ACLU Supports Torture Defense

[jberryhill]

Well, so much for the ACLU.....


http://www.aclu.org/safefree/torture/39060prs20090318.html

The application of the "advice of counsel" statutory defense depends on the facts of any possible charge against a particular defendant. While the OLC opinions and the statutory defense may be an effective defense for some potential defendants, the OLC opinions and the statutory defense will be less effective, or completely ineffective, for other potential defendants. In particular, persons who might not be covered by the "advice of counsel" defense include: persons who engaged in torture or abuse prior to the issuance of the OLC opinions; persons who did not rely on the OLC opinions; persons who knew the OLC opinions did not accurately reflect the law; persons who are lawyers or were trained as interrogators on applicable law; persons who acted outside the scope of the OLC opinions; or any persons who ordered the OLC opinions drafted specifically for the purpose of providing a defense. The determination of the likely effect of the statutory defense would depend on the facts of a particular instance of alleged torture and abuse.



The well-known private torture-promotion agency - the ACLU - agrees that good faith reliance on a DoJ opinion may be "an effective defense" to being charged with torture.

Why does the ACLU coddle torturers?

(edited to add /sarc)

[vaberella]

1. Because they have no morals like someone suggested of President O. n/t

[genna]

40. I didn't get the ACLU is laying down and playing dead by reading the link

In part:

"The ACLU's letter, signed by Executive Director Anthony D. Romero, states in part:

"The fact that such crimes have been committed can no longer be doubted or debated, nor can the need for an independent prosecutor be ignored by a new Justice Department committed to restoring the rule of law … Given the increasing evidence of deliberate and widespread use of torture and abuse, and that such conduct was the predictable result of policy changes made at the highest levels of government, an independent prosecutor is clearly in the public interest. The country deserves to have these outstanding matters addressed, and have the assurance that torture will stop and never happen again. An independent prosecutor is the only sure way to achieve these goals.""


I'm not sure where the OP was going with his piece (maybe he was being sarcastic?), but the link is informative.

[cali]

2. yeah, let's throw the ACLU under the bus- and don't forget to toss Greenwwald

under the front tires.

Why is there so much abject stupidity and reactive, uninformed crap on DU?

[vaberella]

3. Because Turley is NEVER wrong. n/t

[Supersedeas]

23. For the Defense to apply, it must be raised. One can't assume the Defense applies without

investigating and holding those accountable who can not effectively rely upon the defense.

[Adelante]

7. I think you are not understanding the OP nt

[jberryhill]

8. Reading Is Fundamental, Cali.... /nt

[mmonk]

4. You miss the key. The word "prosecution" denotes trial.

[jberryhill]

9. Do you think....

...a prosecutor should have an indictment issued where the prosecutor knows the defendant has an effective defense?

Really?

[mmonk]

11. You are right. Clear crimes should be ignored if it was

directed by someone other than the defendant, but carried out by the defendant.
:sarcasm:

[jberryhill]

13. Prosecutors have an obligation not to bring cases

...unless they have a threshold likelihood of obtaining a conviction.

If you know someone has a valid defense, that has to go into the decision whether or not to prosecute.

You think Holder's doing a crappy job - that's fine. We disagree.

[mmonk]

16. You can't catch the big fish without using minnows.

And yes, this DOJ is a failure.

[jberryhill]

18. That's absurd

We know who ordered it, and we know who constructed the sham legal opinions.

The law is not a Kafka novel where the DoJ can tell you "it's legal" one day, and then prosecute you the next. That's entrapment, and not the rule of law.

[mmonk]

26. What is Kafkaesque is what has been happening in the area

of Constitutional law and those in charge with enforcing it so far since 9/11.

[jberryhill]

27. Agreed

Which is why restoring the rule of law without permanent institutional damage is no mean feat.

Wholesale elimination of a valid defense at criminal law would be a permanent change in US law.

[mmonk]

37. Nobody is saying that can't use that defense.

But by implication of using it in courts leads to those that did versus eliminating going to court.

[Kurt_and_Hunter]

25. No. Prosecuting with no reasonable chance of proper conviction is roughly as bad as torture

[Richardo]

5. I've heard much the same thing from other people versed in the law...

...unlike many vengeance-minded DUers.

[rug]

6. Myopic spin of the day.

[jberryhill]

10. Actually, it was the myopic spin of yesterday....

But my hindsight is usually 20/20.

