Keeping the Crimes Straight

Having trouble keeping the infinite crimes of the Smitky/Darth maladministration straight? Confused about what and who warrants prosecution, impeachment, pardoning?

Slate to the rescue, with a clickable Venn Diagram that covers all the major players, all their crimes and how they all interact in a single, easy-to-use graphic.

Also in Slate, Dahlia Lithwick explains why both pardoners and impeachers should agree to investigate first.

It says much about the cartoonish ways in which we talk about law and politics that the conversation about accountability for the Bush administration's lawbreaking takes place chiefly at the extremes. The choice, it would seem, is between Nuremberg-style war crime tribunals, broadcast live at primetime in January of 2009, or blanket immunity for everyone, in advance of knowing what they did or why. The men and women responsible for our descent into torture and eavesdropping in the last seven years are cast as either Nazi war criminals, in the manner of Judgment at Nuremberg, or valiant American heroes, in the model of Fox television's Jack Bauer.

(SNIP)
... the question for most of us now is not whether laws were broken, but what to do about it. The War Crimes Act of 1996 makes it a federal crime for any American—military or civilian—to cause a "grave breach" of the Geneva Conventions' ban on inhumane treatment for prisoners. U.S. interrogators have been inhumane. Some of them have not only tortured but, in at least 100 cases, killed prisoners. A smattering of relatively low-ranking soldiers have been prosecuted, but in most instances there has been little or no accountability and none whatsoever at the top.

Will a sorting and allocating of responsibility for torture and other acts of lawlessness tear the country apart, or is it a necessary step toward repairing our image in the world? Is punishing wrongdoers a partisan witch hunt? Or is the failure to punish its own kind of lawlessness?

(SNIP)

I am not arguing for instant war crimes prosecutions or for criminal indictments. The vital lesson of the past seven years is that hasty legal judgments are often bad ones and that criminal cases are difficult to build for a reason; questions of intent and knowledge really do matter more than conclusory labels. So this time, let's allow those legal processes to work.

On the other hand, we need careful investigation before we take the possibility of criminal prosecution off the table. To immunize or pardon everyone from John Yoo to David Addington to Monica Goodling, before we've seen critical classified memos or heard the conclusions on several fronts of the Department of Justice inspector general, is to remedy the reckless and dangerous decisions of the past with more dangerous recklessness. Criminal investigations aren't just about revenge, whatever Mukasey may think. They are a means of obtaining information and ultimately truth.

I also want to suggest that the wrong way to talk about legal accountability for the Bush administration is to cast it as something America owes the rest of the world. Sure, it's critically important to show our allies and enemies alike that the rule of law still means something here. But it is far more important to have this legal reckoning for America. Not because of some deranged liberal bloodlust, but because we need to understand that there just aren't two sets of law in America, one of which—like the good linen—we keep for special occasions. There isn't one set of laws for when we're panicky and reckless and another for tranquil times. There isn't one set of laws to punish the soldiers in the field and another for the commanders at the top. It's not just the president who seems to have forgotten this lesson in the last seven years. Most of us have. Worse yet, we've forgotten why it matters. We owe it to ourselves to begin to remember.

Read the whole thing.

Cross-posted at Blue in the Bluegrass.

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Last Chance to Save the Rule of Law

This is it. Tomorrow morning, Harry Reid is planning to ram through the Senate a FISA bill that not only hands Smirky/Darth all the dictatorial domestic spying powers they want, but also gives giant telecommunications companies amnesty for illegally spying on the phone calls, emails and text messages of millions of innocent American citizens for the past seven years.

He's doing it over the objections of Democratic Senators Chris Dodd and Russ Feingold, even though Reid always honors such "holds" by republican senators.

He's doing it just as Democratic senators prepare to jet off to Switzerland for a "retreat." This timing forces Dodd and Feingold to launch a filibuster that ruins their colleagues' nice European vacation.

Reid's throwing everything he's got at these lonely defenders of the Constitution and the Rule of Law because the last time he tried this, in November, a concentrated grassroots protest forced him to back off.

We've got to do it again, only harder, faster and better.

The same coalition of progressive groups and bloggers that stopped the wiretapping amnesty train last time is back on the case, this time with a new tactic:

Demanding former Senator and Presidential Candidate John Edwards take the lead as the only presidential candidate backing Dodd and Feingold's Last Stand Defense of American Liberty.

