Dangerous Executive Orders

[davidswanson]

The Center for Constitutional Rights has expressed concern that President Obama's executive order banning torture may contain a loophole. But no president has any right to declare torture legal or illegal, with or without loopholes. And if we accept that presidents have such powers, even if our new president does good with them, then loopholes will be the least of our worries.

Torture is, and has long been, illegal in every case, without exception. It is banned by our Bill of Rights, the Universal Declaration of Human Rights, the Geneva Convention relative to the Treatment of Prisoners of War, the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, and Title 18, U.S. Code, Section 2340A. Nothing any president can do can change this or unchange it, weaken it or strengthen it in any way.

Preventing torture does not require new legislation from Congress or new orders from a new president. It requires enforcing existing laws. In fact, adherence to the Convention Against Torture, which under Article VI of our Constitution is the supreme law of the land, requires the criminal prosecution of torturers and anyone complicit in torture.

Most of the seemingly noble steps taken by Congress in recent years and by President Obama in his first week have served to disguise the fact that torture always was, still is, and shall continue to be illegal.

In 2005, John McCain championed the McCain Detainee Amendment to the Defense Appropriations bill for 2005, which passed the Congress and was signed into law by President Bush. This was yet another law banning torture. It was not needed, but no harm done, right? Wrong. Passing laws like this serves to create the illusion that torture was previously legal. And that allows the new laws to create exceptions. In fact, McCain allowed a major loophole for the CIA. And that would have been bad enough. But President Bush tacked on a "signing statement" throwing out the entire ban on torture. So, with Congress trying to ban torture, and the president eliminating the ban, people could hardly be blamed for believing torture was legal.

President Bush also signed executive orders and ordered the creation of legal opinions claiming that torture was legal. President Obama's new order revokes one of Bush's. But Obama has no more right to undo the legalization of torture than Bush had to legalize it in the first place. Only Congress has or should have the power to legislate. Obama's new order requires adherence to laws, rather than claiming the right to violate them, and yet there is a wide gap between publishing an order requiring adherence to the laws and actually enforcing the laws by indicting violators.

The same order that President Obama uses to ban torture also orders the closure of all CIA detention facilities. Congress never authorized the creation of such things in the first place. Ordering their closure is the right thing to do. But if a president can give the order to close them, what is to prevent another president giving the order to reopen them? The answer should be all of the laws and treaties violated.

Obama's executive order largely orders the government to cease violating various laws. But in so doing, rather than strengthening the laws, the new president weakens them almost to the point of nonexistence. For, what power does a law have to control behavior if it is never enforced? What deterrent value can be found in a law the violation of which results merely in a formal order to begin obeying it? And what status are we supposed to give all the other violated laws for which no such formal orders have been given?

Rather than picking certain of Bush's unconstitutional executive orders or signing statements to revoke, leaving the others in apparent need of revocation, President Obama should simply announce that he will not give any consideration to any past orders or statements that claim the right to legalize the illegal. And the new attorney general should appoint a special prosecutor to indict and prosecute the previous president, vice president, and all top officials who violated laws.

[Book Lover]

1. K&R. Well stated

Thank you for this important post.

[midnight]

2. I hope this is corrected soon.

Most of the seemingly noble steps taken by Congress in recent years and by President Obama in his first week have served to disguise the fact that torture always was, still is, and shall continue to be illegal. President Obama should simply announce that he will not give any consideration to any past orders or statements that claim the right to legalize the illegal. And the new attorney general should appoint a special prosecutor to indict and prosecute the previous president, vice president, and all top officials who violated laws.

[excess_3]

3. President Obama's signing statements,

if and when,
should be null and void.

[bjobotts]

42. There's a major difference in character between Bush and Obama

[bjobotts]

43. Bush kept everything secret, hidden and lied about it all.Obama right up front

[SusanaMontana41]

45. No doubt about it!

But it's not about the person who holds the office; it's about the office itself. We can't have presidents — even those we like — thinking some torture is OK. Close the loopholes, Mr. President!

