THE HARD CHOICE

[OnyxCollie]

59. Everyone acts in good faith...

-WASHINGTON, May 17 — Paul D. Wolfowitz, ending a furor over favoritism that blew up into a global fight over American leadership, announced his resignation as president of the World Bank Thursday evening after the bank’s board accepted his claim that his mistakes at the bank were made in good faith.

In the carefully negotiated statement, the bank board praised Mr. Wolfowitz for his two years of service, particularly for his work in arranging debt relief and pressing for more assistance to poor countries, especially in Africa. They also cited Mr. Wolfowitz’s work in combating corruption, his signature issue.

Mr. Bush surprised them by selecting Mr. Wolfowitz, then a deputy secretary of defense and an architect of the Iraq war. Leaders of Germany and France objected but decided not to make a fight over the choice and risk reopening wounds from their opposition to the war two years earlier.

Mr. Wolfowitz’s after-tax salary was $391,440 beginning July 1, 2005. (Weisman, 2007)

Letter from Ashcroft, Goldsmith, Comey, and Philbin to Sens. Pat Leahy and Arlen Spector
ashcroft_goldsmith_comey_and_philbin_to_pjl1
October 29, 2007

The Honorable Patrick J. Leahy
Chairman, Committee on the Judiciary
The Honorable Arlen Specter
Ranking Member, Committee on the Judiciary
United States Senate
Washington, D.C. 20510


Protecting carriers who allegedly responded to the government's call for assistance in the wake of the devastating attacks of September 11, 2001 and during the continuing threat of further attacks is simply the right thing to do. When corporations are asked to assist the intelligence community based on a program authorized by the President himself and based on assurances that the program has been determined to be lawful at the highest levels of the Executive Branch, they should be able to rely on those representations and accept the determinations of the Government as to the legality of their actions. The common law has long recognized immunity for private citizens who respond to a call for assistance from a public officer in the course of his duty. The salutary purpose of such a rule is to recognize that private persons should be encouraged to offer assistance to a public officer in a crisis and should not be held accountable if it later turns out that the public officer made a mistake. That principle surely applies here, especially given the limited nature of the immunity contemplated in the bill, which would apply only where carriers were told that a program was authorized by the President and determined to be lawful.

Failing to provide immunity to the carriers will produce perverse incentives that risk damage to our national security. If carriers now named in lawsuits are not protected for any actions they allegedly may have taken in good faith reliance on representations from the Government, both telecommunications carriers and other corporations in the future will think twice before assisting any agency of the intelligence community seeking information. In the fight against terrorism, information private companies have - particularly in the telecommunications field - is a vital resource to the Nation. If immunity is not provided, it is likely that, in the future, the private sector will not provide assistance swiftly and willingly, and critical time in obtaining information will be lost. We wholeheartedly agree with the assessment of the report accompanying the bill from SSCI: "The possible reduction in intelligence that might result from this delay is simply unacceptable for the safety of our Nation." S. Rep. 110-209, at 11.

Mike Duncan
Chairman
Republican National Committee
3 10 First Street, SE
Washington, DC 20003

April 18, 2007

To date, the Committee has received none of the information referenced above. Although staff met with RNC counsel and has communicated with RNC counsel by phone and email, the RNC still has not identified the "roughly 50" White House officials who held RNC accounts. And despite several requests, the RNC has not provided any details about the number of RNC e-mails sent or received by White House officials. This is elementary information that should already have been provided to the Committee.

Instead of providing this information, the RNC counsel has proposed to limit the Committee's request by using narrow "search terms" to identify e-mails relevant to the Committee's investigation. On Monday, RNC counsel proposed eight search terms, such as "political briefing," "Hatch Act," and "2008." While the "search term" approach was offered in good faith by the RNC counsel, it presents some serious problems. For example, the search terms proposed by the RNC would not have located a January 19,2007, e-mail from an official in Karl Rove's office to an official at the General Services Administration transmitting a copy of Powerpoint slides prepared by the White House that list the top 20 Democratic targets in 2008. That e-mail read: "Please do not email this out or let people see it. It is a close hold and we're not supposed to be emailing it around."'

