Grand Jury Indictments Against Members of Congress for War Crimes
Hamdan opens the floodgates for the Grand Jury to issue indictments against Members of Congress for their complicity in the war crimes and unconstitutional conduct. The precedents of Nuremburg and the Tokyo war crimes trials impose war crimes liability on civilian planners who were in a position to stop illegal activity. Members of Congress, through their negligent refusal to review these matters, satisfy the elements to have their legislative immunity stripped, and indicted for war crimes.
This note outlines the legal framework for stripping legislative immunity and indicting Members of Congress for their involvement in the planning, and refusal to prevent, the violations in Hamdan, Iraq, Abu Ghraib, and the illegal NSA activity. We discuss some of the reforms needed in the system of governance and financial reporting to prevent this illegal activity from recurring undetected. Until these reforms are enacted, the civilian population should discuss with counsel principles which are applicable during combat: The principle of reciprocity and reciprocation.
Details
Hamdan presents a significant problem for Members of Congress: The Supreme Court has reminded the country that the Geneva Conventions apply.
Nuremberg and the Tokyo War Crimes trials imposed liability on civilian policymakers for their involvement in the war crimes.
The American government, unlike other system which isolates policy making and war crimes liability to the executive, spreads policy-making power and responsibility across the Legislative and Executive Branches.
In short, the Hamdan can presents a significant problem for the Congressional leadership in July 2006:
Until members of Congress accept that they, as policy makers with ability to oversee and prevent the appropriations of funding for criminal activity, are implicated in the war crimes, the country will have to accept the following:
Background: War Crimes by Members of Congress
Whereas the United States Supreme Court, the branch of government that has the sole power to review judicial matters and making findings of law, has concluded in Hamdan that there have been war crimes committed by elected officials and United States citizens, in violation of the Geneva Conventions and Laws of War [ Ref ];
Whereas Members of the United States Congress, through their reckless disregard for their oath have permitted abuses, injustices, and humiliation to be inflicted upon citizens of the United States and other people around the globe;
Whereas prior to the start of combat operations in Iraq, it was known [1] the action amounted to a war of aggression; [2] the war was not lawful; [3] there was no evidence to support the claim of an imminent threat; [4] there were no WMDs; [5] the US knew it would not be able to provide any evidence of an imminent threat, thereby confirming they knew it was an illegal war of aggression; [6] and the Senate Intelligence Committee and other Members of Congress have engaged in an unlawful conspiracy to refuse to investigate, or stop the ongoing war crimes which violate the Geneva Conventions;
Whereas Senator Roberts and other Members of Congress allegedly know that, without WMD and no evidence of an imminent threat, there is no evidence to justify a war of aggression. The delay of Phase II report is to suppress public discussion of the war crimes implications. It was known well before the start of combat operations that the war crimes liabilities were real, and the US-UK and Congress understood the implications of a war of aggression: Threat of penalty of death upon civilian leadership [ Ref ] ;
Whereas Members of Congress knew or should have known, when they endorsed the statements related to the US's illegal war crimes in Iraq, that the US imposed government violated the Geneva Conventions [ Ref ].
We urge all in the blogosphere to quickly communicate with your local elected officials in your state [ Find Your State Rep ] to communicate the urgent, imminent problem: This Congress is complicit in war crimes; is actively engaging in war crimes; and a Grand Jury should be empanelled to investigate these violations of the Geneva Conventions, and disclose, where possible, a public report related to the Grand Jury findings [ Ref ] ;
We urge all in the State of Oklahoma to exercise your power to empanel a grand jury using your state code to review these matters where appropriate [ Ref ]; and
We urge all who may serve on a Grand Jury, or know someone who is on a Grand Jury to consider the following information as you conduct your review of the Geneva Conventions violations and other war crimes committed by elected or appointed officials and Members of Congress.
Fatal admission: "I should have been more inquisitive, but I was not." [ Representative Walter Jones, NC Ref ]
Sample indictment news in re War Crimes: [ Source ]
Discovery: FOIA
FOIA requirements of war crimes. [Issue: How is the US going to resolve FOIA-related requests of US Member of Congress war crimes-related activity? Ref]; Contrast this with efforts to suppress FOIA information: Ref
Supporting Material
The links below are intended to assist you. They are here merely as reference. There is ample precedent to bring indictments against civilian leaders who are in a position to do something, but refuse to investigate or prevent war crimes.
FBI Jurisdiction: Ref
Points and Authorities
Hamdan affirms that the Geneva Conventions applies to the United States. [Laws of War]
Precedent: Members of Legislatures Indicted for War Crimes [Authorizing, planning, approving, failing to prevent: Nuremburg Trails ]
Geneva Article 82: Responsibilty of legal community, and civilian leadership to ensure the Conventions are enforced.
Oath of Office [ 5 USC 3331 ]
US Constitution Article VI: Treaties Like the Geneva Conventions are Supreme Law of Land : Ref
US Constitution Article VI: Members of Congress are bound by oath Ref
Members of Congress responsible for overseeing DoD and Secretary of Defense, and whether there was or was not an effective "Laws of War" Program; despite no evidence of compliance in re Hamdan members of Congress continued to appropriate funds to an agency. [ Ref ]
Members of Congress should have been in a position to know, but failed to find out what was occuring with the illegal war of aggression, and illegal contracting in re KBR. [ Ref ]
Understanding the selective cherry picking Members of Congress engaged in to "justify" their inaction, malfeasance, and unlawful assent to violations of Geneva: Senator Roberts and others were well-coached by the master legal cherry picker, Addington: [ Ref ]
18 USC 2441 fails to capture the larger Geneva liabilites that attach to Members of Congress, as a policy making body, with power to oversee, limit, and otherwise prevent war crimes.
Abused Because of of Congressional Malfeasance
Sample victims of American abuse of power:
Laid Saidi: Rendition to Algeria Arnetta McCloud: Unlawful retaliation after complaints filed against local law enforcement. [Verdict: $2M; $1.3M punitive] Michael Gannon: Allegedly false arrest/detention, and threatened loss of property for reporting unprofessional police misconduct. Mohammad Rauf: Domestic rendition [US citizens forcibly removed, interrogated, held for lengthy periods of time Ref: AKA "FARIS"] NYT Staff targeted with threats of death, for speaking about illegal use of warrants to engage in warrantless surveillance [ Ref] Warrantless interrogations: [ Using illegally seized information to engage ion fishing expeditions, attorneys denied access to counsel Ref ]
Japanese Defendants were war criminals:
Japanese Defendant Nobusuke Kishi: Planned, organized, supported, and assented to the unlawful expansion of Japanese Emperor's unlawful power [ Ref ]
Japanese Defendant Fusanosuke Kuhara: Industrialist producing supplies to support the war of aggression.
Japanese Defendant Yoshisuke Ayukawa: Industrialist who expanded industrial operations into China [ Analogous to illegal expansion of Halliburten into Iraq, and abusing laws of war to gain illegal profits Ref ]
German Legislative, planning functions were target of the war crimes indictments: [ Ref ]
Compare Keitel and Addington: [ Both were influential advisors on military issues, prepared directives, and had great infulence on policy and affairs of state. Ref ]
German Defendants: Sample Indictment Against Civilians: Conspiracy to Commit Crimes Against Peace.
Keitel, lawyer: Responsible for the planning, organization, and advice given to the leadership; took active part in planning meetings Ref
Krupp von Bohlen und Halbach, Gustav: German industrialist "representative of German heavy industry and for armament production" [ Ref ]
Ribbentrop, Joachim von, businessman [ Ref ]
Streicher, Julius, elementary school teacher: Propaganda, incitement of others to commit illegal acts of violence. [ Ref ]
Seyß-lnquart, Arthur, lawyer: "Commissioner for the Occupied Netherlands" [ Ref ]
Constitution:
Bill of rights: "in order to prevent misconstruction or abuse of its powers" Typed Original: Image of Bill of Rights
"Whereas the United States Constitution confers honor and
responsibility upon Members of Congress;" Bill to encourage Members of Congress to read what they take an oath to protect. [Bill Language PDF Details Hat Tip]
Constellation Project:
Objective: Disbarment and lawful prosecution of those attorneys who supported, planned, and were actively involved in the illegal Geneva Convention violations, in contravention to the ABA professional standards of conduct and international law.
