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Obama Would "Immediately" Look At Whether Criminal Charges Appropriate for Bush White House Officials:
Will Bunch has the scoop. (Hat tip: TPM)
PersonFromPorlock:
Interesting idea, but I can see the Republicans raising Hell if the Clinton administration didn't get investigated for its potentially criminal acts, too. I imagine Obama can see it as well, so this is probably just empty campaign talk.
4.15.2008 2:02pm
OrinKerr:
PFP,

I think you are right that if an Obama Administration investigated the Bush Administration, the next GOP administration would be highly likely to investigate officials in the Obama administration. Maybe it will just become a standard thing where high-level government jobs have three stages: 1) getting the job, 2) doing the job, 3) fending off indictment when the job is over.
4.15.2008 2:05pm
Thoughtful (mail):
I think, Orin, the three stages would more likely be: 1) getting the job, 2) doing the job, 3) doing time for the job...

I must say, I approve. :-)
4.15.2008 2:09pm
SP:
The Bush administration has done things I disagree with and find to be dubious, but they've also done things that can be undone. For example, if Obama thinks the torture issue has a criminal dimension, I'd rather him forbid the practice or highly limit it, rather than prosecute those who adovcated that position. You know, "change" and "moving forward."
4.15.2008 2:10pm
Charlie (Colorado) (mail):
If it continues, all that will happen is that each president pardons every member of their administration for any possible criminal act during the administration. That'll be real helpful.
4.15.2008 2:12pm
Gaius Marius:
In the Roman Republic, a politician needed three fortunes to scale the cursus honorum: 1) the first fortune for buying the consulship; 2) the second fortune to buy the Senate to pass the consul's lexii; and 3) the third fortune for fending off all the lawsuits brought after one stepped down from the consulship.

Obama's latest remarks is only further evidence that he is a closet Jihadist.
4.15.2008 2:15pm
The Mojo Bison (mail) (www):
No one wants to seriously go down this road. It's red meat (tofu?) for the Obamaniacs, but deep down, the Adults know that one of two things would happen:

A) prosecutions occur, and then become a staple of every election cycle where the opposition party takes control; partisan gridlock becomes even worse;

OR

B) rounds and rounds of pardons on the last day in office for the outgoing administration; at the extreme, the outgoing President pardons everyone, then resigns from office the Wednesday before Inauguration, at which point the Vice President takes office and pardons him over the weekend.

Neither path is desirable, and both have incredible repercussions that no one wants to think about. B) is particularly scary, since it invites a mode of behavior along the lines of, "If I'm to be taken for a wolf, I might as well have some lamb chops."
4.15.2008 2:20pm
Richard Aubrey (mail):
Jeez.
I listened pretty carefully to the Senate hearings on Waco and Ruby Ridge. Seems as if those could be called criminal, at least the extent of negligent homicide and depraved indifference to human life.
Where did Clinton get off bombing an aspirin factory in Sudan?
The problem with nutty ideas like this is that they tend to construct a machine. The nutcases think they, and only they, will ever have control of the machine. Problem is, they're wrong. And if somebody they don't like gets hold of the machine...it works just the same.
Hence the question, "Do you really want to go there?"
4.15.2008 2:20pm
SJE:
I think Obama has struck the right balance here.

If he uses the office to persecute his predecessors, it would degenerate into the cycle of revenge we see in unstable democracies and dictatorships.

However, to NEVER investigate your predecessors is a grave mistake, allowing grave abuse to go unchecked. In the wake of all the toxic allegations going on through the Clinton and then Bush years, it is time to let some sunlight in and clean house.

Concerns about witch-hunts are mitigated by the system itself. Courts give a lot of deference to political decision makers, and decline jurisdiction on political issues, so criminal conviction would properly be rare. Moreover, as Obama notes, it is not in his own interest to be overly zealous as it would both detract from his own agenda and would risk him being under the same judgement later.
4.15.2008 2:23pm
J. F. Thomas (mail):
rounds and rounds of pardons on the last day in office for the outgoing administration; at the extreme, the outgoing President pardons everyone

Point of constitutional order. I realize that Ford did it for Nixon and no one pushed the issue, but can the president pardon someone for crimes that have not even been charged?
4.15.2008 2:27pm
Temp Guest (mail):
Knowledge is good: The more voters (who are not on the extreme left wing of the Democrat Party) learn about Obama, the less likely they are to vote for him.
4.15.2008 2:29pm
A.S.:
That's interesting, but, what's to "look at"?

I am assured, by folks like Marty Lederman and others, that it is clear as a bell that, under US law, waterboarding is and has been during the entirety of the Bush Administration, torture. Torture is a criminal act. Members of the CIA committed waterboarding and members of the Bush Administration approved that waterboarding by the CIA. Therefore members of the CIA and members of the Bush Administration committed criminal acts.

So I don't understand Obama's reluctance to say that he'll be prosecuting members of the Bush Administration and CIA. Doesn't he listen to all those on the left who tell us that there is no question whatsoever that these were criminal acts?

I mean, I am genuinely unsure whether waterboarding, as committed by the CIA, is a criminal act. But I guess I am just cautious and reluctant to make pronouncements without knowing all the facts. A lot of others don't seem to be so cautious or reluctant. Could it be that Obama is on my side about torture rather than on, say, Marty Lederman's?

Also, what did Obama say when Mukasey was nominated? Why did Obama vote against Mukasey again?
4.15.2008 2:30pm
SJE:
Following from JF Thomas's comment, isnt it also true that there are limits to the pardon power.

For example, the president cannot pardon for crimes that are entirely within the scope of the other branches of government, like contempt of Congress. Thus, a dissed Congress could still jail those who lied in testimony etc.

Second, if the VP acted in such a way, I can imagine lawsuits to test the limit of executive pardons in clearly self-interested situations.
4.15.2008 2:34pm
MarkField (mail):

I think you are right that if an Obama Administration investigated the Bush Administration, the next GOP administration would be highly likely to investigate officials in the Obama administration. Maybe it will just become a standard thing where high-level government jobs have three stages: 1) getting the job, 2) doing the job, 3) fending off indictment when the job is over.


This strikes me as an unusually toxic form of nihilism. Are we now so morally degraded that it no longer matters what the actual offense might be?

Someone remind me again why we bothered to fight WWII.
4.15.2008 2:35pm
Just Dropping By (mail):
SJE is correct in his analysis. Would the earlier posters prefer that people in the executive branch be free to commit whatever crimes they wished, with full immunity from prosecution even absent a pardon? It would be the height of irresponsibility to say that members of an administration who may have committed federal crimes may only be investigated and prosecuted by that administration's DOJ. Also, here's Obama's full statement which is rather less sensationalist than Kerr's headline makes it out to be:


What I would want to do is to have my Justice Department and my Attorney General immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve.

So this is an area where I would want to exercise judgment -- I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing betyween really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it.
4.15.2008 2:36pm
cboldt (mail):
A non-trivial prosecution it would be, especially in light of the revisions to the War Crimes statutes made by the MCA, including retroactive application.

.

While casual vernacular tends to assert "waterboarding = torture," the legal analysis involves a few pertinent details. I'm not sure a judge, applying the law as written, would even come to the conclusion that waterboarding is "cruel and inhuman" as a matter of statutory construction, let alone "torture."

.

Congress really made a mess with the MCA, IMO. And while cruel and inhuman is forbidden, it's also instructive to look for the remedy, i.e., the criminal penalty upon conviction.
4.15.2008 2:37pm
Richard Aubrey (mail):
Mark Field,

You have to ask. You should review the spittle directed at Scooter Libby.

No, it does not matter.

Is selling pardons a crime?????

Thus, a procedure for making this a quadrennial affair is going to be bad for the country and bad for those who think they will be in charge in perpetuity of who gets charged.

Loral, tech transfer, campaign contributions....?

I keep asking, does anybody really want to go there?
4.15.2008 2:40pm
A. Zarkov (mail):
BHO's response to the question seems reasonable. If his administration finds evidence of crimes he would investigate. What should he say other than something like that?

Of course he says he would use his judgment, and that doesn't inspire confidence.

If the Bush administration officials are really provably guilty of crimes, then I would expect Bush to issue a blanket pardon. Clinton got away with an obvious bribe for pardoning Marc Rich.

