a citizen’s journal by Thomas Nephew

Rice: “If it was authorized by the President, it did not violate our obligations”

Posted by Thomas Nephew on 1st May 2009

Via Hullabaloo, here is some remarkable amateur footage of former Secretary of State Condoleeza Rice being questioned (on Monday) by students in Stanford University’s Roble Hall dormitory.  The whole thing is worth watching — from between your fingers — as Rice puts on a surreal performance:

1ST QUESTIONER [3:30]: …even in World War II, as we faced Nazi Germany, probably the greatest threat that America has ever faced, even then…
RICE [3:37]: With all due respect, Nazi Germany never attacked the homeland of the United States.
1ST QUESTIONER [3:44]: They bombed our allies.
RICE [3:46]: Just a second. Three thousand Americans died in the Twin Towers and in the Pentagon.
1ST QUESTIONER [3:52]: Five hundred thousand died in World War II, and yet we did not torture the prisoners of war.
RICE [3:55] (waving finger no): …And we didn’t torture anybody here either.
1ST QUESTIONER [4:00]: We tortured them in Guantanamo Bay.
RICE [4:03]: No.  No, dear. You’re wrong. You’re wrong.  We did not. torture. anyone.  And Guantanamo Bay by the way was considered a model quote [makes air quotes] medium security prison by representatives of the Organization for Security and Cooperation in Europe who went there to see it.  Did you know that?
1ST QUESTIONER [4:20]: Were they present for the interrogations?
RICE [4:22]: No – did you know that the Organization — just answer me — did you know that the Organization of Security and Cooperation in Europe said Guantanamo was a *model* medium security prison?
1ST QUESTIONER [4:20]: No, but I feel that changes nothing.
RICE [4:33]: No – did you know that?
1ST QUESTIONER [4:35]: I did not know that but that…
RICE [4:36]: All right, no,, now wait a second if you didn’t know that, maybe before you make allegations about Guantanamo you should read.  All right?  Now, the ICRC also had access to Guantanamo, and they made no allegations about interrogations at Guantanamo.  What they did say is that they believed that indefinite detention — where people didn’t know whether they could come up for trial — which is why we tried through the military commissions system to let people come up for trial.  Those trials were stayed by whom?  Who kept us from holding the trials?
1ST QUESTIONER [5:17]: I can’t answer that question.
RICE [5:18]: Do your homework first.

Passing over Rice’s implication that defeating Hitler was both optional and easy, it turns out (via 2PoliticalJunkies) that the alleged OSCE “stamp of approval” came from a guy who tagged along with an OSCE delegation, but  — according to the OSCE — was “not employed or commissioned by the OSCE” and whose views should “not be taken as being made on behalf of the 55-nation body.”

Read the rest of this entry »

Posted in Post | 4 Comments »

On Broder’s “Stop Scapegoating”

Posted by Thomas Nephew on 27th April 2009

We have, in my view, a fairly simple set of connected propositions:

  1. Torture is illegal under United States law and international law.*
  2. The United States of America knows of Americans who have committed torture, as well as of Americans who have conspired to commit torture.**
  3. The United States of America is required by U.S. statute and international treaty to prosecute such crimes when it becomes aware of them.***

It’s really all over but the shouting and denials when you set these propositions next to each other.

Of course, shouting and denials there will be.  But while I’d expect it from borderline psychopaths like Karl Rove, Rush Limbaugh, and Dick Cheney, it remains unsettling to see it from David Broder, who this weekend penned the most shameful editorial of a once illustrious career. Broder’s Sunday “Stop Scapegoating” piece is a kind of negative Gettysburg Address: a radical downward redefinition of the American creed.  His lazy, deeply dangerous argument against prosecution boils down to one irrelevant canard, one telling assertion, and one pitiful abdication of what it means to be an American citizen.

Accountability cloaks vengeance – so no accountability
Broder’s irrelevant canard comes early in the piece in guessing at the motives of those who want prosecution, and pretending that should matter:

Obama is being lobbied by politicians and voters who want something more — the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps — or, at least, careers and reputations. Their argument is that without identifying and punishing the perpetrators, there can be no accountability — and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.

As hilzoy writes, “First, who died and made David Broder Sigmund Freud? How on earth does he presume to know what the actually motivates those of us who think that the people who authorized torture should be investigated?” But also: So what? Suppose our “plausible-sounding argument” is actually true: “without identifying and punishing the perpetrators, there can be no accountability — and therefore no deterrent lesson for future administrations.” In that case, by not investigating torture now, we would be setting ourselves up for future government lawbreaking. Isn’t it obvious that preventing this matters more than anyone’s motives?”

Everything was done properly
But Broder’s most telling assertion — and, in the context of the rest of his opinion piece, the most deeply shameful one — comes next:

The memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places — the White House, the intelligence agencies and the Justice Department — by the proper officials.

