When Lawyers Equate Law with PR
Jack Goldsmith and Ben Wittes have an op-ed up in which, claiming that the PR value to military commissions is minimal, Obama should just not give KSM a trial of any sort. They make a clever move in which they first cursorily dismiss the value of civilian trials.
A trial potentially adds three things: the option of the death penalty; enhanced legitimacy in some quarters, especially abroad; and a certain catharsis and historical judgment in the form of a criminal verdict.
These are non-trivial benefits, but as the battle over the past few months has shown, they come at great cost. Domestically, the political costs of trying high-level terrorists in federal courts have become exorbitant for the administration — unaffordably high, it seems to be turning out.
They make no consideration of the importance of a trial for our rule of law, our system of justice. And fail to consider any potential direct benefit in showing potential terrorists that we don’t stoop to the arbitrary authoritarian ways of the oppressive countries many of them are fighting. This is not about impressing Europe, as they seem to suggest, but about impressing young Saudis or Pakistanis, showing them the rule of law.
And from there, Goldsmith and Wittes treat the political debate over civilian trials equally cursorily. They might consider, after all, the reasons why civilian trials have become so costly: the fact that Dick Cheney and his daughter, trying to avoid any consequences for instituting a torture regime, are paying a lot of money to sow fear about civilian trials.
It’s a political ploy. Nothing more. Yet one that plays to the weaknesses of someone like Rahm, who apparently doesn’t see much value in defending principle. But the political cost doesn’t have to be that high; Obama has just let it be made so.
And so, with those five lines dismissing the value of the rule of law on which our country is based, they go on to focus more on their straw man target, military commissions.
The legal and political risks of using the ill-fated military commission system are also significant. After the Supreme Court offered a road map for a legally defensible system, Congress has twice given its blessing. But serious legal issues remain unresolved, including the validity of the non-traditional criminal charges that will be central to the commissions’ success and the role of the Geneva Conventions. Sorting out these and dozens of other novel legal issues raised by commissions will take years and might render them ineffectual. Such foundational uncertainty makes commissions a less than ideal forum for trying Mohammed.
Moreover, the public relations and related legitimacy benefits of trying Mohammed in a commission are not that great, especially since the administration insists that he will remain in detention even if acquitted. The possibility that the administration might try him in a commission has been met with anger and disdain by the American left and many European elites, who think commissions are as illegitimate as they believe the underlying detention system to be. They will work hard to delegitimize their proceedings too.
In short, a military commission trial might achieve slight public relations and legitimacy benefits over continued military detention of Mohammed, and might facilitate his martyrdom by ultimately allowing the government to put him to death. But this would add so little to the military detention that the administration already regards as legitimate that a trial isn’t worth the effort, cost and political fight it would take.
Now, there’s a reason Goldsmith and Wittes focus so much more closely on military commissions than civilian trials. That’s because there are real drawbacks to them. They are legally dicey, they are likely to result in years of delay, they actually offer fewer tools with which to try KSM successfully. And of course, Goldsmith and Wittes don’t acknowledge that that is one key basis for criticism of military commissions: they simply won’t be as effective as civilian trials. Instead, they falsely suggest that leftist opposition to military commissions is some nihilist attempt to discredit the trials just for the sake of principle. By making the criticism of not just the left but the military into a strawman, they avoid the fundamental agreement between us and them about the weaknesses of military commissions.
And so, with that canard, Goldsmith and Wittes dismiss the PR value of military commissions, too.
Poof! By weighing our entire legal system as one big PR gimmick (and failing to do that very well) Goldsmith and Wittes manage to decide it’s just not worth all that much.
But the clever op-ed is valuable for something. It shows what a slippery slope Obama is on. Because once you fail to make the case for the principle of rule of law, when you fail to point out the benefits it offers both as a necessary step to reclaim the America that used to inspire others rather than inflame them and as a proven way to adjudicate crimes, then there’s little to distinguish the benefits of civilian trials and the arbitrary rule of indefinite detention. (I’d also say that, short of pointing out that most candidates for indefinite detention are such because they’ve been tortured into craziness by Goldsmith’s former employers, you fail to point out how Cheney’s mistakes have gotten us here.)
Even Eric Holder, who genuinely wants civilian trials, has conceded the possible efficacy of military commissions and indefinite detention. And once you’ve done that, rather than defend the principle and efficacy of civilian trials, you’re on the slippery slope where our entire rule of law is just a big PR ploy. One that can be discarded for arbitrary indefinite detention when it becomes convenient.
That pretty much captures it all. As G&W say themselves right at the top, “. . . the obvious solution: Don’t bother trying them at all.”
If Goldsmith and Wittes believe trials are unnecessary, they should turn in their law licenses. They’re really not using them anyway.
The peasants out here know that our alleged justice system is a “pr gimmick” and they do not buy it and have a deep disrespect for what those in D.C. and around the country refer to as a justice system or equal access to the law, or “no one is above the law” The peasants know this is all bullshit.
All they have to do is look beyond their noses to see people that they know in prison for non violent crimes. They know that the justice system is broken and that the latest and most serious example that “no one is above the law” is that the same thugs who sent many of the peasants children or relatives off to a war based on a “pack of lies” have in no way been held accountable. The disprespect for the law that those in power have trickles down to the peasants.
As should Obama and Holder for the very same reasons.
Holder may want real trials, but he’s not willing to fight very hard to get them.
If efficacy is the only goal and we’re going to allow hearsay evidence anyway, why not just shoot whichever prisoners we see fit? Quick, cheap (Bullets are less than $.50 each), and all we need is a DOJ memo that says we can do it. If the memo turns out to be incorrect a few years down the road, no worries. Future administrations will have no interest in prosecuting.
And since we’re going to keep KSM locked up anyway, even if he is aquitted, why bother with this kabuki? There’s no support anywhere that matters for allowing him even basic human rights so ObamaLLP can do with him as they please. He can be sacrificed to Holy Joe and Lindsey Graham on a altar of federal caselaw books.
Boxturtle (Misses the days when we could pick on other countries for THEIR human rights violations)
And we can act much more humane then the Chinese who charge the families of the accused the cost of the bullet.
You should be writing an Op-Ed in the Post.
Well, Holder has been slapped down by Emanuel & Graham, the MSM has been whipped into a frenzy about it, and Obama isn’t overtly supporting him, so what’s a poor AG going to do but hunker down and try to sound reasonable?
Also, its not good that Health Care Reform and the economy are sucking up so much oxygen. His boss has a lot on his plate.
There’s no rush on the trials; the detainees have already been held unconscionably long, so an additional month or two won’t make much difference.
Is the issue formally in the hands of SDNY? If so, Obama just might wait until they issue an opinion on where to hold the trial. Then Obama can just say, “Why yes, that sounds like a good idea. You guys know best. Let’s do it your way.”
Or has the issue been formally pulled back from SDNY?
Bob in AZ
“our entire rule of law is just a big PR ploy.”
With the unbridled rendition, torture, murder cover-up, CIA SNUFF tapes and their destruction, the interference in the autopsies of Pat Tillman and the Gitmo sucides and presidential authorization for assassination I feel confident I could at least start that argument.
Cui bono? Really, what do Goldsmith and Wittes gain from the employment of a military commission instead of a civilian trial, vice versa, or not trying them at all?
Either a military commission or a civilian trial will provide discovery; is this the real problem, that the public may see the contents of discovery and thereby learn who the real criminals are?
Just boggles my mind that a former assistant attorney general is advocating for indefinite detention without trial. This is so fundamentally unAmerican, outside the Constitution, that I can’t ever imagine Goldsmith being permitted to hold an appointment or career position with our government as an attorney ever again.
Which suggests there must be something really ugly here, worth staking a future career path.
Very good question. Let’s see . . .
Goldsmith is a familiar character here at EW for his work with the Bush DOJ.
From Wittes’ bio at Brookings:
Cui bono? I’d say that both would rather chant “Look forward, not back.” It beats having folks look at all those wonderful editorials and old memos.
Excellent points! Even if they aren’t scared half to death by what discovery might turn up, “no trials” = continuation of the status quo ante, which Goldsmith & Witte are part of. Trials means changing the status quo. So Goldsmith & Witte have skin in this game, and it sounds like they are afraid of it getting ripped off.
Bob in AZ
Yep. And the WaPoop is happy to help them keep it and the status quo.
Well yeah – that’s what we’ve gotten at several times here. This concept of all the Constitution going away at the drop of someone’s declaration that there is some kind of a war, somewhere and everywhere, pretty much begs the question of what is lost and what is gained.
If you have a trial, I don’t think there will be any question re: KSM on a part of the “who the real criminals are” question bc I think there’s all kinds of proof that KSM is a criminal. What you do expose, though, is all the other crimes, committed and ongoing, which were engaged in – not to protect Amerians but rather to proliferate power in an already engorged Executive. And the exposure that those crimes were not just engaged in as pre-judgment acts of attainder against someone like KSM, but also against children; against innocents; and ultimately against nations – including our nation.
You get the irrefutable – that political and propaganda and pr arguments are used by those very same public officers who were entrutsted with the nation at its weakest point – to undo our law for political gain; to end up with a Democratic administration that Goldsmith outlines as being aligned and allied with the Republican party. He does this without any focus on all the Democratic supporters of his travesty – bc his goal in his piece is very well bounded by his intent to persuade that the point he intends to “win” is a wholly political point reliant on his party affiliation. “Republicans” and (sotto voce, no capitalization) administration are aligned – trials are not necessary.
The public has no right to know what Republicans and (sotto voce, no capitialization) an adminsitration choose to keep from it.
I thought you had coined a new word (adminsitration), but I find that the FDA is already using that word.
I still think it is a apt descriptor.
LINK to FDA (FOOD AND DRUG) ADMINSITRATION
FIELD MANAGEMENT DIRECTIVE No. 13)
LOL – well, that’s like the precedent for torture, then. I guess if FDA uses it, that’s what it is. ;)
If there weren’t something really ugly here, why would they have resorted to torture in the first place? Torture’s only real value is in getting victims to testify things that are not true, but that the torturer wants them to testify to.
Thanks Marcy!
The “Rule of Law” has been replaced by the “Rules of the Law Professor”. The Nobel Peace Prize, Wall Street, Bank and Insurance Bailouts will not shield President Obama from the scorn of history.