Jane Hamsher and Glenn Greenwald write in an email:

John Edwards should challenge his rivals Barack Obama and Hillary Clinton to go back to Washington, DC and fight against retroactive immunity for the telecoms.

Without the help of the presidential candidates, we are doomed to lose this fight. And all their calls for change will ring hollow if they allow George Bush to railroad this bill through a supine Democratic-controlled Senate because of their absence.

You can email Senator Edwards directly at john@johnedwards.com.

Greenwald adds this in a post:

UPDATE II: For what it's worth (not all that much), both Obama and Clinton have told Markos Moulitsas, in response to being asked, that they oppose telecom immunity and support Dodd's filibuster. Far more active efforts than that would be necessary to have an effect.

On a separate note, Christy Hardin Smith has the contact information for the 14 Senators who seemed prepared to support Dodd's filibuster back in December. It's probably worth calling as many of them as possible -- including Dodd -- to encourage them to do so again.

Credo Action (formerly Working Assets) has been pushing this hard all day, to the point that they crashed Obama's campaign email servers. But we can't let up. Email Edwards, email or call your own and everyone else's Senators, raise hell and keep raisin' it until we win.

Cross-posted at BlueGrassRoots.

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It's the Rule of Law, Stupid

Yeah, it’s nice to have an Attorney General who understands that forcible drowning is, you know, torture.

But it’s absolutely critical that the Attorney General understands that the president cannot just refuse to obey any laws he doesn’t like.

When the president is above the law, the U.S. Constitution is dead.

Russ Feingold gets it, and says it perfectly. And TPM catches it.

Feingold to Oppose Mukasey

Statement just released (11/4/07, 10:30 a.m.)

"I will vote against the nomination of Judge Mukasey to be the next Attorney General. This was a difficult decision, as Judge Mukasey has many impressive qualities. He is intelligent and experienced and appears to understand the need to depoliticize the Department of Justice and restore its credibility and reputation.

At this point in our history, however, the country also needs an Attorney General who will tell the President that he cannot ignore the laws passed by Congress.

Unfortunately, Judge Mukasey was unwilling to reject the extreme and dangerous theories of executive power that this administration has put forward.

The nation's top law enforcement officer must be able to stand up to a chief executive who thinks he is above the law. The rule of law is too important to our country's history and to its future to compromise on that bedrock principle."

Cross-posted at BlueGrassRoots.

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Unprecedented Treason

If you click on no other link today, this week, this month, this year, click on this one.

If you value in the slightest the rights for which our ancestors, the Founders, risked everything to secure for us, read this.

If you want to cut through all the bullshit, fear, obfuscation and politics that prevent a unanimous Congressional vote for Impeachment, forward this article to everyone you know. Make copies and press it into the hands of strangers on the street. Memorize it, set it to music, paint it on your car.

William Rivers Pitt demolishes the puling repug whine "but they haven't committed any crime."

The crime, Pitt demonstrates, is their murder of the foundation of American democracy: The Rule of Law.

(The Bush administration is full of) criminals joined in an act of treason so vast and comprehensive that it beggars comparison. Nothing quite like this has ever before been attempted in America, and if they are allowed to succeed, there will be nothing of what defines America left to be seen.

Gonzales and his Bush administration collaborators have committed their treason against the rule of law itself, a crime so absolute that it is technically not illegal.
(SNIP)
But there is no America without that rule of law - no rights, no protections, no Constitution; there is nothing, and if you destroy the rule of law, you destroy the idea that is America itself.
(SNIP)
Their treason is not in the actual crimes they have committed, but in the way they have chosen to avoid accountability for them (by claiming to be above the law.)
(SNIP)
Americans have only the rights they are able to protect and defend. Our rights are nothing more than ideas; only theory and argument on parchment all too easily burned to ashes. The power of those rights is only found in our collective submission to the rule of law, and submission to that rule of law is all that stands between our freedoms and the conflagration of tyranny. Without the rule of law, there is no America.

They are killing the Rule of Law; they are destroying the Foundation of America.

That is their crime.

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All Men Are Created Equal But Scooter Libby Is Just More Equal That Victor Rita

A lot of people, including Rudy Giuliani, have argued that that Judge Walton is a mean son of a bitch. His 30 month sentence was just too harsh. Others, like Tony Snow, have argued that the President was justified in his commutation because the sentence was excessive.

