Come on, man. “Express” = deliberate, conscious, purposeful.
To be plainer, then: The spirit of the law can be defined as “justice”. We have a Department of Justice, not of Law. The Constitution’s stated (“expressed”, if you like) purposes include to “establish justice”. The inscription on the Supreme Court building reads “Equal Justice Under Law”. Its officials are called Justices, not Legals. Call me old-fashioned, but it matters.
The law is not the goal; the goal is justice. The law is just a tool to achieve that end, and, like any tool, can be misused for other, even antithetical purposes.
The “right people”, btw, would be jury members, or, if the defendant waives that right, judges, preferably ones who know what their job is about. Do you disagree?
Don’t they have lawyer message boards, where one can comfortably discuss legal matters in the appropriate air of cool, unbiased cynicism? Justice would appear impossible in the case of Mr Cheney, what penalty could suffice for justice, what could possibly but the scales back into balance. Even if he were dragged out and shot, what is the life of one sick old man who’s heart is held together with Scotch tape…what is that against tens of thousand of innocent, healthy people snuffed out?
That being the case, of what value is an arcane discussion as to whether Cheney can be subjected to a process than can only inconvenience him?
What good is law that is not a concrete expression of morality? What could be more pointless than an arcane and technical exploration of empty legalisms? Why not just go whole-hog and take up theology?
What’s the problem with discussing legal questions here? If you need to vent about his moral (rather than legal) failings, you can just open a thread for it and do it there, without arguing that arguing the legal issues is somehow inappropriate.
Though I admit to only skimming through the thread, point blank questions for you Bricker:
Do you, or do you not, at this point in time*, consider that the former Administration engaged in acts of torture – wherein, of course, torture is by definition illegal at the very least in the civilized world. And if responding in the affirmative, would you, hypothetically speaking, still be willing to defend the man based on your partisanship alone?
Please no legal squirming in response.
With thanks in advance.
*the caveat comes because, IIRC, you were one of the few defending the practice of waterboarding in some of the threads I participated in at the time. Here’s hoping your pious self has reconsidered since.
That completely misses the point. Is waterboarding torture? Yes. But don’t forget that it wasn’t too long ago that all the media jackasses, tough guys in Congress, and I suspect many regular Americans, didn’t think waterboarding was torture at all, that it was no worse than some annoying fraternity hazing ritual. Perhaps Cheney could conceive, at the very least, that waterboarding was unpleasant and made people talk, but perhaps he discounted how truly torturous and barbaric it actually is because he had no personal frame of reference. Maybe he figured it was just another potential tool in the toolbelt. So he ran it by the lawyers, and they made a case for it not being torture.
The only way you can look at this as just a bunch of legal sophistry is if you believe that Cheney definitely knew how bad waterboarding was and sought to use it out of some sick search for vengeance and retribution against our enemies. I don’t believe that. I believe a lot of those Bush administration people were simply intolerant, frightened, and uncompromising government elites who believed we were at war with Islamic fundamentalism, a war that justified extraordinary measures.
Seeing as how it goes all the way back to The Spanish Inquisition, I have a really hard time believing the scenario your posted – at least with regards to the people involved. They’d have to be willfully ignorant to think that way.
– underline mine.
No doubting that’s what you believe, but as I argued from day one I think it beyond ridiculous that the US Administration was actually afraid of Iraq/Islam/UbL. WTF did they have (or have now for that matter) by way of weapons to do any real damage to the US of A before they became a glass parking lot?
:::knock knock::::
Is this thing on? Buehler? Bricker? Contestas o no?
Which is what you believe, because it’s easier to accept if you think they were just nefarious evildoers.
During the Vietnam War the people protesting the government’s actions thought they were passing off complete bullshit to the American people to cover up some other motivation. It turns out many of the top government and military officials actually did believe the crap they were spouting because their ego and experience wouldn’t allow them to accept otherwise. “We’re winning,” they thought, “all the numbers confirm it.”
If they believed waterboarding wasn’t nearly as bad as flogging a guy or pulling out his fingernails because it didn’t cause lasting physical damage, I can see why they might deem it acceptable. They were wrong, but it does make it somewhat more understandable. All I’m saying is that the fact that we now definitively denounce waterboarding as torture doesn’t make the decision of whether or not to prosecute them a slam dunk.
I seem to remember hearing of at least two people who were sufficiently skeptical of the nastiness of waterboarding to have it done to themselves - a politician who had it done professionally, and a doper who did it to himself. :eek:
They both decided it was torture. But the point is, they didn’t believe it was before.
OK, Bricker, here’s a question for the letter of the law. Is an estoppal defense valid when the authorities consulted were one’s own underlings? Because it seems to me that Cheney had greater authority on the matter than the “authorities” he consulted. Had anyone else asked one of them whether waterboarding was legit, he might reasonably have answered “I don’t know; I would have to ask the President or Vice President”. And if we allow one’s own underlings to count as “authorities” for purposes of an estoppal defense, then we’re admitting that police chiefs can legally get away with murder.
Or, heck, forget about police chiefs. What’s to stop one of those Justice Department officials from just asking himself whether it’s legal?
You ask for “no legal squirming” but precede that with a request for a legal conclusion, and the legal question involves a defense not on the fact but on the law… which I suspect you’ll see as “legal squirming.”
So let me lay it out as clearly as I can:
Yes, I think the former Administration ordered acts. And yes, I think those acts are legally torture. No, I wouldn’t defend them based on partisanship.
But…
The person that ordered the acts had asked the Justice Department for a ruling on whether those acts were legally torture. The Justice Department responded that they were not. For this reason, we cannot now turn around and prosecute this person.
So my defense is not borne of partisanship. It is a legal conclusion.
There’s nothing about the situation that makes it per se invalid. As has been discussed above, if Cheney didn’t ask for an opinion, but ordered a particular opinion to be given, then that would certainly destroy the estoppel defense. But I’m not aware of any evidence that Cheney did that.
Well, no. The question is a legal conclusion, and the President or Vice-President are not lawyers. (Well, now we have a President who is, but that’s not his job). The Justice Department is in charge of rendering legal opinions. The Attorney general, or his designee, is the correct entity to render this opinion.
No, because one of the elements is that the reliance has to be objectively reasonable. Yoo’s memos make a strong and compelling case for waterboarding not being prohibited by the text of the law. Reliance on that reasoning is not objectively unreasonable.