- David S. Addington Dibarment Project
- Constellation Project
- Other Information on Constellation ]
Geneva and Rendition:
Allegation: Members of Congress are complicit in domestic-international rendition program which violates Geneva, and abuses rights of US and international citizens.
Geneva applies to US citizens. Members of Congress are complicit in Geneva violations against American and international citizens. [ Rendition Program violates Geneva, and Members of Congress are complicit: Ref: Domestic rendition violates Geneva] [ Hamdan: US Supreme Court recognizes that Geneva is applicable to the United States 2000-2006, when domestic and international rendition was used in violation of Geneva.]
This means:
This is an issue of sovereignty: It is not presumed, but must be asserted. The US citizenry has to decide whether [1] it is going to assert the rule of law; or [2] it must have other nations assert the rule of law against Members of Congress for their war crimes. If the US is not willing to ensure Member of Congress’ violations of the laws of war are investigated, other nations may choose to interpret this inaction as a sign of an imminent threat, and lawfully take military action against the United States.
It would be preferable that these issues were peacefully resolved in the courtroom.
Members of Congress: Complicit in Geneva Violations
There are three prongs to the discussion:
Overview: Member of Congress War Crimes Liability
This explores the implications of Hamdan as the case relates to Members of Congress and potential Grand Jury indictments against the individual Senators and Representatives. The discussion assumes that there is no domestic attention given to this issue, and outlines a strategy to draft a New Constitution that will clearly promulgate the requirements Members of Congress have to check abuse of power. We also assume that at some point in the future, all three branches of government are controlled by one party; all three assent to illegal warfare and violations of the Constitution. The discussion outlines what is to be done when the Supreme Court does not assert the rule of law, as it otherwise did in Hamdan.
Part I: The Loss of Legislative Immunity and Liability for War Crimes
The war crimes trials at Nuremburg and Tokyo imposed liability for war crimes on civilian policy makers. American policy makers are not isolated to the Executive Branch. Central to the American model is the separation of policy making and executive powers into two branches.
Congress has no defense. There are situations where legislative immunity is stripped. There are also situations where ones legislative act is reckless. Where policy making is conducted without regard for fact finding, the court cannot presume that the Congress is wielding a divinely inspired will. Rather, the opposite is true: The effect of the Congressional policy making is an assent to illegal conduct which directly threatens the Constitution. Congress loses immunities, and cannot self-grant pardons for criminal activity.
Part II: Solutions to the Failures of American Self-governance
The central problem to the current situation is that the needed reforms, in theory, have to be embraced by those who are war criminals. There is a solution. Article V of the US Constitution is only a requirement on government; We the People, as recognized in Federalist 78 can draft a New Constitution outside Article V, and present the new document in a solemn ceremony.
The way forward is to outline the problems this Congress has permitted to occur, and craft a New Constitution that will explicitly tell Members of Congress what has already been told them at Nuremburg and Tokyo: If you fail to protect the Constitution and assent to criminal activity, you are not protected and remain subject for to prosecution for war crimes.
Part III: Civilian Approaches To Effective Protect Rights, Prevent Abuse of Power
The overall solution for Americans is to keep in mind, regardless what Congress does or does not do; there are reasonable solutions the public can embrace. One is a change in phiolosophy; a second is action through the market place.
Philosophically, where one party to a contract fails to perform, they remain subject to liability and sanctions. The market place is another forum where the public can take action. It is possible through the corporate boards to compel fact finding into what role, if any, a particular corporation has played in supporting this illegal activity. Another mechanism is the reporting system under the Securities and Exchange Commission. The rules require corporations to disclose the risks of litigation. It is foreseeable that the existing corporate boards should know that their firms are liable for war crimes, but have failed to disclose this risk. The public should carefully review the filings with the SEC to determine whether the corporations that have supported the illegal activity have adequately disclosed these risks. If there has been inadequate disclosure, then the investor should make this information known to their private counsel and discuss what legal options there are to review your losses; and the means to litigate and provide evidence to the SEC for criminal sanctions.
Central to the overall analysis is a question for the auditing community:
Philosophically
The challenge for Americans will be to deal with the leadership vacuum. The problem is that Congress, in failing to check war crimes, hasn’t simply engaged in negligence, malfeasance, and recklessness with regards to the Constitution, their 5 USC 3331 oath of office, or their obligations to oversee policy; the larger problem is that the public has to both exercise leadership on those who refuse to assent to the rule of law; and at the same time effectively protect rights against those who refuse to recognize their complicity in abusing power and violating rights.
If the Grand Jury refuses to indict members of Congress, then the back-up approach is a change in how the public interacts with the government. There needs to be some new rules to effectively guide the public what is to be done during this period when the government refuses to accept it remains subject to, and liable for, war crimes.
Purpose: This discussion expands on the above points, and identifies some of the solutions which may address these issues. You are encouraged to review your options with private counsel. This information is intended for a general audience, is not intended at legal advice, and you are not being encouraged to engage in any illegal activity.
Discussion
Hamdan is a wake-up call to the country. The Supreme Court has reminded the country that the United States is a nation of laws, and remains subject to specific statutory and treaty requirements. Central to the Administration’s arguments before the Supreme Court was the discredited assertion that because there was an emergency, the United States had to take action which was outside the law. [As evidence of this contention you can review the Baybee meme in re torture; and AG Gonzalez arguments in re FISA.]
What the Supreme Court has stated is that in 2006, almost six years after the Bush Administration took office, there is no longer a bonafide emergency which warrants disregard for the law. Rather, the exceptions to the law are only credible when there is an imminent threat of hostilities. This springs from Secretary of State Webster’s argument in 1837 over the Canberra vessel where an imminent threat of hostilities warranted US military action. What Addington, Gonzalez, Baybee, Yoo, and other attorneys in the US government have done in the wake of 9-11 is argue that the imminence threat was a pervasive way of life, warranting disregard for clearly promulgated requirements. Hamdan struck down this legal fiction, and reminds us that the laws of war and clearly promulgated statutory obligations are requirements.
Congress has a problem. It has repeatedly debated issues asserting that there is no problem, has been no violation, and that nothing is to change. Yet, within the Tokyo and Nuremburg decisions is the opposite: That when policy makers have an ability to change policy, but refuse to do so, they remain liable for the criminal conduct. The issue before us is somewhat unusual. Unlike a foreign power that typically concentrates power in a single organization, the United States still separates this policy making function from the executive function. This doesn’t insulate Congress; rather this subjects Members of Congress to the Nuremburg and Tokyo war crimes precedents: Those who fail to stop what they had the power to stop are culpable.
It is July 5th 2006, the day after Independence Day, the day when we celebrate the signing of the Declaration of Independence. There are four months – 120 days – until the November election.
Congress has a major problem. Hamden clearly establishes that Members of Congress, as policy makers and actors that could affect policy, have a requirement to act and ensure the rule of law prevails. Regardless what excuses the Members of Congress provide, the central issue that the voters and media need to raise with the existing Congress is rather simple: What will they voluntarily do, while still in office, to ensure the Members of Congress comprehend the Hamdan case, and the implications this has for members of Congress.
The RNC’s problem is unsolvable within the existing political structure. They remain war criminals, subject to grand jury indictments, and they have no defense. Congress has a duty to protect the Constitution. They have failed and have recklessly permitted war crimes to continue without taking steps they should have done to review the matters. They have no excuse. The job of the voters is to find new Members of Congress who are willing to take their oath of office seriously, and take timely action to ensure that policy is supporting only legal activity. This Congress has failed to achieve that objective. They remain unfit for office.
Reforms
Let’s consider the overall issue of reforms. The problem is that the civilian population is sufficiently confused and full of propaganda, that even when faced with the Hamdan ruling, they have taken to calling the Supreme Court – the one that put this Executive in office in 2000 – as being “in bed with” terrorists.
Let’s consider that argument, not from the perspective of whether it has merit, but as to the mental state of those who are proposing such a proposition. Put aside the issue that the Supreme Court has made a final ruling on the issue of Geneva. The central issue is whether the Supreme Court will have the full support of the other two branches; or whether the energized civilian population – full of confusing propaganda and non-sense from Congress and the Executive – will be able to transition from their current excited state to something that will make an informed voting decision in November.
