[luke warm]

holder: “I think what we’re going to do is to try to, obviously, enforce the laws on the books.” ben hur where are you?

obama may have changed his mind

[hrothgar]

I am completely horrified that we would elect a leader who is able to evaluate facts and change his course of action...

I miss the good old days when we invaded the wrong country and then tortured prisoners in a bold effort to create a new and better reality that might justify said decision.

Don't get me wrong: As I mentioned in another thread, I'm really pissed at the way that the administration is waffling on prosecuting war criminals. This, on the other hand, seems like a reasonable choice. It's not a winnable fight at this point in time.

[Lobowolf]

hrothgar, on Apr 24 2009, 05:40 PM, said:

I am completely horrified that we would elect a leader who is able to evaluate facts and change his course of action...

Three months is a quick turnaround for a reevaluation from a good campaign soundbite to chirping crickets.

I agree with the idea about changing one's course of action after evaluating facts; however, I think that's admirable when the evaluation indicates that what was thought to be the right thing to do would actually be the wrong thing to do, not when the evaluation indicates that the right thing to do might not be politically inexpedient.

[hrothgar]

Lobowolf, on Apr 25 2009, 01:45 AM, said:

hrothgar, on Apr 24 2009, 05:40 PM, said:

I am completely horrified that we would elect a leader who is able to evaluate facts and change his course of action...

Three months is a quick turnaround for a reevaluation from a good campaign soundbite to chirping crickets.

I agree with the idea about changing one's course of action after evaluating facts; however, I think that's admirable when the evaluation indicates that what was thought to be the right thing to do would actually be the wrong thing to do, not when the evaluation indicates that the right thing to do might not be politically inexpedient.

Much better to waste a bunch of time, effort, and political capital beating your face against a brick wall

I agree that there are some things important enough that its worth fighting the good fight. However, as a practical consideration I don't see the necessity of pushing gun control legislation at this time. (And this is coming from someone who is in favor of serious gun control)

[Lobowolf]

hrothgar, on Apr 24 2009, 05:50 PM, said:

I agree that there are some things important enough that its worth fighting the good fight. However, as a practical consideration I don't see the necessity of pushing gun control legislation at this time. (And this is coming from someone who is in favor of serious gun control)

I agree, and I don't think it's much of a negative, if at all; but I think it's a bit much to try to look at it as a positive.

Although it does have a little comedic value in that one of the big Obama selling points was the whole bipartisan coalition-building charisma persuasive thing...the notion that despite the sharp split in D.C., he can get the Republicans on board with what needs doing, but this one is going to slide because too many Democrats aren't on board.

[awm]

I wouldn't say this is Obama changing his mind.

The fact is, the US Congress passes legislation in this country. It's not as though the president can change law by fiat. The reality is that congress is not going to renew the assault weapons ban. Recognizing that reality isn't Obama changing his mind -- if Obama threatened to veto an assault weapons ban that would be changing his mind.

[Lobowolf]

awm, on Apr 24 2009, 06:00 PM, said:

I wouldn't say this is Obama changing his mind.

The fact is, the US Congress passes legislation in this country. It's not as though the president can change law by fiat. The reality is that congress is not going to renew the assault weapons ban. Recognizing that reality isn't Obama changing his mind -- if Obama threatened to veto an assault weapons ban that would be changing his mind.

Eh, I dunno...I think that's putting a bit of a fine point on it. I don't think when he expressed making the ban permanent he meant merely that if such a bill appeared before him, he wouldn't veto it. It's about using his influence and capital to get bills passed at the legislative level. Anyone can sign the bills that sail through Congress. The challenge is getting those last few signatures on a close bill.

I'm also wondering, though, if this is an issue he's simply deferring on until he appoints a Supreme Court justice. The Heller case in D.C., which addressed a law that was probably the closest thing to a referendum on the Second Amendment we've seen, was a 5-4 SCOTUS decision.

