You Must See Past Your Nose Obama

We discussed the secret torture memos and criticised General Hayden for publicly chiding President Obama for releasing them.

The President released the memos, but along with that release he made the statement in his press release that he would not allow the people who "only followed orders" to be prosecuted.

At least that is the opinion Law Professor Turley has posted concerning the issue of what the president meant.

For President Obama to look forward only a little bit, because he does not want to see the whole picture, is going to prove to have been short sighted.

If one will look forward a little further than President Obama is doing now, one will see repeats of these crimes in the future. That is because those types of criminals now no longer need to fear prosecution.

It is the dream of every criminal of this sort to want to be able to say "I was following orders" because each and every criminal of that sort from time immemorial was "following orders". It is the spineless who will not speak truth to power, who will not say "No, I will not do torture because it is a violation of American law".

If we look at the facts, find crimes and therefore want to prosecute, that is "looking backward"? What if we look at the facts, find no crime and therefore do not want to prosecute, that is "looking backward"? No, both scenarios are cases of justice, not cases of "looking backward".

Look further ahead President Obama! Calling justice "looking backward" is inaccurate, a canard, a red herring, and a straw man that actually avoids the issue.

Your press release is an exclamation of the Nuremberg defence that has already been rejected by the United States and the free world.

Remember that it was Hitler’s minions who exclaimed that they were "only following orders” at Nuremberg, and remember that it was rejected.

That defence has also been rejected by US federal criminal trial courts. There is a criminal case in the United States Court of Appeals, Fifth Circuit that held it to be criminal.

It is a published case where a sheriff and his deputies water boarded prisoners to exact confessions. They were all convicted of felonies by a jury. One of the deputies raised the Nuremberg defence, but it was rejected by the federal trial court and also by the federal appellate court.

It is not an issue of war crimes, it is an issue of plain vanilla crime. The case is US v Lee, 744 F.2d 1124 (5th Cir., 1984).

As of 2008 Dennis J. Dimsey who worked on the US v Lee case still worked at the DOJ and might still work there and might still remember prosecuting police officers and those who only followed orders and did water boarding.

Uphold the criminal law, or you will revive the notion of the old Department of Just Us.

UPDATE: Well, to show how much influence we do not have, Obama has gone further now and said even those who wrote America's shame memos will not be prosecuted.

This is having international repercussions because it violates treaties. In that sense there is a backlash here in the US too because it violates American Law when a treaty is violated.

The Attorney General, Eric Holder, is the final arbiter of this since he is independent of the president, and therefore can prosecute if he so chooses. So can congress via a special prosecutor. But it is unlikely that either will go down that road.

In the end the president has the final say in that he can pardon them, however, that is a minefield I do not expect him to navigate for several reasons.

One is that the damage is now done, the sore is festering, but our government thinks we can outlive the gangrene.

They will let this rot underneath with a band aid on top, because they think that is the sophisticated thing to do.

Thus, they are saying "Look forward (even if it is only to the tip of our nose)".