Gather around boys and girls and let me tell you about the case of Rita v. United States (No. 06-5754) decided by the United Supreme Court on June 21, 2007. The facts are taken from Justice Breyer's opinion. I have removed the exhibit reference and transcript page numbers.

The basic crime in this case concerns two false statements which Victor Rita, the petitioner, made under oath to a federal grand jury. The jury was investigating a gun company called InterOrdnance. Prosecutors believed that buyers of an InterOrdnance kit, called a “PPSH 41 machinegun ‘parts kit,’ ” could assemble a machinegun from the kit, that those kits consequently amounted to machineguns, and that InterOrdnance had not secured proper registrations for the importation of the guns.

Rita had bought a PPSH 41 machinegun parts kit. Rita, when contacted by the Bureau of Alcohol, Tobacco,and Firearms and Explosives (ATF), agreed to let a federal agent inspect the kit. . . .But before meeting with the agent, Rita called InterOrdnance and then sent back the kit. He subsequently turned over to ATF a different kit that apparently did not amount to a machinegun. . . .The investigating prosecutor brought Rita before the grand jury, placed him under oath, and asked him about these matters. Rita denied that the Government agent had asked him for the PPSH kit, and also denied that he had spoken soon thereafter about the PPSH kit to someone at InterOrdnance. The Government claimed these statements were false, charged Rita with perjury, making false statements, and obstructing justice, and, after a jury trial, obtained convictions on all counts.

You will notice that just like Scooter Libby, Victor Rita was charged with perjury, false statements and obstruction of justice. You will also notice that Rita was not really central to the underlying crime. If he had simply told the truth it is likely that little would have happened to him except he would have lost his machine gun "kit." His vendor was the real target. When it came time for sentencing the trial court followed the same procedure Judge Walton followed in sentencing Scooter Libby. The presentencing report assigned points on the basis of Rita being an accessory after the fact. The presentencing report gave him no criminal history points.

The report goes on to describe other “Offender Characteristics.” The description includes Rita’s personal and family data, Rita’s physical condition (including a detailed description of ailments), Rita’s mental and emotional health, the lack of any history of substance abuse, Rita’s vocational and nonvocational education, and Rita’s employment record. It states that he served in the Armed Forces for over 25 years, on active duty and in the Reserve. During that time he received 35 commendations, awards, or medals of different kinds. The report analyzes Rita’s financial condition.

In short, his history was pretty darn close to Libby's. A well respected man with a long and distinguished history who was caught covering up the activities of someone else. One distinction is that Rita had served in military law enforcement, a fact later argued by the DoJ. The Guidelines recommended a sentence of 33 to 41 months.

The Court gave the Defendant an opportunity to argue for a departure from the guidelines. Rita decided to argue on

“[j]ust . . . three” special circumstances, “[p]hysical condition, vulnerability in prison and the military service.” Rita presented evidence and argument related to these three factors. The Government, while not asking for a sentence higher than the report’s recommended Guidelines range, said that Rita’s perjury had interfered with the Government’s potential “obstruction of justice” claim against InterOrdnance and that Rita, as a former Government criminal justice employee, should have known better than to commit perjury

Considering all the factors the District Court sentenced Mr. Rita to 33 months. That decision was upheld by the United States Supreme Court just 11 days before the President commuted Scooter Libby's sentence. The next time Tony Snow tries to argue Judge Walton's sentence was excessive, you might want to remember that Joe Biden and Professor Berman over at the blog Sentencing Law and Policy, who has looked very hard at this matter, think Walton's sentence was right on the money.

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Something Somebody Needs To Tell The Commander Guy

I read this comment in the thread after an article at the New York Times site entitled Law School Classmates Criticize Gonzales. Sam Thornton's comment touches a truth so fundamental it is easily overlooked. Ultimately, it is a truth impossible to ignore.

May 14th,
2007
8:54 pm

There is a basic question at issue here: if a country’s leaders not only refuse to be bound by the rule of law, but flaunt their refusal, why should any citizen agree to be bound by any law?

The social fabric is one created by mutual consent. Absent the mutuality, there is no consent.

— Posted by Sam Thornton

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