A one term criminally complicit Presidency is not better than a one term Truth and Justice must prevail Presidency. We tell our children to admit mistakes and let our government hide evidence of MURDER? The U.S. was the driving force behind the Nuremburg Trials for a reason. Unless we want to be the defendants in the next big War Crimes Tribunal we don’t have a lot of time to correct the heading of the ship of state. The United States government’s lawyers will be complicit in torture cover up if they do not act soon. The DOJ has the files. For whatever reason, someone, somewhere kept digital film copies of the crimes committed. Not looking for them is hardly an excuse. Are they just too busy rewriting history and justifying unrestrained warfare from the skies on civilians who are unlucky enough to be really tall for an Arab, be in a restaurant that an executive order has targeted because Sadam Hussein might be there, live over the oil we need or in the path of as yet still un-built pipelines? Who are we? What have we become?
Walt Kelly was right! We have met the enemy, and he is us.
rayne @6
cui bono?
goldsmith
and everyone of the dozens of bush officials associated with torture.
goldsmith may have distinguishd himself by negating yoo’s political lawyering,
but that is only relative to others involved in bush torture.
i suspect goldsmith knows that his and many other legal reputations would be damaged by arguments that are bound to arise out of civilian trials.
continuing from 12
writing rapidly, i focused on torture.
the unlimited detentions at guantanamo are another molten issue where no bushco lawyer can come out looking good.
the detentions were not necessary for national security.
the detentions jailed innocent
people, in perpetuity it seems, and made proving their innocence exceptionally difficult.
despite federal court rulings allowing the detentions, the entire thrust of this kind of treatment runs counter to the way amrican society implements justice.
the best goldsmith can hope for, relative to his historical role in any of this is that it be forgotten for the near future.
“They make no consideration of the importance of a trial for our rule of law, our system of justice.”
They do consider this implicitly when they point out that Obama has already decided to hold a lot of people without trial of any kind, and reserves the right to hold them even if they’re acquitted. They’re assuming the benefits of principle in trying a few while so many won’t be tried at all are minimal. But Obama apparently wishes to minimize these affronts to due process anyway, which seems right to me.
“Dick Cheney and his daughter, trying to avoid any consequences for instituting a torture regime, are paying a lot of money to sow fear about civilian trials.”
Don’t see the connection. Cheney freely admits he supported waterboarding. A civilian trial is unlikely to bring out anything more than we already know about his part in it. Cheney and conservatives are being consistent with the views they’ve held all along.
OT – From the San Antonio Express-News:
Pragmatism as a philosophical position has credibility, but it rests upon its notion of how things work out in the long run. Political pragmatism of the type made popular in the Clinton administration ignores that long view for the immediate gratification of expediency now. This is what Goldstein and Wittes are promoting, a quick cost-benefit analysis (sales pitch)that serves an immediate agenda of solving a popularity problem before the next election. The fact that human lives and the moral posture of our constitutional form of self-governance are sacrificed for this expediency, is apparently not important.
The “political cost” of trying [alleged] high-level terrorists – indeed of trying any alleged criminal – is not to the criminal or the criminal justice system or the rule of law. All those would be strengthened. The benefits would primarily accrue domestically, not abroad, which is why there would be any benefit abroad in the first place.
No, the political cost of real trials would be to the politicians and their professional retainers who have demanded no or none but jury-rigged trials because real ones might expose their high crimes and misdemeanors.
Pragmatism is a tactic, a method designed to promote a strategy. It is not itself a principle or strategy.
Ambitious prosecutors and politicians may focus on the PR value of trials, which is code for whether the public spectacle will enhance their careers, either by its outcome or as a display of their rhetorical skills. The people and their state have other reasons for insisting on public trials.
The value of a public trial is first and foremost as a tool to verify the guilt or innocence of someone the state claims is dangerous enough to the public that their liberty or life should be taken. Second, it is an affirmation that the process the state uses to exercise such enormous power is legitimate, that the state’s claims withstand scrutiny and challenge, and that the public that empowers and funds such a state can rest assured that when that power is turned against them – as it will be – it will be done hesitantly and with restraint, not in an attempt to obtain temporary, partisan political advantage.
The casualness of Wittes and Goldsmith’s opening paragraph notwithstanding, there is nothing “obvious” about keeping anyone incommunicado and in prison for life without charges or trial – except to a corrupt lawyer or politician.
Wittes and Goldsmith’s “clever” article is a standard trial balloon, testing the air for its willingness to accept their radical and immensely self-serving and self-aggrandizing ideas. Imagine how much pleasure they would give to their political patrons were such arguments to succeed and were they to become the “common agreement” they claim they already are. It is standard legal rhetoric from the Hoover Institution; so, too, now for Brookings, which has cast aside any pretense it might have once had to being liberal or progressive.
“Immensely self serving”. No shit. Jeebus. Where is the disclaimed for that by the way?
It’s not his first trial balloon on this either.
Here’s another:
http://www.washingtonpost.com/wp-dyn/content/article/2006/08/03/AR2006080301257.html
and there have been others.
From the Aug 2006 piece linked above, making the sales pitch with Posner and using Moussaoui as his toehold, then, for decrying the rule law:
He goes right for the jugulars of defense lawyers in that piece as well, and more directly that Lil Cheney does in her ad:
Somehow his kind of pernicious crap gains a Harvard slot and accolades and op pages.
Or, put another way:
Oh, wait, I’ve already said that. Correction, it was already said contemporaneous with the Civil War. By someone who says things much better than I do and to a Country and Courts that had suffered more, but were nonetheless made of very different stuff than the country and courts today.
OT-ish: my local sheriff, Lee Baca, went to Washington to testify before the House subcommittee on Homeland Security, and was not amused by his reception. via laobserved:
(emphasis mine)
no word yet as to which rock Sheriff Baca has been residing under these past years…
Apparently Lee doesn’t get to Washington much.
Clearly, the terrorists have effectively destroyed the rule of law. When a former US Assistant Attorney General dismisses the value of the rule of law, the terrorists have won.
The is not an op ed. It is a white flag surrendering the foundation of democracy.
There are some mechanisms in the law of the sea for shipboard detention. Somehow I get the impression admiralty*s brave passages permeate Goldsmith*s outlook on land law. It would be a long voyage that moved to onboard trial and consignment to one or the other terminus of a plank of a certain length, for some offenses and inpursuit of some decorous implementation of rules of expediency and efficiency of pursuit of navigation*s own purposes. Though I also think a principal thrust of the article is a kind of conscientious inveighing against the former construct which was the commissions, which never functioned well despite various sorts of administrative tinkering. Of course, there are issues of complicity of concern for Goldsmith, even though he can point to Addington*s index card list of cancellations and concomitant vociferous preoccupation that there might be a need for more index cards to fit all the possibly impending cancellations (should Goldsmith [have] remain[ed] at the helm at that time) of memos, as one depiction of his accomplishments at Olc.
I didn’t name him Captain Jack He of the Law of the Sea Goldsmith for nuthin ya know.
Got off topic, arrived at Pitcairn, 3300 miles east of Auckland. They*ve even got a road named for art filmographer Jacques Tati.
Commenters on this thread are referred to this comment of mine on the previous thread:
http://emptywheel.firedoglake.com/2010/03/17/the-request-for-reaffirmation-of-torture/#comment-225805
Where’s Cap’n Jack’s usual amicuss in his assault on the Constitution, Eric Poseur?
Yeah- color me pissed and taking childish potshots. But that’s only bc I can’t write like this (so luckily someone else has done it for me):
Yes, EW – I’m going to do it again. The prophets who foresee Brookings institutes and AEIs and Goldsmiths and Yoos? The lawyers for the Petitioner in Ex parte Milligan.
Everything new was old back then.
Funny, isn’t it, what well-turned phrases and new or more well-defined law can arise via public trials, none of which sprout from the mushroom fields of indefinite, chargeless, secret detention.
Yep- that’s the whyfore and wherefor of my forever argument on how most of this should have been handled and approached from the beginning – as the effort to disenfranchise the other branches of government that it has always been. Not so much arguing over whether or not it was incompetent to pen the pieces on torture – but whether or not it was a breach of the Constitution itself and every duty owed by lawyers under it as citizens and to their professions under the codes of conduct with respect to tribunals, for them to engage in what they have pulled off.
Murder and torture as a vehicle for outright lies to the courts and the people under the rhetoric of “states secrets”
emphasis added
Same sourcing – Milligan.
It’s really the point, though, not a new point and not one that escaped the “less educated” minds from centuries past. All you need is for an adminsitration, unchecked by
Congressthe Republican Party, to declare a state of “war amorphous” and you’ve pretty much given it the power to rewrite the Constitution on whim.The Changling has his change. And his advocate – Cap’n Jack.
O.T. General Petraeus and the I/P conflict.
Via John Taplin at TPMCafe an interesting story in Foreign Policy dated March 13 2010. LINK to TPMCafe:
http://tpmcafe.talkingpointsmemo.com/2010/03/16/biden-israel_blowup_backstory/
Concerning General David Petraeus and a briefing.
From Foreign Policy LINK:
http://mideast.foreignpolicy.com/posts/2010/03/14/the_petraeus_briefing_biden_s_embarrassment_is_not_the_whole_story
Also from Foreign Policy:
They ignore another significant benefit of public civilian trials: if the defense lawyers do their job, those trials would provide an opportunity to subject the government’s story of what happened on 9/11 to challenges to its alleged evidence in an adversarial proceeding.
earlofhungingdon @17-20
you hit for the cycle-
homerun (19)
single, double, and triple.
#19 is especially well and clearly argued
and most informative for a non-lawyer like myself.
as for “…the benefits would accrue domestically…”,
you speak for me too.
Standing up for the Rule of Law is not delegitimizing democracy, it is affirming democracy and the Rule of Law. If standing up for the Rule of Law is elite, then it is a badge of courage that the American left and European elites should carry with confidence knowing that history is on their side.
And it’s not just “European elites” who think commissions (which are NOT the same as military trials) are illegitimate.
Putting aside the fact that the holdings of the Sup Ct, giving habeas review to detainees, pretty much proves beyond a shadow of a doubt that you don’t have the status of martial law required for the underlying validity of commissions – bc you couldn’t have the courts exercising their jurisdiction and so perfuntorily puttering away at all the cases if that were the case –
– the foremost critics of commmission have the our British forebearers and our own courts, requiring, as they do for any underlying validity, an acknowledgment of the complete breakdown of civil law.
