Reply #4: well then the president doesn't know very damn much about constitutional law!

[flyarm]

and it looks to me like the President is complicit in a damn cover up!

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Justice Louis D.Brandeis

"Our government is the potent, the omnipresent, teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself;"

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We know from the ICRC report this technique had been used, three years before Bradbury wrote his OLC memos, with Abu Zubaydah.

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Nuremberg Defense

The Nuremberg Defense is a legal defense that essentially states that the defendant was "only following orders" ("Befehl ist Befehl", literally "order is order") and is therefore not responsible for his crimes. The defense was most famously employed during the Nuremberg Trials, after which it is named.

Before the end of World War II, the Allies suspected such a defense might be employed, and issued the London Charter of the International Military Tribunal (IMT), which specifically stated that this was not a valid defense against charges of war crimes.

Thus, under Nuremberg Principle IV, "defense of superior orders" is not a defense for war crimes, although it might influence a sentencing authority to lessen the penalty. Nuremberg Principle IV states:

"The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."

The United States military adjusted the Uniform Code of Military Justice after World War II. They included a rule nullifying this defense, essentially stating that American military personnel are allowed to refuse unlawful orders. This defense is still used often, however, reasoning that an unlawful order presents a dilemma from which there is no legal escape. One who refuses an unlawful order will still probably be jailed for refusing orders (and in some countries probably killed and then his superior officer will simply carry out the order for him or order another soldier to do it), and one who accepts one will probably be jailed for committing unlawful acts, in a Catch-22 dilemma.

All US military personnel are supposed to receive annual training in the Law of Armed Conflict, which delineates lawful and unlawful behaviors during armed conflicts, and is derived from the Geneva Conventions, a subset of international law. This training is designed to ensure that US military personnel are familiar with their military, ethical and legal obligations during wartime but proof of military personnel receiving this training is difficult to substantiate and is often not received.




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The United Nation’s top torture investigator has suggested it is illegal under International law for President Barack Obama to announce that the United States government has no intention of prosecuting low-level CIA officers who carried out torture sanctioned by the Bush Administration.”
http://rawstory.com/08/blog/20.....nal-law/#-

http://tinyurl.com/c8v8nr


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Scott Horton on Democracy Now! today:

There’s a very strange factual issue here. President Obama says that we shouldn’t prosecute them because they relied on these memos. But a factual review is going to show that the CIA was using these techniques from April 2002, and these memos were commissioned and written, the first of them, in August of 2002. So it’s quite clear in fact that CIA agents were out in the field doing these things, not relying on these memos, with the memos not even being in contemplation.”

EDIT TO ADD:
The Eichmann defense has long since been accepted as providing no excuse.

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to copy someone else from du..sorry i don't have the name of the person..
but they are 100% right!

Article 2 of Geneva is very clear…there is no excuse, none, for torturing anyone who falls under the jurisdiction of a signatory…under any circumstance. There are no excuses under Geneva. But apparently, in America’s failing democracy, there are excuses aplenty for ignoring the laws…


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http://emptywheel.firedoglake.com/2009/04/18/the-torture-memos-and-the-fbi-cia-dispute/#more-3967

The Torture Memos and the FBI-CIA Dispute
By: emptywheel Saturday April 18, 2009 5:52 pm

The FBI-CIA Dispute about Abu Zubdaydah

Now, one of the things I find most intriguing about Johnston's description of the squabble between FBI and CIA are the terms used to describes Abu Zubaydah's cooperation or lack thereof.

In Thailand, the new C.I.A. team concluded that under standard questioning Mr. Zubaydah was revealing only a small fraction of what he knew, and decided that more aggressive techniques were warranted.



F.B.I. agents on the scene angrily protested the more aggressive approach, arguing that persuasion rather than coercion had succeeded. But leaders of the C.I.A. interrogation team were convinced that tougher tactics were warranted and said that the methods had been authorized by senior lawyers at the White House.



