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Obama Releasing Four Torture Memos
One of the memos is from 2002, the other three are from 2005.
According to the AP:
One memo specifically authorized a method for combining multiple techniques, a practice human rights advocates argue is particularly harmful and crosses the line into torture even if any of the individual methods do not....
The methods include keeping detainees naked for long periods, keeping them in a painful standing position for long periods, and depriving them of solid food. Other tactics included using a plastic neck collar to slam detainees into walls, keeping the detainee's cell cold for long periods, and beating and kicking the detainee. Sleep-deprivation, prolonged shackling, and threats to a detainee's family were also used.
Among the things not allowed in the memo were allowing a prisoner's body temperature or caloric intake to fall below a certain level, because either could cause permanent damage, the officials said.
The techniques were applied to 14 suspects considered very senior terrorists.
In addition, the Justice Department announced in a statement that CIA employees won't be tried for waterboarding.
Here's the full statement from the White House. The statement from DOJ follows it.
Statement of President Barack Obama on Release of OLC MemosThe Department of Justice will today release certain memos issued by the Office of Legal Counsel between 2002 and 2005 as part of an ongoing court case. These memos speak to techniques that were used in the interrogation of terrorism suspects during that period, and their release is required by the rule of law.
My judgment on the content of these memos is a matter of record. In one of my very first acts as President, I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer. Enlisting our values in the protection of our people makes us stronger and more secure. A democracy as resilient as ours must reject the false choice between our security and our ideals, and that is why these methods of interrogation are already a thing of the past.
But that is not what compelled the release of these legal documents today. While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release.
First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program - and some of the practices - associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.
In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.
Going forward, it is my strong belief that the United States has a solemn duty to vigorously maintain the classified nature of certain activities and information related to national security. This is an extraordinarily important responsibility of the presidency, and it is one that I will carry out assertively irrespective of any political concern. Consequently, the exceptional circumstances surrounding these memos should not be viewed as an erosion of the strong legal basis for maintaining the classified nature of secret activities. I will always do whatever is necessary to protect the national security of the United States.
This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America's ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.
The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.
Here's the statement from Attorney General Eric Holder:
DEPARTMENT OF JUSTICE RELEASES FOUR OFFICE OF LEGAL COUNSEL OPINIONSIn connection with ongoing litigation, the Department of Justice today released four previously undisclosed Office of Legal Counsel ("OLC") opinions - one that OLC issued to the Central Intelligence Agency in August 2002 and three that OLC issued to the CIA in May 2005.
"The President has halted the use of the interrogation techniques described in these opinions, and this administration has made clear from day one that it will not condone torture," said Attorney General Eric Holder. "We are disclosing these memos consistent with our commitment to the rule of law."
Holder also stressed that intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.
The Attorney General has informed the Central Intelligence Agency that the government would provide legal representation to any employee, at no cost to the employee, in any state or federal judicial or administrative proceeding brought against the employee based on such conduct and would take measures to respond to any proceeding initiated against the employee in any international or foreign tribunal, including appointing counsel to act on the employee's behalf and asserting any available immunities and other defenses in the proceeding itself.
To the extent permissible under federal law, the government will also indemnify any employee for any monetary judgment or penalty ultimately imposed against him for such conduct and will provide representation in congressional investigations.
"It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," Holder said.
After reviewing these opinions, OLC has decided to withdraw them: They no longer represent the views of the Office of Legal Counsel.

















So the CIA officials who implemented the program, under the auspices of the legal memos, are in the clear.
Okay. What about the people who drafted and approved the legal memos?
There is a thing that is illegal. One group of people writes an opinion stating the illegal thing is legal. Another group of people enacts the opinion stating that the illegal thing is illegal. Surely both of these two things cannot be legal at the same time?
Otherwise we are saying the government has the right to just say "laws don't count, next ten minutes, no backsies" at any time-- in other words, otherwise we are saying there are no laws.
