# Prosecuting the Outgoing Administration **URL:** \ **Category:** Politics & Elections\ **Created:** [September 26, 2015, 5:29pm UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585 "2015-09-26T17:29:28Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 28, 2015, 12:33am UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/21 "2015-09-28T00:33:06Z")
> [@Smapti](#): > > And what is the penalty under US law for violating the UN Convention on Torture? Not only that, but torture is not defined firmly enough in the convention to be prosecutable. Vague laws tend to get struck down by the courts when someone is actually convicted under them. What President Bush did was a legal gray area. He did not just license torture, so much as expand the techniques that could be used. Arguably, our domestic prison system already is in violation of the UN Convention on Torture. But nations get quite a bit of leeway to define what is and isn’t torture. As for Obama ordering the IRS to discriminate, that would violate the Administrative Procedure Act: > **[Administrative Procedure Act](https://en.wikipedia.org/wiki/Administrative_Procedure_Act)** > > The Administrative Procedure Act (APA), Pub. L. 79–404, 60 Stat. 237, enacted June 11, 1946, is the United States federal statute that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations, and it grants U.S. federal courts oversight over all agency actions. According to Hickman & Pierce, it is one of the most important pieces of United States administrative law, and serves as a sort of "constitution" for U.S. adm Th... But as in the torture example, there might not be an empowering statute that mandates jail time for violation. Sometimes its just assumed that Presidents won’t do certain things, and if they do, impeachment is a good enough remedy. So what you’d probably see done if there was a smoking gun connecting Obama to IRS targeting after he left office is to pass a censure resolution or do something like pass a law that nothing can ever be named after him since he sullied his office. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 28, 2015, 3:43am UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/22 "2015-09-28T03:43:52Z")
> [@adaher](#): > > Not only that, but torture is not defined firmly enough in the convention to be prosecutable. Come on now. > [@](#): > > As for Obama ordering the IRS to discriminate, that would violate the Administrative Procedure Act That did not happen. Torture _did_. > [@](#): > > But as in the torture example, there might not be an empowering statute that mandates jail time for violation. Already cited for torture. This is one of the most desperate reaches for equivalence this board has ever been treated to. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 28, 2015, 3:45am UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/23 "2015-09-28T03:45:03Z")
And where is torture defined in the statute? For example, is solitary confinement torture? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 28, 2015, 3:47am UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/24 "2015-09-28T03:47:18Z")
[Inform yourself.](http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx) And then tell us where you get this IRS crap from. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 28, 2015, 3:50am UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/25 "2015-09-28T03:50:06Z")
" For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering," I was hoping you’d give me something I didn’t know. And that the Bush administration didn’t know. What is severe pain and suffering? Are the punishments dished out to recruits in the US armed forces torture, and thus drill sergeants should all go to jail? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 28, 2015, 3:53am UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/26 "2015-09-28T03:53:20Z")
> [@adaher](#): > > " For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering," And quite a bit more than that, too. You stopped reading way too soon. Again, this is US law. > [@](#): > > And that the Bush administration didn’t know. They did. That’s why they had Gonzales write his own, more convenient definitions. Did you know _that_, at least? ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 28, 2015, 3:55am UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/27 "2015-09-28T03:55:47Z")
I don’t disagree with you that it was wrong, I just don’t see a prosecutable offense here, and I’d note that no one was pardoned. The FBI is quite free to pursue any Bush administration officials they want. The Obama administration did not order anyone to back off. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 28, 2015, 3:58am UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/28 "2015-09-28T03:58:50Z")
> [@adaher](#): > > I’d note that no one was pardoned. A US pardon has no bearing on an international prosecution. > [@](#): > > The Obama administration did not order anyone to back off. Nor did they issue any such orders to the IRS. Now are you willing to back off this ridiculous equivalency bullshit? ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 28, 2015, 4:00am UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/29 "2015-09-28T04:00:16Z")
I was never trying to make equivalency, only pointing out that the circumstances of the different cases make one easier to prosecute than the other. I have also not stated that Obama DID order the IRS to do anything, only that if there was such a paper trail he could go to prison. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 28, 2015, 4:03am UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/30 "2015-09-28T04:03:06Z")
> [@adaher](#): > > I was never trying to make equivalency, :rolleyes: > [@](#): > > only pointing out that the circumstances of the different cases make one easier to prosecute than the other. Real things are much easier to prosecute than imaginary ones, yes. Equivalency, and ridiculous. Now take some damn responsibility for your own words. ---