[depakid]

12. You're missing a key point

"persons who knew the OLC opinions did not accurately reflect the law."

That would include just about every career professional with any substantial experience.

[jberryhill]

15. Once more, with feeling - you missed it when Obama said it

"good faith" reliance.

"who relied in good faith".

Go look up "good faith". The ACLU memo fleshes out factors that go into a good faith determination.

[depakid]

19. What that means in context of Obama's public statement

is entirely different from the ACLU's construction of the "blackletter" law.

So don't get your hopes up-

[annabanana]

14. I feel better. the ACLU doesn't back down.

They are deep in the weeds for us on this stuff day after day, week after week, year after year. This is one of the few organizations I trust to get it right.

[Solomon]

17. Jeeezuz. Every day all across America in thousand of cases, prosecutors are

flipping low level criminals to get to the higher level, and nobody complains about it. It's the cost of getting the big guys. In fact, if not for using low level guys to get to the top guys, there wouldn't be any prosecutions of those guys at all.

People are starting to make me sick with their ingnorance and shortsightedness.

Some people need to get over themselves.

[fasttense]

20. All of you have to quit looking backward.

We have to look forward to the day when another Republicon gets appointed by the Dancing Supremes. The newly selected President will simply polish off these memos and move on to torturing American citizens. What's to stop him? NOTHING.

What do you think these guys who got off on torturing Prisoners of War will end up doing? You know, after awhile they need another outlet for their Sadistic preferences they acquired with the government. Do you think they could get another job doing the same thing bush let them do to prisoners? Maybe if they simply hide out in the CIA, eventually their lust for sadism with be satisfied by another bush and dick.

[Bluenorthwest]

21. What the ACLU letter really says:

OLC Opinions Could Be Part of a Defense to Certain Criminal Charges, But Do Not Provide Immunity:

There has been a tremendous misunderstanding in the press, in Congress, and among some members of the Executive Branch on whether the OLC opinions provide immunity against prosecutions for torture or abuse. They do not. At most, the statutory defense included in the Detainee Treatment Act and Military Commissions Act could result in the OLC opinions being part of a defense to certain criminal charges. But the OLC opinions are not a so-called "golden shield," do not provide immunity, will likely not be an effective defense for many potential defendants, and should not bar any criminal investigation.

[Kurt_and_Hunter]

22. Don't bother. It's a bit late in the game to expect honesty from the kiddie propaganda corps

[jberryhill]

29. That is correct....

...and the Obama administration said that use of that defense was limited to "good faith" reliance.

Also, the Obama administration most certainly is not using it as a "bar to investigation".

They are investigating. Some here confuse the ACLU's use of the word "investigating" with the word "prosecuting".

Why, it's my understanding that as part of the investigation, certain interesting documents were released just yesterday. There seems to be considerable distraction from that salient fact.

[HamdenRice]

30. You're not disagreeing substantively with the OP

Some CIA officials who relied on the OLC opnions will be able to use them as a defense. Others, who exceeded the advice, tortured before the opinions were issued, did not have good faith, etc., will not be able to rely on them.

But the ACLU and the Obama administration acknowledge that some subset of torturers will have a valid defense.

[HamdenRice]

24. I think the Obama statement/ACLU position means CIA officers CAN still be prosecuted

I was reading the August 2002 memo, over the treatment of Abu Zubaydah, and something became glaringly obvious -- namely that the CIA exceeded the advice of the memo, so they may have exposed themselves to liability.

The DOJ advised the CIA that torture included causing the detainee mental anguish about facing imminent death.

Abu Zubaydah was the detainee that Gerald Posner claims the CIA pulled the false flag interrogation on. When they delivered him to CIA officers posing as Saudis, Zubaydah told them he thought the CIA was going to kill him.

Obama's statement was very lawyerly, and if you parse it, it suggests that officials who went beyond the memos are still liable to be prosecuted.

[jberryhill]

28. I agree with you....

...and it would not surprise me that, upon continued and further investigation, someone will be "shocked, shocked" to find that the scope of the OLC opinion defense was exceeded.

The operative qualifier in the administration's statement is "good faith".

[genna]

39. You say lawyerly like it is a bad thing

Why any consternation over the way Obama framed the issue today when he is expecting push back from both sides on how he handles the information he has willingly released?