Bless you dear and
Would chicken little cheney submit himself to the court and the rule of law.
I’ll throw in the best CRIMINAL DEFENSE LAWYER over the objections of his daughter.
I’m sorry, but no one is guilty without due process of law. They want to throw out due process, so the government can rule as a tyranny. I hope there is enough life left in this simulacrum of a democracy to stop them from succeeding.
KSM is innocent until proven guilty, as is anybody, under our system of law. This is in line with their trashing of the Article 5 hearings for the bogus Combatant Reviews, with the Patriot Act, wiretapping, etc.
It’s reductio ad absurdum is extrajudicial killings. Not really absurd, but a nightmare we may very well soon be living in this country; it is already practiced abroad.
@ 27
The paranoia and inability to deal with disagreement is too thick here. Try making a substantive point instead.
Most of the comments so far are only loosely related to what Wittes and Goldsmith actually say. They don’t equate law with PR, they don’t show self-interest or corruption, they point out the logic of picking a few high-profile detainees for public trial while at least 50 others will get no trial. Some consideration other than law appear to be at work when that happens, so they weigh what seems to be at issue.
You make pronouncements from on high and act like they are definitive. They are not and you are not. If you don’t think Goldsmith has self interest, you are either intellectually incompetent or lying. Quit whining like a little petulant baby; make your point or get the fuck out of here. If you have such problems with us, go away; if you want to stay, man up and quit sniveling.
Thank God your here to set us on the straight and narrow cus i think this crew is a bunch of constitutional extremists.
mary @38
thank you.
how wonderful to read these lines (from justice davis?).
i have waited a decade to see an american appeals court or supreme court argue in the vein davis argued re: president bush’s taking from us OUR rights and privileges.
not the rights of abdul something- or- other or mohammed something-or-other,
but OUR rights.
it is extraordinary that we have no jurists who believe as davis did and are willing to articulate that belief.
it seems so self-evident, such a straight-forward argument to make.
@44 Goldsmith has no self-interest?????
Wow – he’s the guy who said Article 147 could be violated without consequence. All the guys who have been found to have NEVER BEEN ENEMY COMBATANTS – but/for his Article 147 meanderings there’s no claim of any kind that their shipment to GITMO was anything but a war crime under the Geneva Conventions and a self-defined (within the GCs) severe breach, of the sort that the War Crimes Act made actionable – but for the later day redefinitions in the Military Commissions Act.
He’s also the guy who sat silent during the scapegoating of Abu Ghraib soldiers while he had direct knowledge of misrepresentations being made about their being just a few bad apples v. the policy of his Dept and his President to solicit and foster and encourage behaviour exactly like theirs.
He headed OLC while courts were being lied to with respect to evidence of torture being requested.
He allowed the Executive branch representations on waterboarding, on domestic surveillance, and the like to continue as lies to the Congressional and Judicial tribunals, without action.
He took two successive Chief FISCt Justices determinations that the TSP was not constitutional and NEVER ADDRESSED THEM AS A RELEVANT FACT in pursuance of his professional duties.
He got his merit badge from the torture field trip and then has sat silent while he and the operative levels of DOJ knew about the Aug 2002 memo demostrating that the men against whom they were soliciting foul treatment, experimenation, isolation and depraved behaviors were in large chunks totally innocent.
But yeah – he’s a lily of the field.
Talk about someone who has no substance.
continuing from 47
in looking to see who might have written the stirring words mary cited above from “ex parte milligan”,
i ran across an aba site which provided a synopsis of the decision and identified justice david davis as the justice who delivered the court’s opinion.
the aba write-up included these very interesting facts about judge davis:
– he was appointed by lincoln (whose conduct was the subject of the case).
– he was a personal friend of lincoln
– he was lincoln’s campaign manager in the 1860 presidential campaign.
can anyone imagine republican jurists john roberts, samuel alito, or antonin scalia making a similar argument to george w. bush?
or even citing republican jurist david davis?
@44 Some of the substantive points are these:
1. Where you have someone detained on a field of combat (which is not the world, it is – as US law has defined over and over, an actual theatre of battle operations) and they were fighting against invasion of their country – they always were to be treated under the GCs as a POW and they can be detained as a POW. They have committed no crime and need to be released when “war” (if it was declared) or military operations in the theare (if only a military action was authorized) are over or turned over to the civilian government when it is re-established.
2. WHere you have someone detained on a field of combat (see above) and it is believed that such a person also committed “criminal” acts, if that person is a member of a military service, they can be tried as a warrior, under the laws of war in a military TRIAL (not commission) which gives due deference to the privilege to kill that is implicit in their military service – – bc that’s a big part of the difference of a military trial v. civilian trial. A military trial recognizes the privilege to kill, and even to kill civilians under theories like proportionality, that are non-existant under civilian law. It recognizes warrior status to killers, as opposed to being merely criminals.
3. When you have persons – of a military service or not, including both citizens aligned with and adverse to your forces – who are detained in a battle theatre under conditions of chaos where there is a compelling need to address actions that have been taken by those persons without waiting for a restoration of civilian justice mechanisms and under extreme necessity such that traditional military trial mechanisms are also unavailable, you have the basis for military commissions. Once you have people held in places like Bagram and GITMO AND with respect to Bagram you claim there is a civilian authority (Karzai) in charge (and with respect to GITMO our Sup Ct has already told you that it is functional and able to handle habeas petitions) you have no grounds for a military commission and if Congress attempts to lay the foundation for such (as it has with the MCA) it is violating various and sundry parts of the Constitution, not the least of which is its passage of a de facto bill of attainder.
4. Almost no detainees at Bagram or GITMO are battlefield captures. Almost no detainees in any of our actions in Afghanistan, Pakistan, Italy, Iraq, Macedonia, etc. were engaged in combat activities. Very few have any (much less operational) affiliation with al-Qaeda.
5. Goldsmith and Obama are asserting the power to randomly wander through the world at large and pick up citizens or resident of other countries via special forces operations or to pay bounties to criminals to pick up those persons, then disappear them into US gulags where they can not have their situations or cases ever heard in any fashion.
I could go on and on for more, but we’ve done it here before and you seem to have a very closed vision and mind.
Still, in a last ditch effort – on the substantive point, MOST of the GITMO detainees were NEVER COMBATANTS OF ANY KIND. To now argue – and use only the most notorious (who was shipped to GITMO apparently in a last ditch effort to give GITMO some kind of underlying crediblity)inhabitant to make that point – that GITMO detainees shouldn’t get trials bc they are combatant detainees, when over and over it has been demonstrated that the Executive is willing to and has knowingly lied about that very fact and when courts are open and operational – is a farce.
We don’t have a situation where there are actual combatant detainees, held in Afghanistan or Iraq, under argument that their detention is necessary to prevent them from returning to the battle. We instead have had a motley assortment of men and children sold to US forces for interrogation and detention experimentation and this has been proven over and over. Moreover, despite the supposedly much longer “sovereignty” in Afghanistan, we are only turning over prisoners in Iraq (bc it’s a question of politics, not law or laws of war) and have not only not turned detainees at Bagram over to Afghan authority, we’ve actually begun shipping into Bagram people we pick up in non-combatant situations elsewhere in the world, to disappear them.
That’s a wholly despicable system. It doesn’t survive any kind of examination. To say that anyone supports it out of a non-corrupted state of mind is to engage in absurdities.
Explain to me why Mr. Errachidi should, under Goldsmith’s posits, still be held in isolation and depraved conditions at GITMO, then we can talk substance.
@44: Meow. Pht, pphhtt. Eoww. That fellowship must pay big bucks.
EW has correctly critiqued the emphasis and much of the wording of Messrs. Wittes and Goldsmith, as have other commentators here. As for your claim that these eminent lawyers do not equate PR with the law:
Their main point, obviously, is airily to dismiss public trials as an inconvenience, which ought to be enough to have them dismissed from the academy. Their secondary point, after gloating that a constitutional lawyer president has become an advocate for indefinite detention without trial – and without the state having to prove its claims against these and other men, or defend the manner in which it has kept and treated them – is that the PR value of a “trial” by military commission is not worth the effort, when it can simply keep them in the can, instead.
March 19, 2004, Goldsmith officially joined the category of war criminal, along with Yoo and Addington whom he had previously fought (somewhat), with his registered opinion on renditions from Iraq to “interrogation” (torture).
But I believe the main thing they don’t want exposed is WHY they waterboarded KSM 183 times (or more). No feasible explanation, outside sadism, has ever been broached for this. As I’ve explained recently, the military gave up use of waterboarding even in a limited sense because it caused “learned helplessness” (LH).
LH is a behavioral diagnosis, but the medical field has been studying its neurological features, and it isn’t pretty. The LH model is consistent with changes to the serotenergic system (which regulates mood), the hierarchy of neural systems mediating defensive behaviors, reduction of neural activity in the anterior cingulate cortex (which inhibits decision-making capabilities), and elevated levels of cortisol, among other damaging effects.
LH was studied by giving inescapable and repeated shocks to lab animals (dogs, mice). Dr. Martin Seligman, an APA president and prominent researcher, associated with LH theory and its application to human depression, was lecturing on LH to SERE during the period of the setting up of the torture program. He also met with intelligence agents from the CIA, including James Mitchell at his home. Seligman denies ever being involved in the torture program.
Heart Rate Variability is a recent and commonly used method to measure sympathetic and para-sympathetic autonomic nervous system functioning, i.e., the person’s flight-fight-freeze mechanisms under stress or danger. (See this company’s software marketing brochure to sell their medical software to measure it.)
CIA and military researchers were working to fine-tune HRV telemetric devices to use on soldiers for special forces (they say) in 2002 and 2003. The money came from Naval Aerospace Medical Research (or so they say — Navy studies like this were historically fronts for MKULTRA studies). They studied SERE students under mock torture. I believe they or someone like them were doing the same thing with real torture prisoners. See this report for U.S. Army Medical Research and Materiel Command, Fort Detrick, Maryland (big PDF).
We know that waterboarding can induce LH; the SERE psychologists even studied this, looking at cortisol levels in the brain stem of trainees.