[jdonn]

Lobowolf, on Apr 24 2009, 05:45 PM, said:

hrothgar, on Apr 24 2009, 05:40 PM, said:

I am completely horrified that we would elect a leader who is able to evaluate facts and change his course of action...

Three months is a quick turnaround for a reevaluation from a good campaign soundbite to chirping crickets.

I agree with the idea about changing one's course of action after evaluating facts; however, I think that's admirable when the evaluation indicates that what was thought to be the right thing to do would actually be the wrong thing to do, not when the evaluation indicates that the right thing to do might not be politically inexpedient.

Politically inexpedient? It would be politically impossible. I agree with Richard that the waffling about prosecuting war criminals from during the past administration is rather irritating and a bad move. But this thread, if it's a criticism, is a completely pointless one.

I agree with Adam, he hasn't changed his mind at all. He simply doesn't see the point in wasting his time trying to squeeze a square peg into small brains, and neither would I.

[hrothgar]

Lobowolf, on Apr 25 2009, 01:58 AM, said:

Although it does have a little comedic value in that one of the big Obama selling points was the whole bipartisan coalition-building charisma persuasive thing...the notion that despite the sharp split in D.C., he can get the Republicans on board with what needs doing, but this one is going to slide because too many Democrats aren't on board.

I don't think that anyone expects Obama to bring the Republicans on board...
Almost all the sane Republicans are dead and buried...
The only thing that's left are a few dead enders

Obama is going will make reasonable gestures to Republicans, which the bulk of them will reject out of hand. The Democrats will ram things down the throat of the rump of the Republican party and the Independents will be assuaged that Obama is make a reasonable effort at compromise...

All of this is designed to ensure that the independent center identifies more with the Democrats than with the Republicans

[Lobowolf]

hrothgar, on Apr 24 2009, 06:40 PM, said:

Lobowolf, on Apr 25 2009, 01:58 AM, said:

Although it does have a little comedic value in that one of the big Obama selling points was the whole bipartisan coalition-building charisma persuasive thing...the notion that despite the sharp split in D.C., he can get the Republicans on board with what needs doing, but this one is going to slide because too many Democrats aren't on board.

I don't think that anyone expects Obama to bring the Republicans on board...
Almost all the sane Republicans are dead and buried...
The only thing that's left are a few dead enders

Obama is going will make reasonable gestures to Republicans, which the bulk of them will reject out of hand. The Democrats will ram things down the throat of the rump of the Republican party and the Independents will be assuaged that Obama is make a reasonable effort at compromise...

All of this is designed to ensure that the independent center identifies more with the Democrats than with the Republicans

The idea that I heard repeatedly during the campaign was that to the extent that Obama and McCain were in agreement on some issues, one big advantage of Obama's was his ability to reach to "both sides of the aisle," and bring over a few key votes from the other side, when needed. In the months leading up to the election, it would have been quite counterintuitive that with a Democratic majority in both houses, Obama would have to abandon a legislative goal as not being feasible.

That being said, I agree that there's no point in wasting time and energy (and political capital) fighting an unwinnable fight. I just don't think this is an example of the more admirable Lord Keynes, "I change my mind, sir. What do you do?" sort of philosophy.

[Winstonm]

It is amazing to me the extremes of nitpicking to which the right will go to try to make Obama look bad - here's a hint - the election is over and waffling is no longer an issue. This idiocy isn't much (if any) above the stupid claim from Palin that Obama "pals around with terrorists".

The Rebuplicans lost. Get over it.

[hrothgar]

Lobowolf, on Apr 25 2009, 02:54 AM, said:

The idea that I heard repeatedly during the campaign was that to the extent that Obama and McCain were in agreement on some issues, one big advantage of Obama's was his ability to reach to "both sides of the aisle," and bring over a few key votes from the other side, when needed.  In the months leading up to the election, it would have been quite counterintuitive that with a Democratic majority in both houses, Obama would have to abandon a legislative goal as not being feasible.