[Solly Mack]

4. K&R

[Exen Trik]

5. Nothing wrong with a little redundancy.

As far as I know the executive orders don't mention torture as being "no longer legal" or anything to that effect. The orders now are as much symbolic as legal, a necessary statement for the public and government that things have changed and our policy is unambiguous. Nothing about this will weaken later investigations or enforcements of the law.

After all, the attorneys, apologists and plain old liars will always find some (il)logical argument to base their spin on, I don't don't see the need to dance around the wording on their account.

[glowing]

6. I think it was needed as a symbol to the world. Of course torture is illegal, but it doesn't

stop agencies from using it... one of the worst things they do is send people to countries that do torture. Where is the outcry from the world towards countries that still allow torture? If there was no place to practice the art of torture, would there be torture? I understand a the technical loophole in this signing statement, but I believe it was more about symbolism and a new direction in this country.

[ProfessorGAC]

7. I Share Your View

I think it needed to be done as a signal. The legal fine points notwithstanding, a signal needed to be sent that a new way was being established and now the whole world knows it.
GAC

[caseycoon]

8. I think it WAS necessary.

Our laws did not keep Bush-Cheney et al from torturing.
Despite all our laws against torture, the fact is we HAVE been torturing for YEARS.
I think his EO makes it absolutely clear to the public, to the military, to whatever brand-name mercenaries we still have roaming around and to the world that it's over as of now.

[jmowreader]

13. Exactly. The EO was completely necessary.

If nothing else, President Obama's EO said to the torturers, the American people and the world, "no more."

We now need to round up all the torturers, plus Bush, Cheney and ESPECIALLY that numbnuts Gonzalez, and put them all in prison. General Population, in a regular penitentiary. No white-collar prison for these guys. Preferably one where the shot-caller had a relative killed in this unnecessary war.

[mmonk]

9. Yes and is why we must stand against blue dog and republican attempts

to create a new separate legal system to deal with the detainees. Either the Constitution and laws are correct or we should should scrap them for the new dictatorship model we have been living under the last 8 years and forget being a free people.

[TWiley]

10. The revocation of past unconstitutional orders is necessary

The revocation of past unconstitutional orders is necessary and, this needs to be done specifically. You are dead wrong about allowing unchallanged Bush Orders to stand on the books because "you" feel he does not have the authority to overturn them.

Why not cut to the chase and simply say that you approve of the old (bush) executive orders allowing torture. You use far too many words in your simple attempt to effect the same result.

[Joe Chi Minh]

11. An abolutely seminal point, though US politics seems to have come adrift

from legal constraints commonly accepted by the civilised world. Concentration of so much wealth and military power in the hands of so few has that effect.

"Beggar international laws! We are our a law unto ourselves. And since we have the political clout to make our own domestic laws, we're not obligated to keep them, either," seems to be the bottom line."

Another classic by Joe Bageant today:

http://www.joebageant.com/joe/2009/01/north-toward-home.html

[mmonk]

12. Thanks. I enjoyed reading that.

Says alot about how we view ourselves.

[Joe Chi Minh]

26. It's a pleasure. I wouldn't miss an article or letter on Joe's site for anything. It's like a drug.

[Bette Noir]

14. He's been in office five days. Give him a little more time.

It'll take at least a week to undo all the evil of the Bush administration.

[Vattel]

15. You couldn't possibly be more wrong.

You are wrong to deny the importance of Obama's executive order requiring everyone's adherence to the the UCMJ standards for treatment of detainees. But much worse than that, you wrongly deny the importance of passing new laws against mistreatment of detainees. We need criminal laws that clearly and unambiguously make waterboarding and other "harsh interrogation techniques" criminal. International treaties clearly prohibit such practices, but that doesn't mean that there is any U.S. criminal law that requires such practices to be punished. And the federal criminal laws that prohibit "torture" and "cruel treatment" do not clearly and unambiguously criminalize all of the harsh interrogation techniques that ought to be criminal. Laws against torture are only as good as the definitions of torture that such laws contain. Our current criminal laws don't do a good job defining torture in a way that prevents assholes like John Yoo from making a case that waterboarding and other such techniques do not count as torture under those laws. Better criminal laws would make it harder for future Presidents to institute policies of the sort you and I both find appalling.