Let’s consider the central problem: The civilian population has been fed with, and embraced, RNC propaganda. It will take something significant for them to awaken to what has happened: The liability for war crimes is real, attaches to all members of the RNC leadership, and is not isolated to the Executive Branch. Yet, even if we were to discuss reforms, the same civilian population that is deluded with the RNC propaganda is not likely to make an informed decision. Rather, they appear likely to separate the real implications of Hamdan -- that the current Congressional leadership and majority are war criminals – from their voting decision. In other words, not only is RNC propaganda creating a false sense of immunity for Members of Congress, the RNC voters do not appear they will have the time to step away from what has happened and adjust their world paradigm: They have been lied to by war criminals in the legislature.
If we are going to discuss solutions, we have to explore the authors whose arguments are most likely to prevail on the basis of this RNC propaganda: It is possible to develop a prudent solution that, when left to the voters and RNC majority to decide, will get rejected. There are two broad options:
If we presume that 2 is the desired route and does occur, we really haven’t addressed the fundamental problem: How did we get into this mess; and what entrenched reforms need to be made to ensure this kind of non-sense does not recur. That takes us back to option 1: Even if the voters trash the RNC and remove them from the majority in November, we’re still left with a system that failed us when we needed it most.
Thus, in the end, what will need to happen is a discussion of what did fail; and what has to be solved and how. One question deals with the solutions; the second issue is whether these solutions are implemented through a DNC majority, or something that is through a Constitutional Amendment. Ideally, the changes should be entrenched, fundamental, structural, and something that is immune to the non-sense we’ve read in the Iran-Contra Minority Report: Selective twisting of the laws, and an assent to legal fiction. These issues will have to get resolved.
Let’s consider the range of problems. Having a war crimes trial and holding members of Congress liable for their complicity will go a long way toward restoring American credibility on the world stage, and address the fundamental weaknesses with the current Constitution.
Keep in mind the central issue as we proceed: What failed, and what needs to be remedied. If we do not address the question of Congressional liability for war crimes, then we’ll merely be addressing the symptoms of the failed Congressional oversight system. It may be right to solve a problem; the real issue is whether we solve the right problem or the symptoms: Failure to investigate, find facts, and shut down funding for illegal activity.
It is not debatable that the United States has committed war crimes. The issue is whether that liability has been appropriately imposed. Central to the analysis is the issue of Congressional knowledge, responsibility, and ability to influence policy. Congress does not have the power to self-adjudicate its innocence; rather, it is the responsibility of the courts to review individual Members of Congress.
The recent vote Congress cast asserting that there had been no FISA violations is not only meaningless, but is evidence that Congress does have the time to review matters in a careful and deliberate matter. It is a separate issue whether Congress is abusing power; or ignoring the law. The key issue is whether the Members of Congress can credibly argue that they are operating under emergency conditions; that there was no time; or that they had no other option.
Each time the Congress votes on an issue related to FISA, war crimes, torture, or anything to do with the events in Iraq, they are hammering a nail in their political coffin: They cannot credibly argue that they were operating under a crisis, had no time to debate, and that the situation required fast action. We have the opposite. The events of 2001 are in the distant past, greater than the time between the end of WWII in 1945 and the attack on Pearl Harbor; and longer than the time between the end of the American Civil war in 1864 and when it started.
There is no merit to any Congressional candidate that they were casting a vote in support of the President, or are immune to accountability. On the contrary, they have firmly attached themselves to criminal conduct, and have refused to distance themselves despite the lack of information, and time to conclude that they are making decisions without all the information. That is not a sign of loyalty, but of recklessness. They are actively choosing to not do what they should do: Find facts, make adverse judgments without facts, and deny funding for things that directly support criminal activity.
Congress may not argue that these are absolutely immunized functions of Congress or legislative acts. On the contrary, their positions are directly supporting, and failing to stop, what they knew or should know is illegal activity: Violations of FISA, and war crimes around the globe. Members of Congress cannot credibly argue that they didn’t know. Rather, it is known that they don’t know – that is not a defense, but a basis to indict. Each time Congress chooses to appropriate money, and not investigate the things they should know are illegal, they are taking themselves out of a strictly immunized role as a legislator, and have become an active participant in the criminal conduct. That is not a defense, but a basis to hold them liable for war crimes.
Hamdan reminds us that Geneva applies to people and responsibilities; Geneva is not narrowly applicable to a branch of government that chooses to agree or not agree that they requirements are mandatory; nor on the basis that a particular function is inside our outside a narrow section of government. Rather, the issue is whether the responsibility for the criminal conduct is isolated to the primary actors; or more broadly applicable to the leadership, who had the ability to formulate, influence, and stop the illegal conduct.
Congress has a problem. The current ruse has been an unlawful agreement between the Executive and Legislative Branches to immunize the senior leadership in the RNC in the branches of government that share the policy making responsibility. The American system divides power, and spreads liability. Congress cannot immunize itself; nor can it assent to inaction when the criminal activity surfaces. Nor can members of Congress vote to immunize those who are in the Executive Branch: The Legislature does not have the power to grant pardons. The only defense the Legislature has is if they can convince the President to grant them pardons for their malfeasance.
It is a serious thing when legislators in Congress are promised something of value – the prospect of a Presidential pardon – in exchange for an agreement today to take no action against the Executive for war crimes and violations of the law of the land. Separated power does not immunize Congress from treaty obligations. When Florida and Hawaii were acquired, it was the responsibility of Congress to ensure the new citizens’ rights were protected. Nuremburg and Tokyo war crimes trials impose a liability on policy makers, regardless where they are located. The real story of Hamdan is the war crimes liability on Members of Congress.
Members of Congress are liable for war crimes through their policy-making and oversight functions. They were and remain in a position to influence, change, and stop the illegal activity. Their oath is to the Constitution. They have refused to protect the Constitution; rather, they have assented to legal non-sense, refused to find facts, and have voted to continue appropriating funds for things they know nothing about. That is not a discretionary item, not something that is privileged: Rather, it is a clear abuse of a perceived legislative immunity privilege. That privilege needs to be calibrated to the abuse and violations. In this case, it is clear that the Congress, for whatever reasons, has refused to do what should be done. The issue going forward for future generations is what reminder do they need that the Congress needs to do something, and cannot idly stand by.
Voters may choose criminals as leaders. But that is not a protection of the Constitution. The problem this Congress and America has is when the Congressional oversight system within Congress refuses to investigate and does not choose to ban Members of Congress for their complicity in war crimes. Clearly, one approach is to remove the system of oversight from Congress, and move it somewhere else. But the issue becomes: What if the voters and Members of Congress, who have assented to war crimes, collectively agree as a mob to not do what should be done: Ensure the system that they are subjected to works.
Clearly, there are many remedies that could be devised to transfer the power, adjust oversight, and water down the power of Congress to do something. That may be ultimately what is needed. Until then, the real issue is to inject the non-legislative tools onto the stage: The power of the Grand Jury to issue indictments against Members of Congress for their war crimes liability. Until Members of Congress are held criminally liable for their assent to these war crimes, the individual Members of Congress will continue to block the needed reforms.
The real problem isn’t the Constitution. The real problem is the mistaken belief that the war crimes liability is narrowly located in the military. This is legal fiction. The real responsibility lies with those who were in charge, had a change to influence policy, and who refused to act. In the long run, there needs to be something that is going to give a kind reminder to future generations that our system of government, which has separated powers, also has a system of shared responsibility. This Congress and President have portended the problem is in Iraq; the real problem is the criminal activity within the Legislature and Executive Branches.
Until the Grand Jury indicts Members of Congress for their war crimes liability and contribution to the policy making which supported these illegal acts, We the People will have to develop a new Constitution, and embrace principles which accept the new realities. In short, we can create new principles which guide a civilian population of what is to be done when the entire system of governance fails, and the civilian population is forced to fend for itself to protect rights and prevent the abuse of power. The issue at this point isn’t simply what is or isn’t in the Constitution; the issue is what is a civilian population to do when its government chooses to coordinate malfeasance, then direct its power at those who dare to challenge that abuse of power.
There are times when Members of Congress are complicity in war crimes, planning, and policy making.
Until the Grand Jury indicts Members of Congress for their involvement in war crimes planning, policymaking, and refusal to stop what they could have stopped, the civilian population will have to embrace what is happening and do what they can to mitigate the effects of the Congressional war crimes.
