The amendment just before Congress changed hands in late 2006 of the War Crimes Act of 1996, to exclude water boarding (and other known Bush interrogation techniques) from the definition of torture -- retroactive to 1996 -- was, in effect, a Congressional grant of immunity. And that's the problem.

The constitution bars the Congress from passing bills of attainder, and prosecution under a retroactive criminal statute. The grant of immunity is vested solely with the executive.

So, why isn't the president's signature on the bill retroactively amending the War Crimes Act of 1996 effective as a grant of immunity? Immunity requires the immunized to "accept" the grant of immunity and, thereby, effectively plead guilty to the underlying crime. Nobody did that.

A future prosecutor could simply disregard the 2006 amendment, indict under the pre-existing statute, and challenge any defense assertion of the 2006 amendment as an unconstitutional Congressional grant of immunity.

Plan B. Do nothing, and wait for a European prosecutor to indict Bush/Cheney/Rumsfeld/et al. One of the criteria for prosecutorial decision in Europe is the UNlikelihood that the culprit will be punished in his domestic jurisdiction. Irony of ironies: the 2006 amendment, retroactively defining water boarding out of the definition of torture, satisfies this criteria.

Then we just need to decide what to do when the extradition petition is filed.......

Posted at September 30, 2008 9:05 AM in response to The Unmentionable Question

Please give it up. West Virginians are no different than their fellow citizens in 49 other states. Like those other states, West Virginia has idiocy along side brilliance, ignorance right next to erudition, and bigotry in equal measure with human decency.

Exercise some human decency your self and simply find another reason to explain Barack Obama's loss here. There are plenty of them and none of them depend upon racism, which you can find in a 50 states.

Your facile resort to an imagined monopoly on ignorance and bigotry by West Virginians establishes the falsity of your assertion.

Go look in a mirror and assess how free of bigotry you are.

And this is from someone elected in a W. Va. county caucus to represent Obama at our state convention next month -- not a Hillary supporter, and not a Republican.

Please just give it up!

Posted at May 15, 2008 1:31 PM in response to Do We Really Want West Virginia Picking the Next President?

I've gotta say it -- you folks speak of West Virginians as though you're dealing with a different species. No doubt there are racists in West Virginia, just as there are in Boston and Manhattan. But it is the height of presumption to say that a landslide win by Hillary is only explained by racism.

And, yes, I was born in, and live in, West Virginia now. I also support Obama, and have since his appearance at the September 2006 Jefferson Jackson Day dinner nearly two years ago. And I was elected, along with 25 other Obama supporters to 26 of the 28 delegates to the State convention next month, who will in turn select delegates to the Denver convention.

A few notes of history:

(1) West Virginia represents the only permanent geographic change as a result of the Civil War, we broke away from Virginia in 1863, in part, but by no means solely, because of slavery.

(2) in 1954, a young Governor announced that he would follow the decision of the Supreme Court, shortly after Brown v Bd of Educ came down, and W. Va. was the only southern state to stay out of the massive resistance the rest of the south followed committed to for decades

(3) in 1960, West Virginia's primary became the spring board for JFK to win the nomination, over Hubert Humphrey, at a time when the Catholic population of the state was less than 4% -- and yes with my father's active support.

(4) and by no means least, the Clinton's won big in W. Va. in 1992 and even bigger in 1996, and they are liked here, a lot. In plain English, you don't have to be a white supremacist to support Hillary Clinton here, and note again, however, that I am a 60-year old, white male and support Obama, not Clinton.

If you are still sneering at the idea of West Virginians and assume they are all racists, I have a suggestion. Get a real sharp take on a bigot, go look in a mirror.

Posted at May 12, 2008 12:17 PM in response to Poll: Obama Losing West Virginia Primary By More Than Two To One

no, he won't be "done for" he'll be challenged, and every indication is that he can rise to the cahllenge.

People have asked, and will ask, what do you -- Obama - believe, and he has not hesitated to give an answer. Clearly.

So, the next question will then become, is he responsible for the views of someone else. People attempting to charge him with Wright's views, will be susceptible to the charge of "guilt by association."

This is not the end. It may be end-game. But it is not the end, by any means.

And Hillary faces one big risk in all this. As people ask Obama "Why didn't you leave earlier? Didn't you know?" that question will morph into
"Why didn't Hillary leave a serial sexual predator? Even after she knew?"

What goes around, comes around.

Posted at May 1, 2008 8:47 AM in response to Poll: Hillary Takes Slim Lead In North Carolina

I was for Richardson as VP for Obama before this. Since New Mexico seems to be BLUE anyway, I now think Obama ought to go for a VP who can deliver a state otherwise unattainable.

Like SAM NUNN and GEORGIA. In addition to bringing Georgia's 15 electoral votes to the table, NUNN would insulate Obama on his weakest point -- national security. And McCain obviously can't attack Nunn as too old!

Let us please think strategically. Remember JKF went for LBJ and TEXAS -- the so-called "Boston-Austin" Axis.

If Carter and Mondale were "Grits and Fritz", Obama and Nunn could be...well, it'll come to us.