[CLANG]

16. I can see both viewpoints

It is a FACT that torture, including specifically named techniques such as water boarding, are illegal under the law of OUR LAND, via international treaties, and the fact that the constitution declares such treaties as LAWS which must be followed by ALL Americans. There is not recourse for following the laws unless we revoke our treaties or revoke our constitution.

At the same time, most of the dullards in this country don't even have the reasoning power to suspect that Rush Limbaugh is not the GREAT AMERICAN he says he is. Because of the danger presented to our survival by the dumbest among us, it's probably a good idea to make the laws AS CLEAR AS POSSIBLE for the reason challenged.

[Vattel]

20. It is important to distinguish illegality and criminality

Even if waterboarding is illegal because of international treaties signed by the US, if waterboarding isn't also criminal and hence punishable under federal law, there will be little to deter the potential waterboarder from committing that illegal act.

[Name removed]

19. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Libertyfirst]

27. Thank you. That needed to be said. n/t

[defendandprotect]

34. "doesn't mean there is any U.S. criminal law that requires such practices be punished"...

Didn't we used to take for granted that when laws were broken that those responsible

would be held accountable?

I remembered that the ABA at one point -- and the ACLU -- perhaps others/? ---

also condemned the work of these treacherous lawyers in doing the bidding of Bush/Cheney

rather than serving the public, the Constitution.

But even in what I found -- tho I read it quickly -- I don't see a DEMAND that those who

fail to uphold our laws and our Constitution should be considered criminal!

Are lawyers to blame for these sadistic acts? In a recent New York Times article, Michael Ratner, president of the Center for Constitutional Rights, responded to the Graner verdict with a popular sentiment: "owever heinous his acts may have been, we believe he is taking the fall for the architects of a policy that empowered him to torture and abuse those being held at Abu Ghraib."6 Some lawyers believe that at least some of the "architects" of this policy reside in the Department of Justice's Office of Legal Counsel ("OLC").7 The OLC is the Department of Justice unit charged with providing legal advice to the executive branch.8

On August 4, 2004, a group of more than 130 lawyers-including judges, law professors and law school deans, former elected officiais, past bar association presidents, and private practitioners-submitted the "Lawyer's Statement on Bush Administration's Torture Memos" ("Lawyer's Statement") to President George W. Bush, Vice President Dick Cheney, secretary of Defense Donald Rumsfeld, then Attorney General John Ashcroft, and members of Congress.9 The Lawyer's Statement condemned memoranda "concerning the war powers of the President, torture, the Geneva Convention Relative to the Treatment of Prisoners of War (Geneva Convention) . . . and related matters."10 It alleges that the memoranda, some of which were prepared by the OLC, "ignore and misinterpret the U.S. Constitution and laws, international treaties and rules of international law."11

http://www.allbusiness.com/legal/1173007-1.html And, this goes on 20 pages -- !



There was also an investigation by General Taguba on torture for the Pentagon . . .

Seymour Hersh | The General's Report

The General's Report
By Seymour M. Hersh
The New Yorker

25 June 2007 Issue

How Antonio Taguba, who investigated the Abu Ghraib scandal, became one of its casualties.

http://www.truthout.org/article/seymour-hersh-the-generals-report

Annals of National Security: Torture at Abu Ghraib: The New Yorker
Torture; Abuse; Prisoners of War (P.O.W.s); Taguba, Antonio M. (Major General) ... formally admonished and quietly suspended, and a major investigation into the ...
www.newyorker.com/fact/content/?040510fa_fact - 131k

[Vattel]

36. I should have been more clear.

The UCMJ clearly makes waterboarding and many other harsh interrogation techniques criminal, but it only applies to military personnel. The criminal laws that apply to the CIA and other civilian parts of the govt are much less clear. In fact, they suck! Don't miss my main point. Better criminal laws against torture are needed.