I believe — and I am serious here — that experiments on LH and so-called scientific ways to monitor the effects of torture were used upon KSM, AZ and others.
I will soon be writing this up, but have no problem giving out this information here. Let others interested feel free to look it up themselves.
They needed psychologists to create their diabolical torture program, and it’s going to take medical personnel and psychologists to catch them, as these things are not evident to laymen.
KSM was measured for the effects of repeated waterboarding to see what it would do to him physiologically and psychologically. I think we can prove this, if we get discovery. But they will move heaven and earth to not let that happen (although massive destruction of documents will help them, too). But in the end, only seven or eight years out from this, we are still close enough to catch them with real proof, and certainly live testimony.
This is what I think happened. I know I’m not alone, and others soon will be coming forward with this or related material.
(this is continuation of my other comment, but it wouldn’t let me post one so long… I hope I have the tolerance of the readers here for this information)
“When Lawyers Equate Law with PR”
Aren’t they then really talking about show trials and doesn’t that bring to mind Stalin, Hitler and every other maniacal head of monster state ever?
bamz, your whining about my whining is hilarious.
I didn’t say Goldsmith has no self-interest, whatever that might mean to you. I said the editorial doesn’t show he’s arguing from self-interest. Nothing he says implies that, however much you or others might want to believe it.
The whole op-ed is a direct demonstration of his self interest, and the absence of any disclaimer evidence of a disingenuous presentation. I meant what I said; your opinions and comments are welcome here, as are you; keep up the petulance though and your annoyance factor will quickly outweigh that. The ball is in your court on that.
Mary, your list of the evils of Goldsmith, as you see them, doesn’t show he is arguing from self-interest. You’re rambling far beyond anything I’ve said. I agree with you to the extent that any detainees about whose status there can be any doubt ought to have a trial or hearing or something that allows them to show they’re being held without good reason. I’ve always favored treating them as criminals or POWs, depending on which would apply.
But the editorial, again, isn’t about that. Their point is that if you’re going to hold at least 50 without trial, it’s apparently something more like PR that’s at issue when you pick only a few out for trials, and the PR isn’t worth it. That’s the point that needs to be addressed if you think the point of the editorial is wrong, not all the many things people associate with Goldsmith.
Exactly – the fact that he issued an ok for vioaltion of Article 147 isn’t a point of self interest, who would buy that?
The fact that he knew about a litany of torture that was actively concealed from the courts despite discovery obligations and court orders and which only become “okey dokey fine” if you make a premise that everyone can just be disappeared into non-judicial detention with no trials or defense access to evidence – heckfire, that’s not a point of self interest, who would buy that?
It’s cute how you say you want substantive points, but when you get them, your only response is to call them a ramble or pretend that they haven’t been Gerberized enough for your palate.
And how is it that you are going to determine which of the detainees are ones “about whose status there can be any doubt” without trials? You don’t have battlefield detentions and even if you did, you now have returns to sovereignty in the areas of those battlefields and no reason for the US to continue to hold as opposed to Afghan or Iraq IF the detentions were made in those countries.
With respect to detentions made in other countries, you quite simply have no grounds of any kind to use military detention.
You are pretty much ignoring my link to Goldsmith’s other piece as well when you try to claim that he’s “only” arguing that its not fair to give KSM a trial of any kind when there are 50 other guys you are also not giving a trial of any kind to- – bc he doesn’t stop there. He says he thinks they should just do no trials for anyone.
He reiterates the Addington position when confronted with the Aug 2002 CIA memo exposing how many innocent detainees were being held – that the President has made the determination and it shouldn’t be revisited, we should just disappear away those we claimed were combatants without trial for our non-battlefield grounds of making the contention.
Going back to my 2006 Goldsmith piece link, he never argues that everyone should have trials, despite his recognition of the innocents being held. He STILL argues even in light of that knowledge, that everyone should be held. Bc it’s good politics. From that 2006 piece:
It’s always been his self-interested position that the mistakes need to be covered up with a format – detention without any kind of constitutionally recognizable evidentiary proceedings – that won’t expose what DOJ and the Exec and DoD and CIA have done.
Why? Bc he says that trials of “political enemies” are hard. Not combatants – political enemies. Well duh – they are meant, under our Constitution, to be hard.
When he says:
he ignores and mischaracterizes so much – and with his peculiar access to information then and now – that it can only be indicative of self interest.
He start from the premise (as do you, and as you both know to be wrong – you still haven’t gotten back to me on Errachidi by the way) that if someone is in US hands, they ARE a “captured terrorist.”
That’s a lie.
If you don’t like it when I ‘ramble’ and mention brief commentary-type summaris of facts indicating it’s a lie, let’s just leave you with, “[t]hat’ a lie.” We have held all kinds of people who were not terrorists and the very methods used to gather the people we have held INSURED that we would gather many non-terrrorists and all of the operative torture players knew that – unequivocally from at least Aug of 2002 and basically from the time of the Jan 2002 Gonzales memo acknowledging that they were committing war crimes against people they were holding unless they could claim that by calling them “unlawful enemy combatants” the war crimes dissolved into nothingness.
From that point on – everyone involved has a very vested interest in making sure that all the victims of their behavior get that appellation. No matter how dramatic the facts to the contrary. And there you have the delima that Goldsmith disingenuosly won’t address – what about those who aren’t and weren’t terrorists, they were men like the Uighur man you drove to insanity with torture, merely bc he was looking for his brother to bring home to a grieveing mother. What about them?
And what about men who you’ve committed depravities against who might be terrorists as well. Until you actively support full exposure of the knowing commission of war crimes and full pursuit of all those involved in those crimes or covering up those crimes, a call to lock away the victims of those crimes with no voice and no evidentiary valid procedures can ONLY be viewed as self interested and corrupt.
And when someone like Goldsmith – who knows so much better than to argue that everyone we were detaining was a terrorist combatant – starts from a completely and knowingly wrong premise, how can you claim that the argument (and the man making it) is not corrupt?
It’s evil.
One can’t argue with someone intent on starting a blogging food fight.
Goldsmith’s “disclosure”, that he held a post as “assistant AG” during the Bush administration, fails to disclose his responsibility for the OLC or his role in connection with the torture memos and other extreme legal positions taken by the Bush administration.
For a former DoJ official to argue that more than four dozen prisoners alleged to have committed heinous crimes do not deserve a fair trial because the government really, really doesn’t like them should demonstrate his incompetence. Though, as EW says, it is clever to couch the argument in terms of the Obama administration playing off a page from the Bush playbook, in arguing for indefinite detention, without saying who wrote and disseminated the original playbook. A team that includes Goldsmith.
That the executive branch wants to be free from the rule of law and even the limited rights offered by due process – which offers equality in procedural treatment, not equality in substantive rights – may now be a given. That the law, the courts, the legal system or even a moribund Congress agrees with that contention – or that the people would accept it – is far from clear.
Keeping such cases away from trial – civil or military – is one way to make sure that radical executive claims are never tested and found wanting. But no one of fair and judicial temperament could possibly consider that a former lawyer for such an administration could demonstrate self-interest by continuing to make the claims of his former administration even when out of office, but not, perhaps, out of harm’s way.
You’re right.
I just think now and then it is an excuse to dredge back up some of the things that no one mentions much – not just the trolls but the media as well.
Kidnapped and disappeared children, WH knowledge of innocence of detainees at GITMO, etc.
But you’re right and I’ll quit my “but Daaaaaaaaaaaaaaaaaad” excuse.
Oh, don’t do that. Your, “but Daaaaaaaaaaad” comments are substantive and fill gaps the press always and EW occasionally leave. They are much appreciated, my snark aside.
The UK has direct experience with terrorist courts and detentions without trial and has come to regret them. Decades later, it is still living with the political fall-out.
The US regime simply considers itself – and, in other ways, its corporate sponsors – beyond the reach of political consequences and the rule of law. Mr. Goldsmith’s arguments in today’s WaPoop – couched as an argument that its prisoners should be outside the rule of law – merely reinforce that contention. It’s what loyal court retainers do.
sanpete
As it is, those who won’t get trials are those who are not competent to stand trial. Think Mohammed al-Qahtani (whom Convening Authority Susan Crawford admitted we had tortured) and Abu Zubaydah (who the ICRC has judged was tortured, the evidence of which was destroyed, but the logic of that destruction which is quickly becoming clear).
So say you can’t try 50. At some point the govt will have to admit that not only did we torture AZ, but he wasn’t who they said he was, not even close, and they knew that when they started torturing him.
Now, if you lump in KSM et al with those who we’ve tortured beyond humanity, then it sort of serves the narrative–“Oh, they’re the worst of the worst at Gitmo!!”
So the PR here is really Goldsmith’s, in the service of those who signed off on this torture (remember, he did sign off on things like extended isolation for Gitmo).
There is a point to trying those we can. Because if we weren’t to do so, there’d never be accountability for those the govt claims we can’t.
Yeah bmaz. If Jeffrey Dahmer wrote a piece on the benefits of cannibalizing young boys, as long as nothing in his piece SHOWS that he argued from self interest, who are you to point out any self interest.
Sheez – it’s like you believe in evidence and stuff.
Well, if he were in “the war on terror”, Yoo would advocate that Dahmer’s culinary tastes would be quite acceptable so long as Bush sent him for take out.
Bmaz, if you’re as concerned about warning people about petulance as you make it appear, you have an awful lot of work to do here.
You haven’t show that Goldsmith is arguing from self-interest. What in the editorial implies self-interest?
So (since you seem to know what they’re trying to do) prove this, instead of showing up and telling everyone else how wrong we are and how we don’t understand anything.
SHOW YOUR WORK.
Sanpete never bases anything on his own original thoughts, PJEvans, but merely “advocates” for other’s, claiming to know what they actually meant, which the rest of us are too politically “paranoid” or fundamentally too intellectually dense to grasp.
Sanpete will also not engage directly, his purpose is to obscure and deny, to obfuscate and attempt to put himself across as reasonable, thoughtful and informed.
While attempts to communicate with him are laudable, on some level, certainly (it must be imagined), all such attempts are doomed, as sanpete remains apart, untouched by reason and unsullied by doubt, and unaffected by informed commentary.
