I think we ought to start a collection of money and gifts and anything else we can put together and send it to the judge in exchange for an immediate settlement against Rumsfeld.

And they're trying to spin it as another example of a need for "tort reform"? oh my gawd. Somebody get my whip, cause somebody needs a flogging.

Posted December 9, 2006 2:11 PM by Greg London

I demand this speeding ticket be dismissed. I'm too busy to be distracted by this.

Posted December 9, 2006 2:53 PM by Dave Lartigue

Blink. Someone said (not two weeks ago) that the phrase "executive privilege" would start getting thrown around, and lo! (Although admittedly, those specific words weren't used.)

I keep forgetting that they don't care if I get astonished every 3 seconds.

Posted December 9, 2006 3:12 PM by kate

*cough*Presidential Pardon for acts in office*cough*

Posted December 9, 2006 4:18 PM by Steve Buchheit

Hmm. Let's see whether W is willing to throw Rummy to the dogs or not.

Posted December 9, 2006 5:29 PM by Fragano Ledgister

Steve (4) :*cough*Presidential Pardon for acts in office*cough*

Ah, thats the whole point here, Steve. Presidential pardons do not exempt someone from civil liability for their actions -- Bush can't help him that way. The problem is that the bar is set rather high for this kind of a case. Fitzgerald v. Nixon established almost complete civil immunity for official actions. What you will have to prove is that those acts were so excessive as to be completely outside of any legitimate official capacity. If you can do that, and show that you have standing, you may have a clear shot at him as he is no longer in office, and therefore the issues of separation of powers and interference with necessary government operations may not apply.

Posted December 9, 2006 5:48 PM by Claude Muncey

On the other hand, I understand, possibly wrongly, that if he's pardoned, he can't use the 5th to avoid answering pointy questions about what he was ordering. (I also understand they've gotten hold of an order with his signature on it, and a comment in the same handwriting, that authorizes 'rigorous procedures' or whatever the favored euphemism is.)

Posted December 9, 2006 5:54 PM by P J Evans

If post-invasion trial was good enough for Hermann Goering and Saddam Hussein, it’s good enough for Don Rumsfeld, right?
Absolutely!

What sort of action do the Geneva Conventions call for when their stipulations are flagrantly violated, anyway?

It's the discussion of this sort of thing, with friends at work and elsewhere, that really gets my goat. While people believe Rumsfeld and others who authorized these actions ought to be held responsible, no one thinks it will actually happen. In my opinion, if we fail to allow this to happen, then that last sliver of respect we might still have in the eyes of the rest of the world will disappear completely.

Posted December 9, 2006 6:16 PM by Gary Townsend

Hey, respect for rule of law. We've got to walk the walk sometimes or no one will believe us.

Posted December 9, 2006 7:56 PM by Teresa Nielsen Hayden

Fragano Ledgister: Hmm. Let's see whether W is willing to throw Rummy to the dogs or not.

::wanders off to Google whether or not W actually said "heck of a job" to Rummy at any point, which would answer that question::

Posted December 9, 2006 8:56 PM by Aconite

Hey, respect for rule of law.

21 January 2009.

Until then, I have no reason to believe that Mad George won't outlaw the senate and declare himself Supreme Chancellor before he's out of office.

pardoning a war criminal who worked for him would be something Georgie would do before a little breakie with eggs and coffee.

Posted December 9, 2006 11:03 PM by Greg London

This bothers me a bundle. I do not understand how Rumsfeld can think he should not be held accountable for his own actions. This is especially distressing to me, because this man was a leader in a nation that has condemned those who use the very tactics he seems to be advocating.

The word 'hypocrite' comes to my mind. He obviously knows torturing people is wrong, and yet he is apparently not willing to be held accountable for his own support of this wrongdoing.

I sincerely hope that he is brought to justice. If he is so adamant that a lawsuit against him is going to keep him from his duty, then it is obvious to me he knows that these people have a case against him.

I do hope that he does not get his way.

Posted December 10, 2006 12:06 AM by Sean D. Schaffer

With regard to military morale, I suspect that quite a few retired generals are contemplating the specter of captured aliens harassing Donald Rumsfeld with time-consuming individual capacity litigation with unabashed glee. Popcorn! Bourbon!

Posted December 10, 2006 12:31 AM by Lizzy L

'Captured aliens' in connection with Donny is - well, let's just say I have little green men in orange jumpsuits...

Posted December 10, 2006 12:34 AM by P J Evans

Teresa, I completely agree with respect for the rule of law. Unfortunately, under existing doctrine this particular suit against Rumsfeld personally must be dismissed.

The complaint appears to be structured more as a PR document for grandstanding than it is a serious lawsuit. For one thing, the personal jurisdiction allegations (as summarized to me) are incomplete; for another, the complaint apparently does not allege facts that would support standing for the plaintiffs — that is, that the plaintiff organizations have an actual, cognizable interest in the outcome of the litigation that would or could be resolved by a remedy enforceable by the courts. Even getting past those two hurdles (which can be managed by just about any second-year law suit... but "can be" doesn't mean "motivated by underlying strategy to"), there's a whole series of cases on a doctrine called "abstention" that give the court a way to get this monstrosity off its docket. IMNSHO, abstention doctrine has become far, far too broad since 1973. However, the rule of law requires that I nonetheless respect the doctrine; I can try to get it changed, but a lawsuit with this kind of political fallout won't do that. And once one clears these procedural hurdles, there are substantive doctrines on deference to the executive branch that will come into play.

In short, this lawsuit should not have named Rumsfeld in his personal capacity (or his official capacity) — not because he shouldn't be held accountable, but because this lawsuit isn't properly structured to do so under the law as it now stands, or under a reasonable and reasoned theory for extension of the law. The rule of law extends to both procedure and substance.

Posted December 10, 2006 10:55 AM by C.E. Petit

I didn't save the link for this one, but today's "Opus" cartoon nicely convey's Georgie boy's attitude toward justice (as expressed by a kid other than Danae in "Non Sequitur).

