War criminals beware

The Guardian warns that:

Ehud Olmert, Israeli prime minister during the Gaza war, would probably face arrest on war crimes charges if he visited Britain, according to a UK lawyer who is working to expand the application of "universal jurisdiction" for offences involving serious human rights abuses committed anywhere in the world.

Neither Olmert nor Tzipi Livni, the foreign minister during the Cast Lead offensive, and a member of Israel's war cabinet, would enjoy immunity from prosecution for alleged breaches of the Geneva conventions, predicted Daniel Machover, who is involved in intensifying legal work after the controversial Goldstone report on the three-week conflict. Neither are ministers any longer.

Prosecutions of Israeli political and military figures remain likely despite the failure to obtain an arrest warrant for Ehud Barak, the defence minister, when he visited the UK earlier this month, he said. In the Barak case a magistrate accepted advice from the Foreign Office that the minister enjoyed state immunity and rejected an application made on behalf of several residents of the Gaza Strip.

"This needs to be tested at the right time and in the right place," Machover said. "One day one of these people will make a mistake and go to the wrong country and face a criminal process — and then it'll be a matter for the courts of that country to give them a fair trial: that's what the Palestinian victims want."

One can only hope that Olmert, George Bush, Dick Cheney and others of their ilk will one day face the finite justice to be found in this world.

We are an empire now….

Writing for his Atlantic blog, Andrew Sullivan augments the Greenwald critique of the Washington Post's recently stated position (see this below along with the link it contains) on torture prosecution by exclaiming:

The longer I have lived in Washington, the more corrupt it appears. That includes large swathes of the press. The cooptation of the Washington Post by the torture-mongers should therefore come as no surprise — and Obama's refusal to investigate torturers is a reflection of his own so-pragmatic-it's-cynical belief that such matters do not really count for much — certainly not as much as a successful presidency. This is not a conspiracy. It's just the kind of elite corruption you usually see in banana republics with no rule of law and a coopted press.

It is surely fortunate — or would unfortunate be the better word to use? — that the United States yet to become a banana republic, for the middle class in the United States will not fare well when it attains this level of development. The signs indicating this fate are there, of course. Nevertheless, the country remains best characterized as a global empire and the only military superpower, and, as such, the arrogance of power has become its normal condition. Denial is an ordinary complement of such arrogance, so the fact that denial is a common feature of American politics follows as a matter of course.

Rule of law or rule by law?

Do we have a choice?

These are questions a reasonable and thus concerned citizen of the United States might ask at this juncture given the abuse of governmental power that is now all-too-common. Glenn Greenwald has often brought to our attention the institutional failures that produce these kinds of abuses. But he truly excels in holding the establishment press accountable for its willing complicity in the commission of these crimes. Most recently the Washington Post, as Greenwald makes plain, joined the Bush and Obama regimes as a defender of the kind and degree of torture 'authorized' by the infamous Bush regime torture memos (.pdf). Should we be surprised that the Post advocates sacrificing the over-aggressive foot soldier that exceeded the limits specified by the Bush regime's torture memos while permitting John Yoo (the principal author of the torture justification), his co-conspirators and the American governmental system as a whole to remain unmolested by the law? No, we should not find this surprising, and I would expect Greenwald also found the Post's position utterly predictable and contemptible. He continues:

That, in a nutshell, is the twisted Washington mentality when it comes to lawbreaking: when political crimes become so blatant and extreme that they can no longer be safely excused (Watergate, Iran-contra, Abu Ghraib), then it's necessary to sacrifice some underlings who carried out the crimes by prosecuting them, but — no matter what else happens — the high-level political officials responsible for the crimes must be shielded from all accountability. In ordinary criminal justice, what typically guides prosecutions is the opposite mindset: namely, a willingness to immunize low-level soldiers in order to ensure that the higher-level criminals suffer the consequences of their crimes. But when it comes to crimes committed by political officials in America's Versailles culture, only the pawns are subjected to the rule of law while the monarchs and their highest royal court aides are immunized.

Greenwald continues by using the rest of his column to debunk the tired rationalization the Post offered to defend those who authorized the whole wretched torture business. He concludes his piece by observing:

If, as appears to be the case, this is the principle by which we're now governed — presidential acts in blatant violation of clear statutes are no longer crimes if a DOJ lawyer justifies it in advance, even using legal reasoning found to be in bad faith — then, by definition, Presidents are literally no longer bound by the rule of law. If the crimes are embarrassing enough, we'll find a Lynndie England — or some obscure, easily demonizable, extra-sadistic CIA interrogator — to scapegoat and punish in order to pacify the citizenry and create the illusion that the rule of law still prevails. But the one thing that remains off-limits in Washington culture above all else is subjecting high-level political officials to the rule of law when they commit crimes. The low-level scapegoating which the Post today endorses is the approach which, by all accounts, Eric Holder is likely to pursue.

