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Sunday, June 18, 2006

Constellation: Fleshing Out the Failed ABA Peer Review Process

As you focus on the specific attorneys in DoD, DoJ, NSA, and the outside counsel, take some time to notice which internal controls failed.

This is a system of peer reviews which the ABA relies on to maintain its independence. This process failed and has given us what we have: War crimes by American attorneys, and their collective failure to report peer misconduct and illegal activity to the disciplinary boards.

This takes a stab at the issues, interrogatories and depositions against the attorneys.

* * *


Check the axioms, theorems, and corollaries at the bottom of this entry: Kw=[ Axiom 1: We are good people ], then read to the end.

Take note of the perverse legal thinking: This is what is behind the American Bar Association, and what they refuse to check. [ Full discussion ]

* * *

NSA: Relevance of HUDSON v. MICHIGAN to perverse RNC legal theory

Prepare for the NSA-defense: Constitutional "Interests violated here have nothing to do with the evidence," [ Ref ]

The Supreme Court has violated their oath, and unconstitutionally lowered the 4th Amendment from "probable cause" to "reasonable suspicion." [The government can invoke any legal-nonsese and set of illusory facts to assert they had "reasonable belief" that there was a "reaosnable suspicion" of danger. [Ref: "dangers which suspend the requirement when there is “reasonable suspicion” that they exist"]

  • What is the deterence against government for the Constitutioanl violation?

  • What's the purpose of having a Constitution if it's not protected; or if, when violated, there are no sanctions?

  • Whose evidence is it?

  • If the evidence is "not" connected to the protected interest, why is it admitted as relevant or even commented upon by any court?

  • If evidence can be collected regardless the interest violated, why does the US pretend it has a system of laws or Constitutional rights?

    Supreme Court makes a circular argument, "The value of deterrence depends on the strength of the incentive to commit the forbidden act." The object of the deterrence (inherent in the first 10 Amendments, or Bill of Rights) is the government, in prohibiting the abuse of power and violation of rights; not the civilian population, in its enjoyment of rights.

  • What if there is no deterence against the legal community, judicial branch, or government to violate the Constitution?

  • How can we argue that an "oath of office" means anything, when there is no consequence when the forbidden act is committed; or the unlawful act is not stopped?

    The Supreme Court is absurdly arguing that the "professionalism" of law enforcement is self-checking. Clearly, this standard has failed when it comes to self-checking within DoJ and the NSA issues.

    The evidence we have is, despite the Constitution, the DoJ-DoD attorneys were not professional, and those inside the White House and law enforcement defied their oath to the Constutiton. This is absurd:
    "many forms of police misconduct are deterred by civil-rights suits, and by the consequences of increasing professionalism of police forces, including a new emphasis on internal police discipline."

    Despite the "deterrence value of FISA," this failed to stop the White House. The Supreme Court shoudl be considered a threat to the US Constitution, and lawfully impeached for this reckless approach, and absurd legal argument.

    * * *

    Let's consider the problem within the ABA's peer review process.

    Constellation: Defective Peer Reviews

    As the disbarment planning continues, there are a few things I wanted to bring to your attention. They have to do with the peer review system in the ABA. Related to this is the internal reporting inside DoJ on matters related to attorney conduct.

    As you read this, keep in mind the big picture: We do not measure a society by the words they write, but by the results they achieve. The object of the Constitution is to prevent the abuse of power, and protect rights; not create a creative mechanism to explalin away. Where the Constitution is explained away, there is no Constitution.

    There is a common pattern of attorney involvement, and can be separated into three phases. This pattern is the same for Iraq, NSA, rendition, Abu Ghraib, and Guantanamo:

  • Phase I: Pre-event planning, assent to illegal activity

  • Phase II: Event, illegal activity, failure to stop

  • Phase III: Post event cover-up, inaction, and non-sense legal arguments

    * * *

    The constellation project is about identifying the specific attorneys inside the White House, Vice President’s office, DoJ, NSA, and DoD that have failed to do their duty. There is a major problem for the attorneys: Article 82 of the 1929 Geneva Conventions.

