Monday, January 26

Gonzo doesn't Think he'll be Prosecuted!

Well, it looks like our favorite extremely unemployed former Attorney General - Alberto Gonzales - just doesn't seem to understand what all fuss about "Prosecutions for War Crimes" is all about since his successor Eric Holder said "Waterboarding is Torture"!

On the question of prosecuting officers who employed any of the “extreme tactics” that the Bush administration has acknowledged, without admitting to any “torture” of detainees: “I don’t think that there’s going to be a prosecution, quite frankly.” Gonzales said. “Because again, these activities.... They were authorized, they were supported by legal opinions at the Department of Justice.”

But under those circumstances, I find it hard to believe...

“Nonetheless, the very discussion about it is extremely discouraging,” the former attorney general said.

Dementia and Delusion really are sad, pathetic diseases aren't they?

Here's the thing, when the President said in his recent interview with Brit Hume that "I'm in the Oval Office and I've been told that we've captured Khallid Sheikh Mohammed - and they gave me a list of tools and I said 'Are these tools legal'?".

Well, from what we currently know one of the very first answers that Bush received that question on January 25, 2002 wasn't that the "techniques are legal" it was that you won't get prosecuted for them if you PRETEND that Geneva doesn't count.

Who offered that opinion?

Why it was then White House Counsel Alberto Gonzales.

"It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [the War Crimes Act]," Gonzales wrote. The best way to guard against such "unwarranted charges," the White House lawyer concluded, would be for President Bush to stick to his decision--then being strongly challenged by Secretary of State Powell-- to exempt the treatment of captured Al Qaeda and Taliban fighters from Geneva convention provisions. "Your determination would create a reasonable basis in law that (the War Crimes Act) does not apply which would provide a solid defense to any future prosecution," Gonzales wrote.

Under Gonzales advisement Bush attempted to put forth a patently false claim that Geneva only applies to people in uniforms. Problem is that Geneva Article 5 says this...

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

In plain-as-day English it says everyone - EVERYONE - is presumed to be covered by the full convention, and the only thing that changes that fact would be a Tribunal that determines that they are either a POW, a Civilian Criminal, a Military War Criminal or a NON-COMBATANT. That's it, that's all.

It wasn't until the Hamdan v Rumsfeld decision that Bush finally gave this line of idiocy up.

In Hamdan the court determined (obviously) that Geneva applied, Justice Kennedy said:

Article 3 of the Geneva Convention (III)Relative to the Treatment of Prisoners of War,Aug. 12,1949, [1955 ] 6 U..S.T.3316,3318,T.I.A.S.No.3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law.See id.,at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered "war crimes," punishable as federal offenses,when committed by or against United States nationals and military personnel. See 18 U.S.C.§2441. There should be no doubt,then,that Common Article 3 is part of the law of war as that term is used in §821.

Justice Stevens said:

Hamdan is entitled to the full protections of the Third Geneva Convention until adjudged,in compliance with that treaty, not to be a prisoner of war;

Bush then responded with the Military Commissions Act, which Revoked Habeasu Corpus for "Illgal Alien Combatants", allowed for both the use of coerced confessions and information gathered using torture while protecting the torturers.

Why did this subject even come up? although the exact timeline of events has yet to be revealed, in all likelyhood It wasn't because the President was "presented with a set of techniques" - it was because an FBI Agent had tried to arrest the CIA Interrogators who were questioning Abu Zubaydah, which was discovered after the Tapes of the Interrogation WERE ILLEGALLY DESTROYED!

Justice officials refused to comment on what the new A.G. will do, but White House spokeswoman Dana Perino said that if he does open an investigation, the White House would support him. The videotapes, made in 2002, showed the questioning of two high-level Qaeda detainees, including logistics chief Abu Zubaydah, whose interrogation at a secret cell in Thailand sparked an internal battle within the U.S. intelligence community after FBI agents angrily protested the aggressive methods that were used. In addition to waterboarding, Zubaydah was subjected to sleep deprivation and bombarded with blaring rock music by the Red Hot Chili Peppers. One agent was so offended he threatened to arrest the CIA interrogators, according to two former government officials directly familiar with the dispute.

The sad part is that the MCA was passed by Congress and therefore does provide the Bush Administration some level of legal cover (that doesn't come from their own delusions).

However, the MCA does prohibit torture in conjuction with the Detainee Treatment Act. It does not retroactively immunize illegal actions which took place prior to the passage of the DTA in 2005. This means that brutal coercive treatment Zubaydah, al-Qhatani and Khallid Sheikh Mohammed were in fact Criminal Acts directly authorized by the President!

The question of what will happen, and what won't will soon rest on the shoulders of AG Eric Holder, but it will also involve the counsel of Obama's new choice for head of the OLC (where onerous memos legitimizing torture from John Yoo and Jay Bybee worked). That nominee is Dawn Johnsen, and she's a doozy of a selection.

This what she had to say about the Yoo torture memo.

I want to second Dahlia’s frustration with those who don’t see the newly released Office of Legal Counsel (OLC) torture memo as a big deal. Where is the outrage, the public outcry?! The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it — all demand our outrage.

Yes, we’ve seen much of it before. And yes, we are counting down the remaining months. But we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power. Otherwise, our own deep cynicism, about the possibility for a President and presidential lawyers to respect legal constraints, itself will threaten the rule of law — and not just for the remaining nine months of this administration, but for years and administrations to come.

But here - right here - is the meat Johnsen's arguement on whether those "Opinions" that Bush and Gonzales are better their future freedom on have any validity what-so-ever.

OLC, the office entrusted with making sure the President obeys the law instead here told the President that in fighting the war on terror, he is not bound by the laws Congress has enacted. That Congress lacks the authority to regulate the interrogation and treatment of enemy combatants. . . .

John Yoo, the memo's author, has the gall to continue to defend the legal reasoning in this memo, in the face even of Bush administration OLC head Jack Goldsmith's harsh criticism--and withdrawal--of the memo. Not only that, Yoo attempts to spin the memo's advice on presidential power as "near boilerplate" . . .

I know (many of us know) Yoo's statement to be false. And not merely false, but irresponsibly and dangerously false in a way that impugns OLC's integrity over time and threatens to undermine public faith in the possibility that any administration can be expected to adhere to the rule of law.


Here's a little more from another Johnsen article on Slate.

The same question, of what we are to do in the face of national dishonor, also occurred to me a few weeks ago, as I listened to President Bush describe his visit to a Rwandan memorial to the 1994 genocide there. . . .

But President Bush spoke there, too, of the power of the reminder the memorial provides and the need to protect against recurrences there, or elsewhere. That brought to mind that whenever any government or people act lawlessly, on whatever scale, questions of atonement and remedy and prevention must be confronted. And fundamental to any meaningful answer is transparency about the wrong committed. . . .

The question how we restore our nation's honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . .

Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation's past transgressions and reject Bush's corruption of our American ideals.

It may be premature for me to say, but I think Gonzo, Yoo, Bybee and Bush just might be eventually making an involuntary tour of Club Fed! if both Holder and Johnsen are confirmed and in charge of Justice in this nation for the next few years.

What must we do in the face of this national disgrace? I think we must prosecute. For political reasons, it my require a Special Prosecutor - but we MUST prosecute.


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