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Monday, June 01, 2009

Congressman Jerry Adler insists on a Special Prosecutor for Torture Investigation

"Not Worthy Of Our Country"

Congressman Jerry Adler wants to redeem the country and in the eyes of our allies. He declared in noting that the Bush Administration was riddled with practices that amounted to "Criminal wrongdoing" which threatened our rule of law, and very democracy, it is unacceptable to let them get away with it. He noted that Obama made progress in noting that Gitmo should be closed, but retreated in his Archives speech in not guaranteeing the sort of due process worthy of our Constitution in reinstituting the military tribunals.


He noted that the NIMBY objections are absurd fear mongering. It is preposterous that we can't place a few hundred detainees in the super-max prisons. when we house murderers, rapists and other terrorists currently in super-max prisons. These are just "scare tactics" that have no rational basis. Demagoguery.

Cleaning up the mess has to be serious, and it has to make sure that it does not happen again.

Bush, argued Nadler, took office "through illegitiate means " and was the most secretive and criminal administration in the nation's history.

The majority of the detainees are not guilty or any threat to anything. Many of them were turned in because of bounties. They have been in detention without charge. Tortured. They cannot be returned because they face danger in the countries where they came from.

The Muslims from China arrested and sent to Guantanamo are enemies of the Red Chinese state. The Chinese government wants them back and we know what the Chinese will do to them. "Things have changed when we want to arrest enemies of the red Chinese" said Nadler.

"We arrested them improperly, held them illegally. We have a moral responsibility to accept them in the country."

The republicans propose to detain them indefinitely. We cannot hold people based on speculation or unreliable (torture derived) evidence. No reason they could not be tried under the Uniform Military court or codes of justice. No reason to compromise due process by invoking a military commission. Nadler will not be a "rubber stamp" for any process that compromises due process unworthy of our constitutional due process.

"Preventative detention" will not be authorized by Nadler. "Free societies do not do that."
" Bush has soiled the nation's honor. "
Difficulty is no excuse for not dealing with tough evidentiary or trial issues honestly or appropriately. If people engaged in hostile acts against the US we should try them in a normal court. There may be people caught in the battlefield, where combat is taking place. There is plenty of precedent to hold "prisoners of war" for the duration of the conflict, and this hinges on whether someone is a true "prisoner of war." If someone is not in uniform then it is a trickier decision, but there are acceptable due process protocols for dealing with prisoners of war.
If someone is hostile to us, we ought to be able to prove in a proper tribunal
prisoner of war, we don't need inferior courts with less than normal due process provisions. This compromises our constitutional integrity.
It is without controversy now that the US government at the highest level did condone and engage in torture. The government was involved in kidnapping people and turning them over to torturers, both US torturers and foreign torturers in other countries. We know these crimes were conceived and authorized at the highest levels. We are violating our own laws if we do not investigate and prosecute the crimes.

The good new is that Obama recognizes what is torture and has come out against the practices. Obama says we no longer engage in these activities. Waterboarding, sleep deprivation is in fact torture. No doubt about that.

So what to do now? Crime in the country under domestic laws and international obligations has to be investigated and prosecuted. The Convention Against Torture was ratified by the US Senate and is valid law. The 1996 Anti-Torture Act is the law of the land. Whenever torture occurs under or in our jurisdiction we don't have a choice: we MUST investigate and where warranted prosecute it. Thus, There MUST be an investigation. There must be accountability. Independent. Guilty parties must be brought to Justice. Otherwise the Justice Dept. is just flatly breaking the flaunted law.
Because of the potential for appearance of or actual conflict of interest, this requires the AG Holder immediately Appoint a Special counsel. " There is no legal alternative" argued Nadler

"What is right is not always easy." Unless we hold the people responsible accountable, we have to anticipate that there will be no legal consequences to deter future administrations from engaging in flagrant abuses of authority. It is an unacceptable risk. We will stand judged by our allies....
Bush made us all less safe" argued Nadler.

The other danger in terms of excessive executive power to commit crime:
The State Secrets privilege. This holds that there are national security sensitive state secrets which are so sensitive cases may not proceed because of the risks to disclose information which might allegedly compromise national security. The doctrine deems cases dismissable under this theory on a first motion to dismiss preliminarily- to keep whatever information they want secret.

The Bush dept. and now Obama has taken the position that whole cases should be thrown out of court because information is so sensitive. This operates as No limit on the power of the Exec. which completely undermines our basic constitutional liberty rights. This functions as an unlimited power without check to kill any prosecution or cases in court.

Nadler stated the axiom that there is "No Right without a Remedy."
No Administration will prosecute itself. Therefore, the independent court action potential is thus a serious deterrent to executive power abuses and the only deterrent.
The only remedy we have sometimes is that a grieved party can sue. If kidnapped or tortured, they could sue the Administration. If the Government can move to dismiss on the grounds that consideration will endanger national security then there is nothing deterring illegal government action and no real limit on executive power.

These abuses render our legal system to something that looks more like the Stalinist constitution- constitutional rights become meaningless if they cannot be enforced.

There should be a requirement that a party show a Judge in camera evidence and that Judge can make a determination regarding whether the evidence compromises national security with a summary judgment ruling based on the evidence viewed in camera.
If there is no judicial review- and the Executive has exclusive power to determine when it can be prosecuted based on its own characterization of evidence against it- this is the very
definition of Tyranny.


"We are a strong and honorable enough nation to solve these problems" summarized Nadler.
"We cannot afford to fail" in making sure there is torture accountability.

The ACLU Senior Legislative Counsel on the panel indicates that the AG will not prosecute anyone who relied in good faith on legal opinions. This leaves (a) people who acted before the memos written, (b) people didn't know about or could have in good faith relied on the opinions, and (c) people whose actions exceeded the authority of the opinions.

There should be no golden Shield for all torturers or insulation against torture. The torture authorizing memos were disavowed by conservative lawyers as well as the rest of the legal community and people knew better or should have. Who actually relied on these? People who were in the meetings where it was discussed knew better, Condi Rice is well steeped in international law and what our treaty obligations are. The ACLU lawyer noted she should have known better. Everyone did.

The Bush Administration acted above the law- they knew they were violating the law in creating justifications that were not reasonable given the state of domestic and international torture law. Torture is and was a violation of our Constitutional obligations against permitting "cruel and unusual punishment." The Bush Administration in fact acted as a rogue nation in acting outside our International treaty and other obligations.

The Rule of Law cannot be truly restored unless there is a penalty for these crimes.
A rule without accountability is no rule at all.

Our Democracy Depends on Accountability. Our union is neither "more Perfect" nor more unified without the protection of our basic civil liberties. We are at a dangerous cross-roads. The Rule of Law depends on our taking the right road at this juncture.


(this was blogged in real time at the Campaign for America's Future conference shorthand and edited later so apologies to anyone reading a cached unedited version)

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