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Republicans on Wednesday delayed a confirmation vote on attorney general nominee Eric Holder, some demanding assurances he would not prosecute U.S. agents for torture if they thought their methods were in compliance with the law…
With questions about torture and other matters, Republicans invoked their right to delay for one week the Senate Judiciary Committee’s vote on Holder, who had already been expected to endure one of the rockier confirmation processes in President Barack Obama’s new cabinet.
Holder still appears virtually certain to eventually win confirmation by the full Senate…
During his confirmation hearing before the Judiciary Committee last week, Holder broke with the Bush administration and said waterboarding, an interrogation technique that involves simulated drowning, was torture and thus illegal.
Asked if he would prosecute for torture, Holder said “no one is above the law.” But he also quoted Obama about the need to move ahead…
Holder said he would ensure that interrogations complied with treaty obligations and were effective. He pledged to review all Justice Department legal opinions on the matter.
I don’t recall Republicans defending the “Good Germans” who only “followed orders” while working in concentration camps.
Paddy-O
And I can see you are exactly the retarded type QuackCD is talking about. You must really like picking fights.
Did the bullies always pick on you at school? I bet you carry a gun to accent your empty underwear, well, empty in the front.
# 62 QuackCD said, “Not Sockpupetty! Human and unique I am.”
Then walking onto a blog that is new to you and attacking people you don’t know, is considered trollish.
# 63 PatMc said, “Paddy-O”
As someone unknown and new to this blog, the advice goes for you as well.
You guys crack me up! Now, what was it we were talking about!?
# 66 amodedoma said, “Now, what was it we were talking about!?”
We’re trying to determine if someone could be prosecuted for water boarding. No one here has been able to show statute or applicable case law that defines water boarding as torture.
Other than opinion, it’s been a bust. Much to the dismay of the neolibs…
Oh that, it really doesn’t matter does it? I can’t imagine them getting prosecuted, can you? There’s no precedent that I can think of. I think if we’d have to make laws specific to every concivable kind of method for abuse that should be considered torture the laws would be long and complex indeed. I’d start the list with a weekend with my mother in law…
#67, Cow-Paddy, Ignorant Shit Talking Sociopath, Retired Mall Rent-A-Cop, Pretend Constitutional Scholar, Fake California Labor Law Expert, Pseudo Military Historian, Phony Climate Scientist, and Real Leading Troll Extraordinare,
Here moran,
US COde, Title 18, 2441
(d) Common Article 3 Violations.—
(1) Prohibited conduct.— In subsection ( c )(3), the term “grave breach of common Article 3” means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
(A) Torture.— The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
Any part of that you still have a problem understanding? Any other questions?
#26 – Ah_Yea
>>Underlings therefore get the green light from
>>the Attorney General and the President to
>>waterboard.
>>
>>No crime committed, no prosecution.
Ah yea, I get it now! Just like when underlings got the green light from Der Führer to put those pesky Jews in the ovens, and give them a little Zyklon B pick-me-up.
Right? No crime committed, no prosecution.
Is that what you mean?
And Fusion has come round about to the crux of the matter.
What constitutes “severe physical or mental pain or suffering”?
According to Ashcroft, it is NOT waterboarding!
There is no US law specifically calling out waterboarding as torture, irregardless of what we all might like to think. And executing Nazis or Japanese or what West Point says does not constitute US law.
That was the whole point of my post #26, people! Duh!
There is no specific legal code prohibiting waterboarding and other “extreme interrogation techniques”!
Congress has not passed any law, nor did they even take up the issue, as to whether waterboarding was illegal.
Notice that? Yes, congress passes the laws and takes the advice of the AG
BUT!!! In this case, even when the Dems controlled congress they REFUSED to take up the issue! They PASSED ON OUTLAWING WATERBOARDING!
Therefore the ruling of the AG predominates.
Now, Bobbo, this is the answer to your post #29. In the absence of any law specific to the matter, and in the absence of an act of congress to resolve the matter, the opinion of the AG becomes the de-facto standard.
Another failure of congress.