The United States — a proud nation, a nation of laws, of a Constitution, of the Constitution. Yet America is not today — if it has ever been — a nation in which every person is equally subject to the law. Rather, the law and the Constitution have mostly been instruments the powerful, the favored and the well-placed used to pursue their peculiar ends. This corruption of the republic is quite evident today. The corruption has lately become so obvious that if the actions of the elite betray their intentions, their sensibilities and their political culture, then it follows that they believe justice is something meant only for the weak.

One might consider this kind of justice an instance of "street justice" — a harsh form of rule originating on Wall Street and K Street.

Accountability

It is not too early to identify Obama administration as a criminal regime

Izzy Award winner Glen Greenwald again takes the Obama administration to task for affirming Bush era notions of justice, presidential powers, due process, etc.

American hospitality

The BBC reports:

A Saudi-born man held at Guantanamo for seven years has told the BBC he has been left in Chad with no papers since his release earlier this month.

Mohamed el-Gharani, whose parents are Chadian, said he had never visited Chad before and cannot speak the language, but described himself as happy.

"Walking around with no guards, with no shackles, it's beautiful," he said.

Mr Gharani was the youngest detainee at Guantanamo. He was detained in Pakistan in 2001, when he was 14 years old.

US authorities had accused him of fighting in Afghanistan and being a member of al-Qaeda as far back as 1998, according to his lawyer.

But a US court ruled in January there was no evidence to prove he was an "enemy combatant" and ordered his release.

Sending el-Gharani home must have been too inconvenient for his torturers.
Sadly, the authorities in Chad did not know what to do with el-Gharani, but he did not mind the new trouble too much:

But despite these difficulties, Mr Gharani said anywhere in the world was better than Guantanamo.

"If you've been in shackles for seven years every day, you will go to Chad, you will go anywhere," he said.

Torture advocate opposes Sotomayor nomination

John Yoo, a professor of law at Berkeley, a one-time legal counselor to the Bush regime, once a clerk to Clarence Thomas and currently an object of a Spanish war crimes trial, discusses Obama's first Supreme Court nomination:

President Obama's nomination of Judge Sonia Sotomayor shows that empathy has won out over excellence in the White House. Sotomayor has sterling credentials: Princeton, Yale Law School, former prosecutor, and federal trial and appellate judge. But credentials do not an excellent justice make. Justice Souter, whom Sotomayor would replace, had an equally fine c.v., but turned out to be a weak force on the high court.

Empathy versus excellence… It seems Yoo believes Judge Sotomayor, like Souter before her, will produce results he dislikes, that will offend his political sensibilities, that he believes will be less-than-excellent and that she will be a probable "weak force" on the Court. Like Souter, she also has the bona fides of a successful lawyer…. Yet these are not enough to satisfy Yoo, who continues:

She will not bring to the table the firepower that many liberal academics are asking for. There are no opinions that suggest she would change the direction of constitutional law as have Antonin Scalia and Clarence Thomas on the Supreme Court, or Robert Bork and Richard Posner on the appeals courts. Liberals have missed their chance to put on the Court an intellectual leader who will bring about a progressive revolution in the law.

Now, it seems, Sotomayor will produce results Yoo could live with because her rulings will not likely disturb the constitutional fundamentalism associated with the Reagan Revolution and its aftermath! Since this belief — that Sotomayor is a lightweight that will hew to the fundamentalist program —leaves Yoo without a point to drive home in his critique of the Sotomayor nomination, his course changes to:

But conservatives should not be pleased simply because Sotomayor is not a threat to the conservative revolution in constitutional law begun under the Reagan administration. Conservatives should defend the Supreme Court as a place where cases are decided by a faithful application of the Constitution, not personal politics, backgrounds, and feelings.

In Yoo's judgment, then, although Sotomayor lacks the intellectual power required by a Supreme Court justice and poses no threat to the Reagan Revolution as it pertains to constitutional law, she will still somehow impose her prejudices on her Court rulings, an imposition that will undermine the "faithful application of the Constitution." Her inclination to rely upon her biography and her empathy thus makes her unworthy of a seat on the Court.

Yoo, unsurprisingly, does not address the issues raised by his strange argument, issues that follow from the misalignment between his prediction that Sotomayor will pose no threat to the Reagan Revolution in constitutional law and his prediction that Sotomayor will bring unworthy prejudgments to this lofty post and then impose them on her jurisprudential work. Of course, the tension between the beliefs which support the two predictions dissipates a bit if one were to accept that constitutional fundamentalism of the conservative stripe is logically consistent with some instances of constitutional prejudice, namely, those prejudices typical of a constitutional fundamentalist. A prudent person might even expect these acceptable prejudices to mirror Yoo's own! But tensions in Yoo's position would persist and remain effective even if one were to accept that constitutional fundamentalism is consistent with some instances of constitutional prejudice. If prejudices are unacceptable, why then should anyone accept those attributable to a constitutional fundamentalist? They should not accept them if they wish to remain logically consistent.