Posted December 10, 2006 10:59 AM by Faren Miller

Thanks for the overview, Mr. Petit. I appreciate the legal perspective on the suit.

Is it bad of me that the "Rumsfeld: Not Done Yet" makes me think "So stick a fork in him to check and turn the other side over the coals"?

Posted December 10, 2006 1:06 PM by Clifton Royston

Is here a good place to note that the radio news (quick websearch hasn't yet confirmed) says that Augusto Pinochet has died? Baroness Thatcher will be devastated.

Reminds me somewhat of the death of "His Excellency President for Life, Field Marshal Al Hadji Doctor Idi Amin, VC, DSO, MC, Lord of All the Beasts of the Earth and Fishes of the Sea, and Conqueror of the British Empire in Africa in General and Uganda in Particular", in hospital in Saudi Arabia back in 2003, after a relatively comfortable retirement there.

Don't get your hopes up about justice eventually catching up with the powerful, at least in this sublunar realm.

Posted December 10, 2006 2:02 PM by Mez

Until then, I have no reason to believe that Mad George won't outlaw the senate and declare himself Supreme Chancellor before he's out of office.

Will this be before or after Obama Windu melts his face with reflected Force Lightning?

[Yes, yes, I know that Palpatine was already Supreme Chancellor by that point in the movies. I just want to imagine Bush getting melted by the force of his own malevolence.]

Posted December 10, 2006 4:04 PM by Anarch

Say, you know, this is kind of hard to handle with US civil courts. Maybe there ought to be a special kind of court to handle this kind of charge. Perhaps even one not controlled by any one nation. Hmmm, I wonder if anyone else ever had this idea....

Posted December 10, 2006 4:25 PM by albatross

thnk ths cmprsns r fllcs. vryn knws ths dbcl s n brrtn nd ny cmprsn t Nz dth cmps s grt dssrvc. 'm lbrl Dmcrt, bt ths s lftst crp: fls nlgy fllcy.

Posted December 10, 2006 7:41 PM by pbls

Will this be before or after Obama Windu melts his face with reflected Force Lightning?

Hm, Rumsfeld looks like someone already did that to him. The only other force lightning event on the emporer's historical chart is the end of episode six when Darth Vader picks him up and the force lightning wrapped around and Darth threw him down the shaft.

Only problem is, who's Darth Vader...

Posted December 10, 2006 8:06 PM by Greg London

Tsk, Publius. Now why do you suppose it is that I don't believe you when you say you're a liberal Democrat?

Posted December 10, 2006 9:49 PM by Teresa Nielsen Hayden

Who would play Darth Vader?
For some reason, my brain won't leave it alone.
It has since informed me that the best bet
for Darth Vader would be Collin Powell.
He went over to teh dark side when he gave that
speach about WMD's in Iraq. But he'll come back
and throw them all down the ventilation shaft,
before handing the torch over to...

hm. who will play Luke Skywalker....

Posted December 10, 2006 10:56 PM by Greg London

I must admit that the specter of captured aliens harassing military personnel with time-consuming individual capacity litigation made me think: 'Yeah, those poor little guys must be well pissed by now ...'

Posted December 11, 2006 4:16 AM by Ken MacLeod

I agree that the Bush regime is an aberration. But the way to prove that is to put the its leaders on trial and, if found guilty, hand them stiff sentences.

It's necessary that we do this. Clean our own house, as it were.

Posted December 11, 2006 11:51 AM by James D. Macdonald

dn't knw Trs, bt 'd gss t's bcs y'r skwd s fr lft tht y wldn't knw th mddl f y fll vr t. Wlcm t th rl wrld. t's th sm rsn y thnk th sldrs jst wnt t trtr nd trmnt rq kds n gnrl. t's n nslt t ntllgnc tht brrtns gt pssd ff s th "Nrm." t's nt lglly pssbl t pt Rmsfld r Bsh n trl, whn thy clm gd fth nd frnkly pblc spprt. Th sldr wh trnd n th pctrs s n prtctd stts, bt ws ctd fr hs brvry by Rmsfld. thrztn fr tctcs lk ths s vld lbt thnly, bt wrng s wrng nd th PR dmg s mch grtr thn th ctl physcl dscmfrts. Rngd thggry s qt th lcl cstm n cmprsn

Posted December 11, 2006 1:58 PM by Pbls

dd, y'd hv thght 'd sd smthng t wrrnt tw rspnss, bt thr's n trc f t. Myb y cld jst dsmvwl t? Y knw, t mk th trth hrdr t fnd.

Posted December 11, 2006 2:03 PM by Pbls

Brv! thr thr!

Posted December 11, 2006 2:05 PM by Pbls

Publius --

The only American outright Communist I know barely qualifies as left wing by local standards; the Nielsen Haydens are both Hard Right by the standards of the civilized world.

As for the "actual physical discomforts", you are familiar with the -- quite public -- account of the Afghani taxi driver who had his knees fatally pounded into jello because his American captors thought it was funny to hear him scream "Allah"?

Just when and where is beating someone to death minor?

You want to know what George W. Bush's legacy is?

It's better to die than to fall into American hands.

Of George W. Bush's deeds, that's what's going to endure.

Posted December 11, 2006 2:07 PM by Graydon

It's the same reason you think the soldiers just want to torture and torment Iraqi kids in general.

Hmm. "publius" sounds remarkably like "cya."

Posted December 11, 2006 3:05 PM by Aconite

"th Nlsn Hydns r bth Hrd Rght by th stndrds f th cvlzd wrld."

Pfftt. Gv m brk. n whs mnd? Hw mny sldrs hv rspndd t ths dtrbs? Ths ncdnts f tr, r qt th xcptn dshrtnng s tht s fr y t ccpt. vryn ccpts ndscrtns, bt tht s wht thy r. f crs, wth th xcptn f fghnstn w shldn't hv bn thr n th frst plc. Bttr t hv lt Hssn hng hmslf thn ths.

