Invoking the legacy of Nuremberg, Sen. Chris Dodd (D-CT) came out yesterday in support of prosecuting members of the Bush administration responsible for waterboarding. His position on prosecutions is interesting in its own right, but I want to use his comments for a different purpose -- to plug a collection of letters that his father, Thomas Dodd, wrote to his...
Dave Kopel has a post today at The Volokh Conspiracy in which he dusts off John Yoo's argument in the infamous 14 March 2003 memo that a CIA interrogator prosecuted for torture would be able to invoke the defenses of necessity and self-defense. I am not interested in responding to Kopel's post, which grossly mischaracterizes my position on torture prosecutions...
The National Court has reassigned the case from Judge Garzon to Judge Eloy Velasco. CNN says that "Judge Velasco is thought to have little, if any, experience in these kinds of cases." Apparently, CNN has never heard of The Google, because it took me about 30 seconds to learn that, in January, Judge Velasco relied on Spain's universal jurisdiction law...
Despite his checkered past, I'm beginning to like Jacob Zuma, who is set to become the next President of South Africa, more and more: The Sudanese president Omer Hassan Al-Bashir will not be invited to the inauguration ceremony of the South African president-elect Jacob Zuma, according to news reports. The ruling African National Congress (ANC) headed by Zuma has an absolute majority...
And proves he is neither very funny nor even remotely interested in anything resembling intelligent debate: Hypothesize that the Obama administration, or perhaps foreign/international courts, prosecute and convict various officials of the Bush administration. Further assume that the new President who takes office in 2013 or 2017 has promised "I will ensure that the crimes of the previous administration are vigorously...
Scholars who believe that the individuals who wrote the OLC memos authorizing torture should be criminally prosecuted -- as I do -- normally cite the Justice Case, decided by the Nuremberg Military Tribunal (NMT) in 1947, for the proposition that a government lawyer can be held criminally responsible for giving erroneous legal advice to his political superiors. Last year, I...
Yeah, this is much better: On Sunday, Rahm Emanuel, the White House chief of staff, said on the ABC News program “This Week” that “those who devised policy” also “should not be prosecuted.” But administration officials said Monday that Mr. Emanuel had meant the officials who ordered the policies carried out, not the lawyers who provided the legal rationale. I'm dubious that...
Still holding out hope that the Obama administration will prosecute the architects of the torture regime? Stop: The Obama administration opposes any effort to prosecute those in the Justice Department who drafted legal memos authorizing harsh interrogations at secret CIA prisons, White House chief of staff Rahm Emanuel said yesterday. Some analysts and lawmakers have called for investigations and possible prosecution of...
Words of wisdom from Tommy Crocker at The Faculty Lounge: Comments today by Gen. Michael Hayden make clear a further reason why the Obama Administration should name a special prosecutor to investigate potential war crimes in light of everything we know, and have recently learned, about CIA interrogations of "high value al Qaeda detainees." Gen. Hayden has played a vocal role...
In today's Washington Post, Curtis Bradley and Jack Goldsmith have an editorial attacking the recent refusal of a federal judge to grant a motion to dismiss in Khulumani v. Barclays National Bank Ltd, the ATS lawsuit brought by victims of apartheid against 23 corporations who did business with the South African government during the apartheid era. It's a remarkably unpersuasive...
More evidence that the CIA interrogators did not rely in good faith on the OLC memos: Bradbury's 30 May 2005 memo acknowledges (p. 37) that the CIA Inspector General's report found that the CIA waterboarded Khalid Sheikh Mohammed 183 times in March 2003 and Abu Zubaydah 83 times in August 2002. That regime far surpasses the CIA's own internal guidelines...
As we all know, the ICC does not have jurisdiction over the acts of torture committed by the CIA at Guantanamo Bay -- neither the US nor Cuba is a member of the Court. Nevertheless, it is worth noting that it would be far easier to prosecute the CIA interrogators at the ICC than in the US, because there is...