**Author:** ![Peanut\_Gallery](https://avatars.discourse-cdn.com/v4/letter/p/838e76/32.png) [@Peanut\_Gallery](https://boards.straightdope.com/u/Peanut_Gallery)\ **Post date:** [September 28, 2015, 11:39pm UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/31 "2015-09-28T23:39:40Z")
> [@adaher](#): > > The Obama administration did not order anyone to back off. I don’t know that it was quite that direct, but they did effectively back off in a number of ways. [This article](http://www.theguardian.com/commentisfree/2012/aug/31/obama-justice-department-immunity-bush-cia-torturer) explains better than I can. ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [September 29, 2015, 12:38pm UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/32 "2015-09-29T12:38:42Z")
> [@adaher](#): > > Not only that, but torture is not defined firmly enough in the convention to be prosecutable. Vague laws tend to get struck down by the courts when someone is actually convicted under them. What President Bush did was a legal gray area. He did not just license torture, so much as expand the techniques that could be used. Arguably, our domestic prison system already is in violation of the UN Convention on Torture. But nations get quite a bit of leeway to define what is and isn’t torture. [The United States prosecuted Japanese military officials for war crimes for waterboarding.](http://www.motherjones.com/politics/2014/12/waterboarding-torture-japan-world-war-ii) > [@](#): > > Decades before it started waterboarding terrorism suspects, the US government had dramatically different standards for what it considered torture, particularly when it was being done to our soldiers in World War II. Recently released documents detail how the the United States charged hundreds of Japanese military officials and prison guards with war crimes for abuses against American prisoners of war, including waterboarding. > > “What the US was calling torture, what it was prosecuting as war crimes [during World War II] were not even close to what has come out in the torture report,” says Shanti Sattler, assistant director at the War Crimes Project at the Center for International Studies and Diplomacy at SOAS, University of London, who fought to have the trove of documents made public. Regarding the phony IRS scandal, not a single conservative group was denied their tax-exempt status and at least one liberal group was. Strictly reading of the law, none of the political groups should have had tax-exempt status. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [September 29, 2015, 2:01pm UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/33 "2015-09-29T14:01:33Z")
> [@Peanut\_Gallery](#): > > No, SDMB conservative lawyers I need not name, I am not prepared to lay out a specific legal case of who broke what laws and how I would make a case in court. Spare us the derailment, please. It’s not a derailment to ask what law Obama broke, that he or his officials should be prosecuted for. Impeachment means, essentially, whatever Congress decides is grounds for impeachment. Prosecution of a past administration isn’t impeachment - you have to have probable cause to show to a grand jury, and cite the specific US law that was broken. I don’t think it matters if the opposing party takes over the White House or not. If they have actual evidence of a specific crime, they can prosecute. If they don’t, they can’t. You can create just as strong a case that Obama should be prosecuted for using drones as you could that Bush should have been prosecuted for using waterboarding. Which is exactly the point - neither were clear cut violations of US law. (No, they aren’t, no matter what the extreme partisans on either side say.) Besides, it just isn’t practical. If Hillary or Sanders wins the White House, he/she isn’t going to try to get Obama indicted, and an attempt to get Bush eleven years after the fact is just petty political revenge. If the GOP wins, Obama will simply proactively pardon himself on his last day in office. This is a nation of laws, not men. If you want to prosecute someone, pointing to the law they broke is an absolute prerequisite - not just “we won the election, now let’s throw our opponents into prison”. Maybe they can get away with that in the Third World. In the USA - not so much. Regards, Shodan ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 29, 2015, 2:03pm UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/34 "2015-09-29T14:03:10Z")
What is the law against using drones? We know what the law is against using torture. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [September 29, 2015, 2:43pm UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/35 "2015-09-29T14:43:00Z")
As mentioned, there is the [same kind of evidence](http://www.nytimes.com/roomfordebate/2015/04/24/should-a-court-approve-all-drone-strikes/drones-are-illegal-beyond-the-battlefield) that Obama’s drone strikes are [illegal](http://abcnews.go.com/blogs/politics/2013/03/us-drone-strikes-in-pakistan-are-illegal-says-un-terrorism-official/)as that waterboarding was illegal. That is to say, nothing that you can bring before a grand jury in either case. I understand your conviction that what Republicans do is always illegal and what Democrats do is completely different. The thing is that the principle on which this is based will not stand up in a court of law. Even Democratic policticians recognize this, which is why Obama didn’t try to prosecute Bush et al., and why Hillary won’t if she gets elected. I’ve heard the lefties on the SDMB fulminate about how disastrous it was for the GOP to impeach Clinton for lying under oath, because his popularity went up and he was acquitted and the GOP looked all petty and hypocritical and so forth. It would be the same thing if a Republican President tried to get Obama indicted or Hillary tried to go after Bush after all these years. A sore winner doesn’t look any better than a sore loser. Regards, Shodan ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 29, 2015, 2:57pm UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/36 "2015-09-29T14:57:48Z")