Posted December 11, 2006 4:43 PM by Pbls

"t's bttr t d thn t fll nt mrcn hnds."

Ths s rvng ln trrtry. f tht's wht th s-clld cvlzd wrld thnks, thn l-Qd hs wn. h By

Posted December 11, 2006 4:52 PM by Pbls

publius @ 38:

I wouldn't want to be in the hands of the military. And I'm an American.

Given what we've learned in the last couple of years, Al-Qaeda may be winning. But it's because we have a government in which many people appear to hate the country they're running, and appear willing to do anything, including turning it into a non-democracy, to achieve their own ends.

Posted December 11, 2006 4:59 PM by P J Evans

I'm backing up the site right now, which limits my ability to take care of certain other matters.

Publius, I see you're no longer pretending to be a liberal Democrat. Why should we listen to an acknowledged liar?

Posted December 11, 2006 5:55 PM by Teresa Nielsen Hayden

There now. Much better.

Posted December 11, 2006 6:13 PM by Teresa Nielsen Hayden

Aw, Teresa, you made the shiny red dot go away before I could pounce on it!

(Regardless of the merits of this particular lawsuit, I'd be very happy indeed if Rummy decides that in the interests of a peaceful retirement he daren't set foot outside the continental United States. Seeing how Pinochet spent his last few years -- and in view of Henry Kissinger's marked reluctance to leave the VIP lounge at Heathrow a year or two ago, and to set foot in the EU since then -- maybe we can hope?)

Posted December 11, 2006 6:35 PM by Charlie Stross

S s y d ths t ll vstrs wh dn't gr wth yr xtrm bs? Tht's wht thght. Dmb s s dmb ds. Myb smdy y'll gt bynd Bsh Scks, bt dbt t.

Posted December 11, 2006 7:03 PM by pbls

Cllng vstrs lrs s strng. Gt lwyr? Nd t s vtr rgstrtn rcrd? hv t. Vtd strght tckt, vn gnst rnld, s hplss s thr Dmcrt ws.

Posted December 11, 2006 7:06 PM by pbls

Hrry Trmn sd, "W cn srvv whl strng f bd prsdnts f w hv t."

Th systm s jst tht strng. Thnks t sm f r ncstrs. Lk mn.

Posted December 11, 2006 7:11 PM by pbls

(*sigh*)

One of these days I really am going to have to install this in the system as boilerplate:

Pbls, your loss of your vowels has nothing to do with your political opinions. Please understand that it's completely personal: you're being a jerk. Worse, you're being a bore about it.

And two last bits. First: threatening me with lawyers for defaming you, when your participation here has been entirely pseudonymous, will just get you snickered at. (And yes, you are a liar; wherefore I neither like nor respect you.)

Second, don't you dare invoke your personal ancestors by way of laying claim to the right to define America and its political system. Don't try it. Don't even start. Not in my* weblog.

Posted December 11, 2006 11:00 PM by Teresa Nielsen Hayden

*snicker*

It threatened Teresa with lawyers.

*snicker*

A pseudonymous troll threatened to sue for defamation because it was called a liar on a blog on which it initiated contact with a lie.

*snicker*

Pinata time.

Posted December 11, 2006 11:10 PM by Aconite

I'm waiting to hear about the deeds of his mighty ancestor, Col. Ebenezer Duckwiddle, famed for having once let von Steuben stay in his spare bedroom, and more recently identified by historians as the fellow who engaged in some serious Spring Break debauchery with Button Gwinnett when they were roommates in college.

Wooo, fame. Wooo.

Posted December 11, 2006 11:42 PM by Teresa Nielsen Hayden

I wonder if he'll respond by petitioning the Great'n'Almightly W to issue an executive order giving legal standing to sock puppepts?

Posted December 12, 2006 4:49 AM by Charlie Stross

Wouldn't fiction writers have a field day if he did?

Posted December 12, 2006 7:48 AM by Teresa Nielsen Hayden

Gt qt fr tht "l" thr Ms. xprt nd shll? Hw mny "jrks" wh gr wth y gt ths "n th stcks" trtmnt. 'd sggst nn, whch mks y lr. Bll's n yr crt ss. Pny p r y knw th ltrntv.

Posted December 12, 2006 8:02 AM by pbls

Pbls #46: Are you naturally boorish, or did you have to practice?

Posted December 12, 2006 8:09 AM by Fragano Ledgister

Wll cn mtch yr ncstrs nd thn sm. f crs dstntly rmvd cn b chllng bt nt fr m. dfn mrc by ths wh fght t crt t. By ths dcmnts thy wrt. Ths ds frm p pstn pt frth bt dsmvwlng nd ts rts n Prtn cltr, lbt pdtd tchnlgclly. 'm sldm wrng, nd hv nvr ld, s ys t s prsnl. t hs bn fr qt sm tm f y fllw th hstry.

Fnny wld gss y'd wnt t rn frm ny cnnctn t Plmth, ndn kllrs nd ll.

Posted December 12, 2006 8:17 AM by pbls

Lk y shld tlk wth nm lk tht. t's lk jrk cnvntn. Rmnds m f l Rgr L. Smn's plc. Thy d th sm pck ttck thng thr.

Posted December 12, 2006 8:20 AM by pbls

Oh, look: The "I am being persecuted" schtick, right on cue, complete with demands and threats.

Your lie? How about "I am a liberal Democrat"? You stopped even pretending that after your first post.

You may want to recheck your history books. "Plimouth" ain't where anyone landed, dearie.

Posted December 12, 2006 8:49 AM by Aconite

MARK A. YORK!

PUBLIUS, YOU DOG, YOU'RE MARK A. YORK!

What an unbelievable idiot you are. What a complete failure on all fronts.