    Article 82 outlines the legal obligations of all actions to ensure that the military commanders are fully briefed on the laws of war program. As you did into the details of the Vice President’s KBR connections, you’ll see a pattern emerging: Civilian contractors related to war crimes, and the Teguba investigation of Abu Ghraib.

    The DoD laws of war program is outlined in 5100.77, which the Secretary of Defense is responsible for implementing. We know in 2002 Addington rebuffed the concerns by JAG Gordon about the misconduct. Also in 2002-4 Spike Bowman of DoJ-NAVY was sent into Guantanamo to clear up the public relations disaster.

    * * *

    If you recall from the Haifa investigations, the NAVY NCIS explicitly told the Americans being detained that they could be punished, if convicted of war crimes, with death by firing squad.

    Make no mistake. If there are any attorneys in the United States who are lawfully convicted of war crimes (because they failed to do what should have been done related to the laws of war program), they too may face similar interrogations and direct threats.

    Keep in mind this is not a green light to threaten the attorneys with death. Rather, it’s a clear notice: The issues are serious.

    * * *

    There are several issues that arise when we discuss the American Bar Association. This has to do with the peer review system. IN theory, the ABA is a self regulating organization, and is not subject to federal oversight.

    There is one tiny problem. Although chartered and licensed at the state level, attorneys in the federal government have legal responsibilities through their oath of office. They also have clear guidance from their agencies requiring them to report misconduct. One specific guidance provide in DoJ expressly identifies the DOJ OPR as the focal point for reporting and investigating misconduct within DoJ.

    Another tiny problem: Gonzalez has already shut down the DoJ OPR from looking into the NSA issues, leaving no basis to conclude the likely attorney misconduct has been sanctioned.

    * * *

    As you put together your lists of attorneys to be further questioned, keep in mind a bigger issue: The United States did not anticipate that it would ever directly question American attorneys for their alleged complicity in war crimes.

    A plain reading of the Government Performance Results Act of 1993 includes no references to the laws of war, Geneva conventions, or the sanctions to be placed on DoJ attorneys should they do nothing as the nation embarks upon illegal war.

    During 2002, we know based on the Iraq-invasion planning in the Downing Street Memo, that DoD was organizing various planning cells and coordinating propaganda with the UK’s MI6. Included in the planning cells were explicit requirements that the activities be coordinated with the DoD general counsels.

    Unfortunately, as we saw with KBR, when the planning cells got legal arguments they didn’t like, they ejected various personnel from the meetings. The results are clear: illegal war, abuse, torture, and other war crimes.

    * * *

    The issue is that the attorneys inside DoJ and DoD were in a position, and have publicly commented on their documented memos, related to torture, abuse, and other illegal activities. They have not denied their involvement.

    The question then becomes: Given DoJ-DoD attorneys are involved in the crafting of these memos linked with the White House General Counsel, Gonzalez, Yoo, Addington, and others, what happened to the reports?

    Under the peer review programs, there are explicit requirements that attorneys report misconduct. In the case of the laws of war program, there are requirements that military personnel make reports of war crimes to their commanders; and if no action is taken then they are to forward this information through the JAGs to commanders.

    The simple problem is this: As the 2002-2006 events unfold, it was clear that there was abuse and violation of the law; and the DoJ-DoD attorneys were in a position to know that there was no WMD, laws had been violated, and that other attorneys have signed off on the memos permitting this abuse.

    Central to the legal arguments has been Addington’s contention that Geneva is quaint, and did not apply to the prisoners of war in Guantanamo., Further, the Conventions make no distinction between illegal and legal combatants – they are simply belligerents. Also, until there is a determination that they are belligerents, they are presumed to be eligible for all the rights and protections as if they were civilians

    * * *

    If you read the Iran-Contra Minority report you’ll see a creative twisting of the case law and precedents.

    The current results are wholly disconnected form the international requirements, and the standards of conduct that the attorneys knew or should have known were fully in force.