Using search terms to limit the number of documents to be produced risks overlooking potentially responsive documents. The volume of e-mails involved may make resort to search terms necessary. But before the Committee can assess whether a search-term approach is required in this case - and whether it is required for every White House official or only some of them - the Committee needs basic facts about the scope and nature of the e-mails preserved on RNC servers. The Committee staff reasonably requested a meeting tomorrow to discuss these issues, but this request was unreasonably rejected. In fact, the RNC counsel stated that no meeting would occur until the Committee agreed to limiting search terms. This is not an acceptable proposal.

Sincerely,
Henry A. Waxman
Chairman

“’The Nacchio materials suggest that the NSA had sought telco cooperation even before 9/11 undermines the primary argument for letting the phone companies off the hook, which is the claim that they were simply acting in good faith after 9/11,’ said Kevin Bankston, a staff attorney for the Electronic Frontier Foundation, a civil liberties group.” (Vuong, 2007).

Holder Says He Will Not Permit the Criminalization of Policy Differences
http://abcnews.go.com/Politics/story?id=7410267&page=1

As lawmakers call for hearings and debate brews over forming commissions to examine the Bush administration's policies on harsh interrogation techniques, Attorney General Eric Holder confirmed to a House panel that intelligence officials who relied on legal advice from the Bush-era Justice Department would not be prosecuted.

"Those intelligence community officials who acted reasonably and in good faith and in reliance on Department of Justice opinions are not going to be prosecuted," he told members of a House Appropriations Subcommittee, reaffirming the White House sentiment. "It would not be fair, in my view, to bring such prosecutions."

Here's Bybee's legal opinion:

Section 2340A makes it a criminal offense for any person "outside of the United States {to} commit or attempt to commit torture." Section 2340(1) defines torture as:

an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody of physical control.

18 U.S.C. § 2340(1). As we outlined in our opinion on standards of conduct under Section 2340A, a violation of 2340A requires a showing that: (1) the torture occurred outside the United States; (2) the defendant acted under the color of law; (3) the victim was within the defendant's custody or control; (4) the defendant specifically intended to inflict severe pain or suffering; and (5) that the act inflicted severe pain or suffering.

Section 2340 is pain that is difficult for the individual to endure and is of an intensity akin to the pain accompanying serious physical injury.

We next consider whether the use of these techniques would inflict severe mental pain or suffering within the meaning of Section 2340. Section 2340 defines severe mental pain or suffering as "the prolonged mental harm caused by or resulting from" one of several predicate acts. 18 U.S.C. § 2340(2). Those predicate acts are: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that any of the preceding acts will be done to another person. See 18 U,S.C. § 2340(2XA}-{D), As we have explained, this list of predicate acts is exclusive, See Section 2340A Memorandum at 8. No other acts can support a charge under Section 2340A based on the infliction of severe mental pain or suffering. See id. Thus, if the methods that you have described do not either in and of themselves constitute one of these acts or as a course of conduct fulfill the predicate act requirement, the prohibition has not been violated. See id.

Specific Intent. To violate the statute, an individual must have the specific intent to inflict severe pain or suffering. Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture. As we previously opined, to have the required specific intent, an individual must expressly intend to cause such severe pain or suffering. See Section 2340A Memorandum at 3 citing Carter v. United States, 530 U.S. 255, 267 (2000). We have further found that if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent. See id. at 4 citing South Atl. Lmtd. Ptrshp. of Tenn. v. Reise, 218 F.3d 518, 531 (4th Cir. 2002). A defendant acts in good faith when he has an honest belief that his actions will not result in severe pain or suffering. See id. citing Cheek v. United States, 498 U.S. 192, 202 (1991). Although an honest belief need not be reasonable, such a belief is easier to establish where there is a reasonable basis for it. See id. at 5. Good faith may be established by, among other things, the reliance of the advice of experts. See id at 8.