It is truly said that anyone can set a world record, if only they're willing to devote their life to it and they don't care which world record it is. Your only claim to fame in life is going to be the world record for the number of websites, weblogs, and online discussion venues that have given you the boot -- some of them repeatedly.

You deserved it in all cases.

A friend of mine recently told me that back in 2004, you actually managed to get yourself banned by Patterico. You are aware that those people think Dafydd ab Hugh is a pundit, right? They value his participation, and find nothing to complain of in his manners. You, on the other hand, got kicked out. Think about it.

Aconite, you're going to love this: there really is a Col. Ebenezer Duckwiddle who's famous for letting von Steuben sleep in his spare bedroom, only his real name is Major Reuben Colburn, and it was Benedict Arnold he had staying in his spare bedroom for two nights in 1775.

I kid you not. Mrk Yrk's stuck on this guy. Major Colburn's two claims to fame are: (1.) his house was used as the jumping-off point for Arnold's failed expedition to Quebec. (The sign outside Colburn House doesn't say "Colburn House"; it says "Arnold Expedition Historical Society".)

(2.) In support of said expedition, and at Washington's orders, Colburn threw together some 220 bateaux in 15 days. I assume he had the help of the 1,100 men who went along on the expedition.

What references I've been able to find describe these boats as badly built, and say that they weighed 400 pounds apiece. By all accounts, the portages were a bitch. Mrk Yrk explains the poor construction was because no dried lumber was available at that time of year. I haven't seen him cite any sources on that claim, and Reuben Colburn had been operating a shipyard on that site since 1761. Every online reference that makes that excuse for the bateaux traces back to Mrk Yrk.

After a grueling march through nearly trackless wilderness and flooding waterways, Arnold's 550 or so remaining troops emerged from the forest, joined up with Gen. Montgomery's forces that had come up via Ticonderoga, attacked the city of Quebec in a snowstorm, and were bloodily repulsed. Montgomery was killed by the first volley. Arnold then attempted to lay siege to the city, in spite of subzero temperatures and being outnumbered three to one. Troops deserted en masse. Some American reinforcements arrived in March. Superior British reinforcements arrived in May, ending the siege. The expedition retreated south to New York. This marked the end of any attempt to bring Canada into the war on the Americans' side.

Colburn spent the rest of his life trying to get the government to pay him for building those boats. Treasury officials mislaid (or possibly "mislaid") his invoices for twenty-odd years, and evidenced no sense of urgency about the debt thereafter.

I don't actually think that Reuben Colburn was a would-be war profiteer who was too incompetent to collect on his defense contract; but you know, you could make a case for it. In any event, this unmistakable bit player is the great and mighty ancestor who's supposed to give Mrk Yrk more say in the argument than the rest of us. It's a risible argument no matter who you're descended from; but I sure wouldn't try it if Major Reuben Colburn were all I had to work with.

Posted December 12, 2006 12:42 PM by Teresa Nielsen Hayden

(participant banned)

Posted December 12, 2006 12:44 PM by publius

Bennie Arnold... One of my wife's ancestors. Who got a foot wounded in my home town.

Posted December 12, 2006 12:48 PM by Serge

His page doesn't open, either. Is it even real?

Hsll, I can claim Arnold as a distant cousin (4th cousin, for those few who might be interested). That and a couple of bucks will get me a cup of tea. Why does he think that Colburn is worth more?

Posted December 12, 2006 12:50 PM by P J Evans

Serge: By Mrk Yrk's reckoning, your wife considerably outranks him.

Posted December 12, 2006 12:52 PM by Teresa Nielsen Hayden

P J Evans: you too? Benedict Arnold's descendants must be more numerous than I'd imagined.

Posted December 12, 2006 12:54 PM by Teresa Nielsen Hayden

Well, if Irk says so, Teresa...

Posted December 12, 2006 12:56 PM by Serge

With the exception of one message after #27 in this thread, y'all have just demonstrated why defense attorneys are so prone to attacking witnesses with seeming irrelevancies:

It works to get even dedicated people thinking about something other than their clients' guilt.

Posted December 12, 2006 12:59 PM by C.E. Petit

Teresa: no, it's Benedict-the-first's siblings and all of their descendants (Benedict-the-traitor was about the fourth or fifth of the name). Cousins and inlaws, the lot of them. (It's online at Rootsweb; look for 'Herpalice Gray', there's only one of her.)

Posted December 12, 2006 1:04 PM by P J Evans

(participant banned)

Posted December 12, 2006 1:06 PM by publius

CEP, it'd almost be a consolation if mrk yrk were doing this as a clever ploy, because there'd always be a chance that he'd change strategies and try something different. Unfortunately, he's doing it because he's mentally ill.

I admired your point about the case being misconceived, but didn't have anything to say in reply. Since you're continuing to follow this, and so are presumably interested, I'll ask: is there a better way the case could have been handled? What are the chances of prosecuting these guys for their war crimes?

Posted December 12, 2006 1:08 PM by Teresa Nielsen Hayden

What was that line from 1978's Doctor Strange TV movie?

"Scourge of demons, be gone!"

Posted December 12, 2006 1:13 PM by Serge

Herpalice Gray! What a great name.

I'm familiar with the phenomenon of families it's easy to be related to. I'm one of the several zillion descendants of John Alden and Priscilla Mullins, who had 68 or 69 grandchildren. Ditto, Elder John Crandall of Westerly, with his eight sons and six daughters. Closer to home, my mother had 75 first cousins -- both her parents came from big families.

Y'know, at some point we should go back to talking about Rumsfeld.

Posted December 12, 2006 1:27 PM by Teresa Nielsen Hayden

PUBLIUS, YOU DOG, YOU'RE MARK A. YORK!

Oh, why am I not surprised?

Sorry for being OT. Since I have nothing not-rude to add about Rumsfeld, I shall go back to lurking...

Posted December 12, 2006 1:38 PM by Beth

Well, when you have a big family, you can have a zillion or so descendants.

