Either he slept through most of his career, or he just doesn't care.

Well, he is a Republican, so there aren't any other options.

Ouch.

When hilzoy brings the smackdown....it HURTS.

Republicans did not imagine they'd lose the election in 2008. (Permanent Republican Majority was the thinking throughout the early stages of the 'war on terror')

They did not plan very well with their strategies on how to act DURING their reign so that in the event another ideology came into power, there wouldn't be any 'evidence'.

Hence them being totally flabbergasted and being taken by surprise, with Obama's perfectly to-be-expected executive orders.

Kind'a like the planning of the 'war on terror' and the 'Iraq liberation': Sounds good; let's do it!

I bet there will be a whole bunch of stuff surfacing that will blow people's mind away. I think in the end, Bush's low approval ratings will seem high in retrospect.

There goes that wishful thinking about the Bush legacy will be vindicated by history.

It is long held in American jurisprudence that "ignorance of the law" is no excuse or defense from prosecution. So if Section 6 lays out what are considered "torture," there is no ignorance of the law to be pled.

International law, to which the United States is a signatory - as the country that pushed hardest for the International Tribunal following the Second World War - holds that "I was just following orders" is no defense to a charge of war crimes.

So, if these agents were acting in belief of a legal opinion that held that these listed activities were not war crimes when the law says they are, and they followed orders of anyone to commit them, then they are responsible for so doing and are guilty as charged.

Does Cornyn really want to defend the actions of the Nazis? That's what he's doing. He's stupid enough (Even Texans consider him pretty stupid, so that tells you something). Let the Republican right defend all this, make it public what they are doing, make it widely known. It'll only help come 2010.

Actually, it does appear that Cornyn has grounds in the law for what he's saying, though he exaggerates when he says the law provides immunity. See first Sec. 8 of the Military Commissions Act of 2006:

(b) Protection of Personnel- Section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with respect to any criminal prosecution that--

(1) relates to the detention and interrogation of aliens described in such section;

(2) is grounded in section 2441(c)(3) of title 18, United States Code; and

(3) relates to actions occurring between September 11, 2001, and December 30, 2005.

Then see Section 1004 of the Detainee Treatment Act of 2005:

SEC. 1004. PROTECTION OF UNITED STATES GOVERNMENT PERSONNEL ENGAGED IN AUTHORIZED INTERROGATIONS.

(a) Protection of United States Government Personnel- In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

Look, the man was on the Texas Supreme Court. That means that the law is whatever he wants it to be no matter what it says. And what he wants it to be is punitive and vindictive. There is a reason that the Texas boys keep getting their decisions reversed by the US Supreme Court. Check out the Texas Observer for comments on the quality of our lovely judicial system.

RG @ 12:31 AM quotes the MCA (emphasis added):

it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful.

You know, like an attorney is actually supposed to do.

If he reviews the evidence and finds that someone is guilty of torture (even under the broad sweep of the MCA) -- for example, someone who continued to do it after being told explicitly that their action was unlawful -- then of course he'll prosecute. That's his job, for God's sake. What is Coryn's problem? (Asked again rhetorically.) They've already passed the law that protects the people he's worrying about.

Oh, I forgot. Having spent eight years trashing the rule of law, it's entirely natural that Republicans can't make themselves believe in the just application of it.

I've met Cornyn a couple of times. I vote for "slept through his career." He does have great hair, though.

Cornyn does know this. He has more of an agenda than the one he alludes too. It is a pretense to block Holder's appointment for no other reason than to buy more time while they figure out what can be done to block Bush investigations. Think about it...this has gotten serious. The world is watching intently and Bush/Cheney and therefore their supporting republicans have no place to run or hide from the war crimes they've committed. Cronyn hopes to find a way to prevent the appointment of any one while they figure a way to prevent investigations.

To those who still want to believe the republicans will "see the light" if we just reach across the isle...don't hold your breath. These republicans will obstruct everything they can that will undo or expose the last 8yrs of corruption and terror even to the point of environmental collapse and economic disaster. The MSM and rightist like Cronyn and Linsay Graham want to call any change or exposure a far left witch hunt or revenge.

Picking up where they left off with this center right country crap while obstructing any change the American people demand as not "really" what the people want is what we need to overcome. Millions have been showing up in support of Obama's agenda yet these republicans still stand in the way shouting at the majority that they don't represent "real" Americans. This is what they call the de-Nazifying or de-Republicanizing our failed government.

It would be easier if we did not have a corporate owned and operated press which will go to any lengths to save face (for their support and encouragement of war crimes)and to make sure the wealthy still maintain their tax cuts and can protect their holdings and the business of multinational corporations. In the last administration they stalled investigations by "gumming it to death" and now stall for time by blocking appointments to the DoJ.

They only operate for political gain and never for the good of the people. That is what motivates Cronyn's hold on Holder's appointment...he doesn't give a shit about the good or protection of anything but his own party.

