Friday, April 17, 2009

Thank You, "Joe The Plumber!"


Ken said...

So Obama is a war criminal for not pursuing an investigation into CIA personnel...

But Joe The Plumber (who isn't named Joe and isn't a plumber) is someone you welcome with open arms?

You're fast becoming a right-winger, Christian! Hehe.

JCB said...

Oh man. What a trilogy of posts. These should be taken as far out of any context as possible. If Christian changed the "k" to a "c," he would be the guest hosting for Glenn Beck in no time.

On the CIA-torture debate, I sympathize with your sentiments, but the principle of legality and our valuable traditional of civil transitions of power cut far too heavily against indicting these officials. It is fundamentally a breakdown in our legal system, a failure to prescribe clear, transparent rules for obviously foreseeable events. Obama is fixing that as we speak. The civilians who were acting in good faith under what they knew to be legitimate interpretations of the UCMJ, 5th Amend, and DTA should not be punished for these shortfalls.

Christian Duque said...

Joe The Plumber is a class act. He took three photos with us, BEFORE heading over to his book-signing. He was also running behind schedule - having to catch a flight and later that day taping with Hannity.

Christian Duque said...


Good faith is not an exception for criminal conduct. I hardly feel there was any interpretation of the UCMJ, 5th, or DTA to be had. These inmates were being denied even habeas corpus.

Have you read the Hamdi, Hamdan, Boumedine, or Rasul cases?

JCB said...

The question of criminal liability can be disposed of rather easily. The actions of a public official fall within the public authority justification doctrine. Conduct that would otherwise be criminal is justified when it is authorized by an official statement of the law defining the duties of the public officer and when the officer believes his conduct to be in the lawful execution of legal process. The test thus has two prongs. The OLC memos meet the official statement requirement and good faith meets the subjective "believes his conduct to be lawful" requirement.

The more complicated question, which is being hashed out by an en banc Second Circuit in Arar v. Ashcroft, is the matter of civil damages for violations of substantive due process. The line of cases ending with Boumediene deal with separation of powers and judicial review, which are related, but distinct in a critical aspect to the hypothetical. Specifically, Rasul through Boumediene established the reach of the Constitution's compulsory process and set boundaries on the ability of Congress and the Executive to limit judicial review within such framework. When we are talking about imposing personal liability for acts performed in an official capacity, the issue the qualified immunity of said officials. Plaintiffs would claim a violation of substantive due process rights at the hands of government officials. In order to set aside the qualified immunity, the court must conclude the officials acted contrary to a constitutional right that was "clearly established" at the time of the act. Doctrinally, the point of the "clearly established" standard is to impute the requisite mens to the officials without requiring the difficult inquiry into actual malice. Without violation of "clearly established" rights that would be apparent to a reasonable person, the inquiry ends. The contentious development of the Guantanamo-habeas cases demonstrates that the foundation of rights laid down in Hamdi were in no way "clearly established" until Boumediene, and, if I'm not mistaken, the acts in question occurred prior to that decision. Moreover, the weighty factors of (1) the government's asserted national security interest and (2) the Court's hesitancy to remove qualified immunity in the context of disputes related to ongoing, current events militate towards a very deferential judiciary. The claims would fail.

francisco said...

JCB! Wow, although I couldn't put it into words as nicely as the great one, I would have to say I agree with JCB. Sadly, these people were doing something that (at the time) was legally allowed. If they did something after a ban was put into place, then that is a different story; but, at the time they were doing what was legal (sadly, the law doesn't care what is right and wrong).

Let's take an extreme example: we all know cheating on your wife is a bad thing, but it isn't illegal. If it suddenly became illegal, we couldn't hold those accountable that had already committed the sin. That is one of the principles of democracy, you cannot hold people legally responsible for a retroactive action.

Christian Duque said...

"The actions of a public official fall within the public authority justification doctrine." I disagree with you, that is an easily dismissed point. Are you arguing that acts committed in violation of the UCMJ, the Geneva Convention (which the U.S. had signed into), and the Int'l Law of War fall within the Chief Executive's official capacity?

I think it's outrageous that you are positing that criminal acts fall within the President's official capacity (have you read Nixon, lately?) The President's qualified immunity, unlike his absolute immunity for tort claims while in office, is weighed in on a case-by-case basis. If the president acts criminally, then he is subject to personal liability.

Clearly S.O.P. is a factor here. You had a president that started out in the highest zone w/ Afghanistan, down to the twilight for Iraq, and arguably at lowest ebb of Jackson, J.'s dissent analysis in the Youngstown/Tube cases.

I don't want to get into Tort issues until we've properly addressed the criminal context first. Also, I'm not sure how the President's absolute immunity on civil/tort claims will extend all the way down the line to those "good-faith protected hooded torture specialists."



Always at the front of the line to brown nose, huh? Lol.

Sadly, the U.S. was signed member to the Geneva Convention. A U.S. Treaty is entered into by the President with advice and consent of the U.S. Senate. Once you sign, it's binding, that means we are held to that standard.

