(AG) Holder: 'follow law' in US interrogation probe ("No one is above the law")

[sabra]

Source: Reuters

WASHINGTON, April 22 (Reuters) - Attorney General Eric Holder on Wednesday said the Justice Department will follow the law wherever it leads in probing U.S. officials behind CIA interrogation policies.

His comments came a day after President Barack Obama opened the door to possible prosecutions of U.S. officials from the previous administration of George W. Bush who prepared the legal groundwork for the use of harsh interrogation methods on terrorism suspects, including waterboarding.

"We're going to follow the evidence wherever it takes us, follow the law wherever that takes us," Holder said to reporters at an Earth Day event.

"No one is above the law," he said, reiterating that the department had no intention to prosecute CIA interrogators who acted "in good faith" to follow official legal guidance.

Read more: http://www.alertnet.org/thenews/newsdesk/N22549021.htm

[Beetwasher]

1. PROSECUTIONS ARE COMING!

Listen up Dick. Can you hear the footsteps? How's that pace maker holding out?

[Zhade]

52. We've heard THAT one before.

Of course, I hope you're right. I really, really do.

But I'll believe it when I see it. Given the Dems' track record...

[wordpix]

60. THIS time we have the prez and AG behind getting the TRUTHOUT

so it could happen!

[bleever]

2. Now we're talking.

[Jeroen]

3. Recommended! n/t

[Bragi]

4. "No-one above the law" Yessss! ! /nt

[mvd]

18. That's what stood out to me, too

If he investigates and prosecutes, I will give the credit to Obama, too. You can't pin it on Obama (through Holder being in his administration) if he doesn't prosecute and then not give Obama credit if he does.

[No Elephants]

43. Agreed. Both the buck and the credit stop with Obama. You cannot have it only one way,. If you

want to give him all the blame, but none of the credit, shame on you. If you want to give him all the credit, but none of the blame, shame on you, too.

[Solly Mack]

5. Hmmm. Let me try an experiment

"No one is above the law," he said, reiterating that the department had no intention to prosecute CIA interrogators who acted "in good faith" to follow official legal guidance.

"No one is above the law," he said, reiterating that the department had no intention to prosecute CIA interrogators who acted "in good faith" to follow official legal guidance.

"No one is above the law," he said, reiterating that the department had no intention to prosecute CIA interrogators who acted "in good faith" to follow official legal guidance.

"No one is above the law," he said, reiterating that the department had no intention to prosecute CIA interrogators who acted "in good faith" to follow official legal guidance.

"No one is above the law," he said, reiterating that the department had no intention to prosecute CIA interrogators who acted "in good faith" to follow official legal guidance.


"No one is above the law," he said, reiterating that the department had no intention to prosecute CIA interrogators who acted "in good faith" to follow official legal guidance.


"No one is above the law," he said, reiterating that the department had no intention to prosecute CIA interrogators who acted "in good faith" to follow official legal guidance.

"No one is above the law," he said, reiterating that the department had no intention to prosecute CIA interrogators who acted "in good faith" to follow official legal guidance.



Nah..still not geehawing with me

[gcomeau]

11. Sigh...

If they were following, in good faith, official legal guidance from the Justice Department any attempt to prosecute them for it would be an act of entrapment by estoppel. It's the textbook definition.

So he's following the law, by NOT prosecuting them. It's the same reason he dropped the prosecution against Stevens. NOT because Stevens didn't commit a crime, but because justice Department misconduct screwed the case. Just like this is NOT because those CIA officers didn't commit a crime, but rather because the Justice Department took actions that make any prosecution of the act effectively impossible. Which is why the people responsible for doing that need to get hammered.

[Solly Mack]

13. Sigh

...and absolutely any of what you typed out is supposed to make me feel better about allowing torturers to walk free?

I'm now required to feel good about that fact?


Fuck anyone thinking that

[gcomeau]

17. No, it's not supposed to make you feel good about anything...

...except the fact that the AG of the Justice Department apparently actually gives a crap about doing things properly of course.

I wasn't happy about Stevens getting off either. But I was perfectly capable, at the very same time, of being very happy that Justice was back in the hands of someone who knows his damn job and does it right. That state of affairs continues.

[mbperrin]

23. So why did we execute those folks at Nuremberg who were following

the law at that time in that country?

We owe them an apology now?

[stillcool]

28. "We" didn't...there were what 22 people...

who stood trial at Nuremberg? And of course the only reason the trials took place at all is because Germany lost the war. Isn't it ironic that those that benefited the most, were never even mentioned? Like the Bush patriarch?