April 16, 2009 3:20 PM | Reply | Permalink
Wow, what a sad cop-out from Pres. Obama.
He's basically saying we're a nation of laws...but possible laws broken under the previous administration don't count.
I wonder if I can use this sort of bogus legal arguement after robbing a bank?
"Look, I robbed it, but the cops didn't catch me in the act. And why would we want to look back at these indiscressions? Let's focus on tomorrow! I'll be right back, my new BMW needs an oil change."
April 16, 2009 3:23 PM | Reply | Permalink
What wasn't said was that those who approved obviously illegal acts, thus giving cover to the low level people who committed those acts, will not suffer any consequences. These memos, by themselves, should prevent our ex-president from ever again leaving our country, in order to avoid arrest and trial before a world court.
John Yee should consider himself a fugitive from justice too, for that matter. And, Dick Cheney probably will need guards close by for the rest of his life to avoid arrest.
April 16, 2009 4:48 PM | Reply | Permalink
There is very little redaction, or blacking out, of detail in the memos, the officials said.
I'm liking this, though we'll have to wait and see exactly what they release. The silence in regards to the conduct of Justice employees - in contrast to CIA employees - cannot be very edifying for Bybee, Yoo and co.
April 16, 2009 3:26 PM | Reply | Permalink
Agree. Given a choice, I'd opt for release of the memos. We know that no politician is going to take completely principled stands, and Obama, for all his obvious intelligence and innate decency, is a politician.
But the release of the memos and the lack of any statement about immunity for the justice officials who wrote them is a very good sign. I may despise the CIA operatives who acted on these memos, but the officals who wrote them are the ones I'd like to see prosecuted.
Just think -- would you rather have the guards at Abu Ghraib prosecuted (which is what happened), or the people who were in charge of those guards and orchestrated the widespread cruelty, torture, and inhumanity? I think this was a compromise that allows for investigation and prosecution of the top dogs.
Oh, I just had a heavenly image of Cheney snarling -- from behind bars....
April 16, 2009 3:52 PM | Reply | Permalink
I'm disappointed. Hopefully, some of the European nations that also signed the Geneva Convention and the Convention Against Torture will prosecute those that authorized torture and those who committed torture. I find it ironic that we'd avoid prosecuting someone for committing torture because they relied, "in good faith" on legal memorandums authorizing torture. How could one have a good faith reliance while also committing torture?
April 16, 2009 3:36 PM | Reply | Permalink
Why? It's because the greatest evil was committed by the higher-ups who sanctioned such immoral acts. Thus, we would we have to prosecute President Bush and other key members of his administration for using a "good faith reliance" justification for torture and for waging an unjustified and unnecessary war against Iraq. In other words, we would have to prosecute them for a number of immoral acts that precipitated torture.
Sometimes we have to allow God to judge people for their wrongs. In the meantime, we clean-up the immoral procedures and policies they left, which is precisely what President Obama is doing.
April 16, 2009 4:34 PM | Reply | Permalink
i could have accepted your argument till,"Sometimes we have to allow God to judge people for their wrongs".
is that the palin defense?
and can i pick the human being who is to DECIDE that god should decide??
geeeeeeeeeeeeeeeeeeeeeeeeeeeeeeezzzzzzzzzzzzzzzzzzz
April 16, 2009 4:41 PM | Reply | Permalink
The chances of successfully prosecuting a CIA officer who carried out waterboarding pursuant to an OLC legal opinion that said waterboarding was legal is exactly zero. The OLC opinions are going to be an airtight defense in any but the most liberal juridictions, and in those jurisdictions even if a prosecution was allowed it would never be upheld on review. While there is a part of me that would like to say that is a nuremberg defense copout, the intelligent officers actually have a pretty strong argument: evaluating the quality of OLC legal opinions is not the duty of an intelligence officer. Which is why there needs to be a way to hold the people who write the opinions accountable.
Which means that the only thing Obama "gave up" in this "comprimise" is, rightly or wrongly, a liberal fantasy.