If the President orders his staff to violate that treaty, the president is acting criminally. If the president against Congress, he is in the lowest ebb of the Youngstown/Tube analysis and his orders can be ruled per se invalid. If the president acts criminally (per Nixon) he loses his qualified immunity & obviously his absolute immunity even in matters of civil/tort litigation while in office.

JCB may be jumping before the horse by downgrading the very relevant place Separation of Powers has to this argument, but I'm sure I'm wrong, after all, he goes to a Tier 1 law school.

francisco said...

Christian, yet again, sadly that is one of that issue with a sovereign nation based world. Did you not take Nolan's intro level INR class here at UF? (*BTW, what is with the personal attacks all the time, you tell me to jump of a cliff with Keg and now this :lol:*)

Sovereign nations have the right to conduct themselves in whatever way they see fit until another party (in this case, country) intervenes. I agree with JCB, because (based on the global-political structure we have) our sovereign rights of an independent country outweigh any global resolution we sign on it. The Geneva Convention and its procedures are just that: a resolution of our feelings. As horrible as that sentiment is, any head of a sovereign state can violate an international agreement because there is no global system to hold them accountable, especially a sovereign nation the size of the United States. I am sure you may mention the UN or the World Court, but seriously, do you expect them to hold the United States (or Bush for that matter) accountable? The only way you can enforce things like the Geneva Convention is to be a big country and bully small countries or to give up some of your powers as a sovereign nation to to some global political system and allow them to have a monopoly on coercion.

I still remember Nolan's class on intro to INR, and this was the crux of the class, a sort of catch 22 if you will: everyone wants to be able to hold each other accountable on a global scale, but no one is willing to forgo some of their sovereign powers in order to do so. And, we that, I yet again restate that I agree with JCB. Individuals in the State Department and in the CIA were following orders given to them by a President who had deemed their actions legal; as a citizen of this country, you are first accountable to the laws of this country, not those of some pie-in-the-sky global community.

Christian Duque said...


Don't embarrass yourself. We're discussing Constitutional Law here. Unless you're ready to speak to the issues of the U.S. Constitution and relevant case law on the matter, then please keep your undergraduate logic to yourself.

In Nixon, the President was stripped of his immunity and would have been prosecuted were it not for President Ford's pardon (many say this cost the election to Carter in '76).

There is a process for the U.S. signing into treaties - this was not an executive order after-all.

Are you familiar with the arrest of Augusto Pinochet? Slobodan Milosevic? Perhaps not.

francisco said...

Christian, you just said he did something that was against the Geneva Convention? Now you are saying he can be held accountable by the Consitution? I don't think breaking the Geneva Convention constitutes some form of misgivings against the US Constitution; well, actually I guess it does since Congress does approve it...but, I think that leaves Bush accountable, not those that followed legal orders. I think the idea that some international convention (even if established through treaty) somehow supersedes the legal order provided for by the President is murky at best. As you stated, I am not a lawyer, but I am sure you will find the legal history of such a matter quite gray. After all, if it was black and white in legal terms, then we would have already seen Bush and these agents held accountable. Perhaps someone who is studying "the law" understands what I am getting at and can shed some light on it.

Slobodan Milosevic committed genocide, Bush authorized waterboarding...two completely different things. While I believe the Bush interrogation tactics were wrong, but it isn't on the same level as genocide. It seems that the World Court seems to agree and it appears Congress does as well. Congress did not overturn Bush's "interrogation" while he was in office, further enforcing the notion that our country's sovereignty overrules the Geneva Convention (sad, I know) and it wasn't until another Executive Order was issued that the practicing of these "interrogation" tactics was stopped (correct me if I am wrong on this point).

Ultimately, what I am getting at, is the crux of the original post: there really isn't a way to hold the individuals that actually committed the moral crimes (the agents) accountable because they were following legal orders. At the same time, the individual that made such inappropriate behaviors legal (the President) will never get held accountable because...well...we are the United States and there isn't some type of global community that we cede our sovereignty to in order to realistically hold us accountable for human rights violates (point to the UN and the World Court all you want, but let's be realistic). I think this is something we can all somewhat agree on.

JCB said...

I'm not going to be able to do justice to this highly technical debate until finals are over, but I will note a couple things for the time being.

(1) Frank makes decent points on the political science aspects of the debate, but they sort of shoot past what Christian and I are talking about. The real question IR-related people need to be asking is when it is appropriate for American courts to apply international law. That answer is clearly neither "neither" nor "always," so set about finding some principles to guide you. This is one of the threshold issues in the qualified immunity questions at hand. Second, I would caution mixing international relations theory with a constitutional law discussion. IR theories, which desperately attempt to differentiate themselves along clearly delineated boundaries, have difficulty reconciling said boundaries with the muddled reality of the common law system. Some examples to illustrate this point: (1) the continued adoption of British common law by American courts literally during the War of 1812, and (2) the vast divergence in the development of the global political system and emerging common law systems along supernational lines - there is simply no correlation between the two - and (3) consistent breakdowns of extradition treaties between otherwise friendly and cooperating states. Finally, and most importantly, while the IR approach naturally focuses on the question of sovereignty in such a discussion, the constitutional law approach is confined to the four corners of the Founding Document and the soundness of the doctrine proceeding from it. In other words, I will be on my weakest ground when resorting to platitudes of political theory.

