not even disbarment for being crappy lawyers.

It is just barely possible that Margolis is covering his own ass in some fashion; he was an assistant attorney general under George W. Bush, and almost certainly the torture argument came across his desk long before this.

It's much more probable, though- especially considering how many times Eric Holder himself has delayed the release of this OPR report- that orders came from the top to ensure that, whatever came out in the report, those responsible for the torture of prisoners in American custody would be whitewashed.

These orders have been coming down since the very beginning of Obama's presidency, and there is no sign of any change of heart now.