April 16, 2009 3:39 PM | Reply | Permalink
just so. i've been disappointed in obama's reaction to torture and surveillance issues, but the release of unredacted memos is a good step.
and now that the wingers see DHS training their wiretaps on god-fearin' gun-lovin' murkans (and now that we find out how often that's been abused) maybe we'll see some congressional action to curb that. maybe.
April 16, 2009 3:58 PM | Reply | Permalink
I don't believe that's correct. My understanding is that reliance upon a legal opinion as a defense to torture charges has been thoroughly rejected.
The reasoning is simple: every rogue state that tortures prisoners tries to provide cover for its torturers. Consequently, there is no excuse for torture. Torture is simply not allowed. Period.
Here's a related provision from the UN Convention Against Torture:
I'll freely admit that I'm not a student of international law though. If you can provide a citation to caselaw that supports your claim that legal opinions can provide a defense to torture, I'll be happy to look at it and admit my error.
April 16, 2009 4:25 PM | Reply | Permalink
Well, here is Marty Lederman (who is of course now at the OLC) talking about this possibility last year:
More importantly, even in the unlikely scenario that DOJ would one day consider such a prosecution, I think that it would be of dubious constitutionality in almost all cases. The doctrine on this is a bit complicated, but I think it is fair to say that the four leading Supreme Court cases --- Raley v. Ohio; Cox v. Louisiana; U.S. v. PICCO; and Marks v. United States -- stand for the broad proposition that criminal culpability may not be imposed for conduct undertaken in reasonable reliance upon the representation of government officials that the conduct was lawful.
Of course, the difficult question in any case is whether the reliance was reasonable. (The most interesting previous case, in my opinion, is U.S. v. Barker, 546 F.2d 940 (D.C. Cir. 1976), in which a split panel of the U.S. Court of Appeals for the D.C. Circuit reversed convictions of two of Nixon's White House "plumbers" who broke into the office of Daniel Ellsberg's psychiatrist on the "legal" advice of White House and former CIA official (and later Watergate felon) E. Howard Hunt. See especially the fascinating separate opinions of the great jurists Robert Merhige and Harold Leventhal. In my view, the Barker court got the particular decision wrong, basically for the reasons stated by Judge Leventhal, namely, that it was unreasonable for the burglars to rely upon Hunt's advice. But the panel appeared to unanimously agree that conviction would have been unconstitutional if the break-in had been authorized by the President or Attorney General.)
If the OLC memos on torture, and the subsequent CIA General Counsel directives, were so patently wrong that any reasonable CIA operative or contractor should have been aware of that fact, then the reliance would not have been reasonable. However, especially given (i) the official and historical role of OLC in providing authoritative legal advice within the Executive branch; and (ii) the continued insistence of the President and subsequent Attorneys General that the advice was not mistaken, I think it is almost certainly the case that no court would find the reliance by CIA operatives and contractors on OLC's advice to have been so unreasonable as to justify prosecution. (Compare, for example, the reliance on the informal views of much less authoritative government actors in Raley, Cox and Barker. See also, e.g., Sanger v. Reno, 966 F. Supp. 151, 164-165 (E.D.N.Y. 1997) (due process would prohibit prosecution of parties for violating statute prohibiting transmission of abortion-related information, if such parties had acted in reliance on Attorney General's opinion that application of the statute would violate the First Amendment).)
If the OLC advice was patently wrong, and if the lawyers in question knew it was -- or perhaps even if their legal advice was merely reckless, cf. the Lawyers' Case at Nuremburg -- then that would raise very interesting, thorny issues about the criminal culpability of the advice-givers, in the event that DOJ ever (i.e., in a different Administration) concludes their advice was egregiously mistaken. That, in my view, is the more pertinent and difficult question (although even here, I can't imagine actual prosecution of the lawyers, absent proof that they knowingly provided bad legal advice). [This is as good a time as any to repeat my disclosure that I worked in OLC until November 2002, but had no involvement in, or knowledge of, the events or advice in question.]