BTW is the Bush administration's failure to enforce our immigration laws simply a policy or a crime?
4.15.2008 2:40pm
SJE:
The argument for not investigating the other side is like the argument for a Congressman allowing your favorite, conflict-of-interest-riddled pork project as long as he gets your vote for his conflict-of-interest pork.

This has been such a great success, hasnt it? Bridge to nowhere, meet Robert Byrd highway, etc.
4.15.2008 2:42pm
Iolo:
In the Roman Republic, a politician needed three fortunes to scale the cursus honorum: 1) the first fortune for buying the consulship; 2) the second fortune to buy the Senate to pass the consul's lexii; and 3) the third fortune for fending off all the lawsuits brought after one stepped down from the consulship.

Or, simply overthrow the state and skip step 3.
4.15.2008 2:46pm
WHOI Jacket:
This is banana republic territory. One party moves in and begins witch hunts on people doing their jobs from the previous administration. Wash, rinse, repeat.

The next step, if I recall my political development class correctly, is for the parties to organize militias in order to thwart the prosecutions.
4.15.2008 2:46pm
Bob from Ohio (mail):
I guess Obama is giving the bitter left a reason to cling to hope for prosecutions.
4.15.2008 2:52pm
J. F. Thomas (mail):
This is banana republic territory. One party moves in and begins witch hunts on people doing their jobs from the previous administration. Wash, rinse, repeat.

Actually, in a banana republic, the government puts in place policies and practices in disregard to the Constitution knowing that they will not be prosecuted by an independent judiciary either during or after their tenure.

Exactly what you are advocating here. It doesn't matter if the Bush administration broke the law or not. Let's just let bygones be bygones.
4.15.2008 2:57pm
Richard Aubrey (mail):
J.F.
You are advocating--if you are arguing in good faith--that dems be subject to the same.
But you would never actually support that.
4.15.2008 3:01pm
SJE:
How many actually read what BHO said? In response to the question he could have said:
(a) I'm not going to do anything because that would endanger our system (a recipe for unchecked executive power) or
(b) I'll prosecute Bushco for their crimes (red meat for the left (or is it tofu for them?), but prejudging and risks degenerating the USA into a banana republic).

Instead, he said he'll look into it, and elucidates principles he would follow. Really, not that radical.
4.15.2008 3:05pm
TruePath (mail) (www):
I would have worded this post a bit differently. There is a different implication to immediately look at whether criminal charges are appropriate and his claim that he would immediately let his attorney general examine whether an inquiry was appropriate.
4.15.2008 3:09pm
Justin (mail):
I of course think that the Office of Public Integrety should be given the AUTHORITY to investigate former White House officials - what Orin Kerr seems to be dubiously arguing is for absolute criminal immunity for official acts, which is nonsense to me - but I think it would be tragically wrong.

And Orin Kerr's slippery slope seems to be too little too late anyway, as there are numerous INNOCENT Democrats who spent time (or are still spending time) in Prison due to the unprecedented politicization of the US Attorneys.

Now, Obama would be no better if he ordered his US Attorneys to prosecute Republicans for the crime of being Republican. But ordering his US Attorneys to ignore criminal activity would be just as bad - it would be seen as a weakness by the Rovian strategists on the other side, who will, far from respecting the precedent, exploit the asymmetry.
4.15.2008 3:09pm
J. F. Thomas (mail):
You are advocating--if you are arguing in good faith--that dems be subject to the same.

Personally (as you can probably tell) I don't think there has been an administration that has committed more serious crimes than this one. I take torture and other war crimes very seriously. There is no doubt anymore that we have waterboarded. Seven years ago, I doubt that anyone would have seriously argued that waterboarding was not torture or not illegal.

I wouldn't care if it was a Democratic or Republican administration that did it.
4.15.2008 3:10pm
WHOI Jacket:

And Orin Kerr's slippery slope seems to be too little too late anyway, as there are numerous INNOCENT Democrats who spent time (or are still spending time) in Prison due to the unprecedented politicization of the US Attorneys.



Name some.
4.15.2008 3:12pm
WHOI Jacket:
Look, if actual CRIMES were committed, then, by all means, prosecute away.

But we all know that the investigations will hinge on the crime of being a member of the Bush Administration.
4.15.2008 3:13pm
Mahan Atma (mail):
"For example, if Obama thinks the torture issue has a criminal dimension, I'd rather him forbid the practice or highly limit it, rather than prosecute those who adovcated that position."


Are you not aware that torture is already illegal under federal law?
4.15.2008 3:13pm
PersonFromPorlock:
Richard Aubrey:

I listened pretty carefully to the Senate hearings on Waco and Ruby Ridge. Seems as if those could be called criminal....

With regard to the gas attack at Waco: AG Reno went on Nightline that night and stated flatly that the gas was aimed, not at the adults in the compound (who had gas masks), but at the children for whom no masks that fitted were available. The object was "to raise [the adults] parental instincts" by torturing their children, forcing them to surrender.

IANAL, but I make that out to be aggravated assault against the children, a felony that was very much not within the government actors' duties, and the deaths pursuant to that felony arguably to be felony murder. So far as I know, there is no statute of limitations that would shield any of the government actors from being charged even today.

However, because of the Constitution's 'Important People Clause', I don't expect to see any action on this.
4.15.2008 3:15pm
H. Tuttle:
>>For example, the president cannot pardon for crimes that are entirely within the scope of the other branches of government, like contempt of Congress. Thus, a dissed Congress could still jail those who lied in testimony etc.<<

But the executive still has to enforce those crimes, as last I checked neither Congress nor the Judiciary has a police force (yes, yes, Marshalls). So if Congress held someone in contempt and no one showed up to enforce....
4.15.2008 3:19pm
J. F. Thomas (mail):
IANAL, but I make that out to be aggravated assault against the children

So you're saying any use of tear gas against a group of people who are not obeying police orders, but may be innocent of any other crime, is an aggavated assault?
4.15.2008 3:20pm
Ohio Scrivner (mail):
Comments like this by Obama should put to rest any question about whether Obama would govern in a bipartisan fashion as President. He would not. I also wonder if Obama is thoughtful enough to consider the unfortunate precedent he would set and how it could affect his own administration when he leaves office.
4.15.2008 3:23pm
WHOI Jacket:
No, Thomas, he is saying that using tear gas with the express intent to harm the children of the compound in order to make the adults w/ gas masks surrender is assault.
4.15.2008 3:24pm
Richard Aubrey (mail):
J.F.

Some threads back, when challenged to demonstrate consistency, you insisted you were against various sins in the Reagan administration and Bush I, just as with Bush II. But, characteristically, you skipped two administrations altogether, Clinton and Clinton.
So, forget trying to prove anything about good faith.
Just forget it. Deal with the fact that you've outed yourself far too many times to fool anybody.

Porlock.
Waco was, operationally, doctrinally, conceptually, a crime.
Texas, this time avoiding federal help, took down a bigger compound without anybody getting out of breath.
Ruby Ridge was a matter of trying to get an informant (Weaver) to snitch on somebody in the white supremacist movement, so they entrapped him on a cheap gun charge. After all the noise died down, the feds discovered the other guy they wanted watched was a fed informant. The boys all agreed that better interagency communication was important.
I have reduced my swearing since I got out of the Army. Some.
So I have a hard time even thinking about these two abominations. No liberals were concerned. The victims were not The Right Sort. Which makes me madder.
And you can bet those supporting this move don't have the slightest intention of investigating any further such atrocity if a dem is president.
None at effingall.
4.15.2008 3:25pm
Richard Aubrey (mail):
J.F.
WRT your comment about tear gas. "So you're saying...," indicates a lie coming right up. Give up already.
You're a hack. You don't have to keep proving it.
Take some time off or something.
4.15.2008 3:27pm
Smokey:
Could this jamoke be any more of a hypocrite? At this rate, he's gonna win the John Edwards award.

When he starts mentioning that he will prosecute ex-prez Carter, and Kerry, and Nancy Pelosi under the Logan Act for giving aid and comfort to the enemy, or Feinstein for rigged no-bid contracts she handed to her husband, he might appear a little more credible.

Until then, I'll just sit back and enjoy the spectacle of the Odumbo chameleon going down in self-inflicted flames.
4.15.2008 3:28pm
Raoul Ortega (mail):
I also wonder if Obama is thoughtful enough to consider the unfortunate precedent he would set and how it could affect his own administration when he leaves office.

