On Wed, 22 Apr 2009 09:46:10 -0500, Ken Fortenberry
wrote:

wrote:
http://www.washingtonpost.com/wp-dyn...c=news letter

Triple sheesh,

Two deancounter posts in one day ? LOL !! Poor thing, your
anti-Obama kookiness is moving from pathetic to pathological.

Why shouldn't lawyers who write opinions justifying future
acts of illegal torture as acceptable government policy be
subjected to prosecution ? And don't even try to argue that
waterboarding isn't illegal torture.

Here's the thing - it is not _clearly_ "torture" under the legal definition, and
if it isn't, then it is legal. Forget personal opinions for a moment - it isn't
what you, I, or Obama think is "torture" and/or illegal, it is what is clear in
the law. And clear in the law means inarguable, that reasonable minds cannot
differ, there are no reasonable arguments to be made. That is not the case
here. If it were, all reasonable people and legal experts (and I mean other
than those involved) would agree that this was "torture" and it was illegal
under a particular law/statute. They do not so agree. The relevant US law
requires specific _intent_ to cause, at a minimum, extreme physical pain,
long-lasting mental damage, etc.

The law is quite clear in the Geneva Conventions and other
international treaties to which the US is a signatory.
Torture is illegal.

First, the GC is not applicable, but yes, "torture" is illegal _as it is
defined_ by the relevant statutes (which are somewhat similar to the GC). It is
not clear that waterboarding, in and of itself and in all cases, is "torture."

At the very least the Bushies responsible should be disbarred
and the one on the federal bench should be impeached.

Er, no, and I don't think you really want that as it exposes both Obama and
Holden to impeachment and prosecution. Here's why, generally: It will require
the same legal analysis made by Bybee, Yoo, etc. to determine whether
prosecution is proper. If those doing the analysis find it not to be
prosecutable conduct, then they themselves, in offering that opinion, have done
exactly what Bybee and Yoo did - their opinion would be that Bybee's, Yoo's,
etc. opinion(s) were "legal," "legally-defensible," or IAC, not prosecutable,
and as such, the attorney(s) offering that opinion must, for consistancy's sake,
then be "investigated." It must continue until someone decides that all of the
past opinions were prosecutable conduct. Whenever it happens, the defense must
do an analysis of the law with the aim of defending those clients, and in doing
so, have just possibly committed the same prosecutable offense as their clients.
If they reach the conclusion and then argue that their clients' position is
legally-defendable, they have then committed the same offense as those clients.
And if they defend their clients on that belief, then they have presented prima
facie evidence of having committed that offense.

I don't know whether you've thought this out or not, but "investigating"
attorneys for offering legal opinions and analysis is incredibly dangerous to
the system of law, so much so as to be potentially a mortal blow - this is bad,
bad, BAD practice. And here's yet another really bad thing - if they are
prosecuted by this administration, and a later administration were to be advised
that those prosecutions were improper, they would be duty-bound (and now there
would be precedent) to prosecute those involved in these prosecutions, should
they take place. And, for example, if the Supreme Court were to rule that the
prosecutions were improper, or God forbid, be forced to utter the phrase that
they were "un-constitutional," those involved would need to be investigated and
possibly prosecuted, their having formed and acted upon "improper" opinions.

Sounds like a bunch of legal mumbo-jumbo? Well, maybe, but this is exactly and
precisely why there should not even be the slightest hint of a threat of lawyers
being prosecuted for offering arguable opinions or analysis, however much some
may disagree with them, or Federal judges being impeached for having offered
those opinions.

I
doubt any of them will ever see the inside of an American
jail but it'd tickle me to see them be very afraid to venture
outside the US.

Be very careful of what you wish for on that basis - you're liable to get what
you think you want only to find it abhorrent in the extreme when it arrives...


Politics, political theater, and political shtick aside, this is really, really
bad news,
R