[No Elephants]

35. What does the number of people proseuted have to do with anything? Point is, we killed people over

the Nuremberg defense. Now we honor it.

[stillcool]

50. Well..when you assert that the

soldiers were convicted at Nuremberg it's not true. I guess that doesn't matter.

[Iowa]

30. You nailed it...

What the poster you are responding to fails to understand is that there are some crimes (like torturing prisoners and children) that are so heinous that there can be no law that shields one from such vile acts. In other words, any law that legalizes atrocities is superseded by other, more important considerations. Most people understand this intuitively. It is a principle that forms the basis of all human rights, it has been long settled, and it should not need to be "debated" on a progressive forum.

[gcomeau]

31. "We"

...were never complicit in telling them they were acting legally thus destroying our ability to act as prosecutors. And "we" prosecuted them under international law.

[zipplewrath]

26. So this is good faith

You are contemplating torturing someone, but it occurs to you that it is illegal. So you call up the DoJ and get them to write an opinion that says it's okay to torture someone. So they go along with the idea. You've got members of the FBI telling you that you are torturing people, but you ignore them because you got this memo from DoJ. You've got past precident saying what you are doing is torture, and that the US has tried and convicted people for doing what you're doing. But you've got this letter. So this is "good faith". These are the "four corners" that are going to protect you from being prosecuted because you conspired with the lawyers at DoJ to create this legal limbo in which you can torture people and somehow be operating in "good faith".

I'm trying to figure out how one operates in "bad faith".

[stillcool]

29. not really...the military trains you..

in interrogation techniques. These are the techniques you are to use when you interrogate. From what I have read the back and forth between the military and the administration did not involve those doing the deed.

[No Elephants]

40. To plead entrapment by estoppel successfully, the defendant must show that his or her

reliance was reasonable.

"Entrapment by estoppel
What is entrapment by estoppel?

affirmative defense known as entrapment by estoppel. Such a defense is available when a government official has actively misled a defendant into a reasonable belief that his or her charged conduct is legal. United States v. Neville, 82 F.3d 750, 761 (7th Cir. 1996).

"he defense is available to those defendants proving that a government official, acting with actual or apparent authority, affirmatively assured or actively misled the defendant into a reasonable belief that certain conduct was legal. Neville, 82 F.3d at 761. The defendant must actually rely upon the official’s assurances in choosing his or her course of conduct, and such reliance must be reasonable in light of “the identity of the agent, the point of law represented, and the substance of the misrepresentation.” Id. In short, the defendant must have a reasonable belief that he is acting “pursuant to official authorization” to commit the crime or crimes with which he has been charged. Id. Given this rigorous standard, we have characterized entrapment by estoppel as a defense that is “rarely available.” Id.

As a prerequisite for presenting an entrapment defense to the jury, the defendant must produce sufficient evidence from which a rational jury could infer that he was entrapped into committing the crime charged. United States v. Santiago-Godinez, 12 F.3d 722, 727 (7th Cir. 1993). Where the evidence proffered is insufficient as a matter of law to support the defense, a district court does not err in making a pretrial ruling precluding the presentation of the defense at trial. Id. A district court’s ruling in this regard is reviewed de novo. Id. at 726.

United States v. Fish, No. 04-1197 (7th Cir., Nov. 3, 2004), *2-4. In Fish, a unanimous three-judge panel held that "Fish' born into a culture of pervasive violence and disrespect for the rule of law that was created and fostered by flawed governmental policy," did not allow him to assert entrapment by estoppel. Fish, who lived on tribal land, claimed that since the federal government disregarded the tribe, it de facto said that the tribe did not fall under federal law. "

http://federalism.typepad.com/crime_federalism/2004/11/...

[gcomeau]

45. I'm aware.

Considering the source of those legal opinions how in the world do you think they'd fail to do that, exactly? If there's a more textbook case that ever existed, by all means point me to it. It's ironclad, and Holder obviously knows that.

[FiveGoodMen]

41. Why didn't that argument work at Nuremberg?

[gcomeau]

46. Because it obviously didn't apply.

Feel free to figure out why on your own. The answer is already found elsewhere in this thread.

[FiveGoodMen]

47. Fuck you....

[gcomeau]

48. Awww, cute. -nt

[Zhade]

53. No. Torture has been illegal for DECADES. This was not a secret.

NT!