What makes you think that Our Saviour will ever leave office? The same can be said for Hillary!, as the Clintons ain't gonna make that Algore mistake again.
4.15.2008 3:32pm
PersonFromPorlock:

No, Thomas, he is saying that using tear gas with the express intent to harm the children of the compound in order to make the adults w/ gas masks surrender is assault.

Exactly. It's as if, faced with a barracaded bank robber, the police brought the robber's six-year old child to the bank and started Macing her where he could see it.
4.15.2008 3:33pm
J. F. Thomas (mail):
Ruby Ridge was a matter of trying to get an informant (Weaver) to snitch on somebody in the white supremacist movement, so they entrapped him on a cheap gun charge.

You conveniently forgot to mention that Weaver's son shot and killed a Federal agent.
4.15.2008 3:34pm
PersonFromPorlock:
Oh, except that Mace is mild compared to CS.
4.15.2008 3:35pm
Cornellian (mail):
Nearly all of us live in a system in which we can be financially and reputationally ruined by a prosecutor's accusation based on little or no evidence and there is absolutely nothing we can do about it. The Nifong situation was a rare exception - far more often the prosecutor will get away with it. That's not to say bogus prosecutions are common, just that prosecutorial immunity means regular people have almost no defense against them. So, frankly, to the extent that the high and mighty have to suffer that same risk, I'm not all that sympathetic. At least they have the resources to defend themselves.
4.15.2008 3:36pm
Craig R. Harmon (mail):
Question from a non lawyer. Doesn't the fact that any waterboarding occurred after the Office of Legal Whatever gave it as their opinion that waterboarding was legal? and doesn't that pretty much mean that no one can be prosecuted for either engaging in or authorizing waterboarding? Isn't that basically what that office is there for?

I know that those opinions were later withdrawn and waterboarding stopped and all but still...those who engaged in such activities did so with the assurance that it was legal.
4.15.2008 3:36pm
PLR:
Comments like this by Obama should put to rest any question about whether Obama would govern in a bipartisan fashion as President. He would not. I also wonder if Obama is thoughtful enough to consider the unfortunate precedent he would set and how it could affect his own administration when he leaves office.

Refusing to punish criminal behavior is bipartisan?
4.15.2008 3:37pm
J. F. Thomas (mail):
Doesn't the fact that any waterboarding occurred after the Office of Legal Whatever gave it as their opinion that waterboarding was legal?

Not at all. If you act on bad legal advice, you are still responsible. Considering that the legal scholarship used to justify the torture was horribly inadequate, there is no reason to think that just because the President tells OLC, "provide me cover so I can waterboard detainees" and they comply, doesn't make it legal.
4.15.2008 3:41pm
Houston Lawyer:
Didn't the Democratic leadership promise that they would investigate the Bush Administration once they took over? They've had over a year and I'm still waiting for all the crooks to shake out.

Obama has now said that Al Gore won the 2000 election. Let him beat that dead horse some more.
4.15.2008 3:42pm
Temp Guest (mail):
J.F.Thomas


You conveniently forgot to mention that Weaver's son shot and killed a Federal agent.


It was Weaver's son that was shot and killed by federal agents. The federal agent was killed during the attack on Weaver's cabin and after the federal agents killed Weaver's son. A jury found that that the killing of the federal agaent was done in self-defense. Even the MSM eventually had to concede all of this. It's in the public record. If you got your facts straight, you'd probably become a conservative.
4.15.2008 3:56pm
MarkField (mail):

Doesn't the fact that any waterboarding occurred after the Office of Legal Whatever gave it as their opinion that waterboarding was legal?


I don't think we know enough of the chronology to be able to state with certainty when certain acts took place relative to the issuance of the Torture Memos. I assume that's one thing a new AG would want to know.

As for whether such memos grant immunity, both Prof. Kerr and Prof. Lederman argue that they do/should. Simplifying, their argument is that when the government approves specified conduct, it can't then turn around and prosecute the person for engaging in that conduct. In the legal biz, that's a form of the doctrine of "estoppel".

In my view (and in the view of others), estoppel does not apply in this case for two reasons:

1. The case of war crimes committed by governments is a special case in which (see Nuremberg) no authorization can justify the crime.

2. The doctrine of estoppel requires that there be two separate and distinct parties, one of whom relies on the statements of the other. In the case of a unitary executive, what's essentially happening is that the President is giving advice to himself. There is no other party, so the doctrine of estoppel has no application.
4.15.2008 4:06pm
hattio1:
Temp Guest, in regards to the Randy Weaver/Ruby Ridge tragedy, says;

If you got your facts straight, you'd probably become a conservative.


I don't know about all that. I've got the facts straight on Ruby Ridge, condemn the hell out of the government's actions, and still consider myself a liberal. As to the notion that liberals didn't care, I can say that's completely not true. LOTS of people were upset about Ruby Ridge, and not just on the political right.
4.15.2008 4:13pm
cboldt (mail):
-- It was Weaver's son that was shot and killed by federal agents. --

.

True. I enjoyed your post, especially the zinger part at the end. ;-)

.

Just hedging a bit, but IIRC, Ruby Ridge occurred under the Bush I administration. Lon Horiuchi was promoted, and the government settled (or lost a civil case) with Randy Weaver for 4 or 5 million dollars.

.

The common thread of Ruby Ridge and Waco is an agency of the federal government, the ATF, setting out to make some headlines that justify expanding itself. Nothing like an exciting high-profile bust to juice up Congress to hand out more bucks.
4.15.2008 4:15pm
rarango (mail):
This discussion assumes Obama will win the nomination, and the general election of course. After his comments of late, the late breaking events of Rezko trial, Jeremiah Wright etc, I suspect there are a whole lot of superdelegates rethinking his electability. Now if Hillary can just keep Bill quiet until Denver, she might take this one.
4.15.2008 4:15pm
Iolo:

You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve.


Oh, that's cute. It would not actually be a partisan witch hunt, oh my word no, it would only be perceived as such by Republicans (those villains!).

Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it.


I shall never deny my supporters who suffer from Bush Derangement Syndrome their cherished fantasy of Dubya and Cheney doing the perp walk...
4.15.2008 4:15pm
ithaqua (mail):
I'd just like to mention in passing that the Ruby Ridge fiasco went down in August of 1992. Which, of course, means it was still Clinton's fault. :P
4.15.2008 4:19pm
Steve P. (mail):
But the executive still has to enforce those crimes, as last I checked neither Congress nor the Judiciary has a police force (yes, yes, Marshalls). So if Congress held someone in contempt and no one showed up to enforce....

H Tuttle - I suppose you're referring to Andrew Jackson's quote, "John Marshall has made his decision; now let him enforce it!"
Comments like this by Obama should put to rest any question about whether Obama would govern in a bipartisan fashion as President. He would not.

Scrivener - I'm not seeing that from his quote. Obama specifically says, "You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve." Am I missing something?
4.15.2008 4:29pm
Thales (mail) (www):
"Obama's latest remarks is only further evidence that he is a closet Jihadist."

*sighing deeply*

Does that mean that Reagan was a closet jihadist for arming Bin Laden's . . . well, jihad against the Soviets in Afghanistan in the 1980s?

As for the actual serious topic of this thread, I agree that it's not a good precedent to as a matter of course investigate officials of a departing administration. But if there's a compelling reason to think some *may* have committed serious felonies in the prosecution of the Iraq, Afghanistan or terror wars--and isn't there, based on the legal analysis of Goldsmith and Lederman, and the photographic and testimonial evidence that has leaked out of Abu Ghraib, Guantanamo and the CIA's overseas extraordinary rendition facilities--and no serious internal investigation effort on behalf of the current administration (does any serious person think that the abuses at Abu Ghraib were solely the schemes of bored and mildly retarded enlisted men and women?), shouldn't the subsequent administration at least consider an investigation out of simple respect for law and order?
4.15.2008 4:32pm
Anderson (mail):
I will be very, very, very, ..., very surprised if the outgoing Bush does not issue pardons for ALL the principals who approved torture.

Presumably he would issue them for the flunkies as well, but I'm not so sure about that. They may have to take their chances with the MCA.

