So … not knowing anything about French law… is there any prior experience with this or similar laws, where we could point to that and say, “See? French universal jurisdiction applies!”
I see that this argument has already been tried against someone else for the same crimes. On October 25th, 2007, the French League of Human Rights filed a criminal complaint against former Secretary of Defense Donald Rumsfeld alleging exactly what you discuss: French universal jurisdiction covers Rumsfeld’s connections to torture. What happened in that case?
Dismissed.
Rumsfeld, as a then-government official, was found to have immunity for acts committed in his official capacity, with the immunity continuing after his job ended for acts committed during it. Two petitions for rehearing were dismissed on the same grounds, the last one directly by the French Minister of Justice.
That doesn’t seem to suggest it’s “practical” to use French law (unless, as concede above, France changes its law). Or am I missing something?
You’re not missing anything. It’s not practical. I was merely pointing out that France has universal jurisdiction to prosecute for acts of torture. You asked earlier for someone to point to the law that says they can do that and explain it to you. I did. That’s it.
In the case of Rumsfeld they had jurisdiction to try him, the court just decided that he was immune from being prosecuted for acts of torture in his capacity as Sec. of State.
Can they? Yes. Will they? Some have. Is it practical? Not very. The reality is even though a country can prosecute anyone for torture, they are extremely reluctant to get to the merits of the case. Most of the reasons for dismissal are not even straight legal reasons (we don’t have jurisdiction to prosecute, because they do), but more political…broad interpretation of immunity (France), not applying universal jurisdiction because the host country still might prosecute (Germany), amending your law to limit universal jurisdiction after the case is filed (Spain).
For the record, complaints have been filed in the ICC, Germany, France, and Spain to prosecute Cheney Co. for torture. All have failed as pointed out (I think the Spain case is still technically still open). The ICC complaint is new, but I imagine the same death.
Interesting discussion of Yoo and Bybee getting off pretty much scot-free. You should read the Balkin article he discusses as well.
Two points:
-Attorney disciplinary standards are meant to weed out sociopaths, the egregiously incompetent, and thieves. Espousing dubious legal arguments generally won’t get you in trouble.
-As Bricker mentioned, Cheney would need to show reasonable reliance on the memos to avoid prosecution. To defeat this, prosecutors would have to show either that the reliance wasn’t reasonable (difficult) or that there was no reliance at all because the administration made their minds up to torture and sought legal cover after they had already decided on a course of action (in this case, possibly somewhat less difficult).
Prosecuting Cheney wouldn’t be impossible. But you’d either have to make a tough legal argument concerning the reasonability of his actions, or you’d have to dig up memos or grand jury testimony establishing that it was a fait accompli before they even sought a legal opinion.
If we were to accept this anonymous source’s statement as utterly factual, then that might create legal liability for Gonzales. Cheney isn’t even mentioned.
So… perhaps it’s not true.
In any event, once again, there’s not a scintilla of evidence in that statement implicating Cheney.
So, once again: no. It is NOT practical to convict Cheney.
Great article on Yoo. I have to agree with him on lawyers. It may be too late to prosecute Cheney but it was still is unsettling to read. The comments were as good as his discussion.
Loved this one:
This comment by Sarcastro reminded me tangentially of Hannah Arendt’s downright amazing “rule by Nobody” observation of modern government, which is chillingly apt today:
These definitions coincide with the terms which, since Greek antiquity, have been used to define the forms of government as the rule of man over man - of one or the few in monarchy and oligarchy, of the best or the many in aristocracy and democracy, to which today we ought to add the latest and perhaps most formidable form of such dominion, bureaucracy, or the rule by an intricate system of bureaux in which no men, neither one nor the best, neither the few nor the many, can be held responsible, and which could be properly called the rule by Nobody. Indeed, if we identify tyranny as the government that is not held to give account of itself, rule by Nobody is clearly the most tyrannical of all, since there is no one left who could even be asked to answer for what is being done. It is this state of affairs which is among the most potent causes for the current world-wide rebellious unrest.
Unless your view of “answer for” is limited to criminal liability. But this government must give account of itself or be removed from power every two or four years.
Just for the record is it your position that, a ticket that enjoyed vast republican support, featured two numbskulls too illiterate or lazy to read about WW2?
Just for the record, if I ask a cop, or maybe an FBI agent if it would be kidnapping to take Chaney against his will to Spain, at gun point, and the officer agrees it’s legal, does that give me license to kidnap Chaney? He’s certainly wanted by the Spanish courts. How about inquire if shooting him would be murder, and get a “no, it’s legal, do it up dude”?
