Originally Posted by Flounder
You seem to want to make this a black and white issue, but that leads to ridiculous conclusions if you play them out to their endpoint.
Then by your logic no one should ever be put in jail for any crime, and our entire criminal justice system is pointless. Just let crime victims sue in civil court for money damages. That is the argument you are making taken to its conclusion. Although exactly how effective it is is debatable, deterrence is part of the reason we put individuals in jail for crimes they commit. Another large reason, which I referred to in my last post, is a way for society to condemn the unacceptable behavior in a particularly pointed fashion.
Not quite. I'm sure there is a better phrase for it because I remember the concept of it even though I am now forgetting the phrase. It basically amounts to saying no retroactive prosecution for a law, decision or legal understand that has happened after the act. As an example it would be like going back and prosecuting all the slave owners AFTER declaring slavery illegal. They were acting within the law before that (yes it was bad law) and afterwards if they follow the law again, nothing should happen.
As a country we didn't start in a perfect state are still aren't there. You do put people in jail for crimes committed after you pass the law. You can't or shouldn't put them in for crimes committed before the law was created/clarified/etc. We can understand and call them whatever we want but to expect society to prosecute such a nebulous area actually undermines rule of law. You wouldn't want a cop to go back and write you a ticket for the speed you drove yesterday in your car after they changed the sign.
Also, this is not the Bush rationale for war. And what "war" Afghanistan, Iraq? They had entirely different rationales. Afghanistan was certainly not principally about future terrorists being emboldened. It was about eliminating the current terrorists from which an attack on our country originated. The rationales for Iraq changed so many times, who the hell knows. It was painted as a current and imminent threat to our national security, and it was also painted as a haven for al qeada, and we tortured people to try and make that connection to justify a war that we had already decided we were going to wage.
We're not preemptively punishing future torture. The torture happened! And if it's not dealt with, our country remains in the muck. With Iraq, there was nothing Iraq had done that justified the cost of a full-scale invasion and occupation of the country.
From my understanding, the Bush got authorization for his actions (Iraq and Afghanistan)and further more declared that if a government tolerated terrorists within their midst that they would be preemptively toppled to prevent the terrorists from going forward with their agenda. He not only invaded certain countries, but outlined an "Axis of Evil" and had other known countries fall into line (Libyia as the best example) to prevent preemptive action.
As for whether Iraq was justified, it was voted on and won the votes of many Democrats including our current secretary of state and V.P. As you note the rationales changed but this isn't uncommon. Governing isn't a clean business and especially since in my view they are less than perfect in their execution, there are often backtracking and adjustments.
Let me ask we will soon likely be on our second or third stimulus package and second or third level of company bailouts. How is this any different?
Edit: just to add some additional content. Preemptive war (with the caveat that firing the first shot is not always preemptive) is stupid in part because that makes it more likely someone will preemptively declare war on you. I would submit that in the the case of institutionalized torture, prosecuting those crimes is a fair bit more likely to prevent future institutionalized torture than our criminal justice system is at deterring crime in general. The number of individuals in a position to institutionalize torture is by definition a very small group of people. If that small group can look to the past and see that the powerful were not, in fact, above the law, that should give them significant pause.
In contrast, the notion that bombing and invading some country in the present will affect the judgment of other countries in the future, given the big, wide, diverse world we live in... well that's just not too realistic.
War and criminal justice are simply not the same beasts.
With regard to being "above the law" clearly that is something that the courts would decide. I suspect they would not be willing to find against the administration for a number of reasons people have mentioned here. First they have been to court and had judges give decisions on motions put forward by administration lawyers, etc. Second they did try to interpret case law and apply past precident to non-enemy combatants, etc. Finally even to this day there are very likely, still clear gaps in the law on this matter. Again some have been mentioned here by other posters.
As to what will best influence the future, that isn't really grounds for a prosecution. The only grounds for prosecution is proof of guilt according to the laws that exist within the timeframe the action occurred.
Again, so how do we draw the line with any criminal conspiracy? We should just give up because it would be hard to do?
Actually yes. There are plenty of cases that are dropped for precisely that reason. If the burden of proof level is too high a bar to meet for a case, they don't prosecute it.
You are also conflating the issues of torture and the war. My personal opinion: those who were briefed and said nothing should get booted out of office (I suspect this includes Pelosi). The architects who instructed lawyers to deliver a pre-ordained conclusion to justify torture should see jail time. (Cheney / Bush, etc) The lawyers should be disbarred and see some jail time, the doctors who oversaw the torture should all loose their license and face some jail time. Those who followed commands will be the most difficult and will certainly vary on a case-by-case basis, but undoubtedly some should face jail time as well.
In my opinion that is a very broad and very dangerous circle. You are talking about disbarring and imprisoning lawyers for simply presenting the case for the government as an example. That sounds like pretty terrifying.
In your view, is torture part of "doing it right?" If we decide to get our hands dirty, as you put it, do you think torture is more effective than traditional interrogation techniques?
It doesn't matter where I want the line to be drawn. The reality is that when you engage in war it is a messy process. There will be civilian deaths. There will be collateral damage. They will be torture both endorsed and not endorse and away from oversight.
You note for example that we prosecuted people for torture in WWII. I also remember that we bombed Dresden into a giant pile and dropped a couple nukes on two civilian cities. Do you remember anyone being prosecuted for those actions? Amazingly enough, I don't. Also any investigation into those trials after WWII will make clear they were show trials. The people weren't properly represented. The burden of proof was low, letters with claims could sentence people to death as an example and no need to face an accuser existed.
As is usual the real rule is, the winner dictates terms to the loser and writes the history afterward.