Let’s assume Broder was right (although he isn’t****).  Would that be sufficient?
Read the rest of this entry »

Posted in Post | 20 Comments »

Fwd: Special Prosecutor for Bush War Crimes

Posted by Thomas Nephew on 12th January 2009

Formal Petition to Attorney
General-Designate Eric Holder
to appoint a Special Prosecutor
to investigate and prosecute any
and all government officials
who have participated in War Crimes.
Sponsored by

Dear friends and family,

I have just read and signed the petition: “Special Prosecutor for Bush War Crimes.” Please take a moment to read about this important issue, and consider joining me in signing the petition. It takes just 30 seconds, but can truly make a difference. To join in the petition, click here.

This was already a top vote getter at Barack Obama’s “” site — but as Obama’s response shows, it unfortunately seems that he and his administration may need to be pressured on this. From Obama’s recent interview with George Stephanopoulos (emphases added):

OBAMA: …I don’t believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backwards. […]OBAMA: “Well we have not made any final decisions but my instinct is for us to focus on how do we make sure that moving forward, we are doing the right thing. That doesn’t mean that if somebody has blatantly broken the law, that they are above the law. But my orientation’s going to be to move forward,” Obama said.

STEPHANOPOULOS: “So let me just press that one more time. You’re not ruling out prosecution, but will you tell your Justice Department to investigate these cases and follow the evidence where it leads?”

OBAMA: What I — I think my general view when it comes to my attorney general is that he’s the people’s lawyer. Eric Holder’s been nominated. His job is to uphold the Constitution and look after the interests of the American people. Not be swayed by my day-to-day politics. So ultimately, he’s going to be making some calls. But my general belief is that when it comes to national security, what we have to focus on is getting things right in the future as opposed to looking at what we got wrong in the past.”

See also “Additional Documents Link Bush Directly to Guantanamo Torture,” (Jason Leopold, “Public Record”):

Several high-ranking members of Obama’s transition team told me this week that the president-elect will not authorize the Justice Department to initiate a criminal investigation into the Bush administration’s interrogation practices nor will the agency scrutinize any individual officials for approving such policies. Instead, these aides, who spoke on condition of anonymity, said Obama will review and possibly reverse some of Bush’s executive orders and withdraw some legal opinions that gave the president broad powers in the global war on terror.

“Possibly”?! Meanwhile, Bush has admitted personally OK’ing waterboarding:

And I’m in the Oval Office and I am told that we have captured Khalid Sheikh Mohammed and the professionals believe he has information necessary to secure the country. So I ask what tools are available for us to find information from him and they gave me a list of tools, and I said are these tools deemed to be legal? And so we got legal opinions before any decision was made.

He also knew of “principals” meetings where waterboarding was discussed.  Torture is a blatant war crime and crime under U.S. law.

I realize not everyone I send this to will agree with me on this, but I wanted to not take anyone’s views for granted, and also to let you know how I see it. Personally, I’ve favored impeachment for the war crime of torture, the fraudulent case for going to war in Iraq, and the warrantless surveillance that the Bush administration is guilty of — and prosecution (whether or not it leads to a conviction) would not preclude that. What I don’t favor is simply “moving on,” “turning the page,” “looking forward instead of backward,” or other formulations that seem more about avoiding hard truths and unpleasantness than about truly preventing such abuses in the future.

To me, this isn’t mainly about the people who actually carried out orders to torture (though they shouldn’t have). It is about the people who gave those orders, or justified them with legal mumbo-jumbo: Bush, Cheney, Rumsfeld, Tenet, Yoo, Haynes and Addington, to name some of the most important ones. To really look “forward”, you have to look even further than the Obama administration, to a time when people like these are in a position to consider crimes like these again. When that time comes, it will be far better if such people (possibly even the same people) can look back on a special prosecutor bringing administration officials to justice.

Impeach them: yes we can

Yes We Can. Originally uploaded by Thomas Nephew.

Thank you!

— Thomas Nephew

PS: Impeachment also remains a possibility even after someone leaves federal office; one of the consequences of an impeachment conviction is not being allowed to hold federal office again. Impeachment is also specifically not something a presidential pardon can prevent. For those of you wondering why I still have an “Impeach Them” sign up in my front lawn, that’s why.

NOTE: I sent the above message (slightly modified) to a great number of friends and family today, with more on the way.

UPDATE, 1/12: On the “Huffington Post,” actor John Cusack proposes two questions to ask Attorney General nominee Eric Holder:

1. Is waterboarding torture?

2. Will you prosecute? No matter what sham commission is appointed to block justice?I would hope we pressure our representatives, whomever questions Mr. Holder, to play the video of the Vice President of the United States admitting to sanctioning a torture program. He not only admits the war crimes but seems proud and pleased with himself.

Someone, anyone, for the sake of our constitution, ask Mr. Holder, the presumptive top legal authority, the man who will lead the Justice Department after the most lawless time in American history, to answer these simple, basic, direct questions.

Whomever is found guilty should not be on the lecture circuit, but in prison.