He fancies himself our salvation, I have come to suspect, but why he would waste his precious time and most-perceptive self on such as gather here, when all of whom, appearances would suggest, are considered by the great sanpete to be unworthy of his august and munificent presence … is a wonder.
It is a wonder that does not cease in its amazement.
However, perhaps I fail to understand the “balance” that his commentaries bring to this otherwise undistinguished place, full of unremarkable and shallow-thinking, empathy laden light-weights?/SNARK!!!
DW
Oh, I know he’s a troll. That was clear from the beginning. I just think that if he wants to post comments that are substantive, he ought to do a much better job of it. Making claims without evidence to back them up doesn’t count. (Not even as snark.)
IANAL, but I do genealogy, and if you can’t produce evidence to back up your theory, you aren’t going very far with it: someone will want to know where you found the information.
Facts and truth are quite a nuisance for some, not unlike the rule of law is a nuisance for others, but the degrees of separation does not appear that great between the “relations” of those who feel unbounded by those trifling and annoying nuisances.
Their mitochondrial DNA must surely be the same.
Consanguinity prevails, it would seem, in such … circles.
DW
! — snark alert
What’s the fuss?
Laws are only words.
Words are only collections of letters.
c,h,e,n,e,y… hey, mix those letters around and you can come up with “hey, che” or with “yen, hec” or any number of other equally nonsensical permuations.
Collections of letters are just words.
Words are laws.
Semantics? Who needs it.
! — / end snark alert
Jeff
“But I believe the main thing they don’t want exposed is WHY they waterboarded KSM 183 times (or more). No feasible explanation, outside sadism, has ever been broached for this. As I’ve explained recently, the military gave up use of waterboarding even in a limited sense because it caused “learned helplessness” (LH).”
I thought your piece on learned helplessness was very good on the whole, but this is baloney. First, there’s no way the government would allow any evidence obtained under the EITs to be used against KSM. Goldsmith isn’t worried about that.
It’s highly unlikely the reason for waterboarding KSM so many times was sadism. It was considered a very useful technique for getting information, as you know (perhaps because of learned helplessness–though that gets them into prolonged mental harm and a big legal problem). Even if they were wrong about that, there’s no question that they believed it.
The talk about “experimentation” remains unfounded if it’s supposed to imply the purpose of the interrogations was anything other than to get intelligence. We don’t have evidence for that. Of course they kept track of what they did and its effects, and hoped to “improve” their techniques that way. But that doesn’t imply the purpose was to experiment.
Any evidence obtained from a subject subsequent to torture is tainted by the torture, and the government has absolutely indicated it intends to proffer such evidence through the manufactured facade of “clean teams”. I would hazard a guess you are articulate and informed enought to know that, but are just disingenuously arguing otherwise.
While you can’t trust the media for much, one of the stories (I think it was the Holder puff piece) made it clear that the DOJ trial team intended to focus heavily on pre-911 activities for convictions while the military commissions team indicated that they were going to focus on things that were the subjects of post 911 and post and where heavily vested in torture.
While one habeas case in courts has had a negative response to torture evidence (the case that put some of the Binyam Mohamed torture into the record) and one of the military commissions cases found outright DOD torture (Khatani’s case – for which no one has ever been pursused on torture, depite the absolute findings of torture by the convening authority – who only apparently gets to convict torturees, not torturers), it looks like the approach for the CIA blacksiters is going to be to claim that the military doesn’t have to worry about torture done by others, not DOD (unlike Khatani).
Someone – maybe you? maybe pow wow? – linked the other day to one of the proceedings where the commission judge dismissed some motions claiming that torture by the non-military parts of the gov don’t affect the commission.
And of course, we have Padilla’s case standing for the validity of pre-trial torture as comporting with due process too – so things are just great.
Because we have great men and great lawyers like Cap’n Jack.
Lucky is the nation that can claim him.
The commentator also claims not to be a lawyer.
Who is “they” in this sentence – CIA agents in the field, contractor employees in the field, the FBI, people in Washington directing the interrogations, others?
Explosive verbal diarrhea and disingenuousness ! Please go get yourself water tortured then come back and tell me 1 or 38 or 183 times isn’t much difference.
Self interest is proven by reference to circumstantial evidence. Almost never does someone start out an essay or op piece saying, “If I can’t convince you not to deep six the victims of my crimes, I might bear criminal liability or significant humiliation or financial strains” OTOH, there’s been presented (and it’s only some of what is out there) all kinds of info as to why Goldsmith is self -interested. There’s at least as much evidence presented so far tht he is self-interested as anyone has presented to date that KSM is involved in 911.
There has been a lot of evidence re: KSM on pre-911 crimes (one reason to have a trial is to get what happened there on the public record) and I tened to believe there’s a lot available on his involvement in 911 as well. And I’d like to have it in the public record as well. As it is, we have more in the public record for why Goldsmith is being corrupt and self interested in his op ed pieces than we have on KSM – that’s not a good system.
Things like this:
seem to indicate that you only want to be disingenuous as well.
We have had, over and over, evidence of the revenge and frustration involved in the handling of detainees, from Fishback’s recitations to Abu Ghraib pictures. We’ve had the “Deuce” Martinez’ telling us that they questioned detainees days after the torture that they authorized. We’ve had the torturers given a set point of info that they had to torture out of their torture victims to make the torture valid (the torture victims had to ID themselves or some other torture victim had to id them as high value operations Al-Qaeda figures – so the torturers had a vested interest in making Al-Libi say Zubaydah was high level opertional and Zubaydah say al-Libi was the same – things we know are untrue and things we know were tortured out for a purpose that was not a valid intelligence purpose.
We’ve had plethoras of destroyed evidence and lies to courts – but you find nothing there indicative that the criminals knew they were being criminal.
There was a CIA officer who took a damned funtime trip for the sole purpose of getting her jollies by watching KSM be waterboarded – got a censure in her file – and you say theres no sadism?
And we have the basics of human conditions. Torturers torture because they are torturers. Hasn’t ever been much different from that – and the reptition, over and over and over and over of torture for the purpose of making Cheney and Bush look good, after their huge failures, is more than indecent.
Indecent nah treasonous as per definition” Betrayal of ones country by waging war against it or by consciously and PURPOSELY acting to aid it’s enemies” (Am. heritage Dic.). Seems by water torturing SUSPECTS CONVICTED OF NOTHING cheney and bush were providing the very reason to join in action against the US invasion and occupation of their lands with no legal justification.
They didn’t believe that a state of learned helplessness would bring about reliable information.
My comment is based only on a portion of my argument. Induction of a state of biological distress is meant to produce a state of dependency and “cooperation,” not information, because as is well known, people will say anything to make such suffering stop. The purpose is to produce a state of “dependency, debility and dread,” just as it is described in earlier CIA torture manuals.
The purpose of those who tortured KSM may or may not have been experimentation, but experimentation likely did take place. I and others (e.g., Physicians for Human Rights) have published evidence to that extent already. (For instance, Mitchell may or may not have been privy to what was done with the data derived from the medical examinations of the torture victims. The same goes for HUMINT at Guantanamo.)
I agree with you that the amount of waterboarding was not (or primarily not) sadism. I also agree that evidence from torture will be eschewed. What I am arguing is that under discovery, information may come out that will point to the experimentation, which is a heavy duty war crime of its own, against Geneva, and something for which the Bush administration has no legal defense. None. Not even BS memos.
I agree that my argument is a hypothesis at this point. If I had more concrete evidence, I’d certainly put it forth. What additional evidence I do have is mostly circumstantial, e.g., the pattern of previous actions by these same actors in similar situations, and some other evidence of experiments upon SERE mock-torture subjects which I am not presenting here, but will when I publish (though it is open source, and if one wishes to look for it, I can’t prevent them).
PJ, I already explained the logic of the editorial without implying any self-interest by the authors. If their point can be explained just as well without self-interest, then no self-interest is implied.
It will be interesting to see what organizations refer to this op-ed in their tv appearances, etc..
He who smelt it dealt it – meaning whoever uses it was part of the grand idea to write it and plant it.
Aint gonna engage jodidog’s owner-coworker.
I located the Denbeaux document links page. Check out the December 10, 2007 paper there entitled **The meanting of *battlefield*: An analysis of the government*s representations of +battlefield capture+ and +recidivism+ of the Guantanamo detainees** [340KB], re that hackneyed vocabulary as applied to media relations, marketing communications, and other parts of AriFleischer*s former act. I wonder if Goldsmith is talking with RNC about contingent employment, next election cycle.
TerriGross yesterday tried to pin KRove on the Iraq prewar hype; all he could respond was to enumerate a list of non-Iraq persons and governments elsewhere under free world intell surveillance. Same guilt by rhetorical device. So sayeth KR. Location on audio was close to final few minutes.
See – it was worth it for that, wasn’t it? And I liked what qwyereous linked on an earlier thread, that came up in the context of who the minder was for Fitzgerald’s response to Conyers et al, bc he linked the minder to the memo that responded to the finally asked question by Congress of what DOJ thought “humane treatment” meant.
That was pretty revelatory too.
@80 – that was kind of the premise of Goldsmith and Posner’s book, btw, that the US is beyond the reach of political or legal consequences vis a vis what it does as an international actor.
Except, as you and I might agree, neither the US nor its executive branch nor its chief political actors are immune from legal or political consequences for its actions. That’s a pre-WWII wet dream that Addington, Bolton, et al., have resurrected.
The executive is subject to restrictions by both the judicial and Congressional branches. The judicial branch can, for example, rule that an action violates a treaty or domestic law, most easily where it involves a US person abroad. Congress can do much more than withhold funding: it has the power to oversee much of what the executive branch does, if it chooses to use it. It can consent to treaties, define (or ban) uses of the armed forces, etc.
Other states have the lawful power to impose consequences, too, such as for violations of the laws of war involving their citizens or territory. I don’t imagine, however, that how the US plays hardball with states that might be willing to do that, or how much it spends directly and indirectly to encourage states not to do so, are listed in convenient summaries or in the line items of publicly available budgets.
Ever get the sense some people are talking to a mirror?
Mary, again, your opening points about Goldsmith show nothing about the editorial or the motives behind it. What about the editorial shows self-interest?
Substantive points about a different topic isn’t what I had in mind.
“And how is it that you are going to determine which of the detainees are ones “about whose status there can be any doubt” without trials?”
