Will anyone from the Bush administration be tried

[John_Mace]

@Bricker

“Color of law” refers to someone who derives authority from enforcing the law. I doubt it would apply to a CIA agent whose purpose is to gather intelligence, although perhaps if the agent used his credentials and claimed he was enforcing US law, it might.

I’d be very surprised if that were true for Guantanamo interrogations. But if it is, then you might argue the law applied.

Seems like that is the assertion in the ACLU’s suit against Tenet. They are also claiming that the Alien Tort Statute 1350 applies. Here’s the PDF file of the actual suit. I have no idea if their motivation is to get media attention, or if they actually think they have a case. But note that it is a **civil **action, not a criminal action.

[Rachm_Qoch]

@Bricker

“Color of law” refers to someone who derives authority from enforcing the law. I doubt it would apply to a CIA agent whose purpose is to gather intelligence, although perhaps if the agent used his credentials and claimed he was enforcing US law, it might.

Haven’t courts deemed “color of law” as covering a wider array of State authorities exercising official duties (eg IRS agents, Election officials). And what about the ubiquitous private contractors? Couldn’t, say, Blackwater security guards be prosecuted for torture?

I’d be very surprised if that were true for Guantanamo interrogations. But if it is, then you might argue the law applied.

Right. The Justice Department claimed they were immune from the statute not because of the ‘color of law’ question, but because Guantanamo was effectively US soil.

[Tristan]

@Evil Captor

Bush has been threatening to veto any bill that forbids torture, and Cheney and Rumsfeld have been howling for the blood of others (via torture) for months. You don’t think at some point these three didn’t sit around a table and say, “Yeah, we gotta be able to torture these ragheads if we want to get info out of 'em.” Because it’s hard to see it all as a remarkable coincidence.

I’m going out on a limb here, and I know that’s not proper GD behavior, but I’ve only had one successful run through here in the past, so hopefully you’ll cut me some slack.

I have no cites, of course, but I seem to recall that the problem with a lot of the torture bills right now is verbage… they are vauge on what is torture. Is yelling torture? It makes folks uncomfortable, so it might be. There needs to be a clearly demarcated line that says “Anything harsher than this is torture”.

And nobody is going to want to be the one to do that, as it admits that we’re already doing things up to that line, and suspect things over that line enough to warrant a law prohibiting it.

As for the smoke filled room conversation, it may have happened, but I’m sure it wasn’t recorded or written down. Bush may have told Cheney “Torture those dang insurgents, Dick.” And then Cheney may have told Rummy “Make them speak. They will respect the Dark Side!” and then Rummy may have had a talk with some spooks and indicated that, and then, at that point, a spook may (MAY!!!) have written something down.

But following that trail all the way up will dead end at that spook. And that spook will be hung out to dry, at the command of the POTUS. Thusly, his hands are clean and everyone is happy.

Just MHO, of course.

[Blalron]

@AFAIKnow

You would then have to prove that Bush ordered or engaged in torture.

According to our learned legal scholars on the board, even if Bush ordered torture there’s nothing the law can do. Even if Congress outlawed it today, the Constitution prohibits ex post facto laws so whatever Bush has done in the past, no matter how hideous is still protected. So you’re right, nothing will happen to him.

I’d support a Constitutional amendment specifically designed to personally punish Bush and get around the Ex Post Facto clause… but I doubt that’d pick up much steam. :smack:

[BrainGlutton]

@Rachm Qoch

Right. The Justice Department claimed they were immune from the statute not because of the ‘color of law’ question, but because Guantanamo was effectively US soil.

But, I thought the whole point of Camp X-Ray was to have a detention center outside the U.S. and its laws.

Otherwise, why not just send all the detainees to an ordinary federal jail in New York or D.C.?

[Rachm_Qoch]

@BrainGlutton

But, I thought the whole point of Camp X-Ray was to have a detention center outside the U.S. and its laws.

Otherwise, why not just send all the detainees to an ordinary federal jail in New York or D.C.?

The wonder of Guantanamo is that they can have it both ways.

When lawyers sued for detainees’ access to US courts, the DOJ argued that Guantanamo was foreign soil, and US courts lacked jurisdiction:

…In addition, the Guantanamo detainees, like the detainees in Eisentrager, are being held by the U.S. military outside the sovereign territory of the United States. It is “undisputed” that Guantanamo is not part of the sovereign United States, Pet. App. 55a (district court), and that conclusion is compelled by the express terms of the Lease Agreements between the United States and Cuba and the Executive Branch’s definitive construction of those agreements. Accordingly, U.S. courts lack jurisdiction to consider claims filed on behalf of aliens held at Guantanamo.
Rasul v. Bush

Because the torture statute only covers acts outside the US, they argued that Guantanamo was under US jurisdiction, and therefore the statue did not apply to Guantanamo:

…Guantanamo Bay Naval Station (GTMO) is included within the definition of the special maritime and territorial jurisdiction of the United States, and accordingly, is within the United States for purposes of § 2340. Thus, the Torture Statute does not apply to the conduct of U.S. personnel at GTMO.
Working Group Draft Report on Interrogation Methods

It’s precisely the ambiguous nature of the jurisdiction of Guantanamo that was so appealing; they could do their work relatively unencumbered with legal worries.

[Evil_Captor]

@Blalron

According to our learned legal scholars on the board, even if Bush ordered torture there’s nothing the law can do. Even if Congress outlawed it today, the Constitution prohibits ex post facto laws so whatever Bush has done in the past, no matter how hideous is still protected. So you’re right, nothing will happen to him.

I’d support a Constitutional amendment specifically designed to personally punish Bush and get around the Ex Post Facto clause… but I doubt that’d pick up much steam. :smack:

That would constitute a Bill of Attainder, which I also believe is outlawed in the Constitution.

[BrainGlutton]

@Evil Captor

That would constitute a Bill of Attainder, which I also believe is outlawed in the Constitution.

Yes, but an amendment would trump that provision.

Just saying.

[BrainGlutton]

@Rachm Qoch

The wonder of Guantanamo is that they can have it both ways.

When lawyers sued for detainees’ access to US courts, the DOJ argued that Guantanamo was foreign soil, and US courts lacked jurisdiction:

Because the torture statute only covers acts outside the US, they argued that Guantanamo was under US jurisdiction, and therefore the statue did not apply to Guantanamo:

It’s precisely the ambiguous nature of the jurisdiction of Guantanamo that was so appealing; they could do their work relatively unencumbered with legal worries.

That is audacious. As a citizen, I’m outraged. As a lawyer, I’m fascinated.
Aroused, even.

[ms.deanna]

@Martin Hyde

You have to understand the administration has gone through great pains to place prisoners in situations where, if some “coercive measures” are felt necessary the people involved will either be outside of U.S. jurisdiction, or in some sort of legal quagmire that would make it extremely difficult to prosecute them.

The location and the people involved isn’t accidental.

  Can I get a witness? You tell em, MH.