I also note that Prof. Kerr assumes that an Obama administration would be followed by a GOP administration.
4.15.2008 4:33pm
Anderson (mail):
shouldn't the subsequent administration at least consider an investigation out of simple respect for law and order?

See, I think those are the words that most Republicans are having trouble with these days. There's no such thing as "law" -- it's all politics. Because of the Democrats, of course.
4.15.2008 4:35pm
Richard Aubrey (mail):
J.F.
The first indication Weaver had that anything was wrong was when his friend came running back from the firefight with marshalls.
The marshalls had been surveilling the house because the feds had issued an order to appear dated before it was sent, thus putting him in violation before the order left the courthouse.
The order was based on the entrapment.
When young Weaver and the friend encountered the marshalls, one of them shot the kid's dog, after which there was general shooting, killing deputy marshall Deagan (sp?) and young Weaver.
Jeez, J.F. You know this. You just can't get your head around the possibility that everybody else knows it, too. And so you keep putting your foot into what you ought to be zipping.
Things have moved on since your fourth grade intro to Dirty Debating.
And if we're going to be prosecuting presidents due to rogue agencies, I'd put Bush I up there. Also for his encouraging the Iraqis to rise with promises of help and then abandoning them.
4.15.2008 4:45pm
Richard Aubrey (mail):
Nobody on the outside actually knows if torture was used during the Clinton administration because the chattering classes are monumentally uninterested in torture if there's no connection with Bush. Nobody's looked. Nobody's leaked. Nobody's wondered.
I wonder. Think the Clinton's people were squeaky clean?
No? But who cares?
4.15.2008 4:47pm
Richard Aubrey (mail):
Thales. wrt abu Ghraib. I think so. Bored EM. Always trouble. Lousy, miserable, totally inadequate command (Karpinski).
Got any evidence to the contrary?
4.15.2008 4:48pm
Oren:
Let's just let bygones be bygones.
I have to agree to this, if I were Obama, I would do the following:

(1) Blanket amnesty for everyone involved in the "enhanced interrogation programs"
(2) Fair assessment of the legality of those programs under Federal Law and Treaty obligations
(3a) Procedures to ensure that future interrogations will be in substantial compliance with Federal Law and Treaty obligations
OR
(3b) Amendments to Federal Law and withdrawl from treaties that make effective interrogation impossible, to the extent necessary for national security (a judgment only Congress is competent to make under ArtI).

I'm not presupposing a particular answer here, I am only articulating the common-sense (I thought) standard that the administration should follow the law (treaties are supreme law of the land, see Const ArtVI) or have the law changed to allow their actions. The only untenable action is continuing to violate the law and our obligations.
4.15.2008 4:51pm
J. F. Thomas (mail):
The federal agent was killed during the attack on Weaver's cabin and after the federal agents killed Weaver's son.

Actually, upon review of the facts, they were both killed in the same incident before Weaver's wife was killed.
4.15.2008 4:54pm
Richard Aubrey (mail):
J.F. "Review of facts" means got caught screwing the pooch.
4.15.2008 4:55pm
Temp Guest (mail):
J. F. Thomas: If you think anybody who's been following this thread is still willing to believe anything you say about Riby Ridge, you need to adjust your meds. Now let's get back on topic.
4.15.2008 5:08pm
Ohio Scrivner (mail):

Obama is not exactly raising the level of political dialogue in this country. Now we have a candidate calling for a general criminal investigation of his political opponents without identifying what, if any, laws were broken, who broke them or what evidence supports that conclusion. As Obama acknowledged, when he made the allegation, he simply does not have those facts:


"What I would want to do is to have my Justice Department and my Attorney General immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now."

Obama's supporters, however, will all too often be happy to prejudge for him.
4.15.2008 5:21pm
Anderson (mail):
Now we have a candidate calling for a general criminal investigation of his political opponents

Do you think we can't read Obama's quoted words, as above, and that we will therefore believe what you've just written?

Smarter trolls, please.
4.15.2008 5:23pm
Mikeyes (mail):
If the president pardons someone under Article 2 Section 2
of the Constitution, doesn't that person have to accept the pardon and thereby admits to guilt in order to be pardoned?

(Reading wikipedia who cited Burdick v. United States, 236 U.S. 79 (1915)
4.15.2008 5:24pm
Just an Observer:
I think commenters on all sides of this should take the time to follow the original link and read Obama's words in context.

To me, his reply to the question is rather more nuanced than the comments here assume. Obama is talking about making preliminary judgment -- once the hitherto secret files within the government are open to his AG -- about whether there is anything that merits further investigation. And he carefully qualifies that by saying he would not want to encourage the appearance of a partisan reprisal.

The Bush administration players -- with some notable help from Congress -- have been and are doing a pretty good job of immunizing themselves for various acts. And the bar for criminal prosecution is high. So I doubt that anyone would get close to being charged. Even some of the administration's most vocal critics, such as Marty Lederman, counsel against any expectation of that.

It's too bad, but probably the villains will get away with it. But the damage done to the integrity of executive-branch lawyering has been severe.
4.15.2008 5:25pm
Crust (mail):
It's unusual that one finds a more restrained take on Michelle Malkin's group blog HotAir than here, but anyway here's Allahpundit:

[Obama] can’t say that he won’t look into it or else he’s committing to ignoring possible criminality (not to mention denying his base their erotic fantasy of Bush being frogmarched away) but he can’t promise to launch a major investigation or else he’s bound to it and sidetracked in a war with the Republicans from day one. So he gives the only response he can give realistically, one which Maverick [McCain] himself would likely be forced to approximate if asked.

...

I.e. no, it’s virtually certain that he won’t go after anyone lest it set a precedent for partisan prosecutions by incoming administrations in the future, but to borrow a choice term from a paint-by-numbers answer in the foreign policy vein, all options must remain on the table. Zzzzz.
4.15.2008 5:26pm
Nony Mouse:
It looks as the only thing in that statement that's "red meat" is the comment that he'd look into it immediately if he became president. Of course, you'd almost expect that. But considering Rezco, you have to wonder exactly how much impetus he really wants to put on having himself investigated immediately. Innocent or not, investigations are typically not good PR.
Don't get me wrong, some of Obama's policies are in my Do Not Want list, but saying 'we should see if there's anything criminal or just policies we don't like' seems like an adult talking, instead of the pink sloganeering and jumping to felony accusations their fringe has been pushing. Promising to look into it immediately is probably exactly the line he can promise. Of course, starting immediately would only be good to quiet them down for the first press conference. Then he could say that 'a committee has been formed' then 'the committee is working' 'still working' 'preparing a draft' 'submitting a report' 'is anyone still paying attention, or have they gone on to what's happening a year after I took office? no? Well, there wasn't much interesting.'
4.15.2008 5:32pm
Oren:
If you think anybody who's been following this thread is still willing to believe anything you say about Riby Ridge, you need to adjust your meds.
And if you think anyone on this blog is going to believe that a citizen is within his rights to ignore a duly signed arrest warrant and resist US Marshals with force then you need to get your own cabin in the woods. Even if the warrant was invalid (and it certainly was) the only legal recourse is to submit peacefully and raise your objections in front of a judge.

The FBI was way out of line (criminally, in fact) in their response but ultimately, the responsibility lies with Randy Weaver's unwillingness to simply "come out with his hands up", as it were and fight the charges in a court of law.
4.15.2008 5:40pm
hattio1:
Oren,
I dont' want to be lumped in with JF Thomas here, but I think most people, if they were faced with someone who had just shot their son without warning and without identifying themselves, I would be hesitant to surrender to them too.
4.15.2008 5:51pm
Anderson (mail):
It's unusual that one finds a more restrained take on Michelle Malkin's group blog HotAir than here

Where Obama's concerned, that's becoming less and less unusual, I fear.
4.15.2008 5:51pm
Ohio Scrivner (mail):
I thought the article was fairly clear that Obama was calling for a general criminal investigation of the Bush White House. According to the linked article, Obama's comments were made in response to the following question:

A lot of people -- certainly around the world and certainly within this country -- feel that crimes were possibly committed" regarding torture, rendition, and illegal wiretapping. I wanted to know how whether his Justice Department "would aggressively go after and investigate whether crimes have been committed."

