Legal Happenings - The OLC Attorneys, Looking For A New SCT Activist, & Outsourcing Criminalization Of Policy Differences

Lot's of things are happening in the legal realm. Judge Jay Bybee, author of the OLC memo on the legality of waterboarding, speaks out. Activist Supreme Court Justice Souter announces his retirement while Obama again shows his radical agenda in discussing a replacement. Lastly, and perhaps most ominously, the Obama regime is cooperating with the radical left in Europe who wish to start criminal trials using "universal jurisdiction" of their laws.

I.

Judge Bybee, now of the 9th Circuit Court, signed the memo in 2002 that found waterboarding legal. I have yet to see an argument by an opponent of waterboarding that addresses the legal interpretation of Bybee. The bomb throwers on the left say waterboarding is illegal torture based on their own bald assertions. Thus, it was nice to see Judge Bybee go public on the subject of his prior legal analysis. This from the Washington Post:

Bybee defended his conclusions. "The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct."

"The legal question was and is difficult," he said. "And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law."

For an analysis that I did of the memos, see here.


II.

Supreme Court Justice Souter has announced his retirement from the Court. Though nominated to the Court by Bush I, Souter morphed once on the bench to become a hard core activist. Obama's nomination of an attorney with similar legal views will not tip the balance of the Court. None the less, what is noteworthy is Obama's explicit call for an activist judge who puts outcomes over legal interpretations. That most decidedly is not the job of a judge. This from Obama, quoted in RCP:

. . . the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.

I won't speculate on who Obama might nominate under these criteria at this point. Regardless, if you understand the implications of judicial activism and the danger it poses to our nation, then Obama's words ought to take your breath away. For a review of those implications, please see the post The Supreme Court: Orginialism, Activism & America's Future.


III.

The Euro left and our own far left share many things in common, including a desire to destroy Bush and all that Bush and company stand for. Under this rubric, one of Spain's criminal courts, exercising "universal jurisdiction" to try war crimes and international human rights violations, has opened a criminal investigation into the alleged mistreatment of terrorist detainees by the U.S. Fair enough. The single appropriate response to this from our government should be to translate F*** Off into Espanol. Instead, amazingly, Obama's government has decided to cooperate with their criminal process. Big Lizards discusses this and the horrendous implications:

At the end of an AP story . . . I stumbled across this arresting exchange:

In speaking to reporters Wednesday, [Attorney General Eric] Holder also said it is possible the United States could cooperate with a foreign court's investigation of Bush administration officials.

Holder spoke before the announcement that a Spanish magistrate had opened an investigation of Bush officials on harsh interrogation methods. Holder didn't rule out cooperating in such a probe.

"Obviously, we would look at any request that would come from a court in any country and see how and whether we should comply with it," Holder said. [Any country? Any country at all can open a "probe" of American officials, and Holder will seriously consider cooperating with it?]

"This is an administration that is determined to conduct itself by the rule of law and to the extent that we receive lawful requests from an appropriately created court, we would obviously respond to it," he said.

. . . The juxtaposition of Holder's offer of "cooperation" (complicity) and the hoped-for acceptance of Gitmo detainees strongly suggests that a grand bargain may be in the works: European countries may accept releasees in exchange for American recognition of the "universal jurisdiction" of individual courts of "human rights."

Does our looming cooperation imply that we might even look favorably upon a demand that we arrest and extradite named defendants to stand in the dock of such courts? Perhaps suspecting that he had given a bit too obvious a "tell," Holder seemed to retreat slightly (but only slightly):

Pressed on whether that meant the United States would cooperate with a foreign court prosecuting Bush administration officials, Holder said he was talking about evidentiary requests and would review any such request to see if the U.S. would comply.

But this is manifestly absurd: If the Attorney General of the United States once accepts the absurdity that a Spanish court and Spanish judge, Baltasar Garzón, sitting in Spain and operating under Spanish law, actually have jurisdiction over American officials making official policy decisions inside the United States about how American military and intelligence agents can interrogate detainees at an American Marine Corps base inside Cuba... then how can Holder later limit such jurisdiction to "evidentiary requests?"