Posted by: RG on January 23, 2009 at 12:31 AM

That has nothing to do with his holding up Holder's appointment but relates to an AG's actions should he ever attempt to prosecute personnel. It in no way is reason to block this appointment...and Cronyn knows this...yet is using it as an excuse anyway. He knows it is a stall for time just to impede progress.

Cornyn is Bush's lapdog. He is loyal and stupid. He is perfect for Bush. Your wonderful analysis is lost on Cornyn. He is a moron. I'm not just name calling. I mean that he really isn't a deep thinker. He, like Bush, just isn't.

Zut alors! The Château d'Yquem link to Wikipedia doesn't work; this one does. Bon appétit.

Let's take Cornyn down another peg or two, and examine just what his problem is---'kay?

"Other GOP members of the committee, said Cornyn, are also concerned about the potential for prosecutions.

Cornyn just implicated not only himslef, but also other members of his Caucus, in the premeditated commission of war crimes, in direct violation of several international treaties to which the United States is a signatory.

The intent of the Military Commissions Act, he argued, was to provide immunity from prosecution if agents believed they were acting lawfully.

Cornyn now argues that it was the intent of a specific law to thwart the binding clauses of various international treaties that identify torture as a war crime and, likewise, as a crime against humanity. Given that the United States is a signatory to these international laws and documents, it stands to reason that Cornym's intent---most certainly covertly, and now probably overtly---both was then and is now the subversion of the Law in time of War, thus constituting acts of Treason against the United States.

"Part of my concern, frankly, relates to some of his statements at the hearing in regard to torture and what his intentions are with regard to intelligence personnel who were operating in good faith based upon their understanding of what the law was," said Cornyn.

People like Cornyn have operated for thousands of years on the legal concept that ignorance of the law is no excuse. His big fear right now is that the "little fish", in the legal foxtrot of plea-bargaining, will turn State's evidence on their superiors---and so on, right up the ladder, one twisted rung at a time---until the criminal responsibility for the past 8 years comes home: to him.

There might easily be an even bigger fear rumbling around inside Cornyn's wee smidgen of a brain, as well; wages, and the material comforts purchased with those wages, if acquired through the commission of criminal acts, can be seized by the State. It's called RICO---and Federal statutes can be held to be in force against employees of the United States, and by extension employees of private firms under direct contract to the United States, even when those committing the illegal acts are on foreign soil.

"Committing criminal acts for profit" is the definition of "racketeering," and there can be little if any doubt that the Bush administration did, with both malice and intent, seek to thwart the Law for its own political ends, thus constituting "organized criminal activity."

As an aside, someone really ought to educate Rush Limbaugh him as to the meaning of "banana republic...."

"John Cornyn ought to know this. He has a law degree. He served as a District Court judge for six years, on the Texas Supreme Court for seven, and as Texas' Attorney General from 1999-2002." Now you know why, when I was in law school and our professors wanted to give an example of some truly abominable court decision, they almost invariably chose an example from Texas. Although in fairness to Mr. Cornyn, that was long before he was on the bench.

If agents thought they were immune from prosecution and what they were doing was perfectly legal, why then did one of the international insurance agencies (think it was Lloyds) sell insurance against successful judgements against them for mistreatment of persons they had in custody? No one buys insurance they think they don't need.

anyone remember the Alito confirmation hearings? I seem to recall that the Honorable John Cornyn was obsessed with making sure Alito would follow the letter of the constitution, not try to determine the intent of the document. Is this his acknowledgment that Holder is smarter than Alito? obviously, Justice Alito can't be trusted to divine intent, but Holder is supposed to. hmm.

anyone wonder what Cornyn's first question to an Obama appointed Judge will be? I bet it's something about constructionalism...

Holder should answer in a calm, clear voice that he will pledge to bring war crimes charges only against individuals who the government has reason to believe have broken the law.

And to the extent that the law allows for the Nuremberg defense, by all means, defendants may feel free to plead for innocence on that basis.

this is even worse and stupider, in my opinion than Nuremberg defense, at least that was fairly novel (as were the trials, at the time) now anyone using it has to pledge complete and total ignorance of the laws of the United States and the UCMJ. pretty sad for an intelligence or a military officer to have to do that.

"Part of my concern, frankly, relates to some of his statements at the hearing in regard to torture and what his intentions are with regard to intelligence personnel who were operating in good faith based upon their understanding of what the law was," said Cornyn.

From the "Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment"

1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.

If the US properly complied with its legal obligations above, there should be no ambiguity among intelligence personnel about what the law was.

Further, see Part I, Article 2, which makes clear that there is no "good faith" defense involving clearance from superior officers:

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

http://www.unhchr.ch/html/menu3/b/h_cat39.htm

A commentator above refers to the MCA stating that "it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful."

First, this is directly contradicted by the Convention on Torture. Second, note that this is a two part test (see the "and") that requires that the act not be one that "a person of ordinary sense and understanding" would not have known was unlawful.

So, therefore, if you're accused of, say, waterboarding, you'd have to demonstrate that a person of ordinary sense and understanding wouldn't get that tying a person down and then time and again forcibly cuttng off air to their lungs until they were thrashing about in asphyxiation wasn't unlawful....