Seriously. The conduct is repulsive.
BUT IT WAS DONE IN A WAY THAT PROVIDED SOLID LEGAL COVER. Is that so hard to accept?
If you assume, as you do, that executive reliance on that legal cover was objectively reasonable. Some disagree.
Then why use it? Tao’s Revenge uses a definition of torture, you then quote the Bybee memo to show why it isn’t. You didn’t say “I don’t agree, but here is the “flawed and incorrect” statement that the Bush administration came up with. And you summed up with: “The horror of drowning” does not qualify, under the plain language of the statute.” That certainly appears to me that you were citing the memo not to show their position, but to show your agreement with the Bybee memo. Why cite to something you believe to be flawed and incorrect?
No. The Bybee memo was laughable in it’s defense of an action that had been, up until that point, never not considered torture and often constituted torture. It was pathetically atrocious that the Office of Professional Responsibility tasked to look at them not only found the memos to be unsustainable, but so far out there as to require professional discipline. (Although I’ll note the AG tasked with bringing ethics charges found the standard for of lawyers to be so pathetically low, even the memos containing “significant flaws” were not actionable. That decision is also wrong.)
Which is precisely the reason it was done, to cover the asses of those who allowed our country to torture. But “tenuous” or “pathetically transparent” are better adjectives to describe the legal cover.
That analogy doesn’t work. Killing people is murder in some circumstances, not murder in others. Torture is always torture. “Is killing this person murder or not?” is a meaningful question to ask; “Is this torture torture?” isn’t. The term “murder” is a particular subset of an act; “torture” refers to an act in all its forms.
No. What you are doing is justifying the literal, not metaphorical use of the “Poirot Solution”. Cheney and friends getting away with what they have done shows that American law has become meaningless to the powerful; they are above it, and can do anything to anyone without legal consequences. Which eliminates the moral argument against violence in politics; people who are wronged have no legal recourse, nor are they protected by the law. What use are the “protections of criminal procedure” when they don’t protect you from torture, but do protect the torturers?
If some torture victim killed Cheney or another of the pro-torture leaders, and said he did it because he knew he had no legal recourse, but could only resort to violence and hoped that at least his killing would provide some form of discouragement to further torture, could you honestly call him factually wrong - is there any other way to punish Cheney and friends for what they did?
I don’t agree with letting Cheney and friends get away with what they did, because it is an argument for anarchy; it undercuts the very justification for the existence of law at all.
Yes, I’m sure some disagree. Since none of those that disagree are ever going to be on an appellate panel weighing Cheney’s conviction, it’s meaningless.
Because the issue is not whether it’s correct, but whether someone could reasonably rely on it.
Sure, all these decsions are wrong. But guess what? They are the ones that stick. I guess it must be some kind of comfrt to insist that your un-implemeted, never-to-see-the-light-of-day analysis is right, while the actual decision that controls how the real world works is wrong.
How about “utterly and completely effective?”
You completely failed to identify that as “the issue” when you posted it. You didn’t identify your post with anything indicating that you thought it was “incorrect” or “flawed”. And with the last sentence, you seemed to actually approve of it and conclude, rather than the rationale being incorrect, that it didn’t meet the plain language of torture.
No, the decision of the OCP was correct. Yoo and Bybee were wrong. And they won’t suffer for it one whit. That doesn’t seem to bother you at all, which makes me sad.
If you want my analysis, you could certainly ask for it. But Glen Greenwald, David Luber, Peter Brooks, Jack Balkin, Brian Tamanhana, and others have done it better than I. But if your “Nyaaa, Nyaaa, Margolis disagreed with you!” crap makes you feel better, knock yourself out.
Whatever floats your boat.
Fair enough. Would you consider the Supreme Court’s thoughts meaningless? Yes, this is a civil case. I leave it to you to explain why the Court would not adopt this reasoning in a criminal context.
Harlow v. Fitzgerald 457 U.S. 800
Emphasis mine.
If the law is clearly established, Cheney would not have immunity. If Cheney could be expected to know that waterboarding would violate the law or the constitution, he would be liable. Do you dispute this?
Page 16. .pdf warning
What is objectively reasonable reliance? U.S. v. Trevino-Martinez 86 F.3d 65
I am not persuaded by your claim that reliance on an OLC memo is objectively reasonable as a matter of law. The above suggests reliance is not objectively reasonable if Cheney should have known that waterboarding was illegal/unconstitutional. Past prosecution for waterboarding suggests he should have known this. Further, Cheney most definitely would have been put on notice to make further inquiries.
I am not saying Cheney is guilty, or that it would be politically wise to try him. However, it is not as closed of a case as you are intimating.
As a threshold matter, we readily apply civil penalties where we are reluctant to apply criminal ones. You may raise a Fifth Amendment defense against self-incrimination at a criminal trial, but can’t do so at a civil trial. The standard of proof required for criminal conviction is much higher than that required for a civil verdict.
Yes, because Cheney can claim reliance on the Yoo memo.
Yoo and Bybee were found to have used "poor judgment’ in crafting the memos. That does not constitute professional misconduct. It appears to have been a close call. So the ruling does cast some doubt on the ethics and morality of those who wrote them and the decisions they made. It does seem to exonerate them though. They escaped.
Anyone wishing to make the case that Cheney was merely relying on the advice of counsel in ordering torture, and that he legitimately and “reasonably” thought he was acting legally, had better be prepared to explain how that led him to order Guantanamo, “black sites”, and extraordinary rendition, too.
That’s unrelated to the torture. That had everything to do with the belief (since refuted by the Supreme Court) that holding “enemy combatants” outside the US allowed them to deny those “combatants” constitutional rights such as due process, thus allowing them to detain people indefinitely.
How’s that? Why were the sites black, and why was rendition extraordinary, then?
I’m not prepared to provide explanations for their use of such euphemistic language.
Hey, this is Great Debates, man! No ducking.