Some are captured on the battlefield and should be classed as POWs, or some equivalent with similar protections. I don’t think returning them to Iraq or Afghanistan would improve their lot at the moment.
“With respect to detentions made in other countries, you quite simply have no grounds of any kind to use military detention.”
The idea of course is that they’re irregular soldiers in a war against us. But the law about this lags the reality.
The editorial isn’t about fairness. It’s about whether a trial is advantageous, given that the reason for it appears to be some kind of PR rather than what the law requires.
The recent editorial doesn’t depend on the one from 2006. What you quote from the 2006 editorial doesn’t imply any self-interest anyway. There are many people who had nothing to do with the detention and bad treatment of detainees who agree with Goldsmith. He hasn’t argued that a good reason not to have trials is that government misconduct will be covered up.
“he ignores and mischaracterizes so much – and with his peculiar access to information then and now – that it can only be indicative of self interest”
Assuming he did, there are many reasons for mischaracterizing things besides self-interest.
“He start from the premise (as do you, and as you both know to be wrong – you still haven’t gotten back to me on Errachidi by the way) that if someone is in US hands, they ARE a “captured terrorist.””
As an example of what I just said, here you completely mischaracterize what I’ve said, even though you have access to it. Is it because of your self-interest? Nothing I’ve said implies that, I don’t believe it, and I’ve plainly implied otherwise. I don’t know what Goldsmith said that you think implies that. I haven’t seen him imply it.
I haven’t implied Errachidi should be held at Guantanamo, so I have nothing relevant to this to say about it.
“That’s a lie.”
You made it up, not me. And it’s also flatly false that Goldsmith doesn’t address the problem of innocent people detained as enemy combatants. He does so directly in the editorial you linked to.
“Until you actively support full exposure of the knowing commission of war crimes and full pursuit of all those involved in those crimes or covering up those crimes, a call to lock away the victims of those crimes with no voice and no evidentiary valid procedures can ONLY be viewed as self interested and corrupt.”
That makes no sense at all in regard to self-interest. Whether it’s corrupt to have a different view from yours about how to deal with this is open to question.
Ok – your silliness on things (like all the instances pointed out to you of Goldsmith’s self interest not showing self interest bc you just don’t want to see it, or the fact that Goldsmith never really addresses the point you try to make, that law does not require trials, when you’ve been shown that for non-battlefied detentions it quite clearly does, isn’t worth much in the way of response, but bc I have a bit of time –
When I ask: how is it that you are going to determine which of the detainees are ones “about whose status there can be any doubt” without trials? (the quotes being your words) – your response is:
“Some are captured on the battlefield and should be classed as POWs, or some equivalent with similar protections.” IOW – no response and unresponsive. Bc we’ve been through over and over, including the Pentagon’s own records, the fact that almost no one was taken on a battlefield meeting the legal definitions of such. So while you claim to there should be somehing (other than trials) done for those about whose statu there can be any doubt – when I ask you how you determine which detainees fall into that category your only response is to say, golly, some were captured on a battlefield, maybe we can treat them as POWs.
Complete non-response to the underlying problem that most detainees were not captured on a battlefield. . A real trial, with a real tribunal, is what is required by our constitutional prohibition on attainder and by the Geneva Conventions sections dealing with status disputes.
Similarly, when I quoted Goldsmith’s direct statements from his companion 2006 piece making the same detentions without trials arguemnts, and said, “He start from the premise (as do you, and as you both know to be wrong – you still haven’t gotten back to me on Errachidi by the way) that if someone is in US hands, they ARE a “captured terrorist.”
Your response is a gobsmacked, “I don’t know what Goldsmith said that you think implies that.” even though I quoted his own piece to you, which purports to deal with the detainees at GITMO by saying, “There is a better and easier way to deal with captured terrorists.” Golly – so how could you NOT konw what Goldsmith said that implied that he was saying that the detainees (in his piece, “A better way on detainees”) should be denied trials they are “captured terrorists.”
The lie is not one I made up, it’s one of Goldsmith’s construction and his piece never addresses the fact that shipping innocent people to GITMO is and was a war crime. That much is very clear – under the GCs if you ship protected persons out of country, it’s a war crime. The trains transporting men, women and children to their deaths in Nazi Germany were meant, as much as the deaths, to be a war crime under the GCs and that kind of shipment out of country is clearly so specified. Goldsmith’s self interest is in part based on the fact that he penned the Article 147 draft memorandum arguing that it wouldn’t be a war crime and he doesn’t want the issue examined. Your response – that if he doesn’t mention the things that show his corruption and self interest, things like the Article 147 war crimes and the need to keep victims of those crimes outo f courts, then it’s the same as if he didn’t have those corrupt and self interested aspects, is ridiculous.
It’s like saying that if a defendant takes the stand and never mentions out loud his motives and his specific intents as he spins his story, then his story should be accepted with anyone pointing out the evidence he doesn’t mention. Beyond silliness.
On Errachidi -you have yet to tell me what you and Goldsmith are arguing. You want to ignore him – say that you aren’t implying he should be held at GITMO, without saying how the Errachidis who end up at GITMO should have been handled, bc you know it’s clear and it’s what Goldsmith pretends isn’t the case. They should have had a trial and been released and the men and women involved in the commission of the war crime of transporting them to GITMO to start with should have been charged with that war crime. Goldsmith’s approach – no trials, no requirements of proof, no enforceable rights for those swept up in our depraved response, not only sets up that the innocent should be deep sixed with no enforceable recourse but also the corollarly that those who committed crimes against them should be protected. It is a necessary corollarly if you flesh out what Goldsmith’s approach is.
It’s easy for you to say that the law doesn’t require the trials, but it’s a lie. As above. Just as its a lie to approach the discussion from Goldsmith’s premise of what the law allows with respect to unlawful enemy combatants when so many are not, it’s a lie to say that the law doesn’t require trials of people like Errachidi and more importantly, of those who committed war crimes against him, and any argument that purports to summarily dismiss this whole thing with “we can just detain people and not try them” is dishonest and corrupt.
@90 You can pshaw the KSM argument I gave you in response as “unhelpful” but I think that gets you back to what you are pretending you object to here – i.e., that things you don’t agree with are dismisssed.
And it’s where you get into nonsense like this:
What an inane thing to say – who in the real world lives where they don’t know anyone who has different views than they do? No one – that’s an idiocy disquised as an inquiry. But lets see, I’m Methodist but worked in and with many Evangelical churches over time, have been to more than one tent revival, worked for a law firm back southeast that has represented Tom Delay and also was affiliated with one of the lawyers whose affidavit is being used now to deny a man his day in court, live in Bunning/McConnel’s Kentucky, work and have lived in really red So IN, and work in the energy industry to boot.
But even without all that – what a flat out stupid thing, to ask anyone, anywhere, with such snottiness whether or not they know anyone who disagrees with them. If no one calls you on that kind of guff in your life, you are frighteningly sheltered, so I thought perhaps I should spend a moment to channel my inner Regean and call on you pseudoself to take down a brick or two in the wall you’ve put up around yourself.
Mary, you are a most kind and generous soul, which humanity, I am certain, you display professionally, for it shines most brilliantly and clearly in your comments here.
I value all of your comments, for you teach quite as much about the nobility of informed conscience as you share your legal and human insights.
Sanpete, arrived here in a huff, has never established himself as a thoughtful person of any actual substance, and has certainly not gained much respect with his habitual behavior of dodging and ducking.
I note that you and the other attorneys here present remain professionally respectful, of even such as sanpete, that being the habitual behavior of all of you …
Not being an attorney, but striving mostly to be reasonably polite and thoughtful, I find myself convinced, after several opportunities to observe the ebbs and flows of several posts, of EW and EOH, attended by sanpete, that sanpete is a mere time waster and a trifling and very cheap shill.
DW
Bmaz, you have a problem thinking that everyone who has a different view from yours is dishonest.
“Any evidence obtained from a subject subsequent to torture is tainted by the torture, and the government has absolutely indicated it intends to proffer such evidence through the manufactured facade of “clean teams”.”
Not as I understand it. The clean teams are supposed to work only with evidence not obtained from the detainee after use of EITs.
Maryo2 @ 70
All of the ones you specify.
Mary @ 73
The comparison to KSM is completely unhelpful. Trying to support one point with one equally controversial doesn’t improve your position.
It’s only a sign of how sheltered you’ve been that you find disingenuous my view about whether the people involved with the waterboarding of KSM believed it was useful to get information. Do you know anyone personally who has different views than you do?
What evidence do you have for sadism being a motive for the CIA interrogations of KSM? You cite stuff about untrained personnel, about someone not an interrogator, about motives other than sadism, etc.
“Torturers torture because they are torturers.”
Baloney.
“One can’t argue with someone intent on starting a blogging food fight.”
Do you even read the posts here?
“For a former DoJ official to argue that more than four dozen prisoners alleged to have committed heinous crimes do not deserve a fair trial because the government really, really doesn’t like them should demonstrate his incompetence.”
Goldsmith quite plainly makes no such argument. The rest of your post is just as fanciful.
My comments speak for themselves regarding whether I read commentaries on this site or elsewhere. I can’t say whether others have ears or the ability to listen.
Goldsmith’s attempt at a logical argument is derisive: Because 50 or so prisoners who are alleged by the government to have committed heinous acts are to be imprisoned without charge or trial – a big if – then trying two or three others in civil or military tribunals isn’t worth the effort and would be – heavens – inconsistent. He turns logic on its head by assuming his desired end – no civil trial – and uses it to argue for his second goal – no military tribunal.
Mr. Goldsmith would be a lawyer familiar to Dickens and is of a type that public service could well do without.
Folks, for what it’s worth, arguing with an idiot rarely if ever produces anything worthwhile.
And the evidence is all around us. *g*
Jeff, it’s a reasonable hypothesis, in that it’s worth pursuing as a possibility, but I don’t see any substantial evidence for it. What do you think would be a proper ground for discovery of anything to do with KSM’s treatment since his arrest that a judge would be likely to allow?
cynosure – sanpolaris.
EW
“So say you can’t try 50.”
Obama says that, apparently. I have no idea beyond what his DOJ has claimed. I’m pretty sure most of them would be competent.