Furthermore, no specific intent to cause severe mental pain or suffering appears to be present. As we explained in our recent opinion, an individual must have the specific intent to cause prolonged mental harm in order to have the specific intent to inflict severe mental pain or suffering. See Section 2340A Memorandum at 3. Prolonged mental harm is substantial mental harm of a sustained duration, e.g~ harm lasting months or even years after the acts were inflicted upon the prisoner. As we indicated above, a good faith belief can negate this element. Accordingly, if an individual conducting the interrogation has a good faith belief that the procedures he will apply, separately or together, would not result in prolonged mental harm, that individual lacks the requisite specific intent. This conclusion concerning specific intent is further bolstered by the due diligence that has been conducted concerning the effects of these interrogation procedures.

Kristol Calls On Bush To Pardon Torturers And Wiretappers, Reward Them With Medal Of Freedom
http://thinkprogress.org/politics/2008/11/29/32970/kristol-medal-torture/

In his new Weekly Standard column, right-wing pundit Bill Kristol lays out a to-do list for President Bush before he leaves office. He urges Bush to deliver speeches “reminding Americans of our successes fighting the war on terror.” Kristol dreams, “Over time, Bush might even get deserved credit for effective conduct of the war on terror.”

After urging Bush to fight the incoming administration’s desire to close Guantanamo, Kristol concludes with this:

One last thing: Bush should consider pardoning–and should at least be vociferously praising–everyone who served in good faith in the war on terror, but whose deeds may now be susceptible to demagogic or politically inspired prosecution by some seeking to score political points. The lawyers can work out if such general or specific preemptive pardons are possible; it may be that the best Bush can or should do is to warn publicly against any such harassment or prosecution. But the idea is this: The CIA agents who waterboarded Khalid Sheikh Mohammed, and the NSA officials who listened in on phone calls from Pakistan, should not have to worry about legal bills or public defamation. In fact, Bush might want to give some of these public servants the Medal of Freedom at the same time he bestows the honor on Generals Petraeus and Odierno. They deserve it.

In the Bush era, the Medal of Freedom has come to absurdly represent a reward for those who carried out policy failures at the urging of the Bush administration. By this standard, the implementers of torture and warrantless wiretapping certainly qualify for such a medal.

...except unlawful enemy combatants.

Military Law Review
Winter, 2007
194 Mil. L. Rev. 66

A MATTER OF DISCIPLINE AND SECURITY: PROSECUTING SERIOUS CRIMINAL OFFENSES COMMITTED IN U.S. DETENTION FACILITIES ABROAD

MAJOR PATRICK D. PFLAUM

~snip~

In addition to the considerations set out in the Geneva Conventions, AR 190-8, and the Manual for Courts-Martial (MCM), there are three {*85} other important factors in determining an appropriate disposition of offenses. First, in the case of unlawful enemy combatants, one of the arguments for leniency--that misconduct is often driven by "honorable motives"--may not apply. n123 A number of those detained are alleged to have participated in some part of the War on Terror as unlawful combatants, and may be seeking to continue their unlawful activities. n124 A detainee's escape and subsequent reunion with hostile forces may have more consequence, considering the nature of the War on Terror. There are several documented cases of released detainees continuing hostile activities against U.S. or coalition forces. n125 Second, the leniency rationale for escape attempts does not necessarily apply either. n126 Considering that he was detained for conduct that is considered illegal under international law, an alien unlawful enemy combatant escaping from the detention facility at Guantanamo Bay is more akin to a prisoner escaping from a federal penitentiary, rather than a POW escaping from a POW camp. Again, a detainee's escape and continued aggression as an unlawful combatant may be of more consequence, considering the unconventional nature of the War on Terror. Third, it is logical that a disciplinary punishment, like the loss of a comfort item or a privilege, may have more of an impact on a detainee facing indefinite detention or serving a lengthy military commission sentence, rather than continued {*86} confinement adjudged as a judicial punishment. In deciding which punishment is appropriate, many considerations may often conflict.