Wednesday, December 03, 2008
Why President Obama ought not want to prosecute the Bushies
Eric Posner walks through the many reasons why Barack Obama ought not want to prosecute the Bushies for offenses that might have been committed in the war on terror. Given that Obama will be under tremendous pressure from the left to do exactly that, Posner argues that George W. Bush would be doing Obama a favor by issuing blanket prospective pardons for GWOT-related offenses, but that Bush "might be just ornery enough to refuse."
One of Posner's better reasons, at least in the eyes of intellectually honest Democrats who otherwise believe in the rule of law, is that officials and agents are already becoming too risk-averse because of liability concerns:
[A]gents have become highly risk-averse, refusing to take actions that promote security because of the fear that the actions, even if lawful, will give rise to legal risk. The costs to suspects of investigation and trial are just too high, whereas the benefits of aggressive security-promoting actions are likely to be incremental, and tending to the good of society rather than the good of the agent.
The argument is that if you prosecute people now for tough and possibly unlawful decisions taken in the wake of September 11, it will become much harder to persuade agents to take legally edgy decisions in the future. If one of our men were to get Osama bin Laden in his crosshairs, sitting casually among his friends munching away on chipati, what, for example, would be the legal basis for pulling the trigger other than the president's say-so? If we reach the point that our man would hesitate for fear of prosecution the next time the other party takes over, and some say we already have, then there is only one solution I can imagine: the President could issue a prospective pardon for actions taken in connection with any such mission, or toward particular objectives. That is, the presidential "finding" that authorizes the assassination of Osama bin Laden (or the next bad guy) could include an appended pardon for all acts taken by all people in connection with the authorized mission. The ex ante pardon remedy is hardly ideal, in that it would strip away the inhibition of the law even around the edges of the mission; in effect, it would be a "Double 0" license for everybody involved, which creates its own problems. It would, however, be a constitutional response to the problem of partisan prosecution.
CWCID: Glenn Reynolds.
18 Comments:
By 
, at
Wed Dec 03, 08:32:00 AM:
If prosecutions for torture make others more reluctant to torture, that's a good thing -- unless you're a fang-dripping, depraved rightwingnut freak, of course.
By , at
Wed Dec 03, 08:51:00 AM:
Although perhaps not a direct correlation, think on the deployment to Afghanistan of the German special forces. Hamstrung by bizarre German legal considerations, and possibly by concerns that the ICC might be looking, those good troops never fired their weapons and rarely moved off their base. I seem to recall that they were only to be allowed to fire their weapons if fired upon.
http://www.spiegel.de/international/world/0,1518,554033,00.html
Thus warfare becomes lawfare becomes nowarfare.
By 
Ross, at
Wed Dec 03, 08:56:00 AM:
Another good reason is that Obama does no want to be prosecuted for the crimes he and his administration are going to commit as they deal with the collapse of the dollars and mass insurgencies world wide and in the US.
By , at
Wed Dec 03, 09:16:00 AM:
Anonymous - please come down from you ivory tower for a minute and answer one question. The teenage murderers in Mumbai not only slaughtered hundreds of innocents indiscriminately, they sought out Americans and British citizens and the few Jews in that city of 19 million and tortured them with such cruelty and depravity before killing them that Indian doctors who handled the dead were too shaken to discuss what they had seen. I have no problem with water-boarding and other rough interrogation methods being applied to such individuals if it will, as it has in Guantanamo with information from KSM and others, allow us to prevent such slaughter. In other words, I prefer harming the evil and bloodthirsty to protect the innocent. You, on the other hand, apparently prefer protecting the evil and bloodthirsty without regard for the peril of the innocent. My question - which one of us is the "depraved freak"?
By , at
Wed Dec 03, 10:13:00 AM:
Fact: waterboarding has SAVED Americans lives. End of story. Khalid Sheik Muhammed thinking he's drowning is worth the fact it saved Americans.
By Peter, at
Wed Dec 03, 02:36:00 PM:
I would smile as I tortured every Muslim on earth if it would save one hair of my children or grandchildren's heads. I would shoot right through "Anomymous" to hit a jihadi hiding behind him, or her.
I am so sick of these moralists who said nothing durin Clinton's regime of "extraordinary rendition" but now want to lock up the very people who keep them safe.
I thank God for those who make sure my grandchildren sleep safe in their beds. Anyone thinking "it can't happen here" is living in a dream world. They are also forgetting how long our trained professionals looked for that
white loner" during the DC "sniper" mess.