I don’t think Goldsmith has this position because of any self-interest. He’s thought the same all along, as many others do who had nothing to do with the detentions. I doubt he and Witte care in the context of this particular argument whether people think everyone we’re holding is like KSM. Goldsmith favors some kind of process to determine who deserves to be freed.
I agree that there’s a point to trying those we can, and I think we should, in civilian courts if possible. I’d like to see KSM tried in New York. I don’t agree with Goldsmith’s view, but I don’t think he’s Satan’s minion as some here do either.
Wow, sanpete, have to wonder what’s going on in Utah to encourage such a bee in your bonnet.
Goldsmith writes from self-interest, period. It is inseparable because he is an actor involved in the events which lead to the rendition/detention/interrogation of individuals, in support of a government to that end.
Goldsmith will not be writing from self-interest if he talks about another country’s actions, if he talks about other country’s laws or its military, provided these items do not cross over or mesh with those of the U.S. during the period in which Goldsmith was employed by the U.S.
Even a first-year student of journalism can understand this concept; Goldsmith has a conflict of interest while writing the WaPo op-ed and fails to mention it in any way at all.
Mary was kind enough to detail for you the extent of Goldsmith’s conflict of interest, too. Your attitude is less than gracious.
Frankly, as a former managing editor of an online news outlet, I’d have kicked this piece of shit back at Goldsmith and refused to run it because of the conflict of interest. The man doesn’t even grok that he could have been Wittes’ unnamed subject matter source, choosing instead to put his name on this piece which pleads for unConstitutional action — which begs the question, just what caliber of attorney is Goldsmith anyhow?
I was thinking the same thing: how could the WashPo have even printed this? But I suppose I’ve become inured to the low standards of the current press, and the constant barrage of “opinion”, which is really propaganda from government sources (or spin by former government sources).
There’s a possibility I might have entertained running it if Goldsmith had taken the effort to include in his piece that the work he did at DOJ and possible legal action related to it in the future should be considered by readers when consuming this work. With that caveat, I might have run it in juxtaposition at the same time as a rebuttal by someone outside of DOJ.
But for WaPo to run this as is with the scant explanation of Goldsmith’s role? outrageous. And yet this is the same outlet who was selling access in a nifty pay-for-play program, too, so hardly a surprise.
The real problem here is that Goldsmith is an attorney; he has a higher duty as an attorney to explain his conflict of interest and not mislead anyone that he has a vested interest in the argument he is making. How nice for him if unConstitutional indefinite detention could be realized for the detainees whose situations his work affected directly, so that we would never know exactly the degree of his legal exposure.
[edit: I wonder if Goldsmith’s failure to disclose his conflict of interest in this piece could pose a problem with the D.C. Bar Association?]
People who only think in terms of PR know very well that PR is what you turn to when the truth won’t do.
Just consider the ubiquitous reliance on PR in the modern corridors of power.
They aver that the entire GOP agrees with Obama on the right of the president to detain people without due process whilst only a subset of the Democratic Party, called the left, can be counted as against. At least they show awareness of the fact that the latter party is basically in line with the GOP on the most consequential issues undermining civil liberties. They implicitly anoint Obama a DINO.
“Wow, sanpete, have to wonder what’s going on in Utah to encourage such a bee in your bonnet.”
Um, I didn’t bring it up.
“Goldsmith writes from self-interest, period. It is inseparable because he is an actor involved in the events which lead to the rendition/detention/interrogation of individuals, in support of a government to that end.”
That doesn’t follow. People who have an interest don’t have to argue from that interest. There’s a difference between having a conflict of interest and acting on the interest. Even a first-year journalism student should know that.
“Frankly, as a former managing editor of an online news outlet, I’d have kicked this piece of shit back at Goldsmith and refused to run it because of the conflict of interest.”
That would be ridiculous. It’s an editorial, not a news item. There is no requirement for objectivity in an editorial.
“Your attitude is less than gracious.”
Hilarious. What do you make of the posts I’m responding to?
The DOJ can’t really prove that KSM was behind the planning. Was he a pissed of Moslem who had it in for the USA with delusions of grandeur because the USA had trampled over the Arab world for decades? Yeah. But a real discovery would show that AQ was put up to this by the CIA or other rogue intel operatives who were jonsin to kick butt in the ME and they needed an good excuse and to get the American people behind it and signing up to fight. And it worked.
Americans are scared of AQ… believe that they are capable and evil and out to get us. But the reality is that they are nothing but a loosely held together rag tag bunch of pissed of fighters completely monitored and probably infiltrated and controlled by the CIA.
The CIA IS the action policy branch of the POTUS and the MIC. They do their thing without oversight and they wanted control of the ME and its oil. And they got it. And they got a bunch of scapegoats they tortured into taking credit for 9/11 and more.
I read that and stopped. I mean those two names by themselves are a guarantee that some sort of anti-Constitutional “forget the rule of law” neocon assholery is about to follow.
The idea that the DOJ could lose in court against a terrorists is going to preclude any trials. They know their evidence was tortured out and hearsay from others who were tortured. You won’t be seeing an org charts or timelines from KSM… because they don’t have any and there were none.
Look to the CIA for that.. their guys planned it and pulled it off and they were clearly trying to use torture to get these patsies to take the rap and even boast about it.
This whole thing wreaks and the the administration will never let light shine anywhere near 9/11 because it will expose the lies and the fact that it was a false flag operation.
Your first paragraph makes sense. After that, not so much.
The bar for a conviction on a terrorist charge in a federal court is vanishingly low. That said, post 9/11 DOJ prosecutions have been clownishly inept to the point of prosecutorial misconduct. The long and the short of it is that the government has screwed up on any number of levels (essentially all of which some of us pointed out at the time). There is torture, mistreatment, denial of basic legal rights (GC, Constitution, criminal statute, UCMJ whatever standard you want to use). On top of this, they exacerbated matters by not even applying the most elementary methods for filing and securing evidence, and keeping track of witnesses and case related files, perhaps because they knew so much of it was crap or more likely never thought anyone would bother to call them on it. This doesn’t begin to touch on all of the hearsay and tainted torture related stuff. Nor does it get to the fact that even when the government puts its best case forward, it simply doesn’t have one –because the truth is it was sold some poor schmuk in the wrong place at the wrong time by bounty hunters. These are people that the US should never have held in the first place. Essentially with regard to all of them, the US has known this for years, making those detentions that much more unconscionable and criminal. But for the real high level al Qaeda types, there has always been sufficient untainted evidence, such as pre-capture statements or material seized in Afghanistan to convict them. KSM would actually be an easy conviction in a federal court. So would most of the others. The key is tailoring the charges to the evidence. This should be a basic concept but as trials like Moussaoui showed, it is not one the government chooses to follow. The bottomline here is that all of the government’s problems have been self-created. Even so trials of major al Qaeda figures would be a slam dunk in a federal court. Just look at the ridiculous conviction the government finally got in the Padilla case. Those the government knows it has no evidence against (because they in fact didn’t do anything) should be freed. Those that it has some evidence against it should go to trial and let the system work. It is curious but unsurprising that Goldsmith and Wittes have exactly zero faith in the justice system both purport to serve.
When the government can’t prove its case – because its lawyers are incompetent or its jailers are criminals – it is required to let those it detains go free.
That’s called the rule of law. It’s what happens to alleged wife beaters and rapists, mob kingpins, Big Eight accounting firms and CEO’s. It’s the stick end of the equation; the carrot end is that when it doesn’t act stupidly or criminally, it can legally take someone’s freedom or their life, if they are proven beyond a reasonable doubt to be the threat the government claims them to be.
If its prisoners become enemies of the state because of the state’s treatment of them, that ought to cause the state to reform its practices, including firing or trying as criminals those who were so stupid or criminal as to let that happen.
Doing that would earn high marks domestically and, therefore, internationally. I don’t expect the principle-less Mr. Obama to do anything of the kind.
Mary, as before the silliness you imagine comes from you. Again, showing that Goldsmith has self-interest doesn’t show he acts from self-interest in the editorial. I certainly agree he has self-interest. We all do.
Wittes and Goldsmith work from the premise that Obama isn’t going to try at least 50, so to Obama that must seem legal. If you think Obama is wrong, that’s no concern of the authors of the editorial, which assumes Obama’s policies for an analysis of what makes the best sense given Obama’s own premises. That’s why your concern about Errachidi and several other controversies doesn’t affect their main point.
“So while you claim to there should be somehing (other than trials) done for those about whose statu there can be any doubt – when I ask you how you determine which detainees fall into that category your only response is to say, golly, some were captured on a battlefield, maybe we can treat them as POWs.”
No, my response was only to explain the remark you asked me about. I didn’t intend to give you my full views on the issue, as it isn’t relevant to the point I was making. There are all sorts of underlying problems, but they don’t have to be settled to deal with the matter of whether the editorial shows Goldsmith’s self-interest.
“The lie is not one I made up”
First, you attributed the assumption that all detainees are terrorists to both me and Goldsmith, not only Goldsmith. You certainly did make it up as it applied to me, as I said. Second, you’re reading Goldsmith out of context. He and Posner are taking issue with the “assumption” that “al-Qaeda and Taliban terrorists ought to be prosecuted.” Their focus is on people who are terrorists by assumption, thus the several references to terrorists. But they also refer to “terrorism suspects” when speaking of the total of detainees, which implies they may not all be terrorists. (As you probably know, headlines are usually written by editors.) The editorial doesn’t actually imply all detainees are terrorists or who we think they are when we detain them.
“his piece never addresses the fact that shipping innocent people to GITMO is and was a war crime”
Nor does it address many other views you have that they don’t share. Go figure. You seem to want every part of every related subject to be addressed at once.
“Your response – that if he doesn’t mention the things that show his corruption and self interest, things like the Article 147 war crimes and the need to keep victims of those crimes outo f courts, then it’s the same as if he didn’t have those corrupt and self interested aspects, is ridiculous.”
It is indeed ridiculous, and I’ve made no such claim. What I said was that the editorial doesn’t show he’s writing from self-interest. I don’t see any reason to think his views would be any different if he had never been part of the Bush Administration.
“Beyond silliness.”
Indeed, and again made up by you.
“you have yet to tell me what you and Goldsmith are arguing”
I have told you what Wittes and Goldsmith are arguing, since that’s the topic. I’ve also made it clear that from the start I don’t agree with them, but that doesn’t imply every random claim people are making making about the editorial is true.