If you honestly can't understand these sorts of issues, than there isn't much hope for you. My suspicion is that you get kicks and giggles asking inane questions. However, I'm not willing to rule out plain stupidity so I'll try to make things nice and simple...

Few politicians, be they Republicans or Democrats relish taking positions that their constituents oppose. Right now we have LOTS of Democrats representing swing districts and Western districts.

There are a LOT of unpalatable votes coming up in the next year or two...
Obama is going to be able to rally the Democrats for some of them, but by no means all.

I suspect that he is going to focus on Health Care reform as his top priority. He might be able to bring folks along for a cap and trade system...

Gun control is an area where he needs to cut his losses. Potentially, if the economy hadn't melted down quite so badly, some of the other choices might have been easier to pass and gun control might have been feasible...

[kenrexford]

"No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind."

I googled the Geneva Comvention as to "torture" and found what may be the actual treaty (not vouching, here, but it seems to be Convention III, Article 17). This was the phrase covering what cannot be done with prisoners of war.

Using that definition, a whole lot of petty stuff could be construed as a war crime. If you ask a POW where the bomb that is about to blow up a school bus might be, and he refuses to answer, and you call him an "asshole," you are a war criminal. If you serve him dinner later than others, which is disadvantageous, that's a war crime. If you fart in his general direction, that's a war crime.

So, calling what happened in the Bush years "war crimes" is easy, and no one can possibly defend anything if this is the standard.

For that matter, I'll bet that the Army Field Manual that Obama has ordered used violates this provision quite thoroughly, as well. So, I suppose we will hear calls for impeachment?

If you want to criminalize what has happened so far, then criminalize anything beyond what the convention calls for -- name, rank, serial number. That's it. No questioning at all is allowed. Period. Let these good folks like Khalid Sheikh Mohammed just give us his name, his rank (whatever that is), and some serial number assigned to him by the good people of al-Qaeda. And, let's make sure he has no discomfort, and that we don't insult him or subject him to any discomfort of any kind. No farting toward him.

I'm sure that will work great.

[hrothgar]

kenrexford, on Apr 25 2009, 03:25 AM, said:

Using that definition, a whole lot of petty stuff could be construed as a war crime. If you ask a POW where the bomb that is about to blow up a school bus might be, and he refuses to answer, and you call him an "asshole," you are a war criminal. If you serve him dinner later than others, which is disadvantageous, that's a war crime. If you fart in his general direction, that's a war crime.

So, calling what happened in the Bush years "war crimes" is easy, and no one can possibly defend anything if this is the standard.

We're not talking about petty stuff here.

We're talking about waterboarding. The US executed members of the Japanese military for precisely the same offense and described this as a war crime.

[Lobowolf]

hrothgar, on Apr 24 2009, 07:23 PM, said:

Lobowolf, on Apr 25 2009, 02:54 AM, said:

The idea that I heard repeatedly during the campaign was that to the extent that Obama and McCain were in agreement on some issues, one big advantage of Obama's was his ability to reach to "both sides of the aisle," and bring over a few key votes from the other side, when needed.  In the months leading up to the election, it would have been quite counterintuitive that with a Democratic majority in both houses, Obama would have to abandon a legislative goal as not being feasible.

If you honestly can't understand these sorts of issues, than there isn't much hope for you. My suspicion is that you get kicks and giggles asking inane questions. However, I'm not willing to rule out plain stupidity so I'll try to make things nice and simple...

Few politicians, be they Republicans or Democrats relish taking positions that their constituents oppose. Right now we have LOTS of Democrats representing swing districts and Western districts.

There are a LOT of unpalatable votes coming up in the next year or two...
Obama is going to be able to rally the Democrats for some of them, but by no means all.

I suspect that he is going to focus on Health Care reform as his top priority. He might be able to bring folks along for a cap and trade system...