Posted in Post | 3 Comments »

The 0.2 percent snag and the OLC

Posted by Thomas Nephew on 10th December 2008

The Legal Times’s Joe Palazzolo reports that Obama’s Department of Justice transition team has run into a little not unexpected difficulty:

A senior Justice Department official said today that “99.8 percent” of the department’s work with President-elect Barack Obama’s transition team has gone smoothly. The 0.2 percent snag: The department has reservations about granting the team’s request to review classified legal opinions related to secret CIA and National Security Agency programs.  […]

The opinions, some of which have been released to Congress in redacted form, contain the legal rationale of the NSA’s warrantless spying program and the CIA’s detention and interrogation policies, among other intelligence initiatives.

A reasonable guess about some of the documents involved can be gleaned from an October 2007 list of documents OLC chief Steven Bradbury refused to release in in response to an ACLU/EPIC lawsuit , summarized by ’emptywheel’ in “Warrantless Wiretap Memos Timeline.”*  Palazzolo continues:

In an unprecedented move, the Justice Department began providing provisional security clearances to Obama’s staff prior to the election. A select group was cleared for access to even more sensitive information, but [Attorney General] Mukasey said last week that some documents may not be made available to Obama’s staff until they take their oath of office.  […]

The Justice official said the dispute over access to the NSA and CIA opinions has made its way up to Williams & Connolly’s Gregory Craig, who earlier this month was named to be Obama’s White House counsel. Craig was expected to meet with current White House counsel Fred Fielding to discuss the issue, the official said. It’s unclear whether such a meeting has already taken place.

Given the past eight years, it’s hard not to be suspicious that the “99.8%” cooperation is the easy stuff, for public relations.  Meanwhile, that “0.2% snag” — stuff Obama’s transition team will have to wait until January 21st for — might also be relabeled “stuff Bush will pardon people for on January 20th.”  Still, it’s interesting and heartening to learn just who is on that transition team:

Obama’s Justice Department transition team is led by Wilmer Cutler Pickering Hale and Dorr’s David Ogden. Also on the team are OLC veterans Dawn Johnsen, a professor at Indiana University School of Law; Martin Lederman, a professor at Georgetown University Law Center; and Christopher Schroeder, a professor at Duke University School of Law.

Read the rest of this entry »

Posted in Post | No Comments »

Letterman interviews Jane Mayer

Posted by Thomas Nephew on 30th July 2008

Will wonders never cease — discussions of war crimes on late night TV with millions watching. It happened when David Letterman interviewed Jane Mayer, author of “The Dark Side,” a book about the Bush torture presidency.

Letterman does a remarkable job with the interview — asks the questions a “24” watcher might ask — but he didn’t shy away from going long the other way, with direct and repeated questions about war crimes. He might have skipped the “will never happen” part as unnecessary soothsaying, but other than that he’s put most of the network news teams out there to shame. Colbert, Stewart, Letterman: when the news “industry” is a joke, it takes jokers to bring you the news.

Via Avedon Carol; as she says, pass it on.

Posted in Post | No Comments »

Book Review: Among the Dead Cities, A.C. Grayling

Posted by Thomas Nephew on 18th June 2008

Among the Dead Cities, A.C. GraylingThis is a scrupulous and ultimately devastating indictment of the British RAF bombing campaign in Europe and the USAAF one in Japan during World War II. These so-called “area” or (at least in Grayling’s book) “strategic” bombing campaigns had the purpose of creating maximum deaths among citizens of the enemy nation, and of thereby breaking the will and ability to continue supporting their nation’s war effort.

Grayling contrasts these campaigns with so-called “precision bombing” attacks — however inaccurate such bombing often was in practice. Examples of the latter include the RAF’s dam-buster or Peenemunde rocket production facility attacks, the USAAF’s attacks on Schweinfurt ball bearing plants, or similarly motivated and targeted attacks on oil and gas production facilities such as those at Leuna or Ploesti.

Instead, Grayling focuses especially on “Operation Gomorrah”, the mid-1943 attacks on Hamburg, as a hard case in that the war was not yet won as it arguably was in the more famous cases of Dresden, Hiroshima, or Nagasaki. Grayling finds (and rightly, in my view) that “Gomorrah” served no useful purpose and was immoral, conducted with a view simply to maximum casualties and destruction of civilian infrastructure.* The bombing raid and ones like it may well have qualified as a war crime even by standards prevailing before and after the war (including those employed at the Nuremberg trials).

Grayling conveys some of the horror and terror of that attack — streetcar glass melting, follow-on bomber crews able to feel the heat from the first attacks in their planes, at least 45,000 dead. (While Grayling draws on many sources, including W. G. Sebald’s famous “On the Natural History of Destruction,” one eyewitness account — “Der Untergang”,** by Hans-Erich Nossack — is an understated classic in its own right.) It should be noted that Grayling explicitly judges the Holocaust to be worse, but adds that has no bearing on whether “Gomorrah” and similar raids were crimes.