As to the criminal investigation being conducted against a political opponent, the article's author had little trouble grasping that point: "The bottom line is that: Obama sent a clear signal that -- unlike impeachment, which he's ruled out and which now seems a practical impossibility -- he is at the least open to the possibility of investigating potential high crimes in the Bush White House."
4.15.2008 5:51pm
Thales (mail) (www):
Aubrey: "wrt abu Ghraib. I think so. Bored EM. Always trouble. Lousy, miserable, totally inadequate command (Karpinski).
Got any evidence to the contrary?"

No direct evidence in my pocket. My point was that it seems incredible that in a culture of tortured (no pun intended) legal memoranda issued by OLC and the Defense Department, high pressure on military personnel to deliver the goods/get the bad people, acknowledged CIA outsourcing of interrogation to countries with looser legal standards and probable CIA involvement in some military prisons in the Iraq theater, very damning articles by Seymour Hersh (who broke the Abu Ghraib story and whose credibility and use of confidential sources has not been called into question by anyone not a political opponent) and other investigative journalists and general silence in the chain of command above Karpinski, that the investigation into whether there is such direct evidence should have ceased at EM plea bargains and the firing of Karpinski (also, I believe, the quiet retirement of a general or colonel). Basically, why wasn't this deemed serious enough to merit independent JAG or DoJ investigation?
4.15.2008 5:57pm
Gaius Marius:
Hillary "Lady MacBeth" Clinton will ensure that Barack "Banquo" Obama does not obtain the Democratic Party nomination for POTUS.
4.15.2008 6:14pm
Oren:
I don[']t want to be lumped in with JF Thomas here, but I think most people, if they were faced with someone who had just shot their son without warning and without identifying themselves, I would be hesitant to surrender to them too.
I was referring to the situation before it got out of control. You can't plausibly argue that, before that incident, Weaver did not know that (1) the Federal government wanted him and (2) they would come to arrest him forcibly if he refused to surrender peacefully.
4.15.2008 6:14pm
Anderson (mail):
Ohio, please read your own comment:

Obama was calling for a general criminal investigation of the Bush White House

is not the same as

open to the possibility of investigating potential high crimes in the Bush White House.

I've bolded some words to help you out.

As "Allahpundit" noted, no one with any integrity running for president could say much different.

"What? Potential high crimes committed by public officials? Don't bother me with that -- I'm too busy plotting to pry David Kopel's gun from his cold dead fingers, right after which I'm going to sign an alliance with Iran, attack Israel, put all the whites in concentration camps, AND appoint judges who try to reach just results that are consistent with the law."

After which he will probably rip off his mask to expose himself as the Beast of the Apocalypse.
4.15.2008 6:20pm
Anderson (mail):
Gaius Marius, do you comment at OTB as "Triumph"?
4.15.2008 6:21pm
Anderson (mail):
After which he will probably rip off his mask to expose himself as the Beast of the Apocalypse.

Damn, meant to add, "or Tom Cruise."
4.15.2008 6:22pm
Bender (mail):
Oren:


And if you think anyone on this blog is going to believe that a citizen is within his rights to ignore a duly signed arrest warrant and resist US Marshals with force then you need to get your own cabin in the woods. Even if the warrant was invalid (and it certainly was) the only legal recourse is to submit peacefully and raise your objections in front of a judge.


At Ruby Ridge no arrest warrant was presented, the federal marshals began shooting (and killing) without identifying themselves, a jury found Weaver innocent of all charges stemming from the attack on his ranch, and the federal government conceded wrong-doing by settling Weaver's wrongful death suit with an admission of fault and a hefty monetary settlement.

Ruby Ridge was a classic case of law enforcement so exceeding its lawful restraints that armed self-defense by a citizen was justified. If you think nly bitter hicks in "cabins in the woods" believe that oa man is justified in defending his family against armed strangers who trespass on his land and kill his son without warning then you would probably be more in tune with reality and happier with the law in the EU where it has been decided that there is no right to self-defense.
4.15.2008 6:26pm
Richard Aubrey (mail):
Hersh got the goods on abu Ghraib from a parent of one of the guys being investigated by the Army.
He broke the story, but he didn't start the case.

Your list of stuff presumes the snuffies in the prison were on the distribution list. Or they absorbed the atmosphere. But pulling it up past the perps as an action is tough--lacking evidence--while Karpinski did not get, IMO, sufficient punishment.

Oren. Consider a couple of things. The deputies did not come knocking at the door. When the ATF bailed on the case, they lied about Weaver being wanted for bank robbery and having booby-trapped his place.
First thing the deps did was kill his kid.
They sent a robot with a phone, which he did not pick up. During the hearings, the boss of the effort admitted that, if he'd had it to do over again, he'd have taken off the shotgun which was mounted on the robot aimed at the phone.
Weaver had no reason to believe he would not be shot on sight. Which was true, considering that Horiuchi hit Mrs. Weaver by mistake while trying to hit Weaver as he was running for cover.
I know that, when the vic is a white supremacist, he's supposed to believe the guys are from the government and they're here to help him. That makes him an easier target.
This is news to you?
4.15.2008 6:28pm
Elliot Reed (mail):
I don't think it's worth bothering. Any convictions will be reversed, resulting in the evisceration of all our anti-torture laws. Better for some patriots to capture them and hand them over to the International Criminal Court. [/hyperbole]
4.15.2008 6:31pm
frankcross (mail):
I'm pretty astounded that anyone would object to simply investigating possible crimes. That doesn't even imply prosecution. It's certainly possible to conclude that a crime ws committed and choose not to prosecute. It's also certainly possible that the investigation would find that crimes were not committed.

The idea that possible crimes should not even be investigated seems wildly contrary to both the rule of law and democracy.
4.15.2008 6:34pm
cboldt (mail):
-- I don't think it's worth bothering. Any convictions will be reversed, resulting in the evisceration of all our anti-torture laws. --

.

Perhaps the laws have already been effectively gutted, via legislation.
4.15.2008 6:47pm
Justin (mail):
Don Siegleman and Georgia Thompson, for starets.
4.15.2008 6:47pm
Anderson (mail):
The idea that possible crimes should not even be investigated seems wildly contrary to both the rule of law and democracy.

Feature, not a bug.

Perhaps the laws have already been effectively gutted, via legislation.

That reminds me of a question I've been pondering.

(1) X commits an illegal act.

(2) The MCA is enacted, providing immunity for X's perpetration of that act.

(3) The MCA is repealed by a Democratic Congress and President.

(4) X is indicted for the illegal act.

Leaving aside the plausibility of (3), I'm just curious whether retroactive legislative immunity is revocable, or whether "once immune, always immune."
4.15.2008 6:57pm
jgshapiro (mail):
Anderson is correct: I predict Bush will issue pardons for everyone below him that could be prosecuted for torture, warrantless wiretapping, or other war-on-terror misadventures, or any perjury concerning the same (e.g., Libby). There is no reason for him not to: he won't lose any popularity from those who believe that the people in question were doing their jobs, and pretty much everyone else already holds a low opinion of him and/or his administration. So, what's the downside? Pardoning Mark Rich didn't have much of a downside for Clinton, and there wasn't even a plausible rationale for that (beside payback).

Under this scenario, Obama would be reduced to either (1) investigating Bush himself (under the assumption that Bush cannot or would not pardon himself and everyone else was pardoned), which would make any sort of bipartisan legislative efforts impossible, or (2) extraditing the people in question to Germany or a UN tribunal to stand trial. The latter alternative would probably be unsuccessful, but could be highly entertaining.

Come to think of it, from a pure who-is-more-likely-to-try and-put-me-in-jail perspective, Bush is probably better off with President Obama than President Clinton or President McCain, since Obama has put a lot of stock in post-partisanship,while Clinton has made partisan appeals her stock-in-trade and McCain will be anxious to show his distance from the Bushies.
4.15.2008 6:58pm
hattio1:
Oren says;

I was referring to the situation before it got out of control. You can't plausibly argue that, before that incident, Weaver did not know that (1) the Federal government wanted him and (2) they would come to arrest him forcibly if he refused to surrender peacefully.