I have (pulling out electronic three-inch binder and checking the data) Crandalls as inlaws and cousins, but not ancestors. (Rhode Island does that to family trees. I do think everyone in colonial RI is related to everyone else there!)

Posted December 12, 2006 1:42 PM by P J Evans

Herpalice Gray sounds like a paint color in Martha Stewart's Colonial Heritage Collection.

Posted December 12, 2006 2:00 PM by Andrew Willett

Early days in Rhode Island? Odds are the charts connect somewhere. Got any Allens?

Posted December 12, 2006 2:16 PM by Teresa Nielsen Hayden

Teresa: Aconite, you're going to love this: there really is a Col. Ebenezer Duckwiddle who's famous for letting von Steuben sleep in his spare bedroom, only his real name is Major Reuben Colburn, and it was Benedict Arnold he had staying in his spare bedroom for two nights in 1775.

*snort* I love it so much, I'll take it to bed and cuddle it tonight. Thank you, Teresa.

Mr. Petit, IANAL, and so had little to say on-topic after you remarked this suit was not promising. I would be interested to hear what, if anything, might work to hold Rumsfeld accountable in a court of law for illegal orders he issued.

Posted December 12, 2006 2:43 PM by Aconite

Teresa @ 67

Caleb sr (married Elizabeth Sisson) is a brother-in-law at a whole lot of removes.

Posted December 12, 2006 2:50 PM by P J Evans

I think the main trouble with the suit is: What will the end result be? I keep seeing Ollie North when I channel surf by Fox News (never fast enough) and I expect Rumsfeld will have the same sort of retirement, mixed with a bit of Henry Kissinger, who Repubs cart out at odd intervals.

Any ruin to Rumsfeld's personal finances can be repaired by well-heeled cronies who wanted him at the defense department in the first place, jail time would be less than Martha Stewart, and while the death penalty could theoretically be invoked, I'm opposed to it on principal and in the case of Rumsfeld it's "I want a pony!" territory anyway.

About the only justice I can see is starting a long folk tradition of burning Bush and Rumsfeld in effigy, though that will have to wait until there's some semblance of peace in Iraq. OTOH, it will make for a really cool photo spread in National Geographic in 2058.

Posted December 12, 2006 3:14 PM by Kevin Andrew Murphy

Is there any way we can get Congress to deny funding for a Bush (43) Library once he is out of office?

Posted December 12, 2006 3:22 PM by Lori Coulson

Lori Coulson: Is there any way we can get Congress to deny funding for a Bush (43) Library once he is out of office?

But I want all kinds of papers and memos and messages collected in one place. I just don't want him to be the one to decide which those are.

Posted December 12, 2006 4:09 PM by Aconite

Aconite @72: But I want all kinds of papers and memos and messages collected in one place. I just don't want him to be the one to decide which those are.

He should not get to choose where it's put, either. I vote New Orleans.

Posted December 12, 2006 4:25 PM by Rob Rusick

(participant banned)

Posted December 12, 2006 4:34 PM by publius

Reading comprehension is obviously a foreign concept to some.

Posted December 12, 2006 4:59 PM by Aconite

And the suspense in the arena is electric, as the crowd howls in eager anticipation ...

Posted December 12, 2006 5:04 PM by Jon Meltzer sees Mrk Yrk using another IP address

Omnia publio Graeca est.

(It's all Greek to him)

Posted December 12, 2006 5:06 PM by abi

Out, out, you damned spot!

Posted December 12, 2006 5:18 PM by Serge

Sigh. I don't do a whole lot of international law, and my experience with the LOAC (law of armed conflict) comes from the same source as Jim Macdonald's (if, perhaps a bit closer to the pointy end of the stick). Thus, my thoughts tend toward procedure, not substance.

That said, the real problem is that — technically — I don't think Rumsfeld has, in fact, committed a "war crime." The definitions of "war crimes" are very narrow, and require one of three things:
* Genocidal acts under command authority
* Genocidal acts without command authority
* Persistent, systematic maltreatment of prisoners of war
We might expect that last one to be the closest, but (unfortunately) mere torture to obtain information doesn't meet that standard unless it is widespread and ignored. Abu G'raib actually helps Rumsfeld's case, because it wasn't ignored. (The consequences weren't sufficient, but degree doesn't matter.) Then, too, there's the question of whether everyone at Gitmo qualifies as a POW. IMNSHO, they do... but there are some inventive arguments one can make otherwise.

On to my area of expertise — civil procedure. (We can rule court martial right out, as Rumsfeld was not subject to the UCMJ.) There are essentially four critical errors that need to be corrected to make this a procedurally proper suit:
* The suit must be in the name of one or more persons who have standing to sue. That also means that, under whatever substantive theory gets put forth, there must be a remedy that the court could enforce. Offhand, I would say that the most promising places to look would be 42 U.S.C. §§ 1981–83 ... but that requires credible evidence of discriminatory intent and action against a protected group. There are other possibilities (such as RICO), but they all require exceptionally strong foundations to be used against public officials.
* The suit must be filed in the correct location, and it must allege an appropriate basis for personal jurisdiction over the defendant(s). Hint: That is tested at the time the suit is filed, not at the time that the alleged misconduct occurred.
* Too many complaints, including this one, forget that we have "notice pleading" under Fed. R. Civ. Proc. 8, not the convoluted "fact pleading" required by many state systems. A complaint in a case of this nature should be as succinct and bare as possible. The defendant(s) can always file a motion for more definite statement to get more details on issues that remain unclear from the complaint. A succinct complaint is much harder to get rid of on a motion to dismiss; the less one alleges, the more room one has to demonstrate the existence of a set of facts consistent with the complaint that would allow relief.
* The complaint needs to be restructured to foreclose two of the major abstention doctrines. There are ways to do so; the complaint as it exists now, though, whispers something like this to a judge: "Psst. You can get this one off your docket really easily by invoking either Younger or the discretionary-function rule. You really don't want this one to rule your life forever; nobody remembers the Hon. John Scirica for anything other than Watergate, even though his opinion on antitrust and administrative law matter more today. No matter which way you decide anything of substance you're going to get death threats."