Not all of Grayling’s arguments are fully convincing, but to his credit he always considers and evaluates counterarguments. In the main example of this, he argues that morale was if anything hardened and war production was unaffected by area bombing. Yet he also notes that the German war economy had plentiful slave labor and had plundered Europe for raw materials, machinery, and production.*** To employ the kind of analogy Grayling frequently does, if the Nazis devised a machine that repaired factories and fed refugees, but was fueled by concentration camp corpses, would this “success” invalidate attacking those factories and cities? I’m unpersuaded in this respect; the case against “area bombing” ultimately isn’t one of efficacy, but of proportion and humanity.

Yet even by the RAF’s lights, Grayling is right to consider the pragmatic military arguments for and against area bombing; a staggering 55,000 RAF bomber crew members lost their lives in the campaign. Grayling disposes effectively of another argument — the diversion of military manpower and materiel (esp. the feared dual antitank/antiaircraft “88s”) to antiaircraft duty within Germany — by pointing out the same diversion would have happened for a “precision” bombing strategy focused on war industries.

As Grayling points out, this debate is far from academic or “merely” historical. US military doctrine still holds that economic (not merely military industrial) targets are fair game in war, and that weakening enemy civilian morale is a valid strategic goal of bombing. Both postulates appear to contravene elements of newer Geneva Conventions to which the US is not a signatory — but to which much the rest of the world is. Attacks on civilian targets, or undiscriminating attacks to which too many civilians will fall victim, may also be among the indictments of some US actions in Iraq, such as in Fallujah or Sadr City (quite aside from the necessity of the Iraq war in the first place). But those will be the topics of a different book.


* Bomb payloads were calibrated to cause firestorms (hurricane-force winds caused by combined fires, incinerating and suffocating whole city neighborhoods) by inclusion of incendiary devices — and by the inclusion of delayed action bombs calculated to injure or kill firefighters. A version of the latter “one-two punch” tactic was also adopted by some terrorist suicide bomber team attacks in Israel and elsewhere.
** The title of Nossack’s book has been translated as “The End” in English editions. Fair enough, but the word is more complex than that; the literal meaning is “under going,” and Nossack uses it the way it is generally used: for the sinking of a great ship.
*** The explanation Grayling seems to prefer for the puzzling increases in German wartime production was that the Nazi command economy may have had a good deal of slack — room for efficiency improvements — before the war.

NOTE: This review was adapted and expanded from a version published to “Visual Bookshelf”/ReadingSocial; however, I may do more with LibraryThing as I figure out ways to integrate that here.
EDIT, 6/18: “(While Grayling draws…” sentence and ref. to 2d footnote added. Thanks, Nell.

Posted in Review | 4 Comments »

Department of followups: obliteration, Altstoetter, UPDATE: Zimbabwe

Posted by Thomas Nephew on 11th May 2008

An occasional review of further developments in stuff I’ve written about before.

  • Past diminishing and well into negative returns…, April 24, 2008 — Responding to Senator Clinton’s threat to “obliterate” Iran if it were to attack Israel,* Iranian cleric and “Assembly of Experts” member Ahmed Khatami said:

    A disreputable American (presidential) candidate has said that if Iran attacks Israel, she will obliterate Iran if she is the president. I tell the American people, it is a shame for them that their presidents are servants of Israel without any willpower.

    What they are saying recently is just psychological war. However, if the crazy people in Washington or Tel Aviv take any military action, the Iranian nation will hit them with such a slap that they will not be able to get on their feet again.

    We are observing the siege of Shiite Sadr City in Iraq. It seems Americans would like to make what happened in Gaza happen in Sadr City too. We can only conclude that America is fighting Islam.

    What the “slap” would be is left to our imaginations, but Americans are now presumably in the collateral damage crosshairs if Iran chooses to retaliate for any American military action. A corollary to “violence begets violence” is “reckless, foolish talk begets reckless, foolish talk.”

  • Practice to deceive, April 22, 2008 — In prior posts I’ve echoed the suggestions of legal scholars like Scott Horton and Philippe Sands that the Nuremberg “Judges” or “Justice Trial”, a.k.a. U.S. v. Altstoetter, is a precedent for trying lawyers like John Yoo and David Addington for war crimes based on giving the color of law to illegal acts. However, writing at “Balkinization,” New Zealand legal historian Kevin Jon Heller argues otherwise:

    The bottom line, in my view, is that as reprehensible as Yoo’s opinions were –- and they were indeed reprehensible -– the case provides far less support for prosecuting him than most scholars assume.