[gcomeau]

55. Yes... and?

Were you under the impression that altered a single thing I just said? It doesn't. Nobody was claiming otherwise.

[Snazzy]

56. hooey

The law is not stone.

Take your example. Stevens was tried, and the 82 y/o man will not go to jail. Too bad (from my perspective and from an absolutist perspective, I suppose). But what else happened? His corruption was highly publicized in publicly understandable way, he no longer sits as a Senator, and I think his quid pro quo buddy who pleaded is in the can right now. Further, those in the Ashcroft/Gonzalez JD who clearly broke the rules in several ways are in a contempt hearing and should fear for their freedom and certainly their jobs. Might we even find out that they were pressured to toss the case by someone interesting? Time will tell.

Was justice served? Reluctantly I say, I think so.

The interesting thing to me is that both Holder and the Alaskan judge had to think about and weigh all of that. Their hands were not forced. Much like a jury does when they are informed of the rules and how they must act on the rules, both decided to make a statement about the rule of law. Good, but certainly not required. The American people hired these men for this reason, their judgment. That they acted instead of letting it slide speaks highly of each, yet it is not a mark of just following procedure.

No the law is not stone, and purposely so; it is not all rules of law and procedure. By design there is a human element always that balances. (Interesting that the right tries so hard to limit judicial discretion and jury awards, eh?). The notion of "he got off on a technicality" has some truth in it, but also a lot of Hollywood. A lot of people go to jail because the judge wants them there, and on that day, in that judge's court, the judge doesn't give a shit about your technicality.

Want a good example, try: Bush v. Gore.

(I'm sorry I don't have time to think of something more obscure).

So as you read this thread, and the people objecting to your procedural "out" for the torturers, keep in mind that our law has the judgment of an individual and/or our peers built in always.

That's for an important reason, which readily becomes apparent on weighty issues like war crimes committed by the friggin' US Government.

There are some things basic human values will always trump. In the end I think we will find there is no such thing as a cover your ass memo for torture.

[gcomeau]

57. Neither is the law tissue paper.

This isn't a matter of just needing to stretch a little bit to be able to get to a point where you could reasonably prosecute those agents. You'd have to SHRED the provisions against entrapment to do it. This isn't "maybe, kinda, if you look at it a certain way" entrapment by estoppel, and we just won't look at it that way and plow right ahead. It's the clearest case I can possibly think of.

This is not a "procedural out". It is nothing so ridiculously trivial. These people were given an official legal opinion, in writing, from the highest levels of government, that their actions did not constitute a violation of the law. That isn't some unimportant little technicality you can just ignore if it's inconvenient to you.

[Snazzy]

59. OLC doesn't make laws

Congress does. Including international laws.

On the one hand we have a fine selection of clear laws against torture.

On the other we have OLC becoming a political advocate (not their job) and doing so ex post.

Will the cover your ass memos, which apparently any law student can prove are circular and craven political advocacy instead of sound analysis (OLC's actual job), trump the Geneva Conventions, UN Conventions Against Torture, and the many applicable US and international laws? Is the OLC more powerful in their statements than all these bodies? Does a highly trained CIA interrogator not know when she is torturing someone? Did the virtual armies of lawyers at DOD, CIA not get read in? Did the American people really sign up for a host of pseudo secret laws that contravene public law diametrically?

One day a judge will decide. The answer to these question is no however. But it is complicated.

[gcomeau]

61. Completely 100% irrelevent.

Of course they don't make laws!!! If they DID what happened wouldn't be entrapment because it has to actually BE a crime before you can be entrapped into committing it. Get it? If they actually MADE it legal than we wouldn't be having this discussion at all.

I am flabbergasted at how many people think "The OLC doesn't make laws" somehow is an answer to having it pointed out to them that entrapment occurred.

[Snazzy]

62. no it's germane to both of our arguments

In your case, you bring up entrapment by estoppel. But what you aren't considering is that there is a notion of the reasonableness of the authority.

Reasonableness is exactly what I'm talking about when I say there is room for judgment by human. These memos were written as a get out of jail free card, and after the fact in several ways. They are also bunk, legally.

So again, clear laws against torture known by all. Bad advocacy to ignore those laws by OLC.

This analysis of reasonableness is not dissimilar to the right of a soldier in our military to disregard an unlawful order. And I think if we were to dig around a bit, we'd find that appealing to bad authority like this makes an appearance in lots of places in law.