And, of course, fixing that just gets the ball rolling, probably for longer than Jarndyce v. Jarndyce.

Posted December 12, 2006 5:41 PM by C.E. Petit

Charlie, #44, yesterday, the FTC gave notice that all word-of-mouth advertising must include the sponsor's name.

Word-of-mouth marketing can take any form of peer-to-peer communication, such as a post on a Web blog, a MySpace.com page for a movie character, or the comments of a stranger on a bus.

I don't know how that works with non-USans or non-US websites.

Posted December 12, 2006 7:19 PM by Marilee

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Posted December 12, 2006 7:58 PM by Publius

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Posted December 12, 2006 8:15 PM by Publius

#79 (if, perhaps a bit closer to the pointy end of the stick)

Depends on how pointy that stick is when you hear an AK getting fired at you.

Posted December 12, 2006 8:48 PM by James D. Macdonald

Be proud your forebears were hanged for stealing sheep,
they're nuisances, and their bleating is so loud,
he worked to make sure that we all could sleep,
and did not seek the plaudits of the crowd.
We'll be so happy, quite over the moon, my dear
if you would take a look at our family story;
consider now the most distinguished forebear
who was touched, if only for a moment, by great glory.
So, you've a great harridan as your dear mater,
but don't be discouraged by that grisly fact;
your forebear once spent some time with a traitor,
do mention that, but please, only with tact.
Pride in ancestry is fine, but does not work
if all you're doing here is being a jerk.

Posted December 12, 2006 8:49 PM by Fragano Ledgister

(applause, random showers of rose petals)

Posted December 12, 2006 10:44 PM by Teresa Nielsen Hayden

I was \almost/ amused by "publius" having the nerve to call Truman to its cause. I wonder if 'p' read (of) Kofi Annan's ~parting speech yesterday, which included the Truman line "no nation can make itself secure by seeking supremacy over all others". We can all picture it choking over that one....

Posted December 12, 2006 10:48 PM by CHip

Mr. Petit: Thank you for the overview.

Fragano Ledgister: Thank you, as well. How you managed that while wading through student papers is a wonderous mystery.

Posted December 12, 2006 11:04 PM by Aconite

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Posted December 13, 2006 8:27 AM by Publius

All plaudits gratefully accepted. Thank you.

Posted December 13, 2006 8:39 AM by Fragano Ledgister

Aconite #87: I have to do something to relieve my mind while grading. Writing sonnets, even bad ones, is better than going postal....

Posted December 13, 2006 8:40 AM by Fragano Ledgister

Well, when you have a big family, you can have a zillion or so descendants.

New England descended readers will have common 17th century ancestors with Bush and Cheney. Rumsfeld's ancestry has not been traced.

(Genealogies here.)

Posted December 13, 2006 9:07 AM by Jon Meltzer

#83:
I suspect that a pointy knife is a bit closer.

#91:
That's because they're having difficulty with the Discovery Institute, which claims that the rock in question is only 4,000 years old.

Posted December 13, 2006 9:29 AM by C.E. Petit

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Posted December 13, 2006 10:48 AM by Publius

C.E.Petit @79:

"Mere torture to obtain information doesn't meet that standard unless it is widespread and ignored". Well, leaving aside what is happening in the Black Hole of Cuba (aka Gitmo), we do have all those reports of illegal rendition. We also have reports of widespread torture for its own sake (e.g. the Afghani taxi driver mentioned in #30). The illegal rendition has been completely ignored by the administration, and I'm not sure the rest of it has been addressed.

Does that qualify?

Posted December 13, 2006 10:59 AM by Malthus

Can we at least get Rumsfeld under oath trying to explain that torture of prisoners isn't widespread and systematic, and by his direct order?

Posted December 13, 2006 11:06 AM by James D. Macdonald

Jon Meltzer @ 91

Well, at least it demonstrates that Bush and Cheney have human ancestors, although I admit to being surprised about Cheney. I thought maybe he was hatched.

Posted December 13, 2006 11:16 AM by P J Evans

Am I the only one who, when someone writes "IANAL," thinks "Yeah, I'm pretty anal myself"?

Posted December 13, 2006 12:19 PM by Xopher

94: CIA rendition does not implicate the Secretary of Defense.

Perhaps a real-life example will help, even if it is a bit old. Captain Henry Wirz, the Commandant of Andersonville Prison, met the standard for widespread and ignored at Andersonville. That would not, however, have been sufficient for a superior much farther up the chain of command. (This example isn't entirely hypothetical, as it may have been considered during the preparations for Nuremberg, according to a law review article I read a few years back.)

If someone had substantial, admissible, credible evidence that Rumsfeld gave unambiguous orders — not just acquiescence, or "do what you have to do to get information" — that might make for an arguable case under a civil standard of proof (preponderence of the evidence), but would probably be insufficient under the criminal standard of proof (beyond a reasonable doubt/"clear and convincing") required for any accusation of war crimes.

Posted December 13, 2006 9:10 PM by C.E. Petit

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Posted December 14, 2006 1:12 PM by Jeremiah Dixon

Okay for civil, not for criminal. Got it. Pity Rumsfeld's office wasn't bugged.

Posted December 14, 2006 3:42 PM by Teresa Nielsen Hayden

Can we at least get Rumsfeld under oath trying to explain that torture of prisoners isn't widespread and systematic, and by his direct order?

And then nail him for perjury?

Can we use real nails?