The RNC continues to ask for a plan. There is a simple plan: It is called the rule of law, Constitution, and Geneva. This RNC, when confronted with that plan, suggests that it and the Congress are not accountable for that clearly promulgated plan. Rather, they point to the heavens and blame others. This is not leadership, but evidence that they have taken the time to review the matters and have carefully crafted a response. This is evidence that they are no longer in an emergency, nor that the situation demands fast answers. Rather, they are taking their time, methodically planning, and still refusing to do what should be done: Investigate, find facts, and shut off funding for illegal activity.
We the People will have to outline the plan the RNC refuses to embrace:
Where the Congress and Executive have failed, Americans must plan for the worst: The day when all three branches fail. This is foreseeable. There are needed changes to the leadership and oversight problem in America. Even if the Grand Jury indicts members of Congress, and we have a New Constitution, and a new leadership in Congress that addressees the known problems with structural reforms, the core problem will be what is foreseeable: What is to be done when all three branches are complicit in war crimes, and jointly assent to violations of the Constitution, abuse power, and violate rights.
The issue before us isn’t simply executive abuse of power, but Congressional complicity and self-immunization for their reckless disregard for their oath. This Congress has attempted to immunize itself for complicity for war crimes. It passes meaningless resolutions stating that they have found no violation. These resolutions are evidence of their deliberate efforts when there is no emergency; thus, there is no bonafide reason to argue that they must quickly act, ignore requirements, or not ensure the requirements are closely followed.
This Congress has a problem:
This Congress knows full well what has gone on, what was going on, and continued to not do what should have been done: Gather facts, direct investigations, document findings, and memorialize their credible conclusions. This Congress now has fair warning through Hamdan that the rule of law is real, and something that has to be preserved, not simply talked about but not actively done.
Geneva trumps legislative immunity. Congress has key policy making function. Congress engage in deliberations and has the power to change and stop what is not lawful and illegal. This Congress failed to do what should have been done.
The Precedents for legislative accountability for war crimes is simple: Nuremburg and Tokyo assign liability on those who had the power to do something. Congress and the Executive share power on matters related to policy, oversight, and monitoring. Congress has the time to review and conclude absurd things; the absurdity does not prevail – rather it is the time they have spent which clearly shows there is no emergency. Geneva applies to Members of Congress in their policy making role in the legislature. The US Statutes which immunize policy makers in Congress from war crimes liability is not Constitutional, nor consistent with treaty obligations. Hamdan shows us that requirements are enforceable, not something that can be explained away.
The way forward isn’t to change the law to assert the immunity; but to ensure the non-immunized criminal conduct is sanctioned, and that the statutes permitting the illegal oversight to be changed to ensure harmony with Geneva, Nuremburg, and Tokyo. Nuremburg and Tokyo are precedent for imposing on policy makers in the legislature, who had the power to stop the illegal activity, the liability. American government has separated powers; but this does not mean that the Congress can turn a blind eye to what they have a duty to review before approving funding. The idea of separated powers wasn’t to wall off power, but to contain abuse, and quickly assign responsibility. That assumption proved invalid. The way forward is to make it clear to all personnel in all three branches of government that the leadership and accountability for the war crimes activity is not something that is isolated, but shared.
The Congressional liability for war crimes is clear. Members of Congress, inter alia:
Each of the above factors is provable, stripping the Members of Congress of any expectation that they have any immunity. Even if they are voted back into office, the public should know: You are voting into office those who refuse to honor their oath, and do what should be done when faced with a threat to the Constitution. They cannot be trusted. The Grand Jury is capable of reviewing the evidence and lawfully indicting your Member of Congress.
Shared power means shared liability. Congress has an incorrect notion of immunity and non-liability for illegal acts, policies, and plans of the United States. The system of governance in America is one a separation of powers. This is not blanket immunity for misconduct. Rather, this separated power attaches liability to the policy makers that are in both the legislative and executive branches. The Congress has the sole power to start appropriations bills, declare war, and stop funding for what they should know is not lawful. This Congress has violated its 5 USC 3331 obligations. They have ignored, and have assented to, violations of clearly established laws and treaties.
The Tokyo Tribunals and Charters of Nuremburg assigned war crimes liability on the decision makers. Under the US system, unlike Germany and Japan, those who are primarily responsibility are not isolated to a narrow section of the government. The decision to start, continue, not change, and not end is something that the United States after WWII used as a basis to broaden the liability to include civilians.
The issue is how far down the industrial ladder this liability travels; and how wide the liability spreads into all segments of local and national government. War crimes do not appear out of nowhere; they require support. The issue is who should have known that the activity was illegal; and who failed in their duty to stop what was within their power to stop.
Congress has the solve power to declare war. It also can at any time choose to override a Presidential decision with a joint resolution, and immediately shut off funding. This Congress, despite evidence that there was no imminent threat, continues to spend money on an illegal war of aggression in Iraq. This Congress has refused to resist or change policy or adjust downward funding. That is not immunized, nor defensible. Rather, it shows the Congress is clearly choosing to fund something that is aggressive, despite the alleged imminence being long over. Congress has also willingly engaged in their criminal activity. They are willingly violating their oath and Geneva treaty obligations when they deliberately ignore facts this many years later after the original so-called “emergency” first arose.
There is ample evidence there is no emergency, yet Congress continues to believe an emergency justifies ignoring requirements. There is also ample evidence that Congress attempts to self-immunize itself without any reasonable basis. Congress chose to vote on FISA, declaring that there was no illegal activity. Yet, the President has admitted to illegal conduct.
Congress can be stripped of absolute immunity. It contemplates issues, yet absurdly concludes what is not supportable. Congress supports inaction. Congress supports reckless investigations. This activity amounts to complicity with the illegal activity. Congress is not an isolated branch, but it is a key policy maker when it assents to illegal activity, and continues to appropriate funds for illegal things. When Congress votes on FISA – asserting without reasonable basis that there was no violation of the law – Congress does not send a signal that it chooses to protect the Constitution. Rather, Congress chooses to send the opposite:
Congress has no power to immunize itself; nor can it retroactively create a law that says a treaty obligation between 2000 and 2006 does not apply to those who are in a position to affect policy, change funding, or otherwise stop what was not lawful. Congress is stuck.
Malfeasance is a contributing, but not necessary element form Congressional liability for war crimes. Members of Congress have a legal duty to establish facts, especially when it is clear the Congressional policies are fully embracing and condoning illegal activity. Congress is liable when it turns a blind eye to [a] war crimes and [b] the lack of emergency conditions, which the executive wishes for in order to engage in war crimes and thwart accountability.
Reforms
As we move through this mess which Congress and the Executive have jointly helped create through reckless disregard for the Constitution, and Geneva, we need to consider what broke, why, and what is to be done until the accountability is fully imposed. One approach is to remedy the entire system, change the Constitution, and shift power. That may be ultimately what is required. Until then, we still need to look at the real problems which, if they had worked as intended, would have more quickly reported a problem and mandated accountability.
Let’s consider the problem of the Inspector Generals. They are nominated by the President, and appointed by the Senate. They can only be removed by the President; or they can be impeached. Despite the abuse of power, violations of Geneva, and disregard for the Constitution, the Inspector Generals and Congress have a reporting-oversight problem. Each inspector General can independently review matters; and also the Ranking Committee members on each Committee can direct the IGs to review maters. However, each agency can direct the IGs to not review a matter for “national security” reasons. Hamdan shows us that these reasons were not bonafide; and that the “national security” argument is wholly without merit – requirements remain in place, must be followed. The issue with the IG is definable:
The problem is that despite well known crimes, we are well past the point of an emergency. Hamdan reminds us that the requirements are in place, must be followed; Members of Congress, when they vote on a matter clearly communicate that they have take the time, however cursory, to review the issues and that there is no bonafide claim that they were subject to some sort of Emergency Provision.
Members of Congress have not been doing their jobs. There are records, or should be, showing that there is a problem:
Congress has embraced legal non-sense to justify not doing what should be done: Review facts, make reasonable conclusions, and appropriate money on the basis of lawful programs; rather, Congress has done the opposite: Rubber stamped things that it should have refused to approve; and continue supporting illegal activity on the basis of an emergency, despite Congress having the time to review the matters.
Nothing Congress would have us believe is credible. Rather, this Congress, as has Libby and Addington have done, has provided the public with legal non-sense not to provide leadership, but to engage in extra-judicial efforts to dissuade needed accountability for their war crimes.