Gun control is an area where he needs to cut his losses. Potentially, if the economy hadn't melted down quite so badly, some of the other choices might have been easier to pass and gun control might have been feasible...

If you honestly can't understand

Quote

That being said, I agree that there's no point in wasting time and energy (and political capital) fighting an unwinnable fight.  I just don't think this is an example of the more admirable Lord Keynes, "I change my mind, sir. What do you do?" sort of philosophy.

there isn't much hope for you. My suspicion is that you enjoy being obnoxious. However, since I'm not willing to rule out plain stupidity, I'll try to make things nice and simple.

1) I think it's pretty obvious that he not changing his mind, he's simply giving up a goal that's either unwinnable or not worth the effort.

2) I don't find it SURPRISING that it's effectively an unwinnable fight; I just find it AMUSING. See my first post, prefaced by "I AGREE" (WITH YOU) (perhaps that's the source of your questioning my intelligence) and followed with "it does have a little comedic value."

[Winstonm]

Quote

kenrexford,Apr 24 2009, 07:25 PM] "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind."

I googled the Geneva Comvention as to "torture" and found what may be the actual treaty (not vouching, here, but it seems to be Convention III, Article 17).  This was the phrase covering what cannot be done with prisoners of war.

Using that definition, a whole lot of petty stuff could be construed as a war crime.  If you ask a POW where the bomb that is about to blow up a school bus might be, and he refuses to answer, and you call him an "asshole," you are a war criminal.  If you serve him dinner later than others, which is disadvantageous, that's a war crime.  If you fart in his general direction, that's a war crime.

So, calling what happened in the Bush years "war crimes" is easy, and no one can possibly defend anything if this is the standard.

For that matter, I'll bet that the Army Field Manual that Obama has ordered used violates this provision quite thoroughly, as well.  So, I suppose we will hear calls for impeachment?

If you want to criminalize what has happened so far, then criminalize anything beyond what the convention calls for -- name, rank, serial number.  That's it.  No questioning at all is allowed.  Period.  Let these good folks like Khalid Sheikh Mohammed just give us his name, his rank (whatever that is), and some serial number assigned to him by the good people of al-Qaeda.  And, let's make sure he has no discomfort, and that we don't insult him or subject him to any discomfort of any kind.  No farting toward him.

I'm sure that will work great.

Ken,

I am surprised. I find this post beneath your usual even-handedness. This looks to me as nothing more than a much smoother, veiled version of the hypothetical thought experiment that asks "if torture would work to save L.A. from being blown up, would be against it...yada yada yadi... that is nothing but a method of steering the argument away from the facts.

Just a couple of points.
1) Most experts agree that torture does not produce reliable information.
2) The torture blueprint was SERE, copied from what the Communists' used in the Korean conflict to elicit false confessions from captured U.S. soldiers for propaganda use.
3) The U.S. federal statutes have laws against torture - it is a federal crime.

I found this: Maybe it will help:

Quote

Designed to teach military personnel how to resist interrogation if captured by a hostile enemy, the SERE program uses outlawed techniques derived from techniques used on captured U.S. soldiers during the Korean War to elicit deliberately false confessions, and includes, as the Senate Committee report explained, “stripping detainees of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures.” In some circumstances, the techniques also include waterboarding, and, as numerous sources — including the recently released reports and memos — have revealed over the last few years, the reverse-engineering of the SERE techniques constituted the bedrock of the administration’s interrogation program, from Afghanistan, Iraq and Guantánamo to the secret dungeons of the CIA.

[luke warm]

Lobowolf, on Apr 24 2009, 07:50 PM, said:

2) I don't find it SURPRISING that it's effectively an unwinnable fight; I just find it AMUSING. See my first post, prefaced by "I AGREE" (WITH YOU) (perhaps that's the source of your questioning my intelligence) and followed with "it does have a little comedic value."

you need to chill out and drink a little refreshing kool aid

[kenrexford]

Here's the problem, guys.

