Edwards to Be Indicted. Still Waiting on W.

by Kevin Jon Heller

According to TPM Muckraker, the DOJ has authorized prosecutors to indict John Edwards.  So in case you were wondering about the Obama administration’s priorities, here they are: violating election laws to cover up an affair, not acceptable.  Ordering torture, no problem.

Glad we cleared that up.

http://opiniojuris.org/2011/05/24/edwards-to-be-indicted-still-waiting-on-w/

20 Responses

  1. oh, yea. what a great post, kevin.

    its not that prosecuting bush will interfere with the ongoing political cooperation, or a start a “war” between democrats and republicans. its that ordering torture is not a problem.

    spot on. hell, who cares about solidarity and unity, when theres justice and punishment and truth seeking?

    im worried i might have come off as a bit sarcastic. i was going for really sarcastic

  2. To be honest, Andi, I have no idea whether you were agreeing with my post or disagreeing with it.  So I can’t really respond.

  3. ok , if that came off as confusing, ill say it in a more straightforward manner.

    your argument was too simplistic. “Ordering torture, no problem.” really? im trying to say, there are other things to consider. relevant matters, such as solidarity and unity. i can understand that someone who is focused on international criminal law might be bothered by this. he might want prosecution for the sake of justice. i think obama made the right decision, because this country could not afford to be divided. especially not now. yes, democrats and republicans arent in perfect harmony right now. but could you imagine what would have happened if bush was prosecuted? not for something that is corrupt but something republicans support? obama has stopped many of the enhanced interrogation programs, he does claim it was wrong. im not sure putting bush in jail is the wise decision.

  4. Andi –
    As long as it’s remains that Obama ‘claims it was wrong’, and it not be proclaimed to be wrong by the courts of law, there will be large swaths of the US population (at least this is the view from where I’m sitting the across the pond)  who continue to believe that torture is fine. Until then, it will just be seen as a partisan opinion – democrats think that torture is wrong, the republicans don’t.

    Refusing to sending this to trial shows a remarkable lack of faith in the independence and integrity of the US courts of law, which is bizarre given that the US opposition to foreign or international jurisdiction over its nationals often focuses on the allegedly superior standards and protections found in the US justice system.

    This is not a question of Obama sending Bush off to be tried in some international court, or, heaven forbid, one of these European countries with our human rights fixations. This is Obama authorising Bush and the others to be tried before their peers in a US court under US law. It’ll be an all-American affair. The rule of law applies equally irrespective of your political persuasion – surely you are not saying that just because the Republicans believe that such action is right, that they shouldn’t be prosecuted.

    What is the value of solidarity and unity when it is built upon matters of very dubious legality? Is it worth maintaining the ever-shaky war on terror narrative that has defined the US for the last decade and using that as the basis of how that definition is developed in the future – all nations have been built on falsehoods to varying degrees, but to build it on a matter such as this, would take the biscuit. In fact, how many of those despotic regimes that the US is so quick to condemn are built on years of falsehood all masked with the veneer of preserving solidarity and unity?

  5. HM said everything I would have said, so I will leave it at that.

  6. I’m not sure putting bush on trial (and suppose he is convicted) will actually convince people that torture is wrong. many in the right wing have expressed their support of torture, and this could be interpreted as an attack on the right standpoint. an attack on the republicans carried out by democrats.if you’re actually talking about good results coming from this that will benefit society that don’t have something to do with justice, then you and i will probably never agree on this matter. the costs will probably far outweigh any benefit.

    as to your second point, yes I’m saying that for the sake of the country we avoid prosecuting bush because republicans think its right. its a compromise. and yes it will mean hypocrisy and falsehood. which if you knew enough about America, it means that it will be just another normal chapter.

    the prosecution wont happen. eventually people will forget about it, and we will carry on. one more day running a country that will never anything close to utopia.

  7. Response… Yes, Obama is willing to prosecute relatively non-controversial laws such as campaign finance laws involving misuse of perhaps hundreds of thousands of dollars but not very controversial prosecutions perhaps involving not a fail candidate but a two term president.

    I’m bothered by the failure to even have a truth commission on this matter, but it’s tedious. Why not say that every time they prosecute some “minor” crime?  Oh look, they are prosecuting someone for mail fraud, but well, torture, well no way!  Oh, and “no problem” is too flippant. Again, it’s a bothersome act of prosecutorial discretion. It’s not that it is not a problem.

  8. I think perhaps the only area we will agree is in the fact that we will disagree –  by rejecting ‘justice’ as a cornerstone upon which to base a society raises profound questions as to what values then a society should be based on (as does your apparent willingness to defer the domestic rule of law to the exigencies of unbridled politics)

    As an observer of the US, I’m quite aware of the hypocrisy and injustice that exists there (I was trying to be diplomatic) – but just because such realities exist we should not, in my view, accept them as the normative ideal, which I believe would be the outcome of adopting the stance that you appear to take (and of course, I am equally aware of the hypocrisy and myths that plague the UK, like all states).

  9. Politics, in large part, is the art of dealing with conflict: refusal to forthrightly and timely face the sundry issues that arise in any conflict does not make that conflict magically disappear, rather, it will persist and arise yet again in other and often more troubling forms.