    The problem is that Article 82 creates a duty on the attorneys to ensure that the treaty obligations are implemented, not simply given lip service, as Addington and the DoD-DoJ attorneys have done.

    Sometime between 2001 and 2006, the legal community realized they had a problem: Their membership failed to make the reports as required under the attorney standards of conduct. Spike Bowman when he visited Guantanamo, was in a position to know what was going on; and his conduct like Addington and Gonzalez has yet to be investigated and compared with the legal requirements imposed on an attorney.

    * * *

    Here’s the problem. The Geneva Conventions are real, and the nation has supposedly been taking action on behalf of Israel to protect it. However, lost in the discussion and oversight was a system to prevent, detect, and sanction attorneys who did what Hitler’s attorneys did: Assent to illegal conduct, and fail to remove themselves from the illegal conduct.

    At the same time, despite the apparent problem with oversight in the attorney profession, attorneys were still getting promoted and reviewing high ratings. This is odd. In order for the Office of Management and Budget to award certain ratings and provide training to attorneys, they have to demonstrate that they are able to meet certain performance standards related to independence. Also, the model rules of professional conduct specifically include supervisory oversight responsibilities.

    The issue is that there is a disconnect. The abuses were occurring, indicating that the attorneys were not doing their job; at the same time, the DoJ-DoD attorneys were getting glowing reports, attending training, getting promoted.

  • How are people who have a demonstrated track record of not being able to independently review the case law, statutes, and laws of war getting promoted to positions which require a showing that they can independently work and not require supervision?

  • Where are the checklists which the DoJ OPR was using to screen the attorney complaints; or were there no complains filed, despite the DoJ attorney duty to file reports of connection to war crimes?

  • When the DoJ OPR investigation into the NSA was shut down, how was the DoJ attorney misconduct – related to that illegal activity, which should have been reported to DoJ OPR – resolved?

    * * *

    Justice Scalia in the recent Supreme Court ruling on the 4th Amendment [law enforcement does not have to knock, can enter a facility with a warrant, and the evidence will not get suppressed if they fail to knock] stated that civilian review boards were sufficient to deter misconduct.

    Putting aside the failure of this model in the Securities and Exchange Commission (whereby self-regulation fails, and oversight boards prove meaningless unless there are meaningful sanctions), the issue before us: What is to be done to swiftly ensure that war crimes linked to Government employees is timely investigated.

    * * *

    Let’s consider

  • History and the Holocaust.

  • 5100.77 was the fruit of this legacy, and imposed a requirement on SecDef to Act.

  • In 1929, fully 16 years before the end of WWII, the powers agreed that they had a duty – through Article 82 – to ensure the laws of war were well known and implemented.

  • In 1993, the US passed the Government Performance and Results Act.

  • Professional associations like the ABA and AICPA have various manuals on peer reviews, best practices, and due diligence related to attorney conduct, internal controls, management performance, and mitigating the risks related to malpractice.

  • The IG, GAO, and other entities have issued guidance to the DoJ for computer security.

    Here are the problem:

  • 1. Despite the 1929 requirements on attorneys, Addington termed Geneva quaint and others attorneys have failed to report this violation of Article 82;

  • 2. Despite the lessons of the Holocaust, the US in the GPRA did not include any requirements to review attorney misconduct related to violations of the Geneva Conventions, or their assent to war crimes

  • 3. Despite due diligence requirements to review a law firm for litigation risks, there has yet to be a full accounting of the legal liabilities on the US legal system for their collective failure to self-screen attorneys for their connection to – and failure to report – their involvement, knowledge of war crimes committed by American civilians, military, and legal professionals.

    * * *

    Here’s the big picture issue: The ABA has yet to adequately scope this problem, not identify the full scope of the issues related to the solutions:

  • What is to be done to ensure this does not happen again

  • How do we make the attorney oaths to the Constitution mean something

  • Who will come to the defense of the Constitution

  • What has to be done to ensure attorneys remain bound to the US Constitution, and all treaties; and are willing to take action to assert the rule of law, even against their peers in the legal profession?

  • What is to be done when the legal profession refuses to assert their Article 82 obligations, fail to report, and assent to war crimes?