    The key difficulty, Heller believes, is that none of the Altstoetter defendants merely gave legal advice; rather, all were also part of the Nazi legal machinery denying habeas corpus to prisoners and issuing verdicts. Heller asserts that the NMT (Nuremberg Military Tribunal) arguably convicted all the defendants for their deeds rather than their legal advice:

    … the mode of participation they use to convict a defendant -– ordering, aiding and abetting, joint criminal enterprise, etc. -– and often even fail to identify which of the defendant’s acts discussed in the judgment they consider criminal. […] … individual responsibility required the prosecution to prove “that a defendant had knowledge of an offense charged in the indictment . . . and that he was connected with the commission of that offense…

    Related posts at “Balkinization” include Marty Lederman’s setup for Heller, “What, if Anything, Does the Nuremberg Precedent Tell Us About the Criminal Culpability of Government Lawyers?,” acknowledging the potential relevance of Altstoetter, and “What’s the Relevance of Altstoetter, Anyway?” following Heller’s piece which reiterates Lederman’s skepticism about the propriety of Altstoetter-based criminal charges against Yoo et al for their “aspirational” readings of U.S. and international law, rather than an inquiry into whether constitutional obligations were breached.**

    However, Lederman also acknowledges Scott Horton’s comment about Heller’s post. There’s much more in Horton’s comment, but one part makes a point I made in “Practice to Deceive” — that the way in which the advice and directives were concealed argues for knowledge that said advice was criminal in nature:

    Philippe Sands’s key finding — if there is just one — is that the bottom up narrative that the Administration puts forward surrounding the introduction of torture techniques is a sham. He follows the story to its roots, and he finds that it is, to the contrary, a “top down” story, with a number of lawyers engaging in an elaborate scheme to cover it up with the paper trail that starts with the Diane Beaver memoranda. Key to this unraveling is the story of the senior lawyers’ trip to GTMO at the launch of the process, a trip about which Haynes repeatedly lied. Now it’s possible to explain this from a PR angle focused on domestic politics, which undoubtedly was a major focus of the White House throughout, but a prosecutor could just as well make the case that this shows recognition and belief that the scheme was essentially criminal (or presented substantial likelihood of criminal culpability) and thus needed to be concealed.

  • Zimbabwe: enough is enough, April 10, 2008 — The repression of Zimbabweans following their election of Morgan Tsvangirai (contested by Robert Mugabe’s ZANU-PF party and state apparatus) continues unabated — but so far at least without the logistical resupply of a ship full of weapons sold by China to the Zimbabwean government. The An Yue Jiang was not allowed to dock in South Africa, Namibia or Angola — generally thanks to union activism in those countries.But Nell Lancaster (“A Lovely Promise”) points to a recent article at Sokwanele *** alerting readers that the government of Malawi may be the weak link in the chain of refusals to allow the ship to offload its deadly cargo. As the Sokawanele author Hope puts it, the case is important because (a) political violence in Zimbabwe continues, (b) the case has proven to be something people outside Zimbabwe can get involved in, and (c)…

    it is also forcing countries in the region to ‘nail their colours to the mast’, so to speak. In the open glare of the public eye, this story shows us which nations are concerned for the safety of the Zimbabwean people, and which ones are more concerned with the loyalty to the Zanu PF regime.

    The Malawi embassy in Washington, D.C. can be contacted at (202) 721-0274. Embassy e-mail addresses I’ve found include (Taiwan) and (UN); several others are listed here.

    * Clinton’s remarks to Chris Cuomo (emphases added): whatever stage of development they might be in their nuclear weapons program, in the next 10 years during which they might foolishly consider launching an attack on Israel, we would be able to totally obliterate them.” Like him or not, Khatami is justified to consider this, on careful consideration, as a (reckless) threat of nuclear retaliation by Clinton for a nonnuclear attack — even if, in a subsequent interview with Keith Olbermann, she conditions a U.S. nuclear response on an Iranian nuclear attack on Israel. In another interview with Andrea Schaefer, she claimed “facts on the ground have changed” since October 2007 (before the release of an NIE denying an active Iranian nuclear weapons program was underway) — and considered the notion of Iranian theocrat undeterrability plausible enough to repeat without qualification on national TV.
    ** Lederman thus at least implicitly concedes the possibility and potential propriety of impeachment proceedings against Yoo (and possibly the president) by Congress. As may or may not be well known, one of the consequences of a conviction for an impeachable act is that the convicted person may not hold federal office again. Both impeachment and conviction are thus useful and possible after that person has held federal office.
    *** The word means “Enough is Enough”; the site chronicles Mugabe’s repression and democratic resistance to it in Zimbabwe.

    NOTES: (1) Khatami remark link is to a Real News Network video clip, transcript, and translation of Khatami’s remarks. (2) Nell has an earlier post about the An Yue Jiang here.

Posted in Post | 3 Comments »

A fortiori

Posted by Thomas Nephew on 15th November 2007

Though we’ve never met, Marty Lederman, a Georgetown law professor who writes frequently for the blog “Balkinization,” is someone I hold in high esteem. As a former Office of Legal Counsel (OLC) lawyer in the Department of Justice, he has great insight into the procedures and importance of that agency. He has also been a passionate advocate against abuses of power by the Bush administration, and has been an particularly invaluable guide in the past years through the maze of treaties, statutes and legislation governing detainee treatment — and protecting their human rights.