But prosecution of the waterboarders themselves? Well, I think that would be targeting the wrong government actors (we should want CIA officers to be able to rely on OLC advice) and, in any event, such a prosecution would be of dubious constitutionality. (And again, none of this even becomes relevant unless and until the President and DOJ change their views on the legality of the underlying conduct.)
http://balkin.blogspot.com/2008/02/dissenting-view-on-prosecuting.html
I think you are right that international law doesn't permit any exceptions to the prohibtion on torture, and you can make a strong argument that torture is a jus cogens norm that could be prosecuted by any state. But the conflict is between that and legitimate ex post facto (/ due process) concerns in prosecuting an official for an action taken when the highest executive branch officials were saying it was legal. Those are the bastards that really need to be prosecuted.
April 16, 2009 4:41 PM | Reply | Permalink
I have immense respect for Marty Lederman, but I don't find his analysis of this issue persuasive. In my view, his reasoning is flawed because he treats torture the same as any other crime. I don't think that torture is necessarily analogous, and Lederman makes no attempt to address the unique characteristics of torture charges. (At least, not in the analysis above.)
Also, if your argument is that CIA operatives who relied on the torture memos are unlikely to be convicted in United States jurisdictions, then I would probably agree. (I suspect that the torture memos would make it difficult for prosecutors to prove that CIA operatives acted with the specific intent required by the U.S. torture statute.) I doubt, though, that foreign jurisdictions will be persuaded by a defense based on the torture memos.
April 16, 2009 5:07 PM | Reply | Permalink
Ia federal court allowed a prosecution by finding that either a treaty obligation or a jus cogens violation of human rights trumped constitutional concerns under ex post facto or due process clause (which, in fact, I would support but I think has no chance of actually happening), conservatives would have the biggest shitfit ever, and the anti-UN militia types would go even more nuts than they already are. It would be worth it just to see that reaction.
April 16, 2009 5:15 PM | Reply | Permalink
When the Senate ratified the Convention Against Torture, it stated that it was doing so with the understanding that key provisions of the Convention are not "self executing." That means that federal courts won't be able to enforce the Convention itself. They can enforce only the U.S. statutes that implement the Convention. So, in short, no they can't.
I agree that it would be fun to watch conservatives' heads explode if it was tried though. =)
April 16, 2009 6:55 PM | Reply | Permalink
Didn't the U.S. itself prosecute Germans and Japanese for waterboarding and claiming they were only following orders? Does this mean this type of prosecution only applies to foreigners?
April 20, 2009 4:50 PM | Reply | Permalink
I don't know if it means that. I do know that federal courts are limited to the jurisdiction granted by Article III, Section 2, paragraph 1 of the United States Constitution:
There's nothing there that gives federal courts the type of authority exercised by the allies at the Nuremberg Trials or at the Tokyo Trials.
I don't know whether any state constitution grants a state judiciary that sort of broad authority (and I also don't know whether an exercise of such authority by a state court would survive a due process or ex post facto challenge).
April 20, 2009 6:13 PM | Reply | Permalink
I've now read one of the memos, and I have to say that a non-lawyer might read it and say "okay, these things aren't torture."
But I have no conception of how a trained lawyer of any competence at all possibly could have written it. Just take the discussion of waterboarding. There are reported cases of prosecutions by the United States for using waterboarding as torture. Even cursory legal research should have found those cases. They are not mentioned in the memo. In fact, the memo says there have been no prosecutions any of the actions described in the memo.
This, mind you, is only one example. And there really are only two possible explanations:
1. Whoever actually wrote the memo is a terrible lawyer and everyone who reviewed it was pretty awful, too.
2. The memo was written from the conclusion, not the other way around.
Even though I recognize that the Bush Administration hired people like Monica Goodling, I have to say that the second possibility seems much more likely to me, and it's chilling. If that's the case, then the people who required the memo to reach the specific conclusion and the people involved in writing it should be held responsible. They are the ones who made it possible to waterboard and inflict other forms of torture, and they should pay the price.