I'm a criminal defense lawyer, which may impact my thinking. But, when you define criminal offenses with vague terms, abuse can occur. Typically, abuse ends up picking on the unfavored and allowing the favored to skate. Or, it becomes a political tools and not a tool of justice.

The "war crime" is defined by the Geneva Convention. If you read it, the ONLY thing you can ask is "name, rank, serial number." You CANNOT use ANY coercion, with as little as embarassment or ridicule or simple inconvenience banned.

So, the CRIME is ANYTHING that seeks ANY information.

Of course, the definition is ridiculous to many of us. But, you cannot change the definition by simply arguing what you think should and should not be included without reference to the actual words. "Waterboarding" is clearly covered, but so is giving the person a ham sandwich instead of turkey if the guy wants turkey.

However, if anyone here would say that asking any question beyond name, rank, serial number is OK, or if any type of coercion or inconvenience is OK, then that person is being dishonest or ignorant. NOTHING is allowed, period.

So, you MUST end up on a scale of how much violation of the GC is OK for us. When you do that, you end up with unjust and political results.

You end up with the same people who OK'd the thing at the start (waterboarding OK in the future, just like invading Iraq is OK in the future) wanting to look back and attack the enabled people after-the-fact (I would not havce gone into Iraq even though I OK'd it; I would not have waterboarded even though I OK'd it). That's political B.S. It also may be legal B.S., because the initial OK was wrong, as it OK'd violating the Geneva Convention.

So, be honest about it.

1. If you want to change things, change them to pure GC standards. None of this weaseling nonsense. Citing specific acts as occurring before and resulting in executions does nothing to defend much lesser acts nonetheless proscribed by the GC.

2. If you are going to prosecute people involved in prior violations of the GC, then prosecute all of them, republicans who approved it and democrats who approved it.

3. If you prosecute old violations, be willing to enforce current violations. Impeach the man who ordered use of the Army Field Guide, as THAT violates the GC also.

4. We should probably confess sin and ask for punishment as a country for not following the most important part of the GC, namely enacting understandable criminal laws that clearly punish in the U.S. all things that would be violations of the GC, as the GC called for us to do that. No party has done that right.

The funny thing is that I think the ONLY type of person who should be immune from prosecution is the only person I really hear as likely to be pursued -- the lawyer. Advice and counsel, even if wildly wrong, is and should be protected. The standard to overcome a presumption that this is protected activity in our system of government is and should be nearly insurmountable.

The second funny things is that the political nature of this mess is obvious when you see who is the target. The primary target is and always should be the person who orders the act and the person who does the act. However, in THIS act, everyone seems to want to leave the little guy and the big guy alone, focusing instead on the lawyers. WHAT?!?!? Give me a break.

I have my own views about what I would do if I had one of these guys in my custody. I'm sure everyone has their views.

The point, however, is that this discussion has been dishonest by both sides from day one. We all knew what we were doing when we waterboarded these guys. In fact, most of us probably thought the real good stuff, the stuff that makes waterboarding look like watersliding, was kept more secret and never uncovered. But, we were OK with that. Now that the fear is gone, some regret the power they knowingly gave and the sins they knowingly forgave a political enemy. They first channeled that regret into feigned anger at being tricked. Yeah, tricked like the whore who had too much to drink. They then used the horror of the enabled acts as a political tool to gain power. They now use the horror of the enabled acts to increase the power and to divert attention from other sins that are too messy for everyone and just politically inconvenient.

None of this excuses anything that happened.

But, a "better" solution seems obvious, IMO. Decide what we feel about the GC. If we think it reaches too far, we violate it to that degree. We violate it in writing, by enacting new laws to enforce that part of the GC with which we agree. We announce to the world that we will no longer feel constrained by the GC except to the degree embodied by our new law. We announce that the world can go F themselves as to anything not covered by our new law. We tell others, however, that we will not act offended by conduct toward our soldiers that would not violate our own law.