    * * *

    Let’s consider the nitty gritty issues. In theory, the idea of a 5 USC 3331 oath to the Constitution is to address the above problems. The issue before us is: What is to be done when this oath, and treaty obligation, gets cast to the wind?

    Federalist 78 states clearly that with the right solemn ceremony, the people can simply present a New Constitution. Until then, all are bound to the existing Constitution, even the attorneys who say the laws and treaties of the land are quaint.

    The issue is that this needs to be thrown onto the attorneys: You have to choose between this Constitution – which you defy – or a New Constitution, which can be crafted to more swiftly find you having violated your oath, and quickly stripped of your right to practice law.

    The days of having solely a state-level regulation may end. A New Constitution can include terms which impose sanctions on attorneys when they do what we presently have: An assent to illegal conduct, and a refusal to put their oath to the Constitution before all things.

    * * *

    The excuses are absurd. The argument that “This oath makes us doe things we don’t want to do” defeats the purpose of the oath: To bind people to do what they would otherwise not do on their own.

    If the legal community will not come to the defense of the Constitution, then there is no option but for the people to do what the legal experts refuse to do.

    The issue is how to make the oath, once it is executed, something that transcends time, space, and memory: How is this promise going to be enforced when those who have promised to self-police refuse to police and are not doing what they should do.

    If the attorneys are not willing to assert their oath, they are not worth being paid. It’s time to have some give-backs to the clients who have otherwise been led to believe they’ve been paid for a service. How much they’ve been overcharged remains to be understood; arguably, given the contract terms, this public wrong will not be remedied, especially by a Supreme Court that thinks it’s OK to violate the 4th Amendment, not knock, and knock down the door without any threat of legal sanction. “Oh, leave it up to the private market to handle this.”

    It remains to be understood how many legal firms – in their desire to maintain cordial relations with the government source of funds – has remained silent about the war crimes, in exchange for favorable comments so that they might continue to provide legal advice when it comes to creating financial instruments for other government contractors.

    As we’ve stated before, the private market is useless. Moreover, if the Supreme Court is going to relegate “oversight” of the legal system to non-government entities, why do we have a government?

    It’s one thing to have a failed government that doesn’t function; it’s quite another when the government openly admits there is no oversight, and defers a uniquely governmental role to the civilians and free market. That is a defacto relinquishment of power, responsibility, and legitimacy.

    * * *

    5100.77 imposes reporting requirements. This is a system of checks and balances on power. The Laws of War program is designed to ensure US military personnel are following the US treaty obligations.

    These obligations apply to all US personnel, regardless their civilian-military-contractor label. The laws apply to people, not duty titles.

    The issue with the 5100.77 program is what did the DoJ Attorneys do when they learned of the abuses. We have no record of an investigation, report as required. Something wasn’t done that should have been.

    * * *

    Geneva Article 82 imposes on counsel a requirement they ensure the laws of war program is followed, but Addington called Geneva quaint -- arguably, a violation of Geneva, and a subsequent ABA-violation for other attorneys failing to report the misconduct for investigation.

    We are left with several question:

  • How was the Article 82 requirement included in the law firm peer reviews;

  • How did the law firms validate that a specific firm and attorney was in compliance with the legal obligations

  • TO what extent have the laws of war and Geneva requirements been given cursory attention in the peer reviews because they are simply whitewashes?

    The implications are stunning and defy Justice Scalia’s contention that the private market and non-government system is sufficient. Rather, it is because of a blind deference to systems that do not work that help contribute to what we have: An abrogation of the US Constitution, and widespread attorney disregard for their duty to report misconduct that they know, or should know, is going on inside DoJ.

    Some might suggest no system is foolproof. If so, then the implications are simple: The US cannot guarantee that its foreign relations are lawful, or that its budgeting will be contained. This has implications for the US bond market and US debt rating. It is time for Americans to rethink whether they are really a nation of laws, or law breakers.

    Many people know and refuse to face reality. There has been an incentive in the legal community to do nothing, not report, pretend it hasn’t happened, and threaten others if they do report, or do something other than what should be done.