Inconsistency does not appear to bother Yoo. He does attempt to avoid problems of this sort by relying upon what can be called the shotgun technique of criticism: One can expect to down one's prey if one hits it with an adequate amount of buckshot. Thus Yoo's recourse to an ad hoc collection of criticisms of Sotomayor's nomination.

Of course, killing Sotomayor's candidacy by using this method does not conform at all to the ideal of a reasoned deliberation over the merits of a particular candidate for the Supreme court, her legal positions and past work or, for that matter, of the norms that ought to be used when considering a candidate for the Supreme Court. Yoo's criticism is not really criticism at all. It is, rather, just another political hatchet job.

An emerging campaign to disbar Bush’s torture lawyers

The organizer of the campaign: Velvet Revolution. A page dedicated to the campaign may be found here, and includes the rationale behind the campaign, the names of the lawyers targeted, the supporting documentation and lists of individual and organizational campaign endorsers.

So far, as every politically sentient being knows, the Bush apparatchiks who organized and justified America's recent torture regime have escaped justice. This campaign would be a start.

Give the man a microphone

TPM reports that "Next Thursday, former Vice President Cheney will give a speech at the American Enterprise Institute making a global case for the Bush administration's use of torture and indefinite detainment of suspected terrorists as core parts of its War on Terror." Cheney's rancid explosions are like gifts from Heaven for critics of American militarism and the empire it supports. May he always have a bully pulpit from which to speak power's 'truth' to the sensible folk.

The Bush administration brought torture to Poland

America corrupts Europe

Der Spiegel has published a report documenting the presence of a CIA prison and 'special interrogations' — read: torture — center near northeastern Poland's Szymany airport. Fortunately the former communist county still believes in the rule of law:

Warsaw public prosecutor Robert Majewski has been investigating former Polish Prime Minister Leszek Miller's government on allegations of abuse of office. At issue is whether sovereignty over Polish territory was relinquished, and whether former Polish President Aleksander Kwasniewski and his left-leaning Social Democratic government gave the CIA free reign over sections of the Stare Kiejkuty military base for the agency's extraterritorial torture interrogations.

Would the world's oldest democracy be so committed to the law as to investigate its villains…

Obama banned torture?

It appears he did not, according to Randolph Brickey writing for CampusProgress:

In fact, the President has not "banned" torture. Torture was illegal before President Bush came to office, through our incorporation of the Geneva Convention into domestic law. (This is to say nothing of centuries of American custom and tradition holding that torture is unconscionable and morally abhorrent.) Members of the Bush administration did not somehow "unban" torture; they simply chose to ignore the law. Torture has not become any more or less legal since Obama took office. Rather, he has chosen not to pretend it is legal, and his indication that he is open to prosecutions or investigations against the architects of the Bush administration's torture policies is a sign that all is not lost for those who want the law to be followed. But however he proceeds, the idea that he has "banned" it, and we can thus moves on, ignores both the severity of the crimes committed by those who tortured, and the grotesque abuses perpetrated upon terrorism detainees — both those who are innocent and those who are not.

Torture, it seems, is a matter of law, and not a policy choice a President may take when it suits him. In fact, as Marjorie Cohn makes clear, "Obama's intent to immunize those who violated our laws banning torture and cruel treatment violates the President's constitutional duty to 'take Care that the Laws be faithfully executed.'" Thus investigating and prosecuting torturers would not violate the sacrosanct principle of avoiding the criminalizing policy differences. It would instead affirm the allegedly unassailable principle which requires the investigation, prosecution and punishment of criminal acts when it is right to do so. Brickey continues:

Obama and members of the press pretend that a step in the right direction is sufficient to fully address years of systematic human rights violations, or at least preferable to an actual public inquiry or criminal prosecution. The illusory ban is set up to take the place of actual enforcement and accountability, as though agreeing to follow the laws means the president has actually worked to changed them. This decision is couched in vague aphorisms of moving forward and stresses the importance avoiding division. But there is very little actual progress here, and it is difficult to imagine how this decision unifies the country when the majority of American support some form of investigation. Furthermore, enforcing our laws is not discretionary but a duty of the office. The President has the opportunity to protect these CIA agents and contractors through presidential pardon if he feels it just or necessary for the national well-being. Obstruction of justice is not a legitimate means towards that end.

A step forward is no accomplishment when it falls so far from reaching the mark required by the law of the land. The upshot: So far, President Obama has merely agreed to follow existing law, as Brickey rightly asserts, something the President was required to do as a matter of course. But that is not all of it. Till this point Obama's actions with respect to the Bush torture regime have only protected past lawbreakers while providing a bit of legal-political coverage for their crimes. With these dubious methods the President has actually conserved the Bush torture regime by securing the liberty of the torturers, by pushing against a legal investigation of their crimes and even by keeping torture available as a practical tool any administration may use when it deems it necessary. Conserving torture as a policy option is one malignant effect of Obama's unwillingness to investigate and prosecute Bush-era crimes. Only the vigorous investigation and prosecution of America's torturers will reverse this situation.