The situation got out of control as soon as the marshals started shooting. And I dont' believe that Weaver was ever served with the arrest warrant (though my research was long ago). If he never got the arrest warrant, then, yeah, he had no reason to expect federal marshalls. Even if he did receive an arrest warrant, he had no reason to assume they would come blazing away with guns rather than, you know, acting like law enforcement. You really should research the case. The "shoot on sight" order had no rhyme or reason behind it. But, even worse, it was changed from a "may" shoot on sight to a "could and should" shoot on sight order. And instead they go blasting away at his 15 year old son who's out walking the dog.
4.15.2008 7:02pm
Thales (mail) (www):
"Leaving aside the plausibility of (3), I'm just curious whether retroactive legislative immunity is revocable, or whether "once immune, always immune.""

Interesting questions--restated, basically: can Congress pass a general bill of non-attainder with respect to some class of offenses? What if part of the MCA was unconstitutional (as it well might have been)--is the retroactive immunity part severable? Does it violate due process to prospectively repeal retroactive immunity? Is there a legally cognizable reliance interest in not being prosecuted if the retroactive immunity statute was not constitutional?
4.15.2008 7:05pm
Anderson (mail):
Thales asks what I was asking, only smarter.
4.15.2008 7:07pm
newshutz:
Sorry if this has been mentioned before, but actions like this (wholesale political prosecution of prior officeholders) is precisely the last straw that brought down the Roman Republic.

I have always been somewhat surprised with the modern interest in the fall of the Roman Empire, when it is the demise of our republics which should be of more concern.
4.15.2008 7:55pm
Scotts (mail):
Outrage Machine

Operating instructions:
1. Start with a misleading headline*.
2. Do not read the underlying story.
3. If you accidentally read the story, be sure to willfully separate context, detail, and nuance
4. Stir in preconceived narrative
5. Feed to Volokh Conspiracy
6. Enjoy your newly amplified self-righteous indignation.
7. If the desired level of outrage is not achieved, attack strawmen.

*Short quotes can be substituted for headlines if necessary
4.15.2008 8:36pm
Just an Observer:
I note that Doug Kmiec -- himself an Obama supporter but not exactly a vocal critic of the Bush administration's legal record in this area -- read Obama's nuanced remarks in a differnt light:

Should President Obama launch yet another legal investigation into the alleged war crimes of the Bush administration?

The answer -- absent clear evidence of a criminal intent to subvert the law well beyond what even the most severe Bush critic alleges -- is "no." That seems to be the answer Senator Obama wisely supplied.
4.15.2008 8:44pm
Richard Aubrey (mail):
frankcross.
"Possible crimes"? You don't for an instant believe it won't expand to anything anybody can dream up, with or without evidence, (see above on abu Ghraib), or whether or not it's a crime.
4.15.2008 9:22pm
Oren:
And I dont' believe that Weaver was ever served with the arrest warrant (though my research was long ago). If he never got the arrest warrant, then, yeah, he had no reason to expect federal marshalls.
The local Sheriff, who was a friend of Weaver's, attempted to get him to surrender multiple times before any bullets were fired. If he had gone to the Federal building in the back seat of the Sheriff's squad car, no bullets would have ever been fired. In fact, after learning about the warrant for his arrest, Weaver became convinced of a government conspiracy out to get him and started making less-than-rational decisions (instead of reaching out and negotiating a peaceful surrender).

I will again (just for the record) condemn the disproportionate and overly rigid approach used by the FBI and the Marshal's in apprehending him. Every criminal retains the right to surrender peacefully at every point in their confrontation with law enforcement (boo at Hudson) and every effort need to be made to ensure that they understand this. Conversely, for the law to have any power at all, an arrest warrant has to be backed up with credible force.
4.15.2008 9:24pm
EH (mail):
newshutz:
Sorry if this has been mentioned before, but actions like this (wholesale political prosecution of prior officeholders) is precisely the last straw that brought down the Roman Republic.


Small detail: what Obama described was not "like...wholesale political prosecution of prior officeholders." Now, if you want to assert that investigating crimes by the current administration by the next administration would amount to "wholesale political prosecution" by dint of the level of acknowledged lawbreaking by the people being investigated, that might advance the discussion somewhat. Otherwise, you're off base.
4.15.2008 9:28pm
Brian Macker (mail) (www):
I have a wish. That McCain does this when he gets elected. I do believe that federal law was violated when we tortured those terrorists. They should have gotten the laws changed first.
4.15.2008 9:33pm
PersonFromPorlock:
frankcross:

I'm pretty astounded that anyone would object to simply investigating possible crimes.

I'm all in favor of prosecuting crimes in office (see my comments re Waco above), but that prosecution should be routine, timely and neutral. If Obama wants to establish as a matter of principle that criminal law applies to the executive, he will have to go after Clinton administration crimes first. Anything else will instantly be written off as a partisan perversion of justice; and it will start a war.
4.15.2008 9:47pm
Richard Aubrey (mail):
Oren.
You are aware that the rest of us are aware that a panel of FBI snipers said the ROE were unconstitutional. You are aware that the ROE were looser than many applying to our troops overseas around that time.
You are aware that nobody ever fessed up to writing the ROE.
If you think this was an arrest, you're smoking something you probably think ought to be legalized.
There is no reason for Weaver not to think the feds intended to kill him.
Which, see Horiuchi, happens to be true.
Some of the boys were not available for testimony, being required to go fix up Waco which wasn't going according to Reno's idea of righteous collar.
Reno, you will recall, made her creds by bringing false charges of child molestation in Florida.
And then....
So an arrest warrant of somebody who is not The Right Sort has proven to be "weapons free". How do you think that makes the next member of a non-protected class feel when the boys come busting into his house? Especially when the target house was on the next block? (Happened recently in Florida, btw.) My guess is he'll decide his chances are better in a firefight and to await the media.

Well, Oren, you've taken the bait. If this isn't a crime, you don't have much credibility on calling anything else a crime.
4.15.2008 9:52pm
MarkField (mail):

Sorry if this has been mentioned before, but actions like this (wholesale political prosecution of prior officeholders) is precisely the last straw that brought down the Roman Republic.


That practice certainly didn't help matters, but it was more an effect than the cause. Perhaps that makes it more relevant to us than I first thought.
4.15.2008 9:54pm
Thales (mail) (www):
"If Obama wants to establish as a matter of principle that criminal law applies to the executive, he will have to go after Clinton administration crimes first."

I'm not sure Obama needs to establish that, as there is no general legal rule that would relieve government officials from criminal prosecution (some special privileges and immunities may apply to some officials, e.g. prosecutors, judges, legislators and perhaps in some cases the President). But how does the second part of your thought follow? We're talking about different alleged crimes, occurring in different timeframes, with different scale and severity. Also, in all the major crimes alleged to have been committed by members of the Clinton administration, wasn't there some kind of process (no matter the disposition)? Is there some alleged crime where it appears the authorities just declined to investigate or prosecute?
4.15.2008 9:59pm
Just an Observer:
I have a wish. That McCain does this when he gets elected. I do believe that federal law was violated when we tortured those terrorists. They should have gotten the laws changed first.

You should remember that, with regard to the War Crimes Act, McCain already signed onto the retroactive redefinition of war crimes to bar prosecution of violations stemming from violation of Geneva Common Article 3 between 9/11/2001 and 12/30/2005.

Whatever credit he deserves for opposining prospective torture, McCain was a prominent party to the 2006 deal -- the 2006 Military Commissions Act -- which effectively legislated that retroactive amnesty. The MCA was mostly a party-line matter.
4.15.2008 10:04pm
cboldt (mail):
-- In fact, after learning about the warrant for his arrest, Weaver became convinced of a government conspiracy out to get him and started making less-than-rational decisions --

.

Well, if his story is true, then there was a conspiracy. He claims he never provided a shotgun with a too-short barrel, so the foundation of the government criminal complaint was, in his eyes, fabricated. Add to that, the feds who invited him to provide a short barrel shotgun wanted him to infiltrate Aryan Nation, which was a task he wanted nothing to do with. A rational person might think these particular feds were seeking payback of some sort.

.

Of course, the slightest resistance to the insurmountable force of government, other than talk and legal briefs, is risky. But I don't think it's necessarily irrational.

.

The time elapsed between the delivery of the alleged short-barrel shotgun and the ill-fated surveillance trip by the feds is interesting. Months elapsed. Darn little "talking" contact and negotiation initiated by the government.

.

Anyway, all that action took place under a Republican regime, GHWB. And, FWIW, involuntary manslaughter charges were filed against Horiuchi, but not by the federal government.
4.15.2008 10:08pm
cboldt (mail):
-- McCain already signed onto the retroactive redefinition of war crimes to bar prosecution of violations stemming from violation of Geneva Common Article 3 between 9/11/2001 and 12/30/2005 --

.