Policy makers including Addington, Gonzalez, Libby, and key advisors in the Executive Branch are not the only ones who are implicated. Rather, under the laws of war and precedents of Nuremburg and Tokyo, the liability for war crimes attaches to civilians who were in a position to do something, but failed act.
The US is not in a position to credibly self-immunize anyone, especially when the fats have been buried under the dubious assertion of secrecy. Hamdan reminds us that the requirements, however inconvenient they may be, are required. Addington, Gonzalez, Yoo, and the other key DoJ Attorneys have no defense, especially when they had the legal training and knew, or should have known, that they were directly providing material support to those who were violating the laws of war.
Hamdan makes it clear what the law has always been: Geneva. No legal argument to the contrary changes the obligations that were in place.
Once the President knew, or should have known, that there was illegal activity he had a duty under Title 50 to make a report to Congress. Even if we ignore the original violations, and accept simply Hamdan -- that there has been illegal activity – then Members of Congress are now on fair notice that there should have been a Title 50 reporting. This was not done, Congress knows this, and yet Congress continues to provide funding. This directly implicates Congress based solely on Hamdan.
However, once we unwind the realities of FISA and the Geneva Violations, it becomes painfully obvious that Congress has known about illegal activity, and that the President’ hasn’t complied with many Title 50 reporting requirements. Again, Members of Congress cannot point to immunity; they have to accept where they are: Complicity in the war crimes, and having failed to stop something early when they had the chance. This is the key problem which German and Japanese civilians fond themselves when they were indicted for war crimes after WWII.
Mandatory reports of illegal activity are not simply a paper game. They were created as a means for oversight, to check power, and to attach to the Executive the requirement to do something. The goal is simple: To create a paper trail, that if ignored, could easily show the Executive has done something wrong.
This Congress, rather than use that tool to impose oversight, pretended noting was wrong. However, no reasonable fact finding in Congress could come to this conclusion. Rather, this late in the game, and this far from any bonafide emergency, any Member of Congress that embraces Gonzalez-Addington-Yoo nonsense related to “emergency situations,” is asking the public to believe illusory things. But this is not because the RNC is foolish; rather, it is the opposite – to avoid sanctions against Members of Congress. They play stupid to distract voter attention from the real problem: The widespread liability for war crimes in Congress.
Hamdan is the law of the land. It affirms Geneva, shows us that Congress is liable for the problems of oversight, and that Congress when it knew there was a problem with the Executive not following a procedure, would have been there to correct the problem. This Congress, despite this many years after the problem, is not longer in an emergency; but they have the time to assert legal non-sense and immunity. That is not a credible assertion. Rather, it is simply evidence that the emergency is over; and that the basis to violate FISA is absurd.
Yet, there is a more fundamental problem. Even if we put aside the issue of what Congress did or didn’t do after Sept 2001, this Congress has refused to review the matters of the known NSA activity and monitoring – which violated FISA – that occurred before Sept 2001.
The key point is that in 2006, the emergency is long over; yet, there was no emergency before Sept 2001. On both fronts, the Congress continues to pretend that the situation warrants emergency (non-existent) oversight. This is the key problem for Congress when it comes to Geneva, Nuremburg, and Tokyo: When they are this far from an emergency, and have no credible fact finding, the only reasonable conclusion is that this Congress has one goal: To assert immunity for the Executive, with the hopes of distracting attention from their war crimes liability that lies squarely with Congress.
This executive failed to make, and the Congress did not investigate, the following missing mandatory reports related to:
Hamdan shows us that these reporting requirements remain in full force in that they were intended to ensure compliance with Geneva, stop illegal activity, and act as a circuit breaker. Despite many reports – or lack of required reports – this Congress refused to investigate, make reasonable conclusions, and continued to appropriate funds for things that they knew or should have known were in violation of the clearly promulgated laws, overarching Geneva requirements, and clearly established rights. These are the necessary elements to deprive anyone of any expectation of immunity.
The obvious problem is that the DoJ Attorney General is in the middle of this. Yet, despite his complicity in the dubious assertions of “national security” to ignore a requirement (which Hamdan struck down), he remains at the center of any investigation: Not simply as a target, but as a key leader and principal advisor to the President. FBI agents are already resigning.
The key issue for Americans: What is to be done when the people in office, however removed they want us to believe they are from criminal activity, are implicated and are thwarting lawful oversight. The only answer is to have a secret Grand Jury to review the Geneva Conventions, Gonzalez’ role and the agreement which appears to exist between Members of Congress and the Department of Justice: We agree not to rock the boat.
Small problem: Hamdan and an informed citizenry that fully comprehends the issues which this Executive and Legislative branches find themselves: Complicit in war crimes. Thus, at this point asking “Where is DoJ and the US Attorney in reviewing war crimes” asks us to be blind to how we got where we are: US Attorney, DoJ Staff, and DoJ AG assent to the illegal activity. They have not reported to their peers; the American Bar Association has not removed from their ranks those in DoJ who have spewed for this legal non-sense; and there has been no credible evidence that this criminal activity has been reported. Hamdan is fair warning to all: The laws of war apply to all; and the requirements that exist under Geneva must be followed. It doesn’t matter what immunity you believe exists; your job is to find facts, and present them immediately to the Grand Jury for their judgment.
When we have this much misconduct and illegal activity, we have to question the mental competence of the Vice President and President. Putting aside the 25th Amendment, which permits leaders to be removed from office for mental incompetence, the way going forward, is to discuss what is to be done next time this happens.
There have been false statements by agency heads to Congress. The assertion that IG investigations have been appropriately shut down for “national security” reasons is dubious. Hamdan shows us that the requirements remain in place regardless one’s claim to whether there exists a good reason to do otherwise; this late in the game, long after Congress has the time to casually pass meaningless legislation related to self-immunization, is further evidence that the Agency claims related to “nationals security” are dubious. Agency leadership needs to be lawfully removed. If the President refuses to do so, and Congress is not willing to impeach, then it is appropriate for the Grand Jury to review the matters, and where appropriate issue indictments.
This Congress is complicit. It has, despite the opportunity to change policy – as required under Nuremburg and Tokyo to avoid liability for war crimes, continued to engage in cursory matters wholly disconnected from emergencies. It is well known that DoJ Staff attorneys spend their time engaging in non-official business: They surf the internet, make changes to non-official pages. Yet, this Congress has embraced the absurd notion that the DoJ “didn’t have the time” to get FISA warrants; then issued a “finding” that there was no criminal activity. Hamdan reminds the Grand Jury that the requirements are in place; and that Geneva applies, regardless whether DoJ Staff attorneys comprehend that reality, or would rather spend their time on non-emergency things like making changes to non-official webpages.
The agency certifications are dubious:
On all counts, the entire Executive and Legislative staff attorneys have a problem: They have failed to timely remove themselves; have chosen to remain silent about illegal things; and they have failed to timely report to the American Bar Association and Staff Judge Advocate information that relates to Article 3 violations of Geneva.
To believe that this was “permissible” asks the American public to embrace non-sense: The absurd notions that
This defies confidence in the ABA peer review process; the competency of the ABA licensed attorneys who have passed the “rigorous” bar; and the merits of state-level regulation to sanction what amounts to international treaty violations: The requirement to comply with the lawful and humane treatment of prisoners of war.
In a legislative role, Congress has the exclusive power to make rules and oversee policy. Members of Congress take an oath to work within the separated powers to protect the Constitution. The oath is there as an obligation to take action when it is not convenient. This oath requires protecting the Constitution. If members of Congress do not realize their war crimes policy put the Constitution at risk, they do not deserve to be leaders.
It is a requirement, before one appropriates money, to ensure that the investigators have access to information, and that the activity is only for legal things. This Congress, despite clear failures of the Executive to report illegal activity, knew or should have known that they were appropriation money for things that were illegal; it is not lawful under Article 1 Section 9 for money to be expended on illegal things. Whether Congress chooses to ignore the Hamdan implications – in that there has been money spent on illegal things, but there are no sanctions on the paying officers who continued ensuring payment streams to the Contractors and other illegal operations – is a separate matter. They have a duty to find out, but they refuse to show evidence they are up to the task. This does not inspire confidence that they take the implications of Hamdan seriously.
Before Congress appropriates money to an agency, and for that agency to get certified as warranting continued payment, there are certain specific requirements:
Congress has a problem in that it is self-asserting there is no problem, and then it refuses to investigate. Small problem: Hamdan, it is July 2006, and there are four more months to go before the election. The entire world knows that Hamdan fatally destroys the reasonable expectation that “nobody will figure out Congress’ complicity with the war crimes.”