#71–Ah Yea==my link above recites several cases of waterboarding in America being the basis for convictions and courts martial.
http://npr.org/templates/story/story.php?storyId=15886834
Again==WAY TOO MUCH subservience to Presidential Propaganda is in evidence. Common sense has left the scene.
The Att Gen opinion does NOT become the law, defacto or otherwise. AGAIN, you fail to appreciation how the three branches of government interact and serve as a CHECK AND BALANCE against one another. You are further confusing what is regularly done and not prosecuted with what is legal. The Att Gen opinion may become de facto the policy of the Administration of the US government but if a case is brought to court==the court still decides what the law is.
Lets take illegal immigration. 10 years ago==practically no enforcement. If you could get here, you could stay here. Didn’t change the law, didn’t make it legal.
#72, Bobbo,
The Att Gen opinion may become de facto the policy of the Administration of the US government but if a case is brought to court==the court still decides what the law is.
EXACTLY !!!
Ah Yea, please heed.
#71, Ah Yea,
There is no US law specifically calling out waterboarding as torture, irregardless of what we all might like to think.
There is no specific law that says my fist may not connect with your nose at sufficient velocity to break it. Yet only a moran would argue that that is legal.
The Yoo Memo defined torture as something that caused organ failure. Yet if you read the actual statute, it doesn’t got near that far before it becomes torture.
*
Now, maybe you can post a link backing up your contention that an Attorney’s General opinion has the force of law. This would refute both Bobbo and I.
# 69 Mr. Fusion said, “(A) Torture.— The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering”
Umm, you still don’t get the crux of the argument and why there is no prosecution. Waterboarding hasn’t been defined as such…
Ok, bobbo, we are getting closer…
“The Att Gen opinion may become de facto the policy of the Administration of the US government”
This is what I have been saying all along.
“but if a case is brought to court==the court still decides what the law is.”
That is also exactly right, and here is where things get a bit more involved.
There has been no case brought before the courts regarding the legality of waterboarding.
The link you provided specified two instances where waterboarding was used in the US. In the first case, the solders in Vietnam were court marshaled because they breached the Army Field Manual policy prohibiting waterboarding. Again, they were court marshaled for disobeying policy. Policy, not law.
About the second case, “In 1983 Texas sheriff James Parker and three of his deputies were convicted for conspiring to force confessions.”
They were convicted for “conspiring to force confessions.” Forcing a confession could have involved putting a gun to his head, burning with a cigarette, electricity, etc. In this case it was waterboarding, but the conviction was irregardless of method used.
In neither case was the legality of waterboarding specifically challenged. The legality of waterboarding in the US has not yet been determined.
Now, in your defense, this article is absolutely excellent and fairly well clarifies the issue, which isn’t whether waterboarding is legal but whether those who practiced it should be prosecuted.
http://washingtonindependent.com/13453/waterboarding
Another question, is Congress implicitly involved in the criminal act of waterboarding by allowing the practice to continue?
It would seem to me to be so. After all, congress specifically had the authority and ability to stop the practice once and for all, but failed to do so.
#76, Ah Yea,
Another question, is Congress implicitly involved in the criminal act of waterboarding by allowing the practice to continue?
It would seem to me to be so. After all, congress specifically had the authority and ability to stop the practice once and for all, but failed to do so.
The shot answer is “no”. The quick answer is still “no”. And the long answer is “NO”.
Congress passes the laws. They are the legislative branch of government and that is their job. They also raise the taxes to pay for the running of the government. They also have oversight on how that money is spent and what areas of the nation’s business needs addressing. In many cases they allow the Agencies to write the regulations (with approval)as they are closer to the action. Those regulations though, may not change or go around the statute law.
The administration of the laws and distribution of the monies raised are done by the Executive branch of government. That is also called the Administration or the President. The terms are interchangeable .
Part of the Administration is to enforce the laws passed by Congress. That is one of the main jobs of the Department of Justice, which is headed by the Attorney General. The DoJ and the AG do not make laws.