Posted December 14, 2006 4:05 PM by Greg London

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Posted December 14, 2006 5:07 PM by Jeremiah Dixon

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Posted December 14, 2006 5:22 PM by Jeremiah Dixon

It seems to me that this is relevant:

War Crimes, Crimes against Humanity, and Command Responsibility

Naval War College Review, Spring 1997, Vol. L, No. 2

After reunification, the Federal Republic brought Erich Honecker, who had been the head of state of the German Democratic Republic from 1976 to 1989, to trial. Completely ignoring his status in the legal hierarchy of the GDR at the time of the alleged offenses, the FRG charged him with criminal responsibility for having issued orders that resulted in deaths and injuries to East Germans seeking to escape by way of the Berlin Wall. It was alleged that these orders amounted to crimes against all the principles of humanity.

...

Despite the manner in which the Honecker case was finalized and the criticism of the FRG for seeking to enforce its laws against officials of the former Democratic Republic, Heinz Kessler, who had been defence minister, and other members of the East German Defence Council were tried and given custodial sentences for having helped to frame the shoot-to-kill policy enforced at the Wall. In 1996, six former East German generals were tried for implementing these orders and were found guilty of manslaughter in eleven border incidents and of attempted manslaughter in five other cases. It was alleged that they had played a key part in securing and reinforcing the East German border with minefields and automatic shooting devices, causing over eight hundred deaths. The judge held that the shooting of unarmed defectors in pursuit of the administration's policy violated human rights--even though he accepted that the accused "did not create or establish the East German border regime, but . . . supported the system in which they were very small cogs." 95

It would appear therefore that, whether or not for political reasons and the need to satisfy public opinion, as was argued, the German federal courts are prepared to consider the East German policy of killing defectors seeking to cross the Wall a crime against humanity and to impose personal responsibility on superiors--even those who were only "very small cogs" in the chain of command.

Posted December 14, 2006 7:30 PM by James D. Macdonald

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Posted December 15, 2006 8:22 AM by Richard Baumgartner

Richard Baumgartner @ 105:

And frankly the "atrocities" are pranks in comparison to real atrocities and violations.

You're volunteering to be treated like the folks we're holding as 'enemy combatants'? Without a chance of a trial, or appeal afterward? Long periods of isolation, shackles, blindfolds, possibly drugs? This is 'hazing'?

Posted December 15, 2006 10:32 AM by P J Evans

Richard @105

Most of these people would lop off your heads with one swipe if you were in their clutches

So you know that these people are actually members of groups that have executed hostages? Or do they just share skin tones?

Me, I presume they're innocent until proven guilty, though of course that might require a trial. But since I'd rather that I were so treated, I reckon it's worth advocating for others as well.

Posted December 15, 2006 11:35 AM by abi

Rumsfeld did approve several techniques that have been released, and demonstrated that he didn't know the difference between 'standing' and 'stress positions'.

Human Rights Watch opined that Rumsfeld could be liable - this administration either defined torture down to the point of meaninglessness or decided that prohibitions against torture didn't apply to them. I'd like to see John Yoo disbarred for the things he argued. We still don't know how widespread things got, and there are reasonable connections to be made by the same techniques - and staff - showing up at Guantanamo, Kandahar, and Abu Ghraib.

The US has admitted to 100 detainee deaths in Iraq and more in Afghanistan, of which 1/4 in Iraq may be considered homicides by the US military.

Posted December 15, 2006 12:26 PM by FungiFromYuggoth

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Posted December 15, 2006 12:40 PM by Richard Baumgartner

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Posted December 15, 2006 12:41 PM by Richard Baumgartner

Aren't trolls wonderful? Completely missing the points....

Posted December 15, 2006 12:43 PM by P J Evans

Richard Baumgartner: One of the things that used to make us the good guys (at least in theory) was that we didn't stoop to the kind of acts our "enemies" did.

Posted December 15, 2006 12:43 PM by Aconite

One very basic point being missed is "better than the Taliban" isn't a recommendation.

Another, and perhaps more important, is that if you're in command, there are a whole long list of things which, if they happen in your command -- if someone under your authority or in your area of command responsibility does them -- either you knew and condoned it, in which case you are properly hung for malfeasance, or you did not know, in which case you are properly broken for incompetence. There's no "not really my fault" category for those exercising command.

Rummy's very solidly in "needs hanging" category.

Posted December 15, 2006 12:47 PM by Graydon

Richard @ 109, I would venture to guess that no one here is arguing that the tactics employed by al Qaida, the Taliban, or some of the insurgent groups in Iraq* are not atrocities. But that does not mitigate the atrocities we commit in any way. And pretending that the evil others do makes the evil we do is somehow less is intellectually dishonest. Abu Ghraib's abuses are not "pranks." Guantánamo Bay is not a house being TPed, a car being egged, plastic wrap being placed over a toilet seat. And the people who have been prosecuted are not the people who are, in the end, responsible. They didn't just decide to do what they did merely for kicks, out of thin air, in defiance of their higher-ups. If they had, they'd have been stopped, long before the pictures had been made public.

Further, your apparent argument that because the people we are detaining indefinitely without trial at Guantánamo Bay happen to share a culture with some of the people whose tactics are so objectionable they therefore somehow "deserve it" is both irrational and utterly repellant. I'm just guessing, here, that you are an American, but that's much like saying that because you share a culture with Timothy McVeigh, you deserve to be detained and tortured as well. I reject that, and I think you would, too.

*note that while driving the US out of Iraq may be a common goal of these insurgents, they are by no means all members of one monolithic entity. If they were, Iraq would probably not be rapidly spiraling into civil war.

Posted December 15, 2006 1:16 PM by alsafi

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Posted December 15, 2006 2:15 PM by Richard Baumgartner

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Posted December 15, 2006 2:19 PM by Richard Baumgartner

For the people who keep coming in here claiming "it's not so bad":

Let's not forget that there are specific, well-documented cases of US forces murdering - often with torture - known innocent people in Afghanistan and Iraq.

For example, there was the Afghani taxi driver who was grabbed because he happened to drive near where a suicide bombing had taken place, and was then hung by his wrists and tortured to death, by beating him steadily for hours - focusing on his shins - and then leaving him hanging with no medical care. He died as an immediate and direct result, due to blood clots going into his brain and heart. The Army ruled it homicide, yet mysteriously nobody was held responsible for it.