(2) Christian, we need to decide whether we are going to debate the liability of senior Executive branch officials, including the President, or if we are talking about members of the civil service. In the former, the controlling question is whether we are "inside" or "outside" of Nixon; with the latter, the qualified immunity doctrine matters more and Nixon much less so. It's your pick.

(3) I will admit that I get sick to my stomach defending these positions. It is terrifying what went on at that camp and at black sites around the world and it's very difficult for me to defend it. However, putting that aside, for better or worse, the individual officials are on strong legal ground, so I'll take up that part of the discussion. This is why I initially called this a fundamental breakdown of our legal system.

(4) Wager: We set up a J.D. educated, disinterested 3rd party to officiate the "debate." We go back and forth in this comments section until the end of May. If you are judged to be the winner, I will do the previously requested interview. If I am the winner, you must perform and post a full 10 minute rendition of The Aristocrats. This is a take-it-or-leave-it offer, and I will be happy to proceed with the discussion notwithstanding your acceptance. This offer becomes void at midnight on April 30. You may accept in any manner of your choosing, including by providing a succinct outline of your Aristocrats monologue.

Christian Duque said...


Don't embarrass yourself. We're discussing Constitutional Law here. Unless you're ready to speak to the issues of the U.S. Constitution and relevant case law on the matter, then please keep your undergraduate logic to yourself.

We both think you are making good points, but they're not really relevant to our conversation.

Have you read Jackson, J.'s dissent in the Youngtown case? He basically sets out a three prong test in which the president acts.

1). With the express support of Congress his strongest. (This was clear in invading Afghanistan - the nation was united).

2). Medium Zone aka Twilight Zone - here the president acts without the word of Congress (no pro or con) (This would be Iraq)

3). The lowest ebb - where the president acts against Congress. Here his actions are almost per se invalid.

I am using this test, in addition to the criteria in place for the U.S. to enter into treaties as a basis for my argument that George W. Bush violated Int'l Law and did so w/o the support of the U.S. Congress. I am also arguing that because the President was engaged in criminal activities - he was acting outside of his official capacity and thus anyone that followed his orders could be prosecuted.

JCB delved into Tort liability in his initial post - an area not outside of the scope of my initial question.

Int'l Relations is political science - that's not to say that you're knowledge is any less important, it's just not relevant to our argument.

You are a fmr. SBVP candidate, agency director, and original member of the Pants Party. I have all the respect in the world for you, but in the past you've taken jabs at me on here and I've not made a big deal, I just figure it's a two way street and we're cool w/ each other like that. I mean let's face it - you're a regular here, for years now.

I'm glad you're here, Frank, but lighten up. Some years ago people you were my favorite, then it was Ryan Nelson, now people say my favorite is Justin Wooten and I also have a soft side for Joe Trimboli.

You're a great SG'er and a great Indie, but your comments are off topic.

Read This:

Hamdan v. Rumsfeld, 548 U.S. 557 (2006), is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949."[1] Specifically, the ruling says that Common Article 3 of the Geneva Conventions was violated."The U.S. Supreme Court, the highest court of the land (Art. III, VI) cites the Geneva Conention (per our signing in 1949) through its Original Jurisdiction, binding this country, and HOLDING its leaders ACCOUNTABLE.

Do you see now how your Sovereignty issue has no place? Read on.

A Quick skim through the following will help too:

Marbury v. Madison
U.S. v. Nixon (Exec. Priv.?)

Read up on the President's
Absolute & Qualified Immunity.

Also skim through:


Total Prep Time: 3hrs.
Then join us in our debate.

I am confident JCB will get the Gold. You will get the Silver. And I will get the Bronze :)

Christian Duque said...

Perform? Like on video? ....

francisco said...

Haha Christian, you are too funny. Me, read the dissent in the Youngtown case? As I have stated before, I am just a simple folk; why would I want to read that when ignorance is bliss :-). Alas, I can clearly see I am in over my head here so I will end my involvement in this back and forth on two points:

1. I would think the general population would agree that you should not play judge, jury, and executioner with the lives and careers of the agents that performed the acts because, at the time, they were performing a legally allowed (and, in some cases, encouraged) act and stated as such by their President.

2. I nominate The Honorable Thomas F. Jardon to moderate...or my good buddy Ryan J. Moseley :-). In fact, I think Mr. JCB has some pull where he could arrange for Mose to moderate :-).

Christian Duque said...


you are NOT simple folk and reading a case brief is not rocket science, anyways.

Thomas Jardon is a great pick, but I fear his political conservatism and open support of Rudy Giuliani could cloud his judgment.

Anonymous said...

"If you are judged to be the winner, I will do the previously requested interview. If I am the winner, you must perform and post a full 10 minute rendition of The Aristocrats."


Christian, I hope you are familiar with the joke. This is a pretty uneven bargain.