[defendandprotect]

41. What I was trying to point out is that even those who protest what

Bush/Cheney have done .... their investigations/prostestations do not end with a cry

for justice -- for accountability. Presumably, they leave it to others who should be

investigating to make that final assertion -- ????

I think we can argue two ways on this ----

Do we need legislation outlawing "Signing Statements" . . .??

Or should we expect Congress to act in the interests of the public?

Do we need legislation which says Bush/Cheney should be prosecuted for torture . . .?

Or should we expect Congress to have reacted by impeaching Bush/Cheney -- who were

obviously involved in a conspiracy?

As we have lived thru it, we can all testify to specifics of the FISA laws which, however,

were violated and nothing done about it -- !!! In fact, we protected the violators!


If we're going to go the legislation route . . . then we can only act AFTER there has

been no response. If we rely on laws already on books -- and the Constitution, we're set

to go!!

[Vattel]

46. Looking forward,

Bush et al. should be prosecuted for any crimes they committed, and new criminal laws against harsh interrogation techniques should be passed. Maybe we agree on that.

[bigtree]

17. looks like some in his administration still want to leave room for some kind of torture

. . . or 'coercive techniques' as they affectionately refer to it. Some of their friends in Congress, like DiFi apparently have the same belief as the last administration that they can find a way to split hairs over practices that have already been adopted and define those outside of the law. At least that's my impression.

[Vattel]

21. I don't see any evidence of that in the EO.

A task force is established to evaluate whether UCMJ standards are appropriate for the CIA, but that task force might end up recommending that the same standards be used. Am I overlooking other evidence that the Obama administration wants to "leave room for torture?"

[OPERATIONMINDCRIME]

18. Oh God The Irrationalality Continues.

:eyes:

[axollot]

22. Executive Orders that the President now has - has concerned...

..me for many reasons. Right now these powers are in what I consider to be 'safe' hands. However, if we do not change the executive powers that Bush created for the office of President (and Obama has done some to curb this issue already) we may very well have an even WORSE (if possible) Presidency with powers the likes we have not seen before within the next decade or so.

While Obama can use these new executive powers to turn the country around, no president should be above congress and as it is now, congress (and don't get me started on how THEY have handled things...) is neutered and very much acts like it.

We should be concerned about the new powers that the office of the President has since Bush, regardless if they are in safe hands right now, we as progressives need to keep a sharp eye out and keep our voice heard regarding these powers that need to be handed BACK to congress ASAP.

Cheers
Sandy

[Proud Liberal Dem]

23. There used to be no question about the illegality of torture

until Bush, Cheney, et. al went and muddied the waters and began investing so much time and effort attempting to justify it as being o.k., particularly in extraordinary circumstances (i.e. the "ticking time bomb" scenario). When considering this, Obama's order really doesn't seem that unnecessary even if he really has no real authority to allow it or disallow it, particularly when you consider that the practical effect of Bush's signing statements basically allowed him to flaunt whatever law he wanted to when he wanted to. While there are no assurances that torture will never happen again IMHO we can at least feel confident that if it does occur, it is no longer being sanctioned by POTUS and those that order it and/or engage in it WILL be held to account and removed from their positions (there are bound to be some "dead-enders" out there in the ranks that just "don't get it"). IMHO Obama's orders are ultimately symbolic and more about creating a new "climate" in Washington and I'm proud of him for doing so. What's the controversy?

[bvar22]

24. Interesting and important distinction.

Obama has the World Spotlight, and COULD have used the bully pulpit to emphasize that torture has ALWAYS been illegal.