“It’s easy for you to say that the law doesn’t require the trials, but it’s a lie.”
I didn’t say that. What I said is that Obama’s policy makes it appear he doesn’t think the law requires them. And the fact that you disagree doesn’t make it a lie. I’m gld to know you’re acquainted with people who have different views than you. Do you imagine they’re all liars because they have different views?
“Because 50 or so prisoners who are alleged by the government to have committed heinous acts are to be imprisoned without charge or trial – a big if – then trying two or three others in civil or military tribunals isn’t worth the effort and would be – heavens – inconsistent.”
That isn’t their argument. Their point assumes that given that Obama won’t try so many, the reasons to try a few must be about PR or some such nonlegal consideration. They argue it isn’t worth it on that basis.
“When the government can’t prove its case – because its lawyers are incompetent or its jailers are criminals – it is required to let those it detains go free.”
I’m sure Obama agrees with this principle. Unlike you, he also has to deal with the principle that he has a duty to protect the nation from enemies who have shown themselves to be dangerous. If you can explain how he can satisfy both principles without conflict, I’m sure he’d love to hear from you.
“I wonder if Goldsmith’s failure to disclose his conflict of interest in this piece could pose a problem with the D.C. Bar Association?”
It’s an editorial, not legal advice.
An “op-ed”, meaning “opinion editorial” in a newspaper for Washington DC.
He’s advocating in a Washington DC newspaper, whose readership is weighted heavily with decision makers who are in the process of determining whether to prosecute or detain persons in whose current status has been shaped directly by his work as assistant attorney general.
Sorry, if you can’t see why this is problematic this deep into this thread, you’re being willfully obtuse.
Which brings me to a question: why does somebody who appears to be from Utah have such a vested interest in this particular post, to the tune of about 18 comments so far, many of which stray from the content of the post to attacking other commenters? That’s a lot of energy to invest in some rather heavy concern trolling.
Now, I am thinking about WesternWats.
It seems easy for some to confuse “legal” with “politically expedient”. They are different things.
Unlike commentators here, Mr. Obama has an explicit constitutional obligation “to take Care that the laws be faithfully executed”, not just the ones he likes or which his predecessors paid attention to. Within that limitation, and with the other powers granted to him under the Constitution, he has a duty to protect the nation, in conjunction with the other two branches of government.
Funny how it’s those limitations that the executive ignores. And as with “state secrets” and “national security”, what is hidden from view is often merely embarrassing to politicians, not harmful to the nation.
Mr. Obama quite obviously disagree with his legal obligation to let those he cannot convict through due process in a court of law go free, even if he knows they did nothing that would justify their continued detention. That’s why he advocates for the radical authority to keep those he and he alone wishes in prison, without charge or trial. The Constitution goes to considerable lengths to avoid giving such unfettered power to the executive. Not being subject to a head of state or government with such power is, um, one reason we are no longer an English colony.
sanpete, when you wrote @ 113 “Mary, as before the silliness you imagine comes from you,” you show your colors, and make it easy to skip to the next comment. Perhaps you enjoy being perceived as an ignoramus. I know you are capable of more intelligent discourse, but you’re not showing it here.
Mary, of all commenters here, is not silly. The fact that you would show her such disrespect when she has spent considerable time and effort to respond cogently to your rants tells us a lot more about you than about her. I didn’t read beyond your first sentence @ 113 because you haven’t earned my attention. Mary has. I will not comment further on your rants because they are clearly not worth reading.
Bob in AZ
2nd
EOH
Of course you simply made up the part about political expediency, which I said nothing about at all.
It’s sheer supposition on your part that Obama is ignoring his duty to obey the law. I’m quite sure that isn’t true, and that he understands the law quite well.
Bob, is your theory that it’s OK for Mary to call me silly but not for me to point out that what she finds so silly is based entirely on her misreadings of what I said? That’s silly.
As for not reading my posts, I doubt very much you could follow them anyway, given your apparent inability to see more than one side of an issue.
Rayne, it’s fine with me if you disagree with editorial’s content, but it’s ridiculous to complain because the Post published a biased op-ed. There’s no expectation that editorials lack bias. That’s basic journalism.
Perhaps you didn’t know, but Utah became a state of the United States over a century ago. If you did know that, your wonderment that someone from Utah should care about this is hard to follow. It’s sad and amusing how much trouble folks here have dealing with views that don’t fit their preconceptions. Do you consider Marcy’s elaborate work on this day after day after day concern trolling?
Boy, you really enjoy doing little more than poking sticks in hives, don’t you?
An opinion editorial is opinion. I pointed that out to you in my last comment. You chose to ignore that and pretend I believe otherwise.
You’re also willfully ignoring that Goldsmith is doing more than expressing an opinion, but instead trying to shape government decisions which affect him directly.
As for your sensitivity about Utah: contractors and ex-military who worked for the government end up in all sorts of places, both in the U.S. and abroad, and quite possibly Utah. Who knows when one them might drop in for the purposes of disinformation?
By the way, you’re the concern troll here. You are most certainly not doing any original reporting, nor are you even doing anything which could be considered a reasoned analysis of the post at hand. If you have something truly constructive to add to the analysis, out with it. Otherwise quit changing the subject.
I’m beginning to wonder if several op-eds published within the last year were intended as guides to former government officials.
Like the one which advocated for the right of professors to hold publicly a contrary view.
On first reading it looked like the author was merely advocating an opinion for themselves as a professor. But now, after the WaPo op-ed…?
You are on an interesting track. Sometimes books are are even published as guides.
Interesting observation. Worth examining. Much more bold than “classified ads”.
ew “Second, Addington and Cheney owned this torture program from the get go. And I suspect they owned the response to the 9/11 Commission–or at least had the ability to limit its application. So I don’t think it’s a matter of this request coming in and it getting assigned or taken by Addington. I think it was already in his in-box. It was already his program and his place to direct the response”
How can something be both nihilistic and “for principle”? By standing against anything on principle a person is, by definition, not being nihilistic. That’s just a minor diction quibble though.
I read this less as an attempt to make a coherent argument and more as an attempt to influence public perception; that is, as the p.r. these shills claim trials to be (and doesn’t that just perfectly capture what’s wrong with lawyers in this country by the way?). After all, do Mr. Emanuel or Mr. Obama really need to be convinced not to pursue trials? Haven’t they been pursuing, almost from the beginning, the same sort of judicial policy as the Bushites, and isn’t unrestricted, unreviewed, infinite detention the inevitable result of the Bushite flight from accountability? To my eyes, this has less to do with pressuring the White House than it does with furthering an already made, but secret, White House decision; It’s the public option all over again. I guess we can expect an eloquent speech about how important trials are to Mr. Obama, how much he really wishes they could have them, but gosh darn it, how they just might not be possible sometime in the near future and we all need to make sacrifices once in awhile.
Political expediency is precisely what Mr. Goldsmith’s argument in the WaPoop is about. No one needed to make it up.
Another pair of mismatched concepts: Understanding the law is not the same as taking “care that the Laws be faithfully executed”.
The former is often used to avoid the latter. In Chicago, it earns you a tax partnership. On Wall Street or inside London’s Magic Circle, it generates what is euphemistically known as “value billing”, outrageous hourly rates based on sometimes ill-gotten gains for the client. Ask Lehman Brothers, which had to travel to London to get an opinion on its accounting fraud, because even Wall Street wouldn’t issue one.
In the White House or the DoJ, public service jobs performed by men and women on the public payroll, adhering to that distinction should earn censure or dismissal.
I, too, am quite sure Mr. Obama understands the law. So did John Yoo and David Addington. So did the lawyers for Enron, Arthur Andersen and Goldman Scratch. Obama has already shown a Bush-like propensity to follow only some laws and invent others out of whole cloth, or invent the need for new laws, some of dubious constitutionality, and then act as if he had already fulfilled his obligation to obtain them from Congress.
Rayne, you said WaPo shouldn’t have published it because Goldsmith has a conflict of interest. That, not anything about it being an opinion, was and remains a ridiculous complaint. There’s nothing wrong with someone trying to shape opinion in and out of government by writing an op-ed. That’s rather the whole point.
“contractors and ex-military who worked for the government end up in all sorts of places, both in the U.S. and abroad, and quite possibly Utah. Who knows when one them might drop in for the purposes of disinformation?”
Just keep your tin-foil hat handy and you’ll be OK.
At this point you’re just making noise. Really.
Although I should point that attitudes like yours are why the corporate-owned media is so damned bad these days.
EOH, it’s quite possible that Obama understands the law better than you do. Just letting all these folks go isn’t a practical alternative, and it appears there are legal grounds for holding them. You probably think Lincoln was a man of no principle too, since he suspended habeas corpus, but in fact people who have responsibility have to balance competing principles, not just pick the ones they like.
It’s blog-jamming uberVU Bulgarian style.
Lincoln suspended habeas corpus illegally and the Supreme Court said so.
Mr. Obama was one of Harvard Law School’s finest scholars in a generation. John Yoo has similar credentials. He and they do know the law better than 99% of the nation’s top lawyers. That’s the problem for us and the problem for them in avoiding scienter.
As for indefinite detention without trial or charge, there is not even the appearance of legality to support it, only political expediency, aided by those who assume that their leaders know more than they do and are as kind hearted and wise. Deep Throat would beg to differ: follow the money – and the power.
Again, that’s your opinion, and it’s apparently not shared by Obama. If you want to give arguments and evidence to support your view, that’s great, but so far it’s just unsupported opinion.
The point about Lincoln is that he was in fact a highly principled man.
It would be nice if you actually took your own advice. Or started your own blog elsewhere to expound your theories of government.
What advice s that? It’s apparent you don’t read the posts, even when you quote them.
How tiresome for a commentator to claim that other commentators, who obviously reads these posts and much else, don’t read them.
How tiresome for a commentator to consistently misrepresent the content of the posts s/he supposedly reads.
How tiresome to have a troll who appears to have no more intelligence than a computer, and is considerably less useful.
(It’s certainly giving no sign of intelligent thought, which pretty much guarantees that it votes ‘Publican. /s)
Don’t feed the troll!
They’ll just bite your hand, anyway.
Bob in AZ
Aw, but this one is becoming a bit of a pet like Eliza or Alice.