The Justice system is run out of the DoJ for administrative reasons only and they are independent. They are the ones who interpret the laws that Congress passed.
The CIA, along with the Defense Department, are also part of the Administration. They are the ones accused of performing the torture. It is inconceivable to blame Congress for the Administration’s wrong doings and illegalities.
#76, Ah Yea,
About the second case, “In 1983 Texas sheriff James Parker and three of his deputies were convicted for conspiring to force confessions.”
They were convicted for “conspiring to force confessions.” Forcing a confession could have involved putting a gun to his head, burning with a cigarette, electricity, etc. In this case it was waterboarding, but the conviction was irregardless of method used.
If you had of read your own link from the Washington Independent, you would have seen this gem:
That would seem to suggest that the court understood water boarding to be a form of torture.
# 78 Mr. Fusion said, “That would seem to suggest that the court understood water boarding to be a form of torture.”
Unfortunately the “precedent” is only for the 5th Courts jurisdiction… But, you already knew that…
Hold it Fusion, by your own circular logic Congress YES would be liable.
You said:
Congress passes the laws.
The AG enforces the laws.
The AG stated that waterboarding is legal.
Since the AG does not create the law but only enforces, and;
Since Congress, which creates the law, did not at any time correct the AG, nor explicitly passed a bill outlawing waterboarding, then;
Congress knowingly allowed the AG to continue in the assertion that waterboarding is legal,
Thereby implicitly signifying that waterboarding is not torture, or at least had no position on the .
If you want to talk about crime, talk about this. You become an accomplice in a criminal act if you had foreknowledge of the act but did nothing to stop it.
Just like congress!
Do you see how convoluted this can all become, and why Obama probably won’t pursue this? This web of accountability is large and will ensnare Dems as well as Repubs.
Also:
“That would seem to suggest that the court understood water boarding to be a form of torture.”
Yes, I’m sure they did, as would we. But there is a difference between “understanding” waterboarding to be torture and RULING that waterboarding is torture.
There has never been a RULING that waterboarding is torture, therefore the AG and the White House was able to extend the policy position that it was not, and since Congress didn’t intervene, this position became the de facto law.
#80, Ah Yea,
honestly, you are phucked up.
Congress knowingly allowed the AG to continue in the assertion that waterboarding is legal,
The Attorney General is part of the Cabinet and is appointed by and reports to the President. He does not report or answer to the Congress.
The AG does not make law, he enforces it. In case you missed it, many people have been upset that the Bush Administration was breaking the law and the only ones allowed to stop him were complicit.
If you want to talk about crime, talk about this. You become an accomplice in a criminal act if you had foreknowledge of the act but did nothing to stop it.
Then all you are doing is sinking the Bush Administration deeper. They knew the details of who, when, where, and how the prisoners were tortured. When asked by Congress, they denied it had happened then said it wouldn’t happen again.
There is nothing to suggest Congress knew specifically that anyone was going to be tortured.
There has never been a RULING that waterboarding is torture, therefore the AG and the White House was able to extend the policy position that it was not, and since Congress didn’t intervene, this position became the de facto law.
In #69, I posted US Code, Title 18, 2441 for the statute law on torture. That is the definition of what the legislators meant. That is what a Judge will look at to decide if the act someone is accused of doing fits the definition.
The AG issued an opinion saying that torture could be done in very broad areas before it would be considered torture. This is widely recognized as being worthless. No one outside the DoJ and quite a few inside the DoJ know that waterboarding is considered torture and that to torture is illegal.
The Yoo Memo is widely seen as worthless that no normal Judge would accept as justification to torture. You posted a link that discusses that fact. Read it.
I know you don’t like the fact that the Administration can’t make their own laws. That is the one thing that kept Bush from becoming a dictator. It still remains however, the AG can not make the law and torture is illegal.
PADDY O SAID
# 45 bobbo said, “Funny that the wiki flat out says it is torture”
Yeah, imagine if we used random posting from the internet as case law. ROFL
Well,you use wiki to back your arguements.
not an original bone in your overweight body
#80–Ah Yea==you sure are taking a sound thrashing by Fusion and seemingly refusing to learn anything from it.