The way forward is to discuss a method that is going to timely inject the Grand Jury into the review process, specifically target those policy makers in Congress, and then timely protect the Constitution from this illegal activity. Hamdan is fair notice that Congress has a major war crimes problem not simply to oversee within the Executive Branch, but to effectively resolve within its own walls. Either Congress can exercise the leadership to self-regulate; or it can have the full weight of the Grand Jury sanctions imposed on the individual Members of Congress, then we can reform the system after complicity Members of Congress is lawfully decimated before the Judicial Branch.
There needs to be a timely system that is going to translate the following indicators into something that will timely trigger a Grand Jury indictment, and lawful removal of the war criminals in Congress from office:
It is a war crime when Members of Congress refuse to review indicators of Geneva violations. These Members of Congress, while serving the committees, have refused to investigate. This inaction is:
It remains to be understood what the perceived, actual, implied, or illusory threats to investigations. The following warrant being reviewed by the Grand Jury:
These are the problems:
Hamdan is fair notice to all:
The Conduct of Members of Congress violates the laws of war:
Members of Congress, because they are intimately involved in the illegal activity, deserve to be put under the spotlight of a grand jury, and subject to 14th Amendment liabilities/sanctions for their active, coordinated, and joint defiance of the Constitution.
The laws of war apply to belligerents and civilians. US contractors that are providing support to the illegal CIA rendition program are also subject to sanctions. The EU, which provides over flight rights, is subject to having its immunity lost, and cannot be deemed to be a neutral party. EU and US facilities, resources, and other assets around the globe can lawfully be seized by other nations without any claim against the holding party.
The Hamdan case should be a wakeup call to the entire government:
The Supreme Court after Hamdan has a challenge. Many US citizens are filled with propaganda, and refuse to embrace what has happened, and what they have engaged in: War crimes. US legal representatives are looking for excuses to avoid stopping the absurd propaganda. Rather than stand up to the abuse, members of the legal community are predicting more illegal Congressional conduct, and refuse to break ranks from the Congress. The legal community is seen for what it is: Complicit in war crimes. It is 2006, fully six years after the abuses were planned, and the American legal community has refused to investigate, sanction, or otherwise timely mitigate. Six years is unacceptable.
All three branches have failed to timely protect the Constitution. Consider what might happen in the future, if there is a controlling party and they collectively choose to defy the law of the land, and permits what is otherwise illegal. Americans must plan for that day, and design a system of governance that will thwart that possibility. It is not acceptable that despite six years of waiting, a judiciary might choose to assent to illegal conduct. The courts, up to this point, as have Members of Congress, largely assented to this illegal activity:
Hamdan applies to FISA: Procedures cannot be ignored; the Executive Branch’s arguments, and the non-sense which this Congress assented to, are disconnected from the AUMF.
The time to devise this system, while the memory is clear, is at hand. Yet, it may take some time; but until we start, the process will not begin. If we do nothing, we will be as old as if we had done nothing, so we might as well start now.
Until the Grand Jury indicts members of Congress, we must proceed on a parallel track and devise a system that is going to nip these abuses in the bud earlier. Members of Congress joined with the Executive Branch to engage in abuses. A New Constitution needs to be drafted that will strengthen the system, protect rights, and more quickly expose the abuse of power and violation of rights.
There have been many people who have known about the abuses, but said nothing. The system of compartmentalization of information has been abused. Government employees, those who most know of the abuses, have had to engage in costly litigation to have their good names restored. This is not simply a waste of time and money, it is a disgraceful treatment of those who are the experts by those in Congress who are criminals and refused to act. Make no mistake, the center of this abuse rests with Addington and Cheney. The responsibility of the rest of society is to devise a system that is going to thwart the likes of them again.
The way forward is to explore:
It will be important to take a step back from our detailed findings and recommendations, and generalize the lessons so others can do the same:
This cannot be allowed to happen again; and new ways of doing this must be thwarted, not rewarded.
Let’s consider the fundamental problem Addington and Cheney have crated: They have abused power, they have crated systems that abuse power, and they have bullied others into assenting to that abuse. Going forward, there needs to be an easier method, which the public well knows, to revoke and refuse to recognize privileges and immunities. Gone are the days when executive privilege can be invoked as a blanket argument to invoke secrecy, silence, or compel assent.
When there is a pattern of conduct that points to classification of information for dubious reasons, there needs to be a timely and meaningful sanction on the courts when they fail to attack the abuse of privilege, power, and classification. Either Congress can enact criteria when the Executive Privilege is known to be stripped, and these criteria are related to the abuses we have seen since 2000-2006; or we will have to go the more difficult route and explicitly deny the Executive of any privilege by so denying him that power and privilege in a New Constitution. Addington’s assertion of “power” are dubious; there’s no merit to what he has stated. He fails to comprehend the mess he finds himself: Allegedly complicit in active war crimes planning.
In general terms, this nation has created illusory immunities and powers not expressly delegated. For whatever reason, this nation has assented to unconstitutional conduct:
These are unlawful abuses of state privilege and immunity to suit. Had there been timely reviews of the abuses, we might have nipped this problem in the bud earlier; yet, despite clear abuses, privilege created an illusory immunity, which permitted more abuses. Government may not impose abuse while denying others the power to challenge that grievance. Where government denies people or citizens the right to bring suit to protect rights or prevent the abuse of power, the government’s restriction need not be recognized and forms the basis for a second claim.
We have seen absurd legal augments and false emergencies to invoke absurd exceptions. Hamdan recognizes that the requirements are real, and that the emergency is over. The way forward is to examine the failure of the legal community and experts to timely challenge the dubious claims; and understand what options they need to ensure they are supported in asserting their oath. This Executive, despite a requirement to enforce the law, attacked the legal team which remained the last check on power. Next time, should a single vote go another way, it may require more egregious abuses before the Court says, “Enough.” Again, this should not have dragged on this long. There were plenty of warnings there were problems – denial of Habeas without it being lawfully suspected.
Addington’s argument that they were unlawful combatants is irrelevant when it comes to whether people are or are not entitled to Geneva. This nation’s leadership has embraced legal non-sense. Addington is not an expert on the law; he’s an expert on masquerades and abuse. He only spent one year at the Naval Academy; Gonzalez also had an unsuccessful bid at the Air Force Academy. There appears to be a common problem: Legal “experts’ with a chip on their should ignore the very institutional legal lessons they once attempted to joint. Fortunately, the JAGs were there when the DoJ AG and ABA failed.
Let’s consider the basis problem related to Iraq, Geneva, and the FISA. There is the illusion of imminence, and that people can invoke discretionary procedures, despite requirements to the contrary. In 1837, then Secretary of State Webster had to deal with insurrection involving the ship Caroline and Niagara falls. The general rule was that if they were denied the means and time to deliberate, it was lawful to take imminent military action which may violate a restriction.
The key concept is whether there was or was not the time to deliberate. Hamdan emphasizes that even if there is an emergency, there is still a requirement; the issue in 2006 is whether the requirement will be enforced or ignored. Hamdan reminds the government that this requirement remains enforce, especially when there is no imminent requirement.
The problem for the United States and UK in re Iraq is that they did have the time to deliberate over Iraq; and the Goldsmith memos did discuss the risk of war crimes. This in itself, using the Webster test, is evidence that there was no imminent threat in re Iraq; in turn, Congress should have known that there was no imminent problem, more so when this many years after finding no WMD, we still have no evidence that a war of aggression was required. This showing remains a burden on the United States, which this Congress cannot satisfy, yet still appropriates funds for illegal things.
The lack of imminence is a problem not only for Iraq, but also the Sept 11 related legislation and fallout over FISA. Again, DoJ AG Gonzalez confirms that he’s made multiple changes to FISA, clearly showing that the changes were contemplated, and not something that was does without time for review, again failing to meet the Webster imminence test.
There is no merit to any argument the Executive, or Member of Congress, gives that there was “no time” to review the matters related to FISA, NSA, Geneva, or the activity related to warrantless interrogations. Rather, Congress had the means and deliberation time to gather facts and ensure there were no violations of the law. Congress chose to do the opposite. This is evidence of their complicity in war crimes.