Then, we specifically establish immunity for any prior conduct by any party that does not violate a clear and unambiguous law. Before any testimony to Congress, we must review that person's history enough to decide whether to extend full immunity or not. Once we decide, then we find out what actually happened publicly. We investigate everyone, and the easiest way to do that is to allow each party, if they want, to interrogate the powerful in the other party. Air the whol;e damned thing out. Take a national mea culpa publically. Everyone does this. The "punishment" is geopolitical.

Or, if we earlier decided that we would violate the GC to the degree of waterboarding, or that we won't do that anymore but will completely abandon any past rules review, because it is a political nightmare if done fairly, then we tell the world that we have a new law but that this enactment does not in any way mean that old actions were wrongful. The reason for the new law is that our collective error was not enacting the law prior to the crisis, which caused confusion. We simply state a new course and leave it at that.

I think Mr. Obama essentially is doing what I want, half the time, but doing it half-assed. My suggestion to him:

1. Introduce legislation to beter define U.S. law as to interrogation techniques and criminal penalties for violation of that law, with a full admission that we are not going to criminalize all that the GC prohibits and, hence, will be in possible violation of the GC.

2. Pardon any and all prior conduct because we as a country screwed up by now establishing good laws, as required by the GC, and by politically enabling everything that happened, by involvement of both major parties.

3. "Move on."

[Winstonm]

Excellent post, Ken,

And definately in keeping with your even-handedness that I have come to admire; however, I thought you were a mathematician, not a criminal defense lawyer.

Regardless, your post allows me to weigh your thoughts and accept some of the premises while doubting others but at all times I do not doubt the well-reasoned conclusions your reach. I think this is the heart of good dialogue between competing beliefs.

If I made a couple of modest points myself:

My basic disagreement with your premise is that I disagree that the Geneva Convention should apply and that these acts are war crimes. I know others have made that claim, but I am fairly confident that I have been consistent in saying I do not believe the U.S. is at war and there is no such animal as a War on Terror - which is simply eupenism for perpertual war wherever the executive decides to go - and obviously with no war there cannot be war crimes.

I believe these are simply felonies.

As to your list:

Quote

1. If you want to change things, change them to pure GC standards. None of this weaseling nonsense. Citing specific acts as occurring before and resulting in executions does nothing to defend much lesser acts nonetheless proscribed by the GC.

Moot point. GC should not be the applicable law.

Quote

2. If you are going to prosecute people involved in prior violations of the GC, then prosecute all of them, republicans who approved it and democrats who approved it.

I agree 1000%. Complicity in the felonious act should be aiding and abetting, regardless of party.

Quote

3. If you prosecute old violations, be willing to enforce current violations. Impeach the man who ordered use of the Army Field Guide, as THAT violates the GC also.

For crimes, this is a no-brainer. It is what coutries do that are nations of law. But again, the GC premise is my objection.

Quote

4. We should probably confess sin and ask for punishment as a country for not following the most important part of the GC, namely enacting understandable criminal laws that clearly punish in the U.S. all things that would be violations of the GC, as the GC called for us to do that. No party has done that right.

If we are to redefine war as a infinite continuum subject to the ruler's whims then we need to redefine war crime laws to include thought wars and pseudo wars.

[blackshoe]

Al-Queda is not a signatory to the Geneva Conventions. Each of the four conventions includes a general clause that says something to the effect that in conflicts between a signatory (eg, the US) and a non-signatory (Al-Queda), the signatory shall remain bound by the convention(s) until and unless the non-signatory "no longer acts under the strictures of the Convention." So one question is whether Al-Queda fits the bill, or rather whether they fit the bill when this whole mess got started.

That said, I think I agree with Ken's 3 suggestions, although I'm not sure yet about number 2. Have to think on it.