For the 4th time: Courts interpret and apply the law==often without regard to what Congress EXPRESSLY states is its purpose. The “notion” that Congress has impliedly indicated anything is beyond naivete==a really bad thought process that you have not until now been corrected on==if you will take the lesson.
#82–Thanks Jimbo==my purpose in providing the wiki site was not for its “authority” but for its citations and links. Paddy has decided to dig his stupid hole deeper than I wish to travel.
There are a couple of people here who don’t get it, but I’m not one of them.
Ok, Fusion and Bobbo.
I’m really quite shocked at you both.
Try this on for size:
I said: “There has never been a RULING that waterboarding is torture”
Fusion said:
“That is what a Judge will look at to decide”
So, Fusion, I’m glad to see that you agree with me that there has been no RULING on waterboarding, since a judge ‘will look at’, which hasn’t happened yet.
Next:
“There is nothing to suggest Congress knew specifically that anyone was going to be tortured.”
WTF!! What planet have you been living on??
“Hill Briefed on Waterboarding in 2002″…”In September 2002, four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.
Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.”…”With one known exception, no formal objections were raised by the lawmakers briefed about the harsh methods during the two years in which waterboarding was employed, from 2002 to 2003, said Democrats and Republicans with direct knowledge of the matter. The lawmakers who held oversight roles during the period included Pelosi and Rep. Jane Harman (D-Calif.) and Sens. Bob Graham (D-Fla.) and John D. Rockefeller IV (D-W.Va.), as well as Rep. Porter J. Goss (R-Fla.) and Sen. Pat Roberts (R-Kan).”
http://tinyurl.com/2vjh53
Ok, so now we hopefully understand that the top leaders of Congress were appraised and permission obtained to use waterboarding. If they didn’t like it they could have stopped it right then and there or anytime thereafter.
In all fairness, I will amend my statement to say that the top RANKING members of Congress are implicit in the use of waterboarding, which ranking members were mostly Democrats, in case you missed it.
Now as for:
“Courts interpret and apply the law==often without regard to what Congress EXPRESSLY states is its purpose.”
You’re implication is that Congress has no control over the Judiciary. Wrong, so absolutely wrong it’s frightening it came from you, Bobbo.
Let me give you the perfect example of this.
“S. 397 – Protection of Lawful Commerce in Arms Act”
This act: “Prohibits a qualified civil liability action from being brought in any state or federal court”…”Requires pending actions to be dismissed.”
http://tinyurl.com/am7bg
Not to mention:
“The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system”…”The liability actions commenced or contemplated by the Federal Government, States, municipalities, private interest groups and others attempt to use the judicial branch to circumvent the Legislative branch of government to regulate interstate and foreign commerce through judgments and judicial decrees thereby threatening the Separation of Powers doctrine and weakening and undermining important principles of federalism, State sovereignty and comity between the sister States.”
What, Congress can act on an out of control Judiciary? Congress can dismiss all “pending actions”?
Try again, Bobbo!
BTW, Yes, I am sinking the Bush administration further, but also congress at the same time.
Congress knew about waterboarding, Congress allowed the continuance of the Patriot Act, Congress allowed the War on Terror to continue unchecked, Congress approved Bush’s spending policies. In fact, I’m having a hard time finding what Congress did to curb Bush in any meaningful way.
Ah_Yea: 1
Fusion & Bobbo: 0
#84–Ah Yea==I accept your fact statements as accurate. They don’t bear on the continuing mistake you make.
Congress = passes laws.
Courts = rule on what the law means, how it will be applied.
Executive = charged with enforcing the law.
So, in this little 3-way, it DOESN’T MATTER what “inferences” you want to draw from Congress and the Executive meeting together. Such true facts when brought into court will be referred to in argument, but they cannot be used as “authority” because for “authority” the Court looks only to its own precedents.
CASE LAW controls over “arguments” about what congress meant or what express authorizations where reached between Congress and the Executive==hence dismissing most of your post.