[davidswanson]

25. but he also has the justice dept

and when something has always been illegal and - yes - criminal, it has to be prosecuted

president obama appears to want to avoid prosecuting any crimes while announcing that henceforth they will be illegal

this leave future presidents free to declare torture legal again with nothing to fear but that another president will again declare it once more "illegal"

[Libertyfirst]

28. How many angels did you say could dance on the head of a pin?

[razors edge]

29. Since both the Dems and Repugs

have used the illegal act of writing law from the executive, neither has the clean hands needed to prosecute it.

Only a third party president could go that route with any authority and do what the executive is there for, enforce the laws as written by the legislative.

Outside of Ron Paul and possibly Denise Kucinich, there probably aren't any Federal employees interested in following the constitution when it gets in the way of their goals.

I believe they think it an outdated document and they don't want to change it in the manner proscribed by law, as that would expose their motivations and make it more difficult to achieve those goals.

[davidswanson]

30. laws don't

have to be enforced by saints or saviors

they just have to be enforced

someone who would be willing to enforce them might be an independent prosecutor, but it takes someone less than independent to create an independent prosecutor

[razors edge]

31. Perhaps thats the case.

And I have been very encouraged with the approach Obama has taken so far.

Lets hope he can find a way to deal with this one too.

[defendandprotect]

32. "For, what power does a law have to control behavior if it is never enforced?"

For, what power does a law have to control behavior if it is never enforced? What deterrent value can be found in a law the violation of which results merely in a formal order to begin obeying it? And what status are we supposed to give all the other violated laws for which no such formal orders have been given?

Right -- and you'd hardly know that we have anti-trust laws because neither are they enforced.

And while both represent a different kind of harm, the absence of enforcement in both cases

has led to great harm to our nation.

And re Bush's "Signing Statements" . . . again it is up to Congress to ensure that the laws they

legislate are carried out with the intent and spirit with which they are passed.

It should also be up to Congress to develop and debate economic policy for the nation, but that

task has been given to the Federal Reserve.


Coming back to torture, not only have the laws not been enforced, but they have been distorted

and denied by means of legal conspiracy within the White House by its own lawyers!

In fact, even our Constitution has been denounced by the Bush/Cheney administration as

"only a piece of paper!"

And another steely precedent for a ban on torture is the reality that the US prosecuted

those responsible for torture at Nuremberg after WWII.

Therefore, much has to be destroyed and ignored in order to carry out torture.

[Gregorian]

33. Perhaps this should be sent to president Obama's aides.

It seems that you make valid points. But then I'm not a lawyer. It seems such a basic point, that how it could have slipped past the Obama administration is not easy to understand.

I like this because not only does it seem to be the case, but it also heightens the need to go after those who violated the law.

[Laelth]

37. If I may ...

I am speculating here, but I think the reason Obama revoked Bush's illegal executive orders (knowing full well that Bush never had the authority to issue those orders) was to prevent any and all government servants from being able to argue that they were merely following a legitimate and un-revoked executive order. Obama sent a signal to the entire executive branch of government (including the CIA and the military) that he would not tolerate their breaking certain laws. He had to do this in order to reign in those who work for us.

Did Bush have the legal authority to issue those orders? No, probably not, but he did issue them and they were followed. In order to prevent them from being followed any longer, Obama had to revoke them.

:dem:

-Laelth

[Gregorian]

40. That's exactly how I saw it too.

Not unlike his inaugural address, which was a total slap in Bush's face.

I'm sure they're way ahead of the curve on these issues. My guess is they have John Dean's number on speed dial for when they need a bit of advice. And Jonathan Turley's.

Yes.

[Laelth]

47. Obama is a very smart guy.

I am almost positive that he thought this through very carefully before acting. I admire the fact that he was willing to set a bad precedent in order to reign in the executive branch immediately. I don't deny the OP's argument has merit. Obama's revoking those orders did give them some degree of legitimacy. It was undoubtedly a tough choice, but I trust that the President did what he felt was right under the circumstances. The torture had to end ... immediately. That was his principal objective.