Anonymous is exactly the same kind of scumbag that protested the war in southeast Asia, right up 'til the draft ended and never said a word after, and also said nothing about the millions dead after we ignored our treaty obligations when the NVA restarted the war after we left.
I've been putting up with the Anonymouses of the world since I was called babykiller back in the '60s. I hate them just as much as I do the jihadis. Anonymous will scream about how awful we are and then complain that we didn't connect the dots, while making it impossible to do so.
By JPMcT, at
Wed Dec 03, 03:54:00 PM:
Perhaps Obama SHOULD prosecute the Bush administration members who gave us 7 continuous years of homeland peace while the rest of the world burned...and continues to burn.
If he did do so...we could at least get the matter into a public forum and have it out. Hell, if were going to have a revolution...let's have one!
I couldn't think of a better reason.
RE: Anonymous' comments....
Imagine if we segregated the USA into two geographically separate socities...one with a strong military, reasonable security and a Capitalistic free market...the other with open borders, wealth redistribution and a Clinton/Obama style "army" of holistic social workers.
I wonder where people like Anonymous and their ilk would REALLY like to live?
By , at
Wed Dec 03, 06:37:00 PM:
Amen, Peter.
. . .
JPMcT: "Imagine if we segregated the USA into two geographically separate socities...one with a strong military, reasonable security and a Capitalistic free market...the other with open borders, wealth redistribution and a Clinton/Obama style "army" of holistic social workers."
We did. Ever hear of California? Somehow, even with our incredibly high taxes, we managed to get $25B in debt. At least we have plenty of crime.
-San Francisco Tiger
By JPMcT, at
Wed Dec 03, 08:13:00 PM:
@San Fancisco Tiger:
I was just out at your Giant-Open-Air-Insane-Asylum in October for the Ameican College of Surgeons Congress. My wife and I both love San Francisco as a place to visit.
Suffice it to say that, as native born New Yorker's (now in Virginia), it's almost impossible to reconcile how the working citizen's of this beautiful city tolerate the massive invasion of Bums and Illegals that is quite visibly ruining your city and your state.
I suppose that living in a liberal city requires an abilty to suffer fools and incompetence...but, Good Lord....can't you folks see the forest for the trees!!!??
By , at
Wed Dec 03, 08:49:00 PM:
@ The California topic: How did California get massively in debt, overburdened by X, etc? Most often referendum, which is a form of government much closer to free market decision-making than in most other places. Yet California is suffering unique and exceptional harms as a result of this governmental system. Ergo, free market decision-making is preferred?
@ The Torture question:
The following code functions incorrectly. Debug:
if (person = terrorist) {
punish_severely();
} else {
exit(-1);
}
As alluded to, the government catching a person and declaring someone a terrorist does not make them a terrorist. Claim: it would be wrong to not punish people who abused power in that fashion, (ie executive decision-makers) whereas the implementors of decisions need not be prosecuted (and thus chilled by legal risk).
Answer to debugging: "=" is an assignment operator, which will return true, while "==" is a proper evaluation operator. The two are often confused. For bonus points, use "===".
By Dawnfire82, at
Wed Dec 03, 10:21:00 PM:
"@ The California topic: How did California get massively in debt, overburdened by X, etc? Most often referendum, which is a form of government much closer to free market decision-making than in most other places. Yet California is suffering unique and exceptional harms as a result of this governmental system. Ergo, free market decision-making is preferred?"
This is so, so wrong... you really, honestly don't understand the concept of free markets.
"As alluded to, the government catching a person and declaring someone a terrorist does not make them a terrorist."
Irrelevant semantics. If a foreigner in a military uniform bearing arms on a battlefield in accordance with the rules of warfare is captured in a war, does that not make them a prisoner of war?
Or must we supply them with a defense team and wait until a federal court makes a decision on their particular case? What if they are out of uniform and not following the rules of war? What then?
Turns out that's already covered. In the rules of war. Know what they say? Military tribunal.
So what if the military tribunals says, "terrorist?"
Hmm.
Trying to extend criminal law to the battlefield is flat out retarded. There are reasons that a whole other set of rules, military law, exists. And military law says that a non-uniformed combatant who does not obey the laws and customs of war (i.e. a terrorist) is an 'illegal combatant' (familiar term?) and may be dealt with as the holding power sees fit, up to and including execution.
These rules have been in their current form for decades, and in similar form for centuries. It seems to have just taken until we raised a particularly weak generation of squishy hyper-legal liberals and introduced them to a particularly sneaky and vicious brand of enemy for people to start bitching.