We've long known that the FBI insisted they had gotten valuable information from Abu Zubaydah from persuasion. We've long known that the CIA focuses instead on purportedly valuable information they got through torture. But the chronology here is critical: FBI is interrogating Abu Zubaydah. CIA takes over and that new team--almost immediately, it seems--decides Abu Zubaydah is withholding information. At least partly because Abu Zubaydah had not produced any information about an impending attack, the CIA pushed for more coercion. But always, for the CIA partisans in this fight, there is the claim that "he was defiant and evasive until the approved procedures were used."
The torture memos offer one reason for that formula, I think--indeed, they explain the furor of this debate. Check out what the second paragraph of the Bybee Memo says:

Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply. Zubaydah is currently being held by the United States. The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United Stares or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, your intelligence indicates that there is currently level of "chatter" equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an "increased pressure phase."

That is, the entire memo pre-approving their actions is premised on CIA's representation that, first, Abu Zubaydah was evasive, and second, that he had more information. That's got to be one reason the CIA guys are so adamant on this point. It's their legal lifeline, and if that fact is challenged--as, indeed, the CIA guys knew it to be at the time--then their entire legal cover for their actions falls apart.


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http://emptywheel.firedoglake.com/2009/04/18/the-cia-directors-protecting-themselves/

The CIA Directors Protecting Themselves
By: emptywheel Saturday April 18, 2009 8:52 am

The AP reports that along with John Deutsch and Michael Hayden, George Tenet and Porter Goss have criticized Obama's release of the torture memos.

Of course Tenet and Goss would criticize Obama's decision. Both of them are personally implicated by revelations in the memos.

As I noted (as did William Ockham--I stole his transcription), the May 30, 2005 memo makes it clear that people at CIA Headquarters ordered Abu Zubaydah to be waterboarded additional time(s)--for the 83rd time, perhaps?--even after interrogators working with him directly believed he was complying with their demands.

This is not to say that the interrogation program has worked perfectly. According to the IG Report, the CIA, at least initially, could not always distinguish detainees who had information but were successfully resisting interrogation from those who did not actually have the information. See IG report at 83-85. On at least one occasion, this may have resulted in what might be deemed in retrospect to have been the unnecessary use of enhanced techniques. On that occasion, although the on-scene interrogation team judged Zubaydah to be compliant, elements with CIA Headquarters still believed he was withholding information. See id, at 84. At the direction of CIA Headquarters interrogators, therefore used the waterboard one more time on Zubaydah. See id, at 84-85.

We can't pin this on Tenet directly, though we do know Bush was pressuring Tenet at the time to deliver some kind of intelligence that would substantiate Bush's public assertions that Abu Zubaydah was important within the Al Qaeda ranks.

"I said he was important," Bush reportedly told Tenet at one of their daily meetings. "You're not going to let me lose face on this, are you?" "No sir, Mr. President," Tenet replied. Bush "was fixated on how to get Zubaydah to tell us the truth,"

And in any case, we know that the one time when even the CIA agrees Abu Zubaydah was waterboarded "needlessly," it was done on the order of CIA headquarters under Tenet's leadership.

Also as I noted, the May 10, 2005 "Techniques" memo reveals that Abu Zubaydah's interrogator far exceeding OLC guidlines on how to administer waterboarding.

The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 46, 103-04, and also that it was used in a different manner. See id. at 37 ("he waterboard technique ... was different from the technique described in the DoJ opinion and used in the SERE training. The difference was the manner in which the detainee's breathing was obstructed. At the SERE school and in the DoJ opinion, the subject's airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency Interrogator ... applied large volumes of water to a cloth that covered the detainee's mouth and nose. One of the psychologists/interrogators acknowledged that the Agency's use of the technique is different from that used in SERE training because it is "for real--and is more poignant and convincing.") see also id. at 14 n14.

Not only does this implicate Tenet--who was DCI at the time--for further mismanagement, but it implicates his successor Porter Goss.

Goss was in charge when the CIA--having been warned not to destroy the torture tapes--did so anyway. And this OLC memo provides proof that CIA had more to worry about than just that the identities of those depicted administering torture on the tapes would be revealed. We know that the tapes were clear evidence that the interrogators were breaking the law--exceeding even the expansive guidelines laid out in the Bybee Memo on how waterboarding should be used. This memo, in other words, proves what we already suspected--that the torture tape destruction served to obstruct justice.

And that destruction happened on Portor Goss' watch, even after he had been warned not to let the tapes be destroyed.

So its no wonder that Tenet and Goss would object to the release of these memos.

What is surprising, though, is that journalists wouldn't begin to explore why Tenet and Goss feel so strongly about it.