If not why should cold blooded torture be any different then kidnapping or murder?
If Chaney honestly believed it wasn’t torture is he, and his republicans supporters okay with the Japanese did to brave Americans soldiers in WW2?
Or is Chaney a two faced spineless whore willing to sell out the crimes against American service men to further his own agenda of war crimes?
Or do Republicans feel war crimes only count if they’re against white men?
Which is it?
Why does the Republican party seem to ooze more slime then a hagfish?
He’s wanted by the Spanish courts? Have you been reading this thread? The part where Spain passed a law dialing back their concept of universal jurisdiction?
Or is it your position that you were… um… how did you put it when you were asking about the GOP ticket? That for whatever reason, you didn’t do the reading necessary to inform yourself of the facts? I think you phrased it a bit more insultingly than that.
Yes Bricker, you might have noticed I am hostile. I’m sure many the unemployed, ruined, and dead from Republican incompetence, and or treasonous lies, agree. Torture victims too.
Good. If you’re the sort of person who thinks it’s irritating that we demand torturers face consequences for their crimes against humanity then you SHOULD be irritated. May your own hatred of a sense of decency keep you up fretting all night.
I have read the thread. Your whole argument seems to be, and correct me if I’m wrong, that Chaney didn’t know water boarding was torture?
If so, and if he didn’t know, why didn’t he simply have himself water boarded to find out?
Is the guy that used to be on Republican ticket too chickenshit to take a dose of his own medicine?
Then obviously you had some reason to claim that Cheney is “…certainly wanted by the Spanish courts.” You read the thread, and were well aware of the current Spanish position. So why did you say that?
You’re wrong.
My argument is: Cheney believed waterboarding at Guantanamo was not prohibited by US law.
Why is that different from what you said? Because “torture” is a generic phrase, and “U.S. law” and “waterboarding” are very specific acts. And in the United States, we have a rule called the rule of lenity, which says that in criminal statutes, ambiguity is construed against the government. Cheney thought that the specific acts being done at Guantanamo were legal.
Who cares? The question in this thread is, “Is it practical to criminally prosecute Cheney for torture?”
Who cares? It’s completely irrelevant to the question posed here.
And you seem to have quite a bit of trouble identifying the question posed here, by the way. Again I point out that several posts ago, you had very harsh words for people because they hadn’t read the history of WWII in enough detail to know about waterboarding, a comparatively minor aspect of the vast subject covered by the phrase “World War II.”
And yet here, in a thread whose entire title focuses specifically, narrowly, one might even say myopically, on the question of criminal liability for Dick Cheney, you seem to have a great deal of trouble focusing on that question.
So, turning the same level of judgment on yourself that you leveled at the GOP ticket, how would you characterize your literacy and intellectual vigor?
I’m conceding that point because there may well have been developments I wasn’t aware of, at any rate it was a throw away comment so not worth perusing.
So you’re saying US law does not prohibit torture? Or are you saying water boarding isn’t torture?
Was he reasonable in this belief? I could believe shoving bamboo up someone’s finger nails isn’t torture.
Does that give me license to shove bamboo up Chaney’s finger nails till he tells whether or not he really believed water boarding was torture?
How does water boarding not fall under the definition of torture in US law? You cite the DOJ saying it wasn’t, but if the DOJ can define what is and isn’t torture, by pre-clarification, then why can’t the local police department define what is and isn’t murder by pre-calcification?
Taken another way, if I’m “unsure” if punching someone in the gut is assault and the cop I get happens to tell me that it’s okay, then do I have a license to gut punch with legal impunity?
Your stance is utterly confusing unless one takes the assumption that ambiguity be reasonable. Chaney’s ambiguity is not reasonable because:
Because being water boarded is a sure fire way to find out it’s torture. He had doubts about whether or not it was torture. This shown be him inquiring. Why didn’t he take the responsible action of trying it himself? Was his black shriveled lump of a heart too full chickenshit?
If he was unable or unwilling, then wouldn’t a reasonable to conduct a past review of whether water boarding was considered torture?
Did the vile sociopathic subhuman known as Chaney even bother to read a basic description of water boarding?
Here’s what an American victim, after being water boarded by Japanese war criminal Chinsaku Yuki, had to say about it:
Are you really telling me Chaney reasonably believed this man wasn’t tortured?
Good to know you and Chaney are on the side of Imperial Japan in this case.
U.S. law does not prohibit all acts that everyone might think are torture.