-----

What is entrapment by estoppel?

affirmative defense known as entrapment by estoppel. Such a defense is available when a government official has actively misled a defendant into a reasonable belief that his or her charged conduct is legal. United States v. Neville, 82 F.3d 750, 761 (7th Cir. 1996

http://federalism.typepad.com/crime_federalism/2004/11/...

(that's just first google hit for what I as thinking about, I see federalism in the url, so prob. some rw crap there). (edit clarity)

[gcomeau]

63. I'm perfectly well aware of the reasonableness criteria.

And it has absolutely nothing whatsoever to do with anyone thinking the authority in question can MAKE laws. Only that they are an official of the government who is in a position such that their statements on matters of the law can be trusted to be authoritative and correct.

There is no chance in hell you could pull off an argument that receiving an official legal opinion from the White House legal council doesn't meet that bar.

[Snazzy]

64. and that's a misread--

reasonableness of the opinion versus the explicit validity of the anti-torture statutes, is the point. Otherwise you are saying that anything an authority says is always reasonable, in which case why bother weighing reasonableness in the first place. It's not that they are a reaxsonable authority, it's that their words carry reasonable meanings.

Anyway, it is complicated, but you will hear more about just this point.

(edit clarity--alright gotta do work, cheers)

[gcomeau]

65. No, you're the one misreading the situation.

Your denials keep focusing on torture being illegal and insisting that nobody should have believed otherwise. What you keep failing to grasp is that nobody is saying any different.

That's not what the OLC memos argued. They were entirely focused on whether the techniques listed legally were torture. And they promptly went about laying out all manner of convoluted legalese twisting of the law to tell those agents "Nope, this doesn't count, you're in the clear".

Entrapment by estoppel is evaluated based on multiple critera.

1. Are they acting on the direction of a governemnt official? - Check.
2. Is it an offical with actual OR apparent legal authority? - Check.
3. Is the direction given such that it could be reasonably believed to be valid? - Like it or not, obviously "Check". Something can be wrong and still be presented believably to an audience disposed to accept what they're being told. And that was certainly the case here.
4. The defendent has to act based on the direction provided. - Check.

It's open and shut.

[Snazzy]

66. your point 3

is exactly what I am talking about--that is what needs to be evaluated. I do not believe that point is open and shut, obvious or beyond contention.

Please don't tell me what I grasp or not. You are indeed "saying different" by telling me I cannot evaluate the law versus the OLC guidance about the law in looking at criterion 3. I'm saying that's hooey, the law is king, not the friggin' guidance. That's how you start to unravel reasonable, not by your narrow (and misplaced) definition of the JD being the high-falooting authority of authorities.

[gcomeau]

67. No, you're wrong.

When you're evaluating whether entrapment occured the GUIDANCE is king because that's how the entrapment occurs in the first place. With the guidance, NOT with the law. If the guidance came from an official it was reasonable to believe had authority to issue it, and the guidance was constructed and presented in such a way as to make it reasonable to believe it was valid, and the person is was presented to took action on that basis... then case closed. Done. Entrapment occured. The end.

[Snazzy]

68. right

"and the guidance was constructed and presented in such a way as to make it reasonable to believe it was valid"

That's it. Was the advice valid? I say no. I think courts will say no. You seem to think that's simple, "case closed." I don't or we would just be in Nuremberg. I do however think it is complicated and would need to be argued.

And with that, I don't really have anything more to say about this. My position is clear as is yours. We disagree.

[gcomeau]

69. No.. NOT "was the advice valid".

You still are failing to grasp the difference between the guidance and the law. The only possible way the advice could be valid is if those techniques actually WERE legal, in which case issues of entrapment become completely irrelevent. Of COURSE the advice wasn't valid!

The advice HAS to be NOT valid for us to be looking at an entrapment situation! You CANNOT entrap someone with valid legal advice, if it was valid there was no crime to BE entrapped into committing in the first place! ALL entrapment by estoppel cases involve invalid guidance! That's the whole point.

The question you ask when determining if the entrapment occured was whether the advice was presented in a way to make it reasonable for the agents to BELIEVE it was valid. And yes, it clearly was.

[Snazzy]

70. yep

I understand that. And again it breaks down on your "believe it was valid." Especially so when you consider that these memos may well have come into existence specifically to establish a entrapment by estoppel type defense (and there are some others), were requested by those contravening the law, and end with a disclaimer. To me, there's no "it clearly was" about it. Your millage may vary.