But for that to happen, as a practical matter, we need someone like Senator Hatch - a Republican in good standing - to say so. I hate that idea, but in the current political environment it's the only way that a prosecution ever would go forward.
April 16, 2009 6:03 PM | Reply | Permalink
Just curious, when did following the law become a
liberal fantasy?
satya wrote:
...The OLC opinions are going to be an airtight defense in any but the most liberal juridictions,
...Which means that the only thing Obama "gave up" in this "comprimise" is, rightly or wrongly, a liberal fantasy.
The greater irony is that the right, not too long ago, used to refer to themselves as the "law and order" party. Now I guess we know it is really the "right order" party (we follow orders no matter the legality so long as the it is a leader from the right).
April 16, 2009 5:57 PM | Reply | Permalink
Vee ver only obeyink orders...
April 16, 2009 3:43 PM | Reply | Permalink
My parents introduced me to documentaries about the Holocaust and the Nuremburg trials when I was a kid, and I've always felt strongly that people need to take responsibility for their own actions -- not blame them on the orders of higher ups.
That said, there was a study recently (I'll have to try and find it) that looked at people involved in actually doing torture and found that normal people could get sucked into it, act on it, then return to being normal people.
While I refuse to believe that someone with strong principles and integrity would do this, I can still see that people who are not normally sadistic and evil might get pressured & "cheered" into it.
What I want are the original cheerleaders -- the people who actually perpetrate the policy. If the lower downs get prosecuted, that's fine -- but I want the higher ups. And they're the ones who usually get off.
April 16, 2009 3:58 PM | Reply | Permalink
It's not just the torturers. Service men and women in Iraq have admitted to becoming inured to the violence and no longer seeing innocent civilians as human. It's part of the horrible nature of this kind of warfare.
Personally, I'm holding out hope that this seeming pardon of the interrogators leaves the door open for Cheney, Addington, Yoo & Co.
It's also entirely possible that Obama is biding his time. Now, with the right increasingly inflamed, may not seem like the wisest time to bring this prosecution to the fore. Only that much more fuel for their fire. Much as I want to see all these guys grow old in an isolated corner of hell, Obama does have far more pertinent issues in front of him.
April 16, 2009 4:49 PM | Reply | Permalink
Tamarat:
You might be thinking of--
1) The 1961 Milgram experiment on authority figures getting people to do nasty things (http://en.wikipedia.org/wiki/Milgram_experiment); and/or
2) the 1981 Stanford prison experiment of role-playing gone really bad (http://en.wikipedia.org/wiki/Stanford_prison_experiment)
Both kinda scary.
Power corrupts, and it doesn't matter if it's AC or DC.
April 17, 2009 1:59 PM | Reply | Permalink
Wow, what a concept.
Illegal things are illegal, until a friend or two (with no real legal authority to do so) writes that they're not illegal, just because I say so so shut up.
Then they do these illegal things for years, all made illegal b/c my friend said so, until years later, when we just ignore the whole farce "just because".
Nation of laws, we are not.
April 16, 2009 3:56 PM | Reply | Permalink
there's an "illegal" in that last bit that should say "legal"....grrr..
April 16, 2009 3:58 PM | Reply | Permalink
Just to make it clear: I was merely describing the world as it is, not stating my views on how the world ought to be.
April 16, 2009 4:01 PM | Reply | Permalink
Obama is mastering Bill Clinton's game of triangulation. He lets the pot boil long enough to get a good read of the tea leaves. Then he makes an eloquent speech that reveals enough insight to reassure a solid 60% that he's on top of the issue and his heart's in the right place. The masses go back to their toil and/or job search with a modest tax break and their faith renewed.
What Obama knows is that the healthy majority he relies on are too busy and distracted to pay much attention to the details. They're satisfied to hear that he's ending the Iraq war, banning torture at Guantanamo, and going to do something about Afghanistan. They're ready to move on and don't really want to put much thought into how and when he's going to accomplish what he promises.