WHAT DOES APPLY: is a law directly on point. Has Congress passed a LAW ((not just taken testimony, private converstions, or hearings with the Executive Branch==or even published various Congressional expressed opinions int he local rag)) stating that waterboarding is or is not torture? If not, then prior case law is the only controlling authority.
I admire the rigor of your defense, but you simply don’t understand how the parts work.
#84–Ah Yea==I completely dismissed as irrelevant the examples you gave because they don’t address the issue of torture and I did say that LAWS directly on point are part of a courts review.
Let me not leave a huge loose thread: There is a Constitution guarantee against cruel and unusual punishment. This arises in discussion about punishment on convictions for crimes but I think I read cases about this rational applying to any detention===so even LAWS directly on point regarding torture may not be sufficient without Constitutional Amendment.
Within their own jurisdicition, the power of the Court is independent from Congress and the Executive and is very well developed.
Well in the end it only matters what happens. Does a high official get successfully prosecuted for waterboarding.
So, I’m taking bets at 2:1 against major (Director or above)prosecutions.
#87–Paddy==I’ll steal your market and give 3:1.
Shame really–but why would anyone enforce laws they could well be thinking they might have to violate themselves????
Orwellian Double Speak: “Look to the Future.”
#88. Okay, you outmaneuvered me. I think you’ll get cash from Fusion & Dallas, at least.
They think there is actually a difference between the 2 parties that is more than cosmetic…
#69–Paddy==very gracious. Pick any two items you like and it is only a function of knowledge, intelligence, and imagination to find many similarities and differences between them. People that say any two things are “just the same” or “totally different” have missed this bit of Confucius Wisdom, the ying/yang of life.
Try it on for a different perspective.
Barrack “Change” Obama nominates William Lynn, Raytheon lobbyist, for the critical position of Deputy Secretary of Defense.
ROFL! “change we can believe in”
Thank you Bobbo for the compliment. I appreciate it.
Now as to the point about case law precedent.
There are two types of precedents, Binding and Persuasive. Persuasive only has the force of opinion, and therefore is not important to us here.
You are therefore talking about a precedent being Binding.
For a precedent to be Binding, these conditions must ALL be met.
“By definition decisions of lower courts are not binding on each other or any courts higher in the system, nor are appeals court decisions binding on each other or on local courts that fall under a different appeals court.”…
“Given a determination as to the governing jurisdiction, a court is “bound” to follow a precedent of that jurisdiction only if it is directly in point. In the strongest sense, “directly in point” means that: (1) the question resolved in the precedent case is the same as the question to be resolved in the pending case, (2) resolution of that question was necessary to disposition of the precedent case; (3) the significant facts of the precedent case are also present in the pending case, and (4) no additional facts appear in the pending case that might be treated as significant.”
So your position on Binding precedent is false. There is no Binding president as to waterboarding. Any and all prior rulings concerning the use of waterboarding are either not on point to the present situation or out of jurisdiction, as in the Military.
To be specific, there has been NO prior case where ANY of the provisions of Binding precedent have been fulfilled.
And the clincher is (4), “no additional facts appear in the pending case that might be treated as significant.”. Try to find a prior case law where waterboarding was used to prevent further terrorist attacks. Only this precedence would even be close to “significant”.
Hence the declared position of the AG. The need for clarification, given that there exist NO prior Binding precedent.
Now, Congress could have changed this at any moment, instead of their acquiescence.
Now you can certainly see why calling for the prosecution of those involved in waterboarding is simply a PR campaign. It won’t go anywhere because it can’t. Pelosi, Harman, Graham, and Rockefeller can’t allow it since they were involved from the beginning.
I agree about the Constitutional Guarantee against cruel and unusual punishment. This is one of the many reasons why I am adamantly against the “living Constitution” crock. The Constitution needs to be set in stone as much as possible so the President nor Congress can change it to fit their whims.
Imagine what would happen if the Supreme Court ruled a law unconstitutional, and instead of changing the law, the Government simply changed the constitution instead!
That is why only the people, through the amendment process, can change the constitution.