Your belief is must be objectively reasonable.
I can think of some circumstances where they could decide that. But for the general crime of murder, reliance on the DOJ saying murder is legal would not be objectively reasonable.
But imagine you’re a member of a SEAL team, called together and given a secret mission to infiltrate Tehran and take out – assassinate – Ahmadinejad. It’s an order signed by the command-in-chief, and a memo from the DOJ explaining who the President has issued an Executive Order countermanding the previous Executive Order forbidding the assassination of foreign leaders, and that he has determined that Ahmadinejad is a clear and present danger to the national security of the United States.
Is that murder? Or not?
Regardless of whether it is or not, your reliance on the claim that it wasn’t would seem pretty reasonable.
No, again, the law here is not complicated. It’s not newly created law. You read the part about the Watergate burglars?
I haven’t read the whole thread, so excuse me if this has been asked already, but do you think that waterboarding is torture? Do you believe that thinking that it isn’t is reasonable?
The way I see it, it wasn’t until the Bush administration took control that anyone thought waterboarding, if done repeatedly, wasn’t torture, but this administration wanted to do it anyway. So they manufacture this doubt out of whole cloth. Then, they get Yoo to write up a memo that says there is this grey area and we don’t really know whether or not it’s torture, and BINGO! plausible deniability and a legal defense. There is a kind of ruthless efficiency to the administration’s ability to not just torture, but to get away with it also.
None of this, of course, means it is practical to try Cheney for torture, we don’t know, and likely will never know, the full extent of what was done and his culpability for it. But everyone should be scared at just how well they were able to justify and try to legalize what they did.
Cheney is ethically and morally impaired. He charged his lawyers with the task of finding a way around accepted standards of prisoner treatment. The Military Code of Conduct did not deter him. He wanted a way around the rules. I read yesterday that Yoo and his lawyers said it was legal for the president to have a village destroyed. Petraeus Takes On Cheneyism | HuffPost Latest News Here is Patraeus castigating Cheney policies and attitudes.
Cheney covered his tracks. He found lawyers that would find a way to legally justify what he wanted to do. He got the military and the contractors to do things that were reprehensible to most. He did a lot of damage to the prestige and respect of America. We are not a shining light on the hill when people like Cheney will pull the whole government into the dirt.
But when this business started, I wasn’t sure. Perhaps this makes me a naive or credulous fool, but what finally convinced me it was torture was reading Scylla’s description of it. I wasn’t much aware of the details of the practice before that, so I didn’t have a solid opinion one way or the other.
Yes, I think that’s a fair summary of what happened.
At the end of Agatha Christie’s series of novels about the great detective Hercule Poirot, we have “Curtain,” in which Poirot meets a murderer he cannot catch, because the man’s method of “murder” is to maneuver people that are predisposed to a moment of thoughtless aggression right into the path of his intended victims. He could never be tried, this murderer, because there would never be an overt act that was criminal. Poirot solves the case by executing the man, and then, realizing he has become a criminal himself, takes his own life.
Cheney is much the same as that faceless murderer. I am personally convinced there isn’t a scrap of usable evidence that a fact-finder could point to and say, “See? HERE is where Cheney ordered Yoo to write the memo!” It would be all done with attitude and body language, nothing overt.
So I’m not blind to all that.
But while I get that this is infuriating, I also don’t think the Poirot solution is the right one – which in this instance would be trashing the protections of criminal procedure to get the bad guy.
So under US law, what Japanese war criminal Chinsaku Yuki was convicted of, wasn’t torture?
I’m aware those were different legal circumstances, but I find the core idea, that under current American law, Imperial Japanese water boarding of POWs would have been legally kosher, to be suspect.
That said, I’d like to make a correction. It seems I miss read that quote and in fact it was lawyer and not servicemen that was tortured. Also I forgot the cite the text segment was from, which is here. Although it’s cited at the bottom, in the interests of honesty that’s not where I got it.
How does one define “objective” in a manor where an objective investigation of water boarding would conclude it isn’t torture?
Did the SEAL team have the same level evidence that this order is unlawful that Chaney has that water boarding is torture? If there was enough legitimate objective evidence that their mission was within the law then I agree. We shouldn’t punish the victims of con jobs, which is what that would be if it’s unlawful
However I can find plenty of objective evidence that water boarding IS torture, and has been considered torture for a long time. There’s a difference between making a mistake and willfully sticking your head in the sand, don’t you agree?
Did the Watergate Burglers have the same level of objective evidence available that Chaney did that water boarding was torture?