The 40% that Obama has written off are comprised of two main groups. 25% are teabaggers who will go down with the Republican Party no matter what. The 15% that's left, those like us who pay close attention to the troubling discrepancies between Candidate Obama and President Obama, are slowly being hung out to dry. He knows it was only a matter of time before we'd see through his rhetoric and become disillusioned with his opportunistic invocations of the rule of law.
For Obama's purposes, we are inconvenient as allies, and more useful as a marginalized left-wing minority dismissed as impractical idealists. We can be superficially portrayed as an elitist counterbalance to the ignorant right-wing peasants. If Obama can band-aid the economy and keep his own nose clean, he may well succeed in becoming Clinton II.
April 16, 2009 4:02 PM | Reply | Permalink
There are three separate issues here:
1. Release of the memos with minimal redaction.
2. Treatment of the people who wrote the memos.
3. Treatment of the people who conducted the interrogations.
It looks like the President did the right thing on item 1.
On item 2, he said nothing. That certainly leaves further action open, and truthfully I didn't expect him to address that today.
On item 3, I'm not sure there was any other real choice but to not prosecute those people. The Nuremburg defense doesn't work when you know the order isn't lawful, but if you're provided what looks like reasonable assurance from someone who should know, it becomes very hard to establish a case that a jury would buy. All of us who've been following this issue know, for instance, that waterboarding has been considered torture by the U.S. for decades, but I doubt too many people knew that before the issue went public a couple of years ago. Today, someone who relied on these memos would be unreasonable; seven years ago the picture might have looked different.
Let me, though, separate the CIA and military personnel who employed stress positions, etc., from those involved in the death of people in their custody. That's a completely different story. Even these memos did not claim to immunize interrogation techniques that led to death.
April 16, 2009 4:12 PM | Reply | Permalink
During the same news week, we are hearing about:
• a former Nazi prison guard who is continuing to fight extradition from the US for his documented war crimes
and
• the new US Administration, which has chosen not to hold known US torturers accountable
To the entire world, we are loudly proclaiming: "Do as we say; not as we do."
I truly understand why the Obama Administration does not wish to uncover old wounds and look back to past behavior. However, we cannot get beyond this behavior until we directly and clearly address both those who illegally and irresponsibly approved of torture, and those who carried out the torture.
This problem will grow and fester until we choose to address the issue fully and honestly.
April 16, 2009 4:15 PM | Reply | Permalink
For those who were still hoping...
It is unanimous. Neither the Republicans NOR the Democrats in power deserve to be anywhere NEAR positions of power in ANY free country.
So much for treaties, for freedom and justice for all, for equal treatment, for laws pertaining to torture (even when death occurs.... for ANYTHING which treats those in power with the same rules as commoners. This is the same excuses used in dictatorships all over the world for countless generations.
.... and as the pigs rightly stated.... "All animals are equal.... but the pigs are MORE equal".
I no longer have an iota of respect for what our last few regimes have called a democracy, because this is not in any way similar to the democratic society I studied in school as a kid.
It is just a matter of time now, folks, before these same... or future rulers decide we no longer need to even bother to vote!
And although I am disheartened with this decision, I am totally disgusted with the belief that voters will STILL support these two parties which have brought us this close... and have decided to completely destroy... this nation which has lost so many patriots trying to PREVENT this exact occurrance... Those people will learn too late just what they have given up for their own descendants!!!
April 16, 2009 4:21 PM | Reply | Permalink
I have believed in Mr. Obama. But I intend to print out these memos and send them to the Spanish authorities and to the International Criminal Court seeking prosecution of any and all people connected with this travesty.
I wouldn't mind it if thousands of other Americans joined me in an appeal to the International Criminal Court.
Perhaps people in what Rumsfeld called "old Europe" will prove to have some cojones.
I'm heartbroken to know that Mr. Obama doesn't have what it takes to bring these villains to justice.
April 16, 2009 6:56 PM | Reply | Permalink