By , at
Wed Dec 03, 11:46:00 PM:
@ DF
On California: Free markets, in short: minimize encumberances, for example by lowering barriers of entry and exit, freeing information, etc, and mitigate noncompetitive forces (ex monopoly) and people will do what is in their best interest, causing all to win. In California, the barriers to policy decision-making were low, the information was on the (free) Internet and in the (free) libraries, and monopolies on votes were disallowed. And yet the people chose something not in their best interest, despite more free and responsive policymaking than in VA. If your bone to pick is with terminology, fine; I just wanted to parallel with the commonly raised point that if govt just let the people do their thing, markets would do the rest.
On military law: Are you going to go so far as to say that the GWOT is in fact not relatively new in the course of military history, and that the technology and financial infrastructure that make modern terror networks possible aren't a fundamentally different beast than nonuniform combatants in the 60s? It's exactly the arguments that our current president made regarding the uniqueness of the threat that drives the objection. That, and the fine, mutable line between torturing freely at Gitmo ('cause they're terrorists, you know, even the ones eventually set free by said tribunals) and harsh tactics with various US citizen offenders. Because after all, if the risk calculus is all that matters, why not apply it freely? (As for only Americans getting that kind of legal protection, I hold some truths to be self evident, that all men are created equal and endowed by their creator with certain unalienable rights.)
By JPMcT, at
Thu Dec 04, 06:48:00 AM:
@ Eric the Red
You seem to be implying that California is failing because of referendum...most of which were for bond and tax issues and social questions. You are ignoring the massive gorilla in the room...the massive and unrestricted influx of illegal aliens and the failure of the legislature to deal iwth it...indeed, many encourage it in the face of massive fiscal losses.
Your semantic exercise regarding torture nonwithstanding....if a foreign state or a foreign "movement", uniformed or not, declares war on our society and inflicts harm on our citizens...I, and many others, have absolutely no problem running tap water in their face to find out what they are up to.
Pardon me for being direct.
By , at
Thu Dec 04, 08:54:00 AM:
@ JPM: See the sample C code above. I don;t think it is ever a semantic game to say "we are incarcerating and perhaps torturing some innocent people, perhaps indefinitely, and even the military lawyers complain about the fairness of the system." It may be that some group somewhere declares war on the US, and a person is brought in as hypothetically related to that group, but it does not follow that the person in question is a member of that group and that only terrorists get tortured. I think a stronger argument would be "it is fine to torture a few innocent people, all things considered", but then we have to own up to what happens when we are wrong.
On CA: My understanding is that Californians habitually voted for more spending and shot down sensible bond issues to cover them. This in itself seems like a recipe for fiscal disaster. As for illegals, it is appropriate for a company that employs n people in an area to use a multiplier on their spending to approximate how many people they indirectly employ and how many tax dollars they contribute, as in the case of a manufacturing plant. For all of the outlandish, soundbite cases, do you have any statistics to show that a similar multiplier and the wonders of cheap labor are not a net good for the CA economy? In my area, for example, illegals pay all their taxes and refrain from social services, as this removes one charge that could be brought against them and minimizes their chances of being caught and deported. It would seem that they are contributing members to US society.
By Dawnfire82, at
Thu Dec 04, 08:54:00 AM:
On California: My beef was with the game theory. In free markets, each actor is able to behave independently with his own best interest in mind. Referendums don't work anything like that. Like, at all. Referendums are infrequent, scheduled, and with their contents predetermined by another process. Additionally, the results become binding upon the whole. Even more additionally, a form of mob rule often takes over, especially when it comes to economic issues.
Example: I used to live in California, and I had a good friend from Sunnyvale. California raised taxes on 'the rich' to such a level that 'the rich' (like his father, a senior computer engineer in Silicon Valley) were leaving the state. This led to fewer rich to tax, and therefore less income from taxing them. So the state would raise taxes again, and more people would leave. Lather, rinse, repeat. It has since become common for these people to maintain homes in Nevada where they spend half of the year + 1 day in order to escape California's punitive taxes.
This is an example of people voting 'in their own interest,' (basically identifying a target group of people and robbing them repeatedly) and managing just to fuck things up. It has nothing, at all to do with free market mechanics.
On the other hand, the rich people who pack up and leave the state do rather resemble free market forces, because they are individuals who are acting in their own best interest.