Yet there is something quite dispiriting about some of what Mr. Lederman has written lately, specifically about legal accountability for war crimes. For what he seems to be saying is that there is none, not in this country at any rate. If I’m right about what he’s saying, and he’s right about what he’s saying, that’s a shame. If he’s not right, though, it’s a strange corner for him to have painted himself into.

The subject arose during Lederman’s discussion of Judge — and now Attorney General — Mukasey’s refusal to simply characterize waterboarding as torture. Lederman argued that “if one’s interpretative principles and legal analysis of the terms “torture” or “cruel treatment” lead to the conclusion that waterboarding is not torture or is not cruel, then a fortiori one must abandon those interpretive principles and that form of legal analysis.” (Emphasis in original). In a memorable comparison to the legal chestnut (I take it) of interpreting a law like “no vehicles in the park,” he writes,

…if, in parsing the “no vehicles” rule, one arrives at the conclusion that a souped-up Corvette may be driven through the center of the park, then that’s a pretty good clue that you need to find yourself some new interpretive principles. […]

Waterboarding is the souped-up Corvette of the torture ban.

Lederman’s point was that, contra Ben Wittes’ article for The New Republic, Mukasey could indeed repudiate waterboarding as a “paradigmatic,” archetypal example of torture: “The bottom line is that the OLC legal analysis in support of waterboarding is indefensible — I think Ben would agree — and Judge Mukasey should simply say so.”

No prosecution for reliance on war crime advice
The gist of Wittes’ point however — and Lederman’s own point in an earlier post — was that since CIA operatives have acted in reliance on advice that waterboarding isn’t torture, Mukasey doesn’t want to pull the rug out from under them. Wittes agrees that waterboarding crosses a legal line, but understands Mukasey’s reluctance to before he’s read the latest, greatest OLC memo defending it:

…it would be very wrong for a nominee to call foul on a series of opinions which he cannot read, on which a major covert action program depends, which individuals serving their country have used to assure themselves that they operate within the law, and which happen to represent the position of the department Mukasey aspires to lead.

Lederman believes this isn’t such a big problem, though. Why? Because

[t]here is no possibility — none — that the Department of Justice would ever prosecute anyone who acted in reliance on OLC’s legal advice about what techniques were lawful. (Such a prosecution would, in my view, violate due process to the extent such reliance were reasonable…)

What Lederman seems to be reporting — no, what he is reporting — from the legal profession to those of us gathered outside in the hallway, is that the “only following orders” dodge lives. “Judgment at Nuremberg” truly was only victor’s justice, it seems; the only way a CIA waterboarder will ever face justice is if she’s tried by a foreign country that has caught her and/or defeated us. I’m not saying I’m sure he’s wrong as a practical or legal matter — how could I? I’m just summing up the news for myself.

But that’s not the half of it.

No prosecution for giving war crime advice
I wrote in to suggest it wasn’t necessarily the waterboarders themselves whose plight concerned Mukasey or his handlers. No, it was those who gave those waterboarders the “souped up Corvette” advice: the Yoos, the Addingtons, the Bybees. The precedent, I suggested, was U.S. v. Altstötter, the so-called “Judges Trial” at Nuremberg establishing — at minimum, I think — that giving the color and imprimatur of law to what are plainly war crimes against humanity is itself a war crime against humanity. No again, Lederman replies

unless there’s a smoking gun memo out there somewhere showing that John or others did not really believe the advice they were giving, and that they were simply trying to justify conduct that they knew to be unlawful, I think it’s inconceivable that DOJ would ever prosecute them, either. And I strongly suspect that there is no such smoking gun because John [Yoo], and Jay Bybee, did actually believe the advice they were providing was legitimate, possibly even “correct.” […] …I think the providers of the 2002 and 2004 OLC advice probably believed in what they were writing. Or, in any event, there’s unlikely to be evidence to the contrary.*

Returning to Lederman’s first quote above, it turns out that “a fortiori” means “to the stronger” argument, i.e., “even more so,” so that Lederman was saying that a patently wrong conclusion should force abandoning the premises leading to that conclusion.

But surely it should do more than that for those of us watching such “conclusions” being drawn.

There is simply no way that you can in good faith conclude that “no vehicles in the park” means “souped up Corvettes are OK” — you are doing more than bending the rules, you’re breaking them. Likewise, there is simply no way that you can conclude in good faith that waterboarding is not torture. To employ another metaphor Lederman has discussed, secret torture analyses that speciously justified waterboarding and other horrors short of organ failure weren’t Yoo et al just getting “chalk on their spikes” — i.e., nearly going out of bounds in a football game. They were eluding tackles by running off the field, using their teammates on the sideline for blockers, and sneaking into the end zone for a touchdown. (Lederman says as much himself: The chalk is but a distant memory there.”)

In such cases, Lederman’s prescription that brushes with the legal sidelines must at least not occur in secret is no longer sufficient — and he skids from calling waterboard opinions “souped up Corvettes in a no vehicles zone” to considering it critical whether people like Yoo and Addington believed in their own advice.