    National unity and solidarity constructed from the denial and dismissal of fundamental moral principles (e.g., human dignity) and legal commitments (constitutional and otherwise: the former having to do with ‘cruel and unusual punishment as well as the ban on conduct that ‘shakes the conscience’), from hypocrisy and injustice, from a lack of political will and the exegencies of realpolitik, from “dirty hands” justifications and the crassest kind of legal instrumentalism, from the exaltation of an “extraordinarily militant version of executive supremacy” (David Luban), from inchoate fears and irrational passions…that sort of unity and solidarity is dangerously close to if not of a piece with fascist ideology as a “palingenetic form of populist ultranationalism” (Roger Griffin). I’m happy for my part to refuse to be identified with any such nationalistic unity and solidarity and politically struggle against any of its ugly manifestations, ideological or practical. And I hope others join me in solidarity: in spirit, in purpose, and through whatever kind of political engagment that suits their temperament and talent.

  10. Been through this discussion a thousand times and there is always someone to argue that it is wise not to prosecute the high-level persons who ordered the torture.  As usual, those persons usually omit to mention that low-level military persons were court-martialed after Abu Ghraib.  So the issue is not prosecution, but just how high do we go.

    Obama is just a pragmatist.  What is a pragmatist on torture?  It’s a person who recognizes there is a fundamental principle at work but chickens out about doing something about it. 

    On torture, we are governed by chickenhawks or chickensh*ts.  On the other hand, given how many years it took people to even begin to stop immediately rejecting the concept of criminal prosecution of the high-level people maybe there is progress.

    Of course, if the persons who were being tortured were white Americans the dynamic would be very different – dark-skinned foreigners are not considered worthy of compensation, apology or justice in the American system – executive, legislative AND judiciary.  Hey! It’s bipartisan! 

    Best,
    Ben 

  11. Response…
    In terms of international law, which is supposed to be our primary focus (?), the refusal to prosecute is a violation of several treaties and customary international law aut dedere aut judcare and can lead to leader (Obama, et al.) responsibility if there is torture of detainees in the future.  Moreover, under international law the U.S. would have to honor a foreign request for extradition after an appropriate finding of “extraditable,” since the duty aut dedere aut judicare is in the alternative and one alternative is presently closed.
    Any foreign states willing to prosecute Bush, Cheney, Gonzales, Rumsfeld, Rice, Yoo, Bybee, Bradbury, Flanigan, Addington, Rizzo, Goldsmith, Feith, Myers, Haynes, et al.?
    So far, not Germany or Spain.  Italy?

  12. Prof (?) O’Connell – on the point of national unity and solidarity – thanks for expressing with far more eloquence than I could ever muster those points you made. I had been thinking along those lines, but was failing to put it into words so to speak.

    Prof Paust – although the US may well be failing in it’s aut dedere obligations under international law, when the trend in international criminal justice seems to be the promotion of a culture of accountability at the domestic level, pace the ICC’s ‘complementarity’ doctrine, the focus on encouraging states, in this case the US, to fulfil its own obligations to prosecute torture seem like an appropriate focus of attention for international lawyers. When it is all too easy for opponents of the exercise of extra-territorial jurisdiction to cry ‘lawfare’ or for realpolitik diplomatic/political threats against other states seeking to exercise universal jurisdiction (for example Belgium’s experience when attempting to exercise it’s UJ laws with respect to US citizens), one can predict the futility of any attempt by other states to exercise extra-territorial jurisdiction over Bush et al. In all honesty, if the US refuses to fulfil its obligations to prosecute those individuals itself, what is the likelihood that it will fulfil its obligations to honour a foreign request for extradition, particularly given its hostile stance towards foreign courts exercising jurisdiction over US nationals.
    Instead, pursuing accountability at the national level may be a more valuable means of advancing such international norms as the ones in question.

  13. (I am not a professor but work as an adjunct instructor at a community college in California.)

  14. Thanks – apologies, I wasn’t sure the appropriate manner in which to address you, and it’s usually a safe bet to go with ‘Prof’ given the number of Profs which frequent the blogosphere!

  15. “Unity and solidarity”?

    How’d that work out for Obama?

    Lots of unity and solidarity from day one, right? Right?

  16. Response…
    Kevin: We can’t keep them from being law violators, but a refusal to extradite would be useful to demonstrate that “the rule of law” and “justice,” much less “accountability,” are not something that President Obama actually values or serves, much less his constitutionally-based duty faithfully to execute the laws. Ben and I, and you and many others, have to keep pointing out that these duties exist, that the accused are clearly reasonably accused, and perhaps, as in Argentina and somewhat in Chile, some 20 years later there will be prosecutions and convictions of those who engage in a “dirty” war, including war crimes and crimes against humanity.  
    I think that we agree in general. 

  17. HM,

    I sully my good name by blogging with law profs at several law blogs: Ratio Juris, The Literary Table and ReligiousLeft Law, and being an incessant if not irksome commenter at a number of other law blogs, so I’m flattered when the mistake is made (and if you’re interested, I have a couple of essays on law-related topics posted at SSRN).

  18. you could be right professor davis- Obama is somewhat of a pragmatist. you call him a chicken. well, all ill say is thank atheismo that hes the president. because i would rather have a chicksh*t than a headless chicken

  19. I call him a chicken on torture – in that he joins a long line of chickens who panicked since 9/11.  I hope I made it clear my intent was not to comment on any other aspects of his or the Bush Administration conduct.
    Best,
    Ben

  20. Three questions:

    1.  Where is the accountability for failing to torture, when torture is necessary for national security?

    2.  Is necessity an afffirmative defense in international criminal tribunals?  And if not, is submitting alleged toturers to international tribunals a violation of defendants ommon-law right?

    3.  Can the necessity defense be raaised as a bar to extradition?

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