> [@Shodan](#): > > As mentioned, there is the [same kind of evidence](http://www.nytimes.com/roomfordebate/2015/04/24/should-a-court-approve-all-drone-strikes/drones-are-illegal-beyond-the-battlefield) that Obama’s drone strikes are [illegal](http://abcnews.go.com/blogs/politics/2013/03/us-drone-strikes-in-pakistan-are-illegal-says-un-terrorism-official/)as that waterboarding was illegal. No. Your cite is only about using military force in a defined “armed conflict”, nothing more. It isn’t even specific to drones, only the use of force. > [@](#): > > That is to say, nothing that you can bring before a grand jury in either case. You may wish there were no evidence about torture, but that is not the case. > [@](#): > > I understand your conviction that what Republicans do is always illegal and what Democrats do is completely different. :rolleyes: I go with the facts, and the facts are that Bush tortured, and that torture is a crime, under US as well as international law. Time to drop the handwaving and desperate imagining of equivalency. > [@](#): > > The thing is that the principle on which this is based will not stand up in a court of law. Even Democratic policticians recognize this, which is why Obama didn’t try to prosecute Bush et al., and why Hillary won’t if she gets elected. No, the principle is political expedience, nothing more, deplorable though it is. > [@](#): > > I’ve heard the lefties on the SDMB fulminate about how disastrous it was for the GOP to impeach Clinton for lying under oath, because his popularity went up and he was acquitted and the GOP looked all petty and hypocritical and so forth. It would be the same thing if a Republican President tried to get Obama indicted It would indeed. > [@](#): > > or Hillary tried to go after Bush after all these years. That’s where a basic respect for justice, and our having a country of laws and not of men (as you so helpfully point out yourself) comes into it. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [September 29, 2015, 4:51pm UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/37 "2015-09-29T16:51:21Z")
> [@ElvisL1ves](#): > > No. Your cite is only about using military force in a defined “armed conflict”, nothing more. It isn’t even specific to drones, only the use of force. Didn’t read the cites (there were two of them), did you? > [@](#): > > “The position of the government of Pakistan is quite clear: It does not consent to the use of drones by the United States on its territory and it considers this to be a violation of Pakistan’s sovereignty and territorial integrity,” said Ben Emmerson, U.N. special rapporteur on counterterrorism and human rights. > > “As a matter of international law, the U.S. drone campaign in Pakistan is … being conducted without the consent of the elected representatives of the people or the legitimate government of the state,” said Emmerson, who is British and has been investigating the impact of U.S. drone attacks in Pakistan’s tribal areas on the civilian population. The UN says that waterboarding is illegal, so Bush should be prosecuted. The UN says the drones are illegal, therefore Obama shouldn’t. > [@](#): > > :rolleyes: I go with the facts, and the facts are that Bush tortured, and that torture is a crime, under US as well as international law. Well, good for you. Stick with the facts even when it comes to Democrats, and we might get somewhere. The facts are that Obama used drones, and that his use of drones is a crime, under US and international law. So both Bush and Obama should be prosecuted. I look forward to your calls to either impeach Obama, or to have him criminally indicted come January 2017. Regards, Shodan ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 29, 2015, 5:20pm UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/38 "2015-09-29T17:20:35Z")
> [@Shodan](#): > > The facts are that Obama used drones, and that his use of drones is a crime, under US and international law. Again, no. Use of military force is an international crime, one few observe. Use of drones is not. And neither is against US law. > [@](#): > > So both Bush and Obama should be prosecuted. And so should every leader of a nation powerful enough to both have and use a military force. But only a few have committed war crimes. We now return you to your regularly scheduled _tu quoque_ exercise. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [September 29, 2015, 5:49pm UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/39 "2015-09-29T17:49:24Z")
> [@aldiboronti](#): > > This used to be common practice in 17th/18th century England, with high-ranking figures of the old administration hastily fleeing across the Channel, Bills of Attainder snapping at their heels. Eventually the politicians came to realize this was a bad idea for all of them. It’s still a bad idea. Like **Little Nemo** , I’m curious to know what examples you’re thinking of? ---
**Author:** ![ISiddiqui](https://avatars.discourse-cdn.com/v4/letter/i/97f17d/32.png) [@ISiddiqui](https://boards.straightdope.com/u/ISiddiqui)\ **Post date:** [September 29, 2015, 6:12pm UTC](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585/40 "2015-09-29T18:12:04Z")
> [@ElvisL1ves](#): > > Use of military force is an international crime, one few observe. Use of drones is not. What exactly do you think drone strikes are if not “military force”? [Previous page](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585.md?page=1) [Next page](https://boards.straightdope.com/t/prosecuting-the-outgoing-administration/732585.md?page=3)