    It is not timely for the ABA to argue in 2006 that they’re going to review the matters between 2000 and 2006. This is absurd, and asks us to believe that it is “OK” to take 6 years to review the legal matter -- the length of time after Hitler invaded Poland, until the end of WWII. Unacceptable.

    * * *

    NSA isn’t just about collecting information. It also has a core communication function for the Joint Staff. NSA is constantly doing exercises using dummy messages. Information is routinely entered the communication system as a test, and personnel are told to treat the information as if it were sensitive.

    NSA has the capability to report within six [6] minutes information from the President to any location worldwide, in writing, via message, with a confirmation message sent back confirmation receipt. This includes all the time to process the message, transcribe it, and sent the confirmation.

    Six minutes.

  • What happened to the urgent messages about war crimes?

  • How was the ABA leadership and lessons learned center involved?

  • How did the urgent messages get routed to Congress, military personnel, and the Agency/Department Inspector Generals?

  • Based on what happened, what results should we expect in re Iran?

    * * *

    Between 2000 and 2006 something did not work.

    There are some broad categories which the public will need to organize:

  • War crimes by American attorneys

  • Violation of laws, and conspiracy

  • Attorney proximity to events

  • Required disclosures, peer reviews, and reporting

  • Required conduct when POTS failed to comply with Title 50 – a requirement the President to report to Congress violations by NSA of US statutes

  • Lawyers interference with investigations into NSA

  • Duty to remove selves from unlawful activity

  • Attorney state of mind when the illegal activity achieved the illegal outcomes, but there is no evidence the attorneys took any action to intervene, stop, or remove themselves

  • Explanation why Nuremburg did not sink in

  • US Constitution and treaty obligations invoked with 5 USC 3331 – why nothing was said or done

  • The disconnect between 5100.77, Geneva, Article 82; and the (torture, abuse, rendition, Iraq WMD) memos which defied these requirements

    * * *

    Questions for Judiciary to Ask of Targeted ABA Attorneys

    After the memos surfaced, what review was done and how did the DoJ management personnel report the conduct of illegal attorney involvement to DoJ OPR?

    How did Addington address the legal issues after the Gordon bypassed him in 2002?

    What were the JAGs during as the illegal conduct was known, and did they adequately report the attorney misconduct-involvement to the ABA, DoJ OPR, and appropriate legal representatives?

    Once US special forces were widely reporting in the open media that the Iraq invasion was “illegal as hell,” what steps did the JAGs, DoD-DoJ attorneys and department general counsel take to ensure the professional legal obligations were satisfied?

    Once the Iraq invasion failed to produce the WMD and it was known the invasion was illegal, what happened – why is there no report or investigation by the legal community into the memos; how was the DoD-DoJ counsel/JAGs excluded from the investigations?

    How do we explain the results, but no adequate legal accounting for what happened?

    What happened to the requirement to include the JAG/legal counsel in the legal reviews in 2002-3, prior to the invasion of Iraq?

    How were the rules of Engagement drafted; how was it verified the Rules of Engagement were consistent with Geneva?

    What did the legal community do when they realized the results were at odds with Geneva?

    How do we explain John Bolton’s cavalier use of NSA memos in re Iraq, and how his statements fit in with what he proposes in Iran – is the DoD-DoJ legal community remaining silent because of threats?

    How are the ABA oversight lessons of the Iraq WMD-invasion issues being put into practice on the issues related to Iran and the pre-Iran invasion; why should we believe that the ABA is learning the lessons, or ensuring that counsel is timely reporting illegal conduct, as was not done in re Iraq?

    Once the DC court ruled that the Iraq invasion could proceed, but there later proved to be no WMD, how did the ABA review the attorney conduct and evidence provide to the DC court; how were issues of alleged “fraud upon the court” resolved; what did the DoJ-DoD attorneys do when they were aware the evidence had been fabricated; how did the DoJ-DoD attorneys resolve in their mind there did not need to be a review

    * * *

    What didn’t the DoJ-DoD attorneys do, that they could have done, had they actually asserted their oath, and used their Article 82 mandate to ensure the American military was informed – within six minutes – of what was or was not required? They attorneys have a problem: They were well connected to the planning, involved in the pre 2003-invasino planning and had the means to take action. They chose to defy their oath.