But focus on reality - 15 electoral votes. 15 electoral votes. 15 electoral votes.

The truth is that this works for Hillary too. And for some, maybe even more so.

Posted at March 6, 2008 2:13 PM in response to SurveyUSA: Hillary And Obama Win Electoral College In Distinct Ways

First, there are no rules governing contacts wit a witness applicable to a Congressional hearing even remotely analogous to those in a court proceeding. And even in a court proceeding, there is nothing at all improper about contacting witnesses. To be sure, a lawyer would be derelict if he did NOT contact any known witness. Does anybody have any evidence that Clemens or anybody else tried to affect her testimony? Or are they merely presumed to have done so. There is no "appearance of impropriety" issue here. Somebody is trying to put it to Clemens, and his lawyers are defending him. Get over it.

Second, Waxman has no business telling these lawyers they have no right to speak. They have a duty to speak up anytime their client's interests are in jeopardy. It's sometimes referred to as the "right to counsel." Remember the old HUAC members berating witnesses for invoking their testimonial privilege with the phrase "typical communist tactic!" These lawyers should have been seated next to their client at the witness table and able to comment if as and when they felt like it. Period.

Third, Clemens looks goofy in a tie.

Posted at February 13, 2008 6:19 PM in response to Waxman and Clemens' Lawyers Go Head to Head

BARACK HUSSEIN OBAMA – An opening to Islamic fundamentalists?

“The River of Doubt,” a 2006 history by Candice Millard tells the story of Teddy Roosevelt’s exploration of South America in 1914, following his defeat for a third term as President in 1912. TR, the indefatigable adventurist abandoned a much less risky river trip to investigate a previously unexplored river, known simply as the River of Doubt. TR survived bacterial infection and his son Kermit malaria, both nearly dying in the Amazon.

Roosevelt was enticed to this near debacle by a challenge from Brazil’s preeminent explorer , Candido Mariano da Silva Rondon. Their journey included a march through 400 miles of Brazilian Highlands to the Amazon basin, from which they embarked on what would today be regarded as a suicide mission.

Sailing off a mountain, with no charts, and poorly equipped, on a thousand mile plus trip through land populated by hostile indigenous tribes, in the parlance of the day, Indians, they barely survived. Rondon, himself an “Indian” had risen to the pinnacle of Brazilian military leadership. He sought TR’s company for the visibility it would give his desire to map the river for the later installation of a telegraph line.

Rondo did not view the indigenous people as hostile, and throughout the trip left tokens of good will – a fancy axe, unusual foods, and other trinkets from “civilization.” When after multiple near death experiences, TR and his crowd ultimately emerged from the forest at the other end, the entire world marveled at his “discovery” of a river longer than the Mississippi.

Millard reports that the survival of TR and his retinue did not depend on any decision on their part. Instead the indigenous population, on their own “decided” to let them live because of a tradition of acting on the basis of consensus. Although there were “hawks” who wanted to kill TR's troop – and nothing could have stopped them – Rondon’s acts of good will, caused the “doves”, to withhold approval for the certain extinction of the exploration party.

Flash forward. The US and most of the “Western” world has made an effective peace with their two most threatening, long-term enemies – the People’s Republic of China, and the former Soviet Union. One major player remains in hostilities – the fundamentalist Muslim movement personified, if not exactly led, by Osama Bin Laden. And they are perceived to be undeterred by the threat of conventional retaliation, and the practicalities of it are difficult in any event because there is no obvious, single state sponsor for the trans-national fundamentalists.

In the US Presidential sweepstakes, one candidate has a name issue, at least according to the fundamentalist branch of the Republican party. Barack Hussein Obama. Obama, if we are to believe the bottom-seeking Republicans, is himself a fundamentalist because his Indonesian step-father enrolled him in a Madrassa, the fundamentalist oriented school system of the Muslim world. Forget the fact that he was also enrolled in a Roman Catholic school during the same time frame in Indonesia. And forget that the Indonesian Madrassa school itself disclaims the fundamentalist orientation claimed by the Republican evangelists. No, all you need to know is that his middle name is Hussein. Period.

But is it possible that his middle name might just be the best opening an Obama presidency might have to the one armed and hostile group seemingly bent on our destruction. Is it possible that the current day fundamentalist Muslims -- at least the man on the street types upon whom the remote leaders depend for implementation of their acts of terror -- might just pause. Might just ask, what this guy named Hussein intends? Will Obama, like Rondon, cause the enemies of the West to holster their weapons, if only temporarily?

And if we are able to gain even a pause in the ongoing hostilities, is it possible that the Islamic world will give a Democratic president the opportunity to pursue a policy of energy independence, which doesn't threaten to the sovereignty of the Islamic world. Or a policy of simply speaking to Iran, instead of isolating and surrounding it, as the Republicans have attempted to do.

Stated otherwise, does anybody seriously expect the Islamic world to pause even momentarily to hear the opening salvo from a Mormon named Romney, a Catholic named Guiliani, or a Christian fundamentalist named, buckle your seat belt, Huckabee.

I’m putting my money on Hussein.

Posted at February 2, 2008 8:33 AM in response to Obama: I Will Have Cred With Muslim World