If any of you consider this a "harmless prank", are you willing to volunteer for being on the receiving end of that, because you happen to drive around your home town when somebody feels pissed off?

Posted December 15, 2006 3:27 PM by Clifton Royston

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Posted December 15, 2006 4:25 PM by Dickie Fox

Lest anyone think we've had some kind of wholesale slaughter here, be it known that all these trolls are the same troll, trying to come back in with different accounts and names.

Posted December 16, 2006 9:05 AM by Teresa Nielsen Hayden

Teresa,

I had wondered.

I suppose we all could regurgitate the predictable arguments they were using. Still, it does make for a disjointed thread.

Posted December 16, 2006 9:51 AM by abi

All the Trolls are One Troll?

Posted December 16, 2006 9:52 AM by Xopher

One Troll to bore them all,
One Troll to blind them;
One Troll to sicken them all,
And in the darkness bind them.

Posted December 16, 2006 9:57 AM by Fragano Ledgister

Three trolls for the cooking threads, tasting of pie
Seven for the short threads, whose ends are unknown
Nine for the politics, which never die
One for the weblog, as it has grown
In the land of Yorkshire, where the posters lie.
One Troll to steer them all,
One Troll to mock them
One Troll to sneer at all
And in their puppets sock them.
In the land of Yorkshire, where the posters lie.

Posted December 16, 2006 10:01 AM by abi

Fragano beat me to it. Drat.

Posted December 16, 2006 10:03 AM by abi

Yeah, but you did the whole thing. And you created your own rhyme lines.

Posted December 16, 2006 10:08 AM by Xopher

There is only one Troll in the whole world
And his name is All Trolls.

There is only one Newbie in the whole world
And his name is All Newbies.

There is only one Thread in the whole world
And its name is All Threads.

There is only one Poster in the whole world
And its name is All God's Children.

There is only one Community Web Site in the whole world
And its name is The Whole World.

- with apologies to Carl Sandberg

Posted December 16, 2006 10:18 AM by Alex Cohen

One Troll to mock them

Shouldn't that be "one troll to mrk them?"

Posted December 16, 2006 10:18 AM by Jon Meltzer

So, is the troll that cannot be trolled the eternal Troll?

Posted December 16, 2006 10:22 AM by Jon Meltzer

Abi #124: Yours was better by far.

Posted December 16, 2006 10:50 AM by Fragano Ledgister

abi, that (#123) was wonderful.

(But am I missing something in the "Yorkshire" references? I've been there and I didn't think it was all that bad...)

Posted December 16, 2006 11:18 AM by Peter Erwin

Alex Cohen @126:
Very, very good. Good choice of source poem, too.

Fragano @129:
Maybe, but you already take the palm for this thread.

Peter Erwin @130:
It's a reference to the specific troll we've been dealing with on this thread.

I rather like Yorkshire - I spent Christmas there 16 years ago, when I was a lonely year abroad student, and I've never forgotten the warmth and generosity I received. And the city of York itself is lovely.

Posted December 16, 2006 11:31 AM by abi

Abi #131: Not at all. It wasn't that good a sonnet.

I especially liked the substitution of 'Yorkshire' for 'Mordor'.

Posted December 16, 2006 11:52 AM by Fragano Ledgister

Alas, that was a different troll. The current idiot -- you called it, Jon Meltzer -- lives in Florida.

Posted December 16, 2006 11:59 AM by Teresa Nielsen Hayden

Once again, Teresa lets the facts get in the way of a good rant.

Posted December 16, 2006 12:15 PM by abi

My ISP was just down for over a day, so I missed some fun. Catching up:
PJ Evans #54, I suspect publius' page www.montpieler.org is meant to be www.montpelier.org (about the historic house of James Madison, a former US President). Don't know enough US history to detect a meaning for this*. Don't know enough psychology to say if the misspelling is deliberate.

Thinking of how easy it can be to be related to someone reminds me of the story this week of the death of the "officially recognised" world's oldest person, Lizzy Bolden (116, daughter of freed slaves), in Tennessee. It said she had "two surviving daughters [of seven children], 40 grandchildren, 75 great-grandchildren, 150 great-great-grandchildren, 220 great-great-great grandchildren and 75 great-great-great-great grandchildren." This was within days of the death of Moses Hardy, 113, "believed to be the second-oldest man in the world and the last black US veteran of World War I", also the child of freed slaves. He had eight children, probably many further descendants.
The connection with slavery may be relevant to James Madison. (* The site calls him "Architect of the Constitution and the Bill of Rights".)

Posted December 16, 2006 3:28 PM by Mez

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Posted December 16, 2006 5:05 PM by John Brown

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Posted December 16, 2006 5:18 PM by John Brown

I predict that comment 136 will lie a-mouldering in its grave, though its spirit will no doubt march on.

Posted December 16, 2006 5:18 PM by abi feels the Eye turning back

Abi, it's going to have company in the form of #137. I'd take pot-shots at it with a pea-shooter, but the available bandwidth isn't enough.

Posted December 16, 2006 5:38 PM by P J Evans

John Brown #136: There is a diversity of views here. Pity you're too blind to see it. Must come from spending all day under a bridge.

Posted December 16, 2006 6:52 PM by Fragano Ledgister

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Posted December 16, 2006 7:04 PM by John Brown

Consider the hockey puck. Whether you leave it sitting for years on a shelf, or violently smack it around in a hockey game, the outcome's the same: nothing goes in, and nothing comes out.

Posted December 16, 2006 10:45 PM by Teresa Nielsen Hayden

The only question remaining about Rumsfeld is whether he'll be remembered as the worst SecDef since McNamara or the worst SecDef ever.

Posted December 17, 2006 1:44 AM by James D. Macdonald

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Posted December 17, 2006 8:43 AM by John Smith