For my part, I think Yoo and Addington knew full well that they were gutting laws and a Constitution, not interpreting them, and I think they took pride in that rather than shame. But I also don’t much care whether they believed themselves or not, any more than a traffic cop cares whether I believed the traffic light wasn’t red when I ran it. Like me, even lawyers — and even lawyers at the OLC — are subject to law; like me, even lawyers — and even lawyers at the OLC — must face penalties when they cause laws to be broken, or there is no reason to believe that laws will be followed.

If lawyers like Yoo and Addington find themselves solemnly advising the executive branch that waterboarding is not torture — and drafting, signing, and approving documents with legal force to that effect — then “finding some new interpretive principles” is merely the first thing that should be done. A “fortissimiori,” such advice is a patent war crime — and the advisors should face the legal penalties.

Herbert Klemm — a fortiori, John Yoo
Consider, for example, Josef Altstötter’s co-defendant Herbert Klemm, who like almost all the defendants in the case was found guilty of “war crimes through the abuse of the judicial and penal process, resulting in mass murder, torture, and plunder of property.” (Emphasis added.) Among the specific acts proven against Klemm was his knowing complicity in torture during a stint at the Reich Ministry of Justice:

…after transfer to Berlin in 1935, the defendant dealt with acts against the State and Party and, later, the malicious acts law. In this field prosecution could be ordered only by the Ministry of Justice with the permission of the office of the deputy of the Fuehrer, which later became the Party Chancellery. It was during this period that the following circular, dated Berlin, 18 October 1937, and initialed by Klemm, was issued (NG-310, Pros. Ex. 33):

1. Criminal procedures concerning more severe interrogations by the Stapo will be dealt with centrally by Chief Prosecutor Klemm. They are to be sent to the competent co-worker Prosecutor Winkler. […]

Klemm’s sentence? Life in prison.

Klemm deserved that punishment — even though he worked in a system that had already bent and rewritten laws to the point where they were in themselves institutionalized crimes against humanity. But if Klemm deserved punishment for his deeds in that system, then a fortiori Yoo et al do for theirs in a system that had not — yet — reached such levels of depravity.

* Lederman repeats this in a post today about the re-opened Office of Professional Responsibility (OPR) investigation of the OLC.

NOTES: “U.S. v. Altstötter” — Wikipedia “Justice Trial” entry; “knowing complicity,” “life in prison” — The Mazal Library.
PREVIOUSLY: Judgment at Nuremberg, 2006/09/18.
EDITS, 11/15: subtitles added; 11/16: Judgment at Nuremberg link added.

Posted in Post | 3 Comments »

Srebrenica: 12 years on

Posted by Thomas Nephew on 12th July 2007

As thousands watched, 465 newly identified victims of the 1995 Srebrenica massacre were reburied Wednesday, reports the Guardian’s Almir Arnaut, bringing the total identified and reburied to over 3,000. For readers who may have forgotten, Arnaut explains:

Up to 8,000 Bosnian Muslims were killed by Serb forces who separated men and boys from women on July 11, 1995, and killed the males over several days. It was the worst mass slaughter in Europe since World War II.

Dutch peacekeeping forces assigned to guard the so-called “safe haven” of Srebrenica were arguably overmatched by besieging Bosnian Serb forces; at any rate, they certainly proved unwilling to continue to protect the community. Arnaut:

Some 15,000 men tried to escape the slaughter by fleeing over the mountains toward the safe town of Tuzla. They were hunted along their 65-mile walk and killed if caught. Hazim Mehmedovic was 3 years old at the time, and was carried along the path in his father’s arms.

Hazim, now 16, arrived a few days ago from Copenhagen, Denmark, where he is living with his mother. Survivors today live in 107 countries around the world as refugees, he said.

For the past few days, he walked the escape route the other way from Tuzla to Srebrenica and arrived for the anniversary.

“I don’t remember anything and wanted to see where it happened. The Serbs shelled our group and killed dad while he was holding me in his arms. Someone else, I don’t know who, carried me the rest of the way to Tuzla,” he says.

While the victims are dead and beyond caring, the story continues to enrage and disgust. Ratko Mladic and Radovan Karadzic — the military and political directors of the atrocity — remain at large. And in February, the International Court of Justice reprehensibly absolved Serbia of responsibility for the massacre — after refusing to subpoena documents plainly showing that the Bosnian Serb army was directed from and paid by Belgrade.

MORE at this site:
06/04/2005: Video from Srebrenica massacre surfaces
07/12/2005: Srebrenica, 10 years later
02/26/2007: ICJ: Srebrenica was genocide. Serbian police were involved… …yet Serbia cleared of genocide (“reprehensibly” link above).
02/28/2007: Where’s Ratko? — includes specific ICTY charges against Ratko Mladic.
05/14/2007: Department of followups: …Bosnia (“refusing” link above)
UPDATE, 7/12: Mark Burgess (World Security Institute’s WSI Brussels Blog) reported in early June: “Survivors of the 1995 Srebrenica massacre are suing the United Nations and the Netherlands for what they say was a failure to protect civilians from Bosnian Serb forces.”