If Garzón has legal authority to demand we hand over evidence, he also has legal authority to demand we hand over "war criminals," from American military personnel, to John Yoo, to Jay Bybee, to William Haynes, to Douglas Feith, to Alberto Gonzales, to Richard Myers, to Dick Cheney -- even to former President George W. Bush himself.

Do read this entire, and most troubling, post.

The implications of this are almost too horific to contemplate. If we recognize and cooperate with such investigations, implicitly or explicitly honoring their jurisdiction, then we in essence hand a veto over our foreign - and perhaps even domestic policy - to the Euro left. This is every bit as outrageous, if not more so, than Obama's decision to criminalize policy differences by initiating a criminal investigation into the torture memos. It may be a way of outsourcing the criminalization of policy differences.

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Why Did We Ever Put Hamdan To A Trial?

I am still scratching my head wondering why we put bin Laden's driver, Hamdan, to a trial? This was a foolish move by our government.

Salim Hamdan was tried before a military tribunal on charges that he, one, conspired with al Qaeda to attack civilians, destroy property, and commit murder in violation of the laws of war. Two, he was charged with providing material support to terrorists. He was acquited of the former, convicted of the latter. The former carried a maximum sentence of life in prison, the latter a maximum of thirty years. He was given a five year sentence.

There are basically two types of prisoners in war time - those enemy combatants whom you want to keep in captivity until the end of hostilities for self protection and those that you want to punish on the gallows for war crimes. We have long known that Hamdan provided limo service for the bearded One. That itself does not make Hamdan a war criminal.

Even though the military charged Hamdan with being a war criminal, the government did not seek the death penalty - which should be an immediate clue that their case was hardly air tight and that whatever support Hamdan provided, it was not central to the crimes. That the case was weak was not surprising. We were charging a driver, not an operational officer for al Qaeda.

Besides being bin Laden's driver, Hamdan was caught at a border crossing carrying two RPG's. Given all this, clearly Hamdan is an enemy combatant and a threat to America. Thus, we are entitled to hold onto him until the end of hostilities - and there is no end in sight for that. That's too bad for Mr. Hamdan, but you makes your choices and you takes your chances. I'm not going to lose any sleep over the harshness that he might reasonably be looking at spending the rest of his natural life at Club Gitmo.

So why even hold a trial for this guy? It does several things, none of which in the balance seem like a positive for the U.S. One, giving Hamdan a sentence to a time certain now sets up the expectation in the court of public opinion that he will be released when his time is served. This is a self-inflicted public relations nightmare for our government.

Two, it sets a precedent that we will try our detainees, even for non-capital offenses. This just took us one step closer to turning the war on terror into the police investigation of terror.

Three, we have opened up a hornet's nest with this military tribunal for every socialist and communist in politics and the ABA to claim that this was an unfair tribunal. Tribunal's should be reserved for Khalid Sheik Mohammed and people of his ilk who will be given a propoer hearing before hanging. Let the far left complain about military tribunals in those instances and their shrill shreiks will gain no traction.

The only reason I can see to have sent Hamdan before a tribunal was to test the system itself. But this was a very poor decision on the part of our government. Nothing positive came out of this trial with the exception that it seems justice in terms of the verdicts was likely served. For anyone with a lot of prior military experience, that was hardly a surprise. Fairness, objectivity and personal honesty are the finest marks of our officer corps. But all that is meaningless to the far left for whom the military is evil and the tribunal system fatally flawed regardless of outcome. They expected a kangaroo court. The fact that it wasn't has made no impression on them.

Hamdan should never have been tried. He should have been left in his cell at Gitmo with the door securely fastened until he dies or hostilities clearly end. Save the tribunals for those deserving of being hanged. This was an unenforced error by the Bush Administration.

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