"GWOT is in fact not relatively new in the course of military history"
In 2 ways, it's different. In the scales involved, and the fact that they are deliberate fighters of asymmetrical warfare who target civilians. All of our old previous national enemies (seriously... all of them I can think of except Pancho Villa and Indians) could have been classified as legal combatants because they at least *tried* to behave in the proper manner. Even Nazi agents didn't go around trying to massacre American civilians. (many of which were executed, by the way, something we seem to be too weak to handle these days)
"That, and the fine, mutable line between torturing freely at Gitmo"
Seriously, what kind of retarded fantasy world do you dwell in? Torturing freely? Perhaps you could show me some pictures of broken bones, fresh scars, pulled out fingernails, blistered burns, blinded eyes, or even bruises? Come on, they live in freaking open air cages. And dozens have been released. It can't be that hard.
I know a guy who was an interrogator at Gitmo. Maybe you could call him up and get him to tearfully spill his dirty little secrets to you.
"As for only Americans getting that kind of legal protection, I hold some truths to be self evident, that all men are created equal and endowed by their creator with certain unalienable rights."
That's from the Declaration of Independence, not the Constitution, and it has exactly nothing to do with Constitutional protections and does not connect the natural rights of man to the Constitution. That completely misunderstands the legal nature of the documents.
Those inalienable rights are: life, liberty, the pursuit of happiness, and the right of rebellion, not due process or the right to an attorney or freedom from arbitrary search and seizure.
By , at
Thu Dec 04, 11:02:00 PM:
@ DF
On CA: I'll do the quick and dirty view I take on classical econ. Assume everyone knows their preferences, we have good things like property rights, that there are a bunch of sets of commensurable goods, each with a price, and that people know things about what is in each of the sets. Give everyone a certain amount of currency to start, have them use it to select their share of things from the sets, and you get a pretty efficient outcome because people choose based on their own preferences and buy the stuff they value most. Play this game in repeated phases, with arbitragers correcting price outliers by populating their own sets and production correcting for overpricing based on supply shortage, and you have a dynamic system that allocates stuff efficiently.
I will now add a new set, populated with relatively intricate, difficult to alter, illiquid (in the sense that they cannot be flipped to others easily), binding stuff. I will call these things "loan backed obligations," and note that few would seriously argue that economic theory doesn't apply to them, despite current events. I will add yet another set, which is much like the previous, that is the set of "things that will be binding for everyone in these domains of policy." Sure, they're binding for everyone, but this shouldn't prevent people from choosing what is best for them because they are still subject. They are also binding on the upside and downside, but so are many contracts, like power purchase agreements.
Despite these features, the people of California chose the options not in their best interest, as I've held and you elaborated on. Either the failures in California are not in the majority interest, and the case holds, or they are in the majority interest, which I think we both have been assuming is false based on you 'best interest' being in quotes.
On torture: I see you making a couple of arguments. 1, because it is not helicopter interrogations or prying off of fingernails, it's not torture. I disagree, in much the same way something not being burgundy does not preclude the possibility that is pink, while your inference seems to be "Is not burgundy, is therefore green."
On rights: if we are going to be constitutional originalists pursue the framers' original intentions in interpreting the Constitution, then I think such illuminating and prominent documents count. Further, as regards strict constitutional reading alone, it seems that "US, State, or person vs foreign citizen" from Article 3 Section 2 puts those trials in US Courts and not in military tribunals unless it can be established that the person in question was actually a combatant, which would seem to require demonstrable acts by that person to qualify. Trying them in tribunals to establish that they belong in tribunals seems backward.
But I will step back from so extreme a position and say this: I said 'torturing freely' because that is what they posted argument gets you. When we refuse to police the border between ethical and unethical conduct for fear of chilling effects, rather than reviewing with a very lenient eye, I don't see what a meaningful check on abuse is.
By JPMcT, at
Fri Dec 05, 05:22:00 PM:
"For all of the outlandish, soundbite cases, do you have any statistics to show that a similar multiplier and the wonders of cheap labor are not a net good for the CA economy?"
The estimated cost of harboring 3.5 million illegals in California is estimated by several independent estimates, including Federal estimates, at between 9 and 11 billion dollars a year in education, healthcare and incarceration costs.
The budget shortfall in the state has typically ranged about 8-15 billion. It now stands at about 28 billion.
Do the math. Any ideas?
The comcept that billions of people competing in our market place, mailing dollars to another country, consuming our educational and healthcare facilities for free and swelling our crime rates is "good for our economy" is, you will pardon the expression, sir...daft!
By JPMcT, at
Fri Dec 05, 07:05:00 PM:
Typo correction last paragraph above: "concept that millions".
It's a shame that I get so used to using the "billion" category t hat it becomes the default!