No US Citizen or government official can expect any protection. There are no protections for war crimes liability when people have the time, and responsibility, to review matters. These are pre-mediated war crimes. US Actions pre 9-11 and pre-Iraq indicate that the action is at odds with the criteria needed for imminence. Rather, because there was no imminence, the violations of Geneva and FISA were not only clear violations of the governing law, as Hamdan says cannot be done; but largely, this late in the game, after this much information and time, Congress has no excuse for not reviewing the matters:
This Congress would have us believe it is doing it’s job, while it does the opposite: Engage in reckless malfeasance. Again, the key point cannot be missed: the original abuse and violations was pre-mediated well before Sept 2001; the subsequent problem is when despite many indicators of this illegal activity, Members of Congress choose to go along with this ruse. The government argument is then to shift the oversight responsibility to the very people who have the least power to impose sanctions: The public who remains in the dark. This is a subsequent abuse of power which Congress knows about, and hopes the voters do not comprehend. Those days are over.
The problem for Congress and the Executive Branch gets worse. The 1974 Geneva Convention on aggression clearly imposes a duty on the invading country – which the US was in Iraq -- the requirement and obligation to produce evidence that the 1st use of force was justified. The US has not done so; and Members of Congress know this; and they, despite knowing this, continue funding an illegal war. This is further evidence of their complicity with the war crimes, illegal policy, and conduct which defies the laws of war. Hamdan affirms the US treaty obligations to the United Nations.
The issue is simple: If the US chooses to, despite Hamdan, to assert that “some” of the requirements are to be ignored, and not provide evidence of an imminent threat in Iraq, then the US has failed in self-governance. The international community, seeing this, has a few lawful options. First, it may lawfully impose sanctions; second, it can discuss in the UN methods to lawfully isolate the US; and third, it can lawfully plan to invade and otherwise destroy the United States until it agrees to comply with the norms of civility.
The US, although it has a formidable military force in Iraq, largely is defenseless when it comes to fairly benign things like water: Katrina. The US is also outnumbered. There are about 300 million Americans; and about 6.5 Billion people on the planet. Using rough math, that is about 20:1. Even if the United States uses all its nuclear weapons, there will still be more non-Americans on the planet who can then claim US territory, what non-radiated there remains. We need not go down that route, despite the desire of Addington and Cheney to bluster about their non-military service.
The United States, and the Members of Congress, have engaged in, assented to, and fully supported a war of aggression. Any nation may try US officials. The US has already violated the laws of war by engaging gin illegal kidnapping – Rendition; under the laws of war, any nation may lawfully reciprocate, and enter US airspace, detain either Addington, Yoo, Gonzalez, or any Member of Congress and forcibly remove them to the Hague for a war crimes trial.
The US in Hamdan reminds the world that we know the law. The issue is whether the Grand Jury is going to be permitted to conduct this war crimes review; or whether the nations of the world have to step in and do what American refuse to do: Assert the rule of law.
There is another issue: The abuse of the prospect of presidential pardon. As we move forward, there needs to be something that sends a clear signal to the Americans: Your President’s pardon does not protect you from the world war crimes trials. Your pardon system only applies to whether you wish to pretend that something did or did not occur at home.
War crimes are different. They are international in scope. Today in 2006, the abuse is worldwide. Whether our President does or does not grant you pardon is meaningless to whether the world community may lawfully reciprocate – on you -- for their having to endure the abuses of Addington, Cheney, and Members of Congress.
The illegal activity and war crimes were originally committed by the Executive. The problem is that the Executive has been given an illegal green light to commit wider abuses. The ruse is that if Americans are silent about abuse, then they may get a pardon if detected. Recall the lesson of Nuremburg: Presidential pardons are meaningless if you have been lawfully executed by another nation for your war crimes.
Another problem is the dubious claim of an emergency. Hamdan reminds the world that we know this late in the game, that the lawful requirements remain in place, and cannot be explained away with dubious claims of an emergency.
The lesson on FISA should not be lost. These members of Congress cannot claim there was an emergency when the illegal activity was occurring before the emergency. DoJ and the phone companies are not neutral, and cannot be protected with any claim of privilege or immunity.
Geneva Article 82 obligations impose on attorneys the duty to ensure the laws of war are followed. Addington, by removing the JAGS from the process, sealed the violations.
Hamdan confirms there was no compliance with Geneva. Perhaps if the weather is favorable, Congress may wish to re-examine their Geneva obligations-liabilities and re-examine the FISA-Iraq-Geneva requirements before the election. Yet, it’s been this many years since the 2002 unlawful planning for the Iraq invasion, yet Members of Congress refuse to engage in a credible review. Giving them a “few more weeks” (conveniently after the election) doesn’t seem credible. If they were serious, they would have timely reviewed the matter. 2006 is not evidence of a timely concern with Geneva; rather, it is evidence of their complicity in refusing to confront and gather evidence when they had a duty to speak and make informed appropriations.
The ABA peer review process has failed. We need civilian oversight boards of the legal community. Attorneys that have shown a reckless disregard for the laws of war, which Addington, Gonzalez, Yoo, and Baybee have done – should be denied their ability to practice law, and stripped of any official office they have. Again, that they have not been impeached is irrelevant; these are issues of war crimes, not politics.
Something needs to be done when we have a Congress that refuses to investigate, yet rubber stamps fro nomination/appointment those who perpetuate the same failed system. Enter the arena: Grand Jury indictments.
Attorneys should know that they will be stripped of any reasonable expectation of privilege when they engage in government malfeasance or assent to abuse of power and unconstitutional conduct. Recall what Americans have had to endure: We are not longer given any expectation that evidence is suppressed when or homes are invaded in an uncivil manner; why should we recognize a balanced privilege in the legal community?
Our privileges in our home is not secure; neither should the legal community enjoy a means to hide their complicity with war crimes. Our homes are not secure; their sinecure should remain tenuous and equally as dubious. Again, the remedy to this problem is for the legal community to impose sanctions on their own, and establish a right for citizens – that of having a constitutionally protected right and requirement that we be civilly approached when in our homes. If the legal community doesn’t feel this is ‘necessary,” why should we believe that their claim to privilege is meaningful?
Again, the issue is that the ABA has an imbalance. They like to pretend they are for the law; but when it comes to matters of accountability, reasonableness, and respect for the law there are two standards – one for them and their privilege; nothing when it comes to our homes and our privileges. The privileges needs to be uniformly applied, not selectively explained away.
This legal community refuses to credibly check its own. They have engaged in illegal advocacy, crating sham immunities to avoid oversight; hidden evidence; engaged in unconstitutional conduct; and have assented to the abuse of power.
The Senate has approved fro the Court BAYBEE who otherwise has assented to the illegal conduct and dubious claims. It is absurd that after the Hamdan case – which effectively destroys Baybee’s legal arguments – that someone like this remains on the bench.
Yet, this Congress refuses to impeach. What is to be done? An apparent mastermind of the Geneva violations and illegal conduct is asking us to believe he’s a credible member of the bench. Something needs to be done to ensure it is harder to appoint, and easier to undo these appointments, especially in situations where all three branches of government are controlled by a single criminal enterprise.
What is to be done to mandate more difficult appointment reviews, mandatory communication, and some sort of liability on the Senate for appointing alleged war criminals like BAYBEE to the court, who have otherwise fully supported the illegal policy making, and created sham excuses to thwart what Hamdan stated were clear requirements: No humiliating treatment, regardless the degree or pain. Baybee’s legal arguments are to the contrary: That the pain had to be severe; yet Hamdan recognizes the Geneva requirement that any abuse is not acceptable.
Something needs to be done to ensure that when all three branches are controlled by a single group, that the presence of war criminals does not give a green light to more criminal activity.
The American system has endured a massive breakdown of self-government. Congressional oversight and internal ethics have collapsed. There need to be back-up systems. There need to be local level options. There needs to be recognized state-level powers that force action, not simply make requests that are ignored.
Let’s consider the dubious claim the Congress and Executive made on “imminence.” Let’s apply that principle – as dubious as it is – to the states: Where the states face a threat, and there are dubious claims by the federal government to “justify” illegal war; then the states should be able to invoke the same “imminence”-standard and similarly say, “There is no time to coordinate with Congress, we should be able to coordinate with other states and other nations to defend ourselves.”
