Comments on: Dear White House: Your Position on Secret Torture Memos Makes No Sense to Me, So Here’s a Picture of a Kitten in a Blender

By: annalee flower horne

annalee flower horne — Thu, 25 Oct 2007 14:17:10 +0000

Ok, so a little late to be jumping back in on this thread, but:

Doesn’t the Martens Clause make the ‘terrorist/insurgent’ distinction irrelevant? I know that international law is still playing ‘catch-up’ with regard to dealing with non-state actors carrying out acts that seem more like armed attacks than criminal actions, but Article 3 of the Geneva Conventions seems right on point when it comes to legal loopholes being used to permit torture.

Not being a smartass or anything– as stated above I am an undergrad planning to go to law school for international law, so I probably only know enough about this to embarrass myself.

By: Phil-Z

Phil-Z — Fri, 12 Oct 2007 18:21:11 +0000

Bananna Republic smoothies?

By: AEM

AEM — Wed, 10 Oct 2007 13:59:46 +0000

While the Justice Department isn’t of counsel to the White House, as Steve Buchheit points out, they are part of the Executive Branch, and therefore do owe ‘loyalty’ to the Executive – as a concept. The catch there is that what they owe is their best efforts to ensure legality and accuracy in proposed actions, rather than rubber-stamping. While not the Solicitor General, they’re also not a Congressional body. Unfortunately, events have led to that perception.

The issue of torture is more complicated than merely citing the Geneva Conventions too, considering the key difference between insurgents (i.e. ‘local’ individuals who attack military targets, and are subject to the Conventions by any valid standards) and terrorists (i.e. individuals who target civilians, as well as military targets, are, properly speaking, hostis humani generis, enemies of all humanity, and do not merit Geneva Conventions protection under applicable precedent).

For the Justice Department to do its job properly, the key (and subtle) distinctions between actual insurgents and terrorists must be examined in detail, pursuant to issuance of directives that could ensure protection where appropriate, and propose limits elsewhere.

Unfortunately, nobody seems to be analyzing the middle route in detail, as the extremes are far more newsworthy…

By: Steve Buchheit

Steve Buchheit — Sat, 06 Oct 2007 01:18:38 +0000

annalee flower horne, actually it’s more of “torture is illegal and we couldn’t even fight it on moral grounds, but let’s define torture this way, then we can say what is torture and what isn’t, and then we can get away with it.”

The Justice Department lawyers aren’t the President’s (that’s the office of legal council, well, almost, he actually has private lawyers for that. The legal council office are public lawyers and, while IANAL, I don’t think they are actually covered under client/lawyer priveledge, the other laywer who do read this blog can correct me on that), they’re ours (as citizens).

By: John H

John H — Fri, 05 Oct 2007 21:17:29 +0000

I iz in ur blendr — no margaritaz?

By: Scott

Scott — Fri, 05 Oct 2007 21:06:46 +0000

Jules:

Where are you hiding the secret documents? Tell me before I accidentally rest my hand on puree!

By: Jules

Jules — Fri, 05 Oct 2007 19:14:43 +0000

Who cares about the Americans’ circumventing of basic rights? What did that kitty ever do to you? Take it out of the blender!

By: annalee flower horne

annalee flower horne — Fri, 05 Oct 2007 17:32:49 +0000

Wakboth, my issue is this: if I were, say, the president of the united states, and I wanted to do something of dubious legality, I would want my lawyers to say "Uh, yeah, that's illegal under the Geneva Conventions, the 1984 Convention Against Torture, and probably under customary law. But here's the justification we'll use to defend you." I would not want them to say "Oh that's totally legal because [a bunch of BS that I as an undergrad international law student can see clear through]." I mean, the President's lawyers are supposed to defend him even when he's dead wrong. That's why they get paid. But if I were the President, and I had no background in international law, I would want my lawyers to lay out the facts to me before coming up with their best argument that my behavior is actually legal. To their credit, no one could come up with a better argument than theirs, because there isn't one. Torture is illegal under international law, and you really can't make a convincing argument to the contrary. But I would want my lawyers to tell me that. That's not what Bush's lawyers told him.

By: Richard

Richard — Fri, 05 Oct 2007 17:07:38 +0000

Here’s the trick:

Operate outside of the law. Make no bones or pretense about it. Then, just to confuse the opposition, which is following the law, write up bogus “law documents” or “legal memos” that can then be argued in court.

You get to break the law with impunity, while the opposition tries to gain redress through legal channels. Ignore all legal requests for documentation or interviews, claiming, quite illegally, that you aren’t subject to such requests.

It helps if you get to seed the justice system with judges who share your basic beliefs, and corrupt the department that is supposed to determine whether actions are legal with people who are there to obfuscate your illegal actions.

Banana republic, indeed. Enjoy!

By: Steve Buchheit

Steve Buchheit — Fri, 05 Oct 2007 13:26:53 +0000

Why, it’s a legal opinion AND a floor wax.

(the cat-o-matic 2008)