    At the same time, the abuses and memos related to DSM, abuse, torture, and Iraq WMD. Where were the attorneys peer reports on [a] peer misconduct; [b] peer proximity, knowledge, and assent to illegal activity, and [c] failure of peers to remove selves from the illegal activity?

    There were war crimes, but no reports in government. What happened to the attorneys after they left government – were the silent on what they knew was going on, and what they failed to do?

    How were the 5100.77 violations reported to the JAGs and subsequently documented?

    How were the 5100.77 requirement satisfied, but there is no record of the attorneys having reported on peers who failed to do what was required in Article 82?

    How did attorneys get into supervisory positions, yet they cannot show they met the requirements for independent work, or acting in a supervisory manner when it comes to the laws of war program?

    What happened to Article 82?

    Is there really a credible supervisory program under ABA review?

    Why should we believe the ABA government practice area is doing what it should?

    What’s the basis for the glowing repots, promotions, but the unsanctioned abuses and closeness of the American legal professionals?

    * * *

  • Where did the DoJ OPR reports (related to attorney misconduct on the Geneva Conventions, laws of war) go?

  • Why are there no results for the attorneys meshed with the ABA/

  • How were the OMB classifications satisfies given the failure to demonstrate the DoJ-DoD attorneys could independently act on issues related to laws of war?

  • How did supervisors credibly evaluate conduct despite a disconnect between [a] the legal requirements; and [b] what was actually done; and [c] no evidence the attorneys have adequately sanctioned those who failed to assert their oath, or remove themselves from the illegal activity?

  • There was a disconnect between the standards, actions, and results. What was the basis to award education positions?

  • Which international law firms use which guide books related to Geneva, to ensure that US law firms comply with their Article 82 Geneva requirements?

  • How does DoJ contact with external firms to do reviews related to the laws of war, Geneva, and other DoJ OPR-reporting requirement?

  • What is done when the conclusions of the DoJ OPR are at odds with the legal requirements, and the results are suppressed?

  • Where are the IG audits of the Government Performance and Results Act, as they relate to Geneva Convention, 5100.77, and the DoJ reporting and compliance program on Article 82?

  • How were the DoD-DoJ General counsels incorporated into the performance reviews?

  • What was the basis to promote those in the DoD-DoJ counsels’ office, but they cannot show between 2000-2006 they were capable of independently acting to assert their oath as it relates to war crimes, peer review/reporting?

  • Who monitors the effectiveness of the ABA?

  • Which standards of law are the legal professionals and associations using to ensure the law firms and attorneys are meeting their Geneva Convention reporting Requirements?

  • Which international law firm practice areas have fallen down on the job, despite the many recent lessons of Somalia, Liberia, and Yugoslavia when it comes to issues of war crimes?

  • What is the degree to which a given law firm is over priced given it’s inability to meet requirements of Geneva, is not capable of independently acting, fails to ensure self regulation on the laws of war program works; and the insurance premiums have failed to price the real risks related to malpractice on peer reviews and war crimes

  • Which specific FISA-related steps were not include in the peer reviews the telephone companies did of each other; or the outside auditors failed to report to the Boards of Directors

  • Why is there no evidence that the compliance reviews and best practices have benchmarks related to attorney compliance with Geneva; nor is there an attorney development plan that links progress/non-progress on war crimes-related peer review to issues of promotion and needed supervisory experience for Government wages.

    * * *


    As you identify those who were involved and failed to act, keep in mind there are many established systems in place that failed. Questions were no asked; issues did not get challenged; people in the legal community failed to do their job.

    The results speak for themselves. It’s one thing to have an association. It’s quite another when that association is more interested in protecting its reputation not the Constitution. They didn’t do their job. Now, it’s our job to lawfully sanction them for failing to do what they promised.