Cheers!

:dem:

-Laelth

[defendandprotect]

35. Plus, ABA/ACLU, Constitution - and General Taguba . . .

Didn't we used to take for granted that when laws were broken that those responsible

would be held accountable?

I remembered that the ABA at one point -- and the ACLU -- perhaps others/? ---

also condemned the work of these treacherous lawyers in doing the bidding of Bush/Cheney

rather than serving the public, the Constitution.

But even in what I found -- tho I read it quickly -- I don't see a DEMAND that those who

fail to uphold our laws and our Constitution should be considered criminal!

Are lawyers to blame for these sadistic acts? In a recent New York Times article, Michael Ratner, president of the Center for Constitutional Rights, responded to the Graner verdict with a popular sentiment: "owever heinous his acts may have been, we believe he is taking the fall for the architects of a policy that empowered him to torture and abuse those being held at Abu Ghraib."6 Some lawyers believe that at least some of the "architects" of this policy reside in the Department of Justice's Office of Legal Counsel ("OLC").7 The OLC is the Department of Justice unit charged with providing legal advice to the executive branch.8

On August 4, 2004, a group of more than 130 lawyers-including judges, law professors and law school deans, former elected officiais, past bar association presidents, and private practitioners-submitted the "Lawyer's Statement on Bush Administration's Torture Memos" ("Lawyer's Statement") to President George W. Bush, Vice President Dick Cheney, secretary of Defense Donald Rumsfeld, then Attorney General John Ashcroft, and members of Congress.9 The Lawyer's Statement condemned memoranda "concerning the war powers of the President, torture, the Geneva Convention Relative to the Treatment of Prisoners of War (Geneva Convention) . . . and related matters."10 It alleges that the memoranda, some of which were prepared by the OLC, "ignore and misinterpret the U.S. Constitution and laws, international treaties and rules of international law."11

http://www.allbusiness.com/legal/1173007-1.html And, this goes on 20 pages -- !



There was also an investigation by General Taguba on torture for the Pentagon . . .

Seymour Hersh | The General's Report

The General's Report
By Seymour M. Hersh
The New Yorker

25 June 2007 Issue

How Antonio Taguba, who investigated the Abu Ghraib scandal, became one of its casualties.

http://www.truthout.org/article/seymour-hersh-the-gener...

Annals of National Security: Torture at Abu Ghraib: The New Yorker
Torture; Abuse; Prisoners of War (P.O.W.s); Taguba, Antonio M. (Major General) ... formally admonished and quietly suspended, and a major investigation into the ...
www.newyorker.com/fact/content/?040510fa_fact - 131k

[caseymoz]

38. You're right, but I'm thinking this isn't the only step he'll take.

It's only his first week in office, remember, and his immediate ordering of the executive branch to stop torturing was a great start. Let's not get so impatient here.

[chill_wind]

39. Here's the actual CCR statement, for anyone interested:

CCR Praises Obama Orders, Cautions Against Escape Hatch for Torture

CONTACT: [e-mail]

January 22, 2009, New York – In response to President Obama’s signing of new executive orders today, the Center for Constitutional Rights (CCR) issued the following statement:

We welcome the beginning of the end of lawlessness. Under the previous administration, executive orders became synonymous with secrecy, torture and attempts to override the Constitution. It is genuinely uplifting to see them now used to set things right. President Obama’s orders today are an important first step in restoring the rule of law; let us take the next steps with great care not to open the way for a return to the darkness of these last years.

(more)

http://ccrjustice.org/newsroom/press-releases/ccr-praises-obama-orders%2C-cautions-against-escape-hatch-torture

[Left Coast2020]

44. I'm confident David that the President understands well...

what the Constitution says on this matter--as well as the Geneva Conventions, etc. I have confidence in this president--with his experience as a law professor--that he will uphold and defend the consitution of the United States--and mean it.

[DissedByBush]

48. I am not going to question McCain's motives

He knows a thing or two about being tortured.