In addition, why not accept the gap in knowledge between practicing lawyers and the man on the street person and explain the gap. For heaven's sake, break it down in ways that curious people can go look it up and understand what they are reading. I'm not asking anyone to spend hours explaining the fundamentals of torture and the prosecution thereof, but I'm sure some investigative reporter has written exhaustively about this subject which the woman on the street can understand.

[bvar22]

31. ACLU does NOT support the Torture Defense.

The OP is worse than misleading; it is twisted.

This letter from the ACLU calls for the immediate appointment of a Special Prosecutor to investigate and prosecute anyone involved in torture at any level. It does NOT endorse the Obama policy of amnesty for all "low level" torturers.

The letter also points out the urgent need to address this matter immediately since the Statute of Limitations will begin to expire in a year.

jberryhill, you should immediately post a retraction,
and an apology to those at DU who are so easily misled.


Like I said....Go read it for yourself.
http://www.aclu.org/safefree/torture/39054res20090317.html

[jberryhill]

32. "It does NOT endorse the Obama policy of amnesty for all" - is not the Obama policy

The Obama administration statement expressly was limited to reliance in good faith.

The ACLU statement spells out what those limitations on good faith reliance are.

You fail to realize that these two statements are not in conflict with each other, and it is particularly galling that you do so while intentionally mis-stating the scope of what the Obama prosecution policy thus far has been described.

So, yes, feel free to retract your statement about "amnesty for all", because you cannot extrapolate that from non-prosecution of any who acted in "good faith reliance".

Sorry, you don't get squat from me, pal.

I provided a link to the entire ACLU item precisely so that people can read it for themselves. The ACLU statement acknowledges that entrapment estoppel is a defense, and it is a defense subject to certain good faith limitations. That is what the Obama administration has thus far said, and they are continuing their criminal investigation.

[bvar22]

33. I will humbly correct the error you found....

...in the subtext of my post.

The recent statement from the Obama administration does not specifically grant immunity for "all" low level torturers.

I challenge you to meet the same level of honesty you requested from me.
I also stand by my claim that your OP is a gross distortion of the ACLU's position as stated in this letter, AND that you willfully distorted the ACLU's position in order to mislead the more gullible members of DU.

[jberryhill]

34. No....

Both say the same thing:

There is a reliance defense to prosecution. It has limits. Not everyone will be able to satisfy limits to that defense.

You are now acting as if:

1. Obama has granted some sort of "immunity" - which is a wholesale invention of yours, and

2. There is a difference between the ACLU saying "not everyone will be able to rely on this defense" and Obama saying "not everyone will be able to rely on this defense".

Both the ACLU and the Obama administration are saying "There is a reliance defense here that will not be universally applicable"

The "error you found" is a simple recognition that both entities are saying that the reliance defense is (a) not universal, and (b) limited by factors indicating good faith reliance. The ACLU memo enumerates them.

That's the difference. The ACLU calls for continued criminal investigation, and the Obama DoJ continues to investigate.

[bvar22]

35. No.

The ACLU is calling for the immediate appointment of a Special Prosecutor to investigate and prosecute ALL torturers, civilian and military at ALL levels. They merely acknowledge that some may successfully use the "good faith" argument, but that in no way should that even be a consideration or hindrance in investigations and prosecutions.

They also note the urgency for immediate action due to the expiration of the Statute of Limitations.

A more truthful title for your OP would be:

ACLU calls on the Obama Administration to immediately appoint a Special Prosecutor.

Do you stand with me and the ACLU in calling for the Obama Administration to immediately appointment a Special Prosecutor to investigate and prosecute ALL (Civilian, Military, & Contractor) involved in torture?

[jberryhill]

38. I believe the Obama administration is investigating with an eye toward prosecution

The point of the OP is that the administration's statement is being distorted all over the place on DU.

There are several knots to be untied here, and I believe the administration will appoint an SP if they deem it appropriate, and I have confidence in their judgment and commitment to the rule of law.

I believe that all cases where there is deemed to be a reasonable likelihood of conviction should be prosecuted.

I don't see a great gap between the two positions other than the fact that the Obama administration's view of the matter is informed by what they have determined thus far in the course of the investigation being conducted within the DoJ.

Unless you believe that Obama or his appointees are potential defendants, I see no reason why the investigation requires an SP.

[GeorgeGist]

36. Corruption is necessary ...

to maintain the "America" in Civil Liberties Union.