The effective date for the statutory definitions of the various war crimes was pushed back farther than 9/11/2001, to a date that is coincident with another statutory enactment in the same section of US Code.

.

Not that the difference matters for purposes of the discussion, just a point of interest.
4.15.2008 10:14pm
Just an Observer:
cboldt,

I was referring to Section 8(b) of the Military Commissions Act:

Protection of Personnel- Section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with respect to any criminal prosecution that--

(1) relates to the detention and interrogation of aliens described in such section;

(2) is grounded in section 2441(c)(3) of title 18, United States Code; and

(3) relates to actions occurring between September 11, 2001, and December 30, 2005.
4.15.2008 10:31pm
cboldt (mail):
I was referring to the very same act, S.3930, but in the form enacted into law.

.

See Public Law 109-366

.

Lots of new stuff to ponder in that act. My comment at the time was, "I think this bill will bite us in the ass."

.

(2) Retroactive applicability.--The amendments made by this subsection, except as specified in subsection (d)(2)(E) of section 2441 of title 18, United States Code, shall take effect as of November 26, 1997, as if enacted immediately after the amendments made by section 583 of Public Law 105-118 (as amended by section 4002(e)(7) of Public Law 107-273).
4.15.2008 10:40pm
Gaius Marius:
ANDERSON: No, I do not post there -- never heard of that blog.
4.15.2008 10:43pm
Gaius Marius:
The torture policy enacted by President Bush is just further evidence that he is the most incompetent commander in chief since President Madison in the War of 1812. Frankly, there should be no torture policy because it should be the policy of the United States military to take no prisoners and execute any enemy hostile who attempts to surrender. The foregoing would eliminate issues such as torture, Guantanamo Bay, etc.
4.15.2008 10:46pm
Just an Observer:
cboldt,

There is no substantive difference in the documents. The enrolled bill to which I linked and the public law to which you linked are identical.
4.15.2008 10:55pm
cboldt (mail):
Now that I look at the statute, I see the same 9/11/2001 date that you reference. It refers to the applicability of 42 USC 2000dd-1. That's interesting in its own right. So, here is the statutory endorsement of the Yoo memorandum!

42 U.S.C. § 2000dd-1 - Protection of United States Government personnel engaged in authorized interrogations
.
(a) Protection of United States Government personnel
In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in
assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

(b) Counsel
The United States Government shall provide or employ counsel, and pay counsel fees, court costs, bail, and other expenses incident to the representation of an officer, employee, member of the Armed Forces, or other agent described in subsection (a) of this section, with respect to any civil action or criminal prosecution or investigation arising out of practices described in that subsection whether before United States courts or agencies, foreign courts or agencies, or international courts or agencies, under the same conditions, and to the same extent, to which such services and payments are authorized under section 1037 of Title 10.


.

The 1997 retroactivity goes to the statutory definition of grave breach of the Geneva Conventions.

.

Looks like belt and suspenders approach. If a person doesn't get off for failure to meet the elements of grave breach as redefined, then they get off by dint of following an order.

.

Oh, 2000dd is also useful to stifle civil complaints, so it does have independent and additional "value."
4.15.2008 11:03pm
bittern (mail):
Aubrey:

J.F.
You are advocating--if you are arguing in good faith--that dems be subject to the same.

Can he hold to his supposition . . . can he? can he?

But you would never actually support that.

Oh no, . . . down in flames !!

24 minutes later:

So, forget trying to prove anything about good faith.

R.A., you can't say "forget it", if you couldn't hold to the supposition!
IT'S TOO LATE!!!! -- Alas!
4.15.2008 11:21pm
Oren:
Frankly, there should be no torture policy because it should be the policy of the United States military to take no prisoners and execute any enemy hostile who attempts to surrender. The foregoing would eliminate issues such as torture, Guantanamo Bay, etc.
Such a policy would make intelligence gathering a rather dicey proposition. If I were on the loony side of the divide, I would start accusing you of wanting to kill US soldiers and civilians by depriving us of vital military information.

Well, if [Weaver's] story is true, then there was a conspiracy. He claims he never provided a shotgun with a too-short barrel
Sounds like an excellent theory to advance in defense of that charge and possibly sue for malicious prosecution. What it's relevance as to whether or not he needs to comply with an arrest warrant is beyond me.

so the foundation of the government criminal complaint was, in his eyes, fabricated.
Since when was the subjective view of the criminal of his own complaint ever considered material? I think laws banning cocaine are bogus, does that entitle me to skip my trial?

Add to that, the feds who invited him to provide a short barrel shotgun wanted him to infiltrate Aryan Nation, which was a task he wanted nothing to do with. A rational person might think these particular feds were seeking payback of some sort.
Grabbing a low-level guy on a technical charge and trying to recruit him as an informer is a fairly regular technique. It's not about payback - it's about cutting a deal. Confronted with such a situation, (rationally speaking) either you roll over or you fight the charge. Having a gun battle with the FBI is rarely a viable option.

You are aware that the rest of us are aware that a panel of FBI snipers said the ROE were unconstitutional. You are aware that the ROE were looser than many applying to our troops overseas around that time.
I am aware AND those are true statements. If you actually read my post, you would see that I do not dispute these facts.

If you think this was an arrest, you're smoking something you probably think ought to be legalized.
No, it wasn't an arrest. It was a shootout. [Yes, it should be legalized].

There is no reason for Weaver not to think the feds intended to kill him.
Assuming we are before the shootout, why would he think that? They wanted to send him to trial for (allegedly) selling a sawed-off shotgun.

Which, see Horiuchi, happens to be true.
There is no evidence that the FBI preferred to kill Weaver rather than take him in peacefully. They tried for months to negotiate a peaceful surrender (remember, he was holed up in there for more than a year).

So an arrest warrant of somebody who is not The Right Sort has proven to be "weapons free".
No, it should not be (see my earlier comment - everyone has the right to be surrender peacefully). If, after being given ample chance to surrender peacefully, you chose not to do so, then you will be arrested with force.

How do you think that makes the next member of a non-protected class feel when the boys come busting into his house? Especially when the target house was on the next block? (Happened recently in Florida, btw.)
If you had read my comments, you would know that I was down on "no-knock" raids. When the police surround you house and get on the bullhorn ordering you to surrender peacefully (as they should be required to do), I highly suggest you surrender.

My guess is he'll decide his chances are better in a firefight and to await the media.
Somehow I doubt that. Unless you want to martyr yourself in a hail of Federal bullets, in which case, go ahead but for god's sake let your wife and children surrender peacefully. Keeping them around as pawns to be used in your defense is inexcusable.

Well, Oren, you've taken the bait. If this isn't a crime, you don't have much credibility on calling anything else a crime.
Reading comprehension is key, because if you had read, you would notice that I never claimed that no crime was committed by the Federal gov't. In fact, I'm sure that, at minimum, Horiuchi was guilty of gross negligence (probably negligent manslaughter as well) and that various supervisors were guilty of negligent discharge of official duties. Louis Freeh (director of the FBI at the time) admitted as such in Congress. Only in your version of my arguments was it ever claimed that the FBI did not commit these crimes.
4.16.2008 12:09am
cboldt (mail):
-- I think laws banning cocaine are bogus, does that entitle me to skip my trial? --

.

There's no evidence that Weaver thought the laws relative to short barrel shotguns were bogus. His argument is that the evidence was planted or fabricated. Regardless of your view of the law, you might think there was a conspiracy in your cocaine example, if you were accused of possession of a kilo of cocaine, when you knew for a fact you had none.

.

-- They tried for months to negotiate a peaceful surrender --

.

Heh. Okay. I get where you're coming from.
4.16.2008 1:19am
Oren:
Regardless of your view of the law, you might think there was a conspiracy in your cocaine example, if you were accused of possession of a kilo of cocaine, when you knew for a fact you had none.
And fueling that suspicion by skipping trial and holing up in the mountains is going to improve my chance how? I'll take my chances with a fancy defense lawyer over a revolver any day. At least the lawyer will get you off some of the time.
4.16.2008 1:31am
hattio1:
Oren says;

In fact, after learning about the warrant for his arrest, Weaver became convinced of a government conspiracy out to get him


I'm not sure this was such an unreasonable assumption on his part. Shoot on sight orders are pretty much a good indication that someone is out to get you.

and

What it's relevance as to whether or not he needs to comply with an arrest warrant is beyond me.