[shadowknows69]

15. I don't like it but if we have to grant some immunity to the "good Germans" to get to the Furher

I can live with that.

[Solly Mack]

19. I'll have to live with it, yes

[No Elephants]

37. That is not why we are granting them immunity, though. You are thinking of immunity

given so that the person will testify against higher ups (or just others) without fear of being prosecuted. This immunity is not being given in exchange for anything.

Apparently, we've simply learned to love the Nuremberg defense.

[HereSince1628]

6. That really is pretty much a drop-line for an AG.

I can wait to dance for the announcement of a criminal grand jury being seated.

[No Elephants]

38. Meh. I'm waiting for convictions, if any.

[bdamomma]

7. is it up to Holder to appoint a Special Prosecutor?

wouldn't this be the way to go.

[stillcool]

27. That is Levin's recommendation..

I find it hard to believe that the release of these memos and the report was not choreographed very carefully.

[Soylent Brice]

8. off to the greatest with ye

[Vidar]

9. I like the words. Hopefully, he will back them up.

[tomm2thumbs]

10. They should quadruple his secret service and double his pay!!! Good For Him

I think it also gives them reason to not ignore lower-down culprits who went fully and completely outside the letter of accepted legal terms - and committed acts that in a sense threatened America's security by undermining our credibility with the world, friends and enemies alike.

[Lone_Star_Dem]

12. It sounds promising

It would also appear some (Cheney) might be a tad worried they're going to be perusing this further.

I'm going to sit back and wait to see how this plays out. However, if some from the former Bush administration are becoming nervous enough to slither back out from under their rocks, I do take that as an encouraging sign.

[shadowknows69]

14. The language is getting more encouraging

Still not getting my hopes up until I see someone frog marched.

[tomm2thumbs]

16. If anyone is looking for a job, I bet the AG's office is hiring - get those resumes in

gonna be a busy, busy place really, really soon

[Wizard777]

20. The link is not working for me. But I'm hoping Holder will follow the FULL body of law.

Not only US Code but our obligations under treaties as well. These two elements come together to form the Supreme law of the United States of America.

[No Elephants]

42. The Convention Against Torture requires us to prosecute, but the devil is always in the details.

[IndianaGreen]

21. Holder needs to appoint a Special Counsel to investigate law breaking

That's the only way to protect the integrity of the investigation and prevent political influence from corrupting the process.

I recommend Robert B. Fiske Jr., a Republican, the original Whitewater prosecutor appointed by AG Janet Reno. Fiske is still alive and he is a partner with Davis Polk & Wardwell.

Here is his bio:

http://www.dpw.com/lawyers/bio/fiske.htm

[yodermon]

22. "...President Barack Obama opened the door ..." i'm sick of the disinfo

The media are still framing this in terms of the bush administration, where the executive wields control over the DOJ.
The door is not Obama's to open OR close. It is Eric Holder's.

[dgibby]

24. No wonder the republicans didn't want him for AG!

[Prisoner_Number_Six]

25. New legal precedent: "Spirit" of law trumps Letter of law.

And the Spirit leads them whence it will, and to hell with the rest of it...

Exactly when was this fuzzy "Good Faith" thang incorporated into the law???

[guitar man]

32. If this comes about

and they get Cheney, it will be painful but I will gladly take the pain of the monkeys flying out of my ass just to watch it unfold.

[Skittles]

33. they got the message

[Zhade]

54. Did they? They're willing to let torturers walk, even though torture has been illegal for decades.

This "in good faith" bullshit is just that - these people KNEW torture was illegal, no matter what the b*s* administration said.

[Skittles]

58. mmmmm

by message I mean they know we the people don't want this issue swept under the.....as far as what WILL happen, that very much remains to be seen - it should have been investigated starting on DAY ONE

[katty]

34. 1-follow the law, 2-reveal the evidence, 3-convict - Yes We Can

[greyghost]

36. Alrighty then! However,I feel that the military higher ups will be getting a

free pass for Abu Ghraib unless Holder goes after Rummy. The soldiers who were acting in "good faith" were already court marshaled.

[No Elephants]

39. Yep. The military got treated worse than the civilans will--and we DEMAND that they follow orders.

[tbyg52]

44. >>"We're going to follow the evidence wherever it takes us, follow the law wherever that takes us,"

That's all I ever wanted.

[aceofspades]

49. It's unclear what Holder means by "law"

I hope he doesn't think the bogus claims by OLC lawyers are considered law.

[truedelphi]

51. K & R for later reading. n/t