NOTE: The June 4, 2005 post is one of the most frequently visited posts at this site (via a Google image search to the video still), and the “outclick” to the video linked there is by far the single site people visit most often from here. I hope it’s not just rubberneckers or worse, but also people like Hazim who really need to know what happened.

Posted in Post | No Comments »

Where’s Ratko?

Posted by Thomas Nephew on 28th February 2007

Have you seen this man? He’s Ratko Mladic, the butcher of Srebrenica. The collective legal apparatus of Serbia, Europe, and the world need your help in finding him, because they apparently can’t find their own asses with both hands, a mirror, and all the lights on.

It’s been nearly a year since Serbia promised to deliver Mladic to the International Criminal Tribunal for the former Yugoslavia (ICTY) by the end of April 2006, following an extension of a deadline by the European Union in relation to Serbia’s application for accession to that body. In the following weeks, the noose seemed to tighten with several arrests of people suspected of supporting Mladic, but the deadline came and went. A flurry of reports like this one suggested that Mladic had been located in a former Yugoslavian republic a few weeks earlier, was cut off, and that a team of British MI-6, CIA, and Serbian BIA intelligence agents was on the case. But nothing happened.

What is Mladic charged with, exactly? From the amended Mladic indictment handed by ICTY prosecutor Carla del Ponte on October 11, 2002:



  1. As Commander of the Main Staff of the VRS,* General Ratko MLADIC, acting individually and in concert with other members of the joint criminal enterprise, participated in the joint criminal enterprise from no later than 12 May 1992 until at least 22 December 1996 in the following ways:
  1. Planning, preparing, facilitating, or executing a campaign of persecutions, which included acts of genocide, within BiH,* by establishing control of the municipalities listed in Paragraph 36 of the indictment; attacking and destroying non-Serb towns and villages, as well as looting, destroying, and/or appropriating residential, commercial and religious properties in the municipalities; killing and terrorising the non-Serb inhabitants, and submitting them to cruel and inhumane treatment and conditions, including physical, psychological and sexual abuse, often in detention facilities; using non-Serbs for forced labour, including at front lines, and as human shields; imposing restrictive and discriminatory measures on the non-Serb population; and separating, deporting, and permanently removing non-Serbs who did not subjugate themselves to Serb authorities;
  2. Image hosting by PhotobucketPlanning, preparing, facilitating, or executing a protracted military campaign of artillery and mortar shelling and sniping into civilian areas of Sarajevo and upon its civilian population and institutions, killing and wounding civilians, and thereby inflicting terror upon its civilian population;
  3. Planning, preparing, facilitating, or executing an operation to take UN military observers and UN peacekeepers as hostages following NATO air strikes on 25 and 26 May 1995;
  4. Planning, preparing, facilitating, or further executing the campaign of persecutions, which included acts of genocide, after the capture of Srebrenica in July 1995, by forcibly transferring the Bosnian Muslim women and children from the Srebrenica enclave to Kladanj; capturing, detaining, summarily executing, and burying thousands of Bosnian Muslim men and boys from Srebrenica, all of whom were either separated from the group of Bosnian Muslim refugees in Potocari or captured from the column of Bosnian Muslim men escaping the Srebrenica enclave; and exercising command and control over an organised and comprehensive operation designed to conceal the execution campaign by exhuming bodies from the initial mass graves and reburying them, en masse, in isolated secondary locations; […]

Most of this post was written in the summer of 2005, in anticipation of Mladic’s capture. As 2005 drew to a close, I kept dating it with a future date — “July 1, 2006” … “December 31, 2006” … “December 1, 2007” — to keep it at the top of my drafts list as time passed.

But of course I was kidding myself. Now that Serbia has been acquitted of genocide by the ICJ (the acronym stands for “International Caricature of Justice“), I don’t see Mladic being turned over any time soon; any time ever, really. So my hat’s off to you, Ratko, wherever you are; if it’s a choice between you and the judges of the ICJ, at any rate, the better man has won.

There used to be a little Reader’s Digest section called “Laughter makes the world go round.” But that bit of pablum surely deserves a corollary when it’s people like Mladic doing the laughing. Like Hitler’s laughter at his Tischgespraeche, Mladic’s laughter somewhere today is slowing a shabbier, sadder world in its tracks.

You know what? I hope the ICTY doesn’t find Mladic — I hope the Bosnians do. But you know what else: wouldn’t it be just a complete disgrace — not to say disaster — if Al Qaeda did?

* Abbreviations: “VRS”: Serbian Republic of Bosnia and Herzegovina/Republika Srpska; “BiH”: Republic of Bosnia and Herzegovina.

Posted in Post | 1 Comment »