But, you have no obligation to comply with an arrest warrant that hasn't been served. Its generally smart, but we have this thing called process before its required. You can't just point the finger at Weaver and say he should have followed a legal process, it takes two.

and he says

There is no evidence that the FBI preferred to kill Weaver rather than take him in peacefully. They tried for months to negotiate a peaceful surrender (remember, he was holed up in there for more than a year).


I would say that shoot on sight orders are pretty damn good evidence they preferred to kill him.

and he says

When the police surround you house and get on the bullhorn ordering you to surrender peacefully (as they should be required to do), I highly suggest you surrender.


Of course, the problem is they never got on the bullhorn and ordered him to surrender. I'm glad you recommend that people surrender when faced with government guns. In most cases, that is the wise plan. But, in Randy Weaver's case, they didn't have the opportunity to surrender until after his son and wife were dead. At that point, I seriously doubt any surrender would have occured peacefully even if Harris, Weaver, et al. were unarmed.
4.16.2008 1:31am
Richard Aubrey (mail):
I reiterate: Weaver was not The Right Sort. The government gambled, wisely, that they could get away with anything they wanted. Ditto Waco.
Now, Rodney King.... The cops did not kill him. They did not kill his relatives.
King, being part of a protected class, turned out to be important.
And the cops involved were prosecuted until a jury got the right answer.
Is anybody thinking there's no lesson here?
4.16.2008 8:21am
Lonetown (mail):
Special Prosecutors, post watergate, worked out well? no?
4.16.2008 8:43am
PersonFromPorlock:
Thales:

I'm not sure Obama needs to establish that, as there is no general legal rule that would relieve government officials from criminal prosecution (some special privileges and immunities may apply to some officials, e.g. prosecutors, judges, legislators and perhaps in some cases the President). But how does the second part of your thought follow? We're talking about different alleged crimes, occurring in different timeframes, with different scale and severity. Also, in all the major crimes alleged to have been committed by members of the Clinton administration, wasn't there some kind of process (no matter the disposition)? Is there some alleged crime where it appears the authorities just declined to investigate or prosecute?

While there's "no general legal rule that would relieve government officials from criminal prosecution," even 'qualified' immunity seems to be enough to make actual prosecutions rare; that needs to change. The whole idea of 'sovereign immunity' is wormy anyway, since it's the People and not the government that's the Sovereign.

As to the 'second part of my thought', it just looks more principled to put the bad guys on your side in jail before you start on the bad guys on the other side. In fact, unless you do it that way it doesn't look principled at all. And there are surely enough unacted-upon sins from the Clinton years, from Waco in '93 to the pardons in '00, to support at least serious criminal investigation... something more than the partisan congressional dumbshows we've already had.
4.16.2008 9:07am
Richard Aubrey (mail):
Thales.
For practical purposes, it's not even a potential crime if a LEO agency does not investigate it as such.
So Waco was not a crime, in this sense.
Selling pardons for votes is probably a crime, but with the Clintons, they didn't do it unless they admitted they did it, in which case it was not a crime, unless it was, but since they were the Clintons it didn't count.
So there isn't much to point at formally regarding what ought to have been investigated as a matter of justice.
4.16.2008 10:44am
Richard Aubrey (mail):
The likelihood of anybody who is, even without being stoned, calling for looking at the crimes of the Bush admin standing for, much less calling for, investigations of democrats is somewhere south of zero.
So suggesting Obama, should he be elected, should establish his seriousness by starting with Clinton is a waste of time.
4.16.2008 10:47am
Anderson (mail):
actions like this (wholesale political prosecution of prior officeholders) is precisely the last straw that brought down the Roman Republic

Sure it wasn't bad grammar?

Anyway, that was by no means "the last straw." The optimates in the Senate apparently intended to prosecute Caesar once his immunity lapsed, but that is scarcely "wholesale." And there was a colorable case to be made against Caesar, whose impatience with his co-consul's obstructionism led him to trample a few laws and customs.

The only "wholesale" prosecutions that I recall from the period were the Sullan proscriptions. (Gaius Marius will tell you all about them, surely.) That was a generation before the fall of the Republic, and to call them "prosecutions" is like calling waterboarding "interrogation."
4.16.2008 11:49am
Aaron:
Aubrey, you are a hack. Ever heard of the statute of limitations? For which alleged crimes of the Clinton administration would the statute of limitations not apply, such that a putative President Obama could "... have my Justice Department and my Attorney General immediately review the information that's already there and to find out are there inquiries that need to be pursued." (note, not "investigate" as you incorrectly hold, but rather, review first, then decide if investigation was warranted).

And for your charges of hypocrisy against JF, were you advocating for President-elect Bill Clinton to investigate the crimes committed by Bush 41's administration? I didn't think so.
4.16.2008 1:35pm
PersonFromPorlock:
Richard Aubrey:

So suggesting Obama, should he be elected, should establish his seriousness by starting with Clinton is a waste of time.

Oh, granted! ;^) All I'm really suggesting is how unlikely any investigation of the Bush administration is: without a corresponding investigation of Clinton it won't pass the smell test and a Clinton investigation isn't going to happen.
4.16.2008 2:37pm
Richard Aubrey (mail):
Person.
Exactly. Unless Obama &Co. decided that passing the smell test was unnecessary. The Clintons never thought so.

Aaron. I'm sure there are reasons for statutes of limitations. But I wasn't considering them when I was making the case that nobody currently interested in looking at Bush crimes would be interested in looking at Clinton crimes. In fact, I bet they're thanking whatever divinity they hold dear for statutes of limitations.

And if there were a way to put George I in jail for inciting revolution and then bailing on the Iraqis, I'd say damn the statutes of limitations. But what statute that fell under is unclear so we don't know what the statutes are. War crimes...? Get him.

Since some folks like JF are looking to go clear to the WH on abu Ghraib, I say, why not on Ruby Ridge and Waco. Or, to put it another way, if JF could have been loaded up with sodium pentothal while the things were going on and forced to admit he noticed the situation, he still would have insisted it was a few rogues. Nothing to do with the admin. Whichever one. Even though both went on forever, compared to the AG issue. Could have been pulled back on orders from higher. Weren't.
No problema, though. Wrong sort of people being victimized and, wrt Waco, a dem pres. No problema.
4.16.2008 3:42pm
Ohio Scrivner (mail):
Proscriptions were used to great effect in ancient Rome not only in the civil war between Marius and Sulla, but also roughly forty years later by Anthony, Octavian and Lepidus after Ceaser's death. The most famous victim of the proscriptions after Caesar's assassination was Cicero, a political opponent of Anthony, who was executed and then famously had his head and hands put on display in the forum. In many ways, the civil war between Marius and Sulla set a precedent for taking wholesale revenge upon political enemies. During the downfall of the Replublic that precedent was repeated by the Second Triumvirate.
4.16.2008 4:19pm
SJE:
re: statute of limitations for previous administrations.

I wonder if the SOL is not tolled where the illegal conduct is subject to some secret classification. Can a corrupt executive officer escape charges by having the evidence of criminal behavior classified for the SOL period? Based on the policy behind SOL, you could make an argument that SOL is not tolled in this situation.

Any thoughts?
4.16.2008 6:50pm
Gaius Marius:
Liberals like Barack Hussein Obama had better think long and hard (a tall order, I know) before they open Pandora's box on political proscriptions. Conservatives like yours truly will be more than happy to return the favor when the political cycle returns conservatives to power.
4.17.2008 12:19am
Richard Aubrey (mail):
Gaius.
This will cause a couple of disgusting glottal noises, but I don't think you're right. Conservatives/repubs are either less rotten, or more concerned about the country (means lack guts in libspeak), and are not likely to go as far as libs/dems.
Not that they don't have a reason.
Then there's the media. Berger vs. Libby in the press, for example.
4.17.2008 11:44am
Oren:
Hattio, there was a good amount of time between when Weaver learned that there was an arrest warrant out for him and the shooting. Unless he knew months in advance that he was going to be shot at which therefore prejustifies his actions. Right.
4.18.2008 3:40am