Again, going forward, if we face a situation where the Congress-Executive are imposing dubious claims, it is likely that they will deny the States from asserting that same dubious claim. Something needs to be done to make it easier for the states to send a signal: we do not need to recognize your abused power, and we have options.
At every turn, we have the recurring problem:
The way forward is to conduct a war crimes trial against Members of Congress, and then make explicit language that recognizes We the People may bring suit against individual members of the Executive Branch and legislature for their failure to assert their oath, remove themselves for war crimes, or otherwise fail to investigate and gather facts before appropriating money for illegal things. This needs to be a 42 USC 1983-like mechanism, but anyone in America should be allowed to do this; the claim of “you must prove standing” is absurd when it comes to the Constitution – we all have standing to assert power where Congress abuses that power.
Where the government refuses to use power, the courts should recognize a private citizens’ right to assert that power and rebalance. This is not to say that the court will government the other two branches; rather, the court will ensure that the plaintiff uses the power to rebalance the scales and compel Congress to do what it fails to do: Assert power. Again, the legal community whines, “Oh, that’s not possible.” Brilliant – you have no leadership or solution, but you endorse what has permitted what has failed. Utterly hopeless. Why do we bother with you, other than the absurd reality that you have a monopoly to spew forth legal non-sense.
The legal community and Members of Congress show they take a meaningless oath. 5 USC 3331 is clear. Where’s the enforcement?
We need a method to mandate automatic investigation of Members of Congress for malfeasance. Again, the results are clear: Hamdan finds there’s been illegal activity; Tokyo and Nuremburg remind us that policy makers are liable for war crimes; yet this legal crew and Congress would have us believe, “Hay, it’s not our fault.” If that is true, then what is the basis for Congress to command a fee? “Oh, that’s in the Constitution.” Isn’t’ that interesting: Things that are nice – getting paid – are recognized; but when it comes to “other things” in the Constitution – like enforcing the law and affirming one’s oath to protect the Constitution—suddenly “that’s not convenient.”
This Congress takes a meaningless oath of office. It is time for the Grand Jury to remind Congress that that oath means something, and volitions of that oath – as we have now – are serious and will be penalized. These Members of Congress have refused to block, check, or otherwise thwart domestic enemies; rather, they’ve chose inaction when they had the power to change and prevent what is a war crimes.
This Congress has taken no credible step to prevent the illegal conduct. Rather, it’s talked about legalizing what Hamdan rejects: Violations of Geneva. If someone in Congress takes an oath, then the results we have should be put on the back of the Member of Congress – you have permitted illegal things; you freely took an oath; we can reasonably demand the outputs of our deliberations to be lawful; and when you refuse to penalize misconduct, that is a serious matter, especially when your refusal t investigate results in additional war crimes.
This Congress is inconvenient to the notion of laws and does not deserve any immunity. Consider what happened with the KBR issue: US contracting experts were jettisoned from the discussion, and American lawyers fumbled around attempting to “legalize” something that was not lawful. There need to be sanctions on the attorneys and members of Congress when they violate their oath, support war crimes, and otherwise do things that show there is no imminent threat, but planned activity to create the illusion of a problem, but then address their self-crated mess with additional illegal activity.
Across the political landscape: We have ample evidence that Constitutional requirements have been defied. This is no acceptable. We need a way to timely communicate, report, and aggressively investigate this criminal conduct, regardless whether the US Attorney, Member of Congress, or someone else decides, “We don’t want to look at that.” The voters have been fed non-sense propaganda, and are not in a position to make informed decisions, especially in the wake of the Hamdan case where the public is openly calling the Justices “in bed with AlQueda.” Last year they were pleased that the Supreme Court sided with the President.
The way forward is to trigger a mechanism that is going to aggressively investigate the Constitutional violations in a timely manner, and lawfully hold the wrong doers to account. This absurd nation of, “We have the votes to block impeachment” is clearly sending the signal, “You can’t do anything, so neither will we.” That is unacceptable. Those days need to end.
The Grand Jury needs to have the power to swiftly investigate, and ensure that people who have committed crimes are removed from the political landscape in a timely manner. This is six years, and has been far too long. There should not be a requirement that the Congress “request” a special prosecutor; rather, the Grand Jury should be able to act as its own special prosecutor and dig into the issues related to Congressional war crimes, even when Congress is controlled by a single party.
Otherwise, we have what we have: The majority votes to ignore the Constitutional requirements, and Congress (illegally) self-adjudicates there has been no crime. That’s not a solution.
The larger issue is the ease to which secrecy is invoked, and the courts assent to secrecy. This has permitted too many credible cases to go unlitigated. What’s need is something that is going to take the scraps from the various cases that are not known to each other, and ensure that they are consolidated in to a credible complaint that will prevail over the excuses for secrecy.
It’s a problem when secrecy is invoked to hide illegal activity. It’s a greater problem when the dubious secrecy is embraced by the courts on the basis of illusory evidence, and equally dubious arguments. Hamdan reminds us that the requirements remain, and any attempt to thwart knowledge of this requirement cannot stand. There needs to be provisions to strike down privilege easily, and quickly pierce the illusory arguments the Executive is giving. Also, when the Congress assent to these dubious claims as a reason to not review, then that agreement needs to be taken as an assent to absurd legal claims.
Secrecy has been invoked without there being any adequate adversarial challenge in the FISA courts; using corrupted information; relying on tainted debate; and is fueling the corruption. What is to be done when the Judicial Branch refuses to break the cycle?
Again, the issue which is well known is the time between Sept 2001 and 2006 -- Hamdan statues that the requirements are in place. No member of Congress may assent to having the requirements ignored; but then abuse those who dare discuss the violations of the law, and subsequent use of information to engage in warrantless, illegal interrogations. This cycle needs to be broken with something with the New Constitution that is going to expose this abuse, and make it clear that Congress and the Executive have no power to do this, and this conduct is subsequent evidence of war crimes, subject to possible penalty of death. Their oath means nothing; perhaps their life might mean something.
There needs to be something that destroys the presumption of secrecy and compartmentalization. There should be:
This leadership in Congress isn’t protecting a bonafide “national security” secret; they have one goal – to hide evidence of their complicity with war crimes, illegal conduct, and violations of the Constitution. Hamdan fatally destroys any presumption that the government is making a credible claim in re NSA, FISA, Rendition, or any of the other President’s programs. It’s the same people making the same non-sense arguments: Addington, Yoo, Gonzalez, Baybee, and the DoJ legal staff.
But what’s worse is when it comes to the GTMO trials, the real reason for secrecy wants’ tot protect secrets, but to hide the fact that they had no evidence. They’ve known there was no evidence. There was no bonafide claim of “national security”, nor was there any reasonable basis for other subsequent action: Warrants, home raids, detentions, surveillance, and abuse. The same crew in Iraq that is fabricating excuses to violate the rights of Iraqis is running around doing the same in America: Invading homes, self-issuing warrants. The whole time we’re being told, “We have to put up with the violations of the procedures. FISA doesn’t matter.’
Hamdan struck that down and reminds us:
Let’s consider the greatest crime of the 2004 election. How many voters would change their vote based on what they know now? Again, the pattern of abuse is not new, was fully in force, and actively in place at the time of the 2004 election. Even the NYT knew of the abuses. The issue is that by suppressing one thing, it led to more cover-ups.
The point is that the voters need to have the information to decide whether the Members of Congress are to be believed; or whether there needs to be another solution. This Congress hasn’t given us solutions, because it is the problem: It works with the Executive Branch to assent to illegal war crimes. The problem is that this abuse has translated into, inter alia:
Materiality is defined as something that will be important for a decision; materiality is an essential element when proving fraud for purposes of fraud, business decisions, and other information.
There needs to be a well known threat that if there is fraud in an election, that they can be undone at any time. After the fraud is disclosed, the funds that a politician is paid can be revoked. There needs to be a system in place that imposes on the candidate a requirement that they personally take an inters in the election process; if the results are fraudulent, then the candidate could, later as a office holder, lose the funds they were paid.
There needs to be something that is going to hold the candidate accountable for misdeed and abuse while they illegally held power. There needs to be a system that this going to mandate the credibility of the elections, not just voting, but for the party and candidate to certify that they are not aware of inappropriate conduct or procedures; and if they have lied bout this, this can be a false statement to Congress, and form the basis to later convict them of a felony for election fraud.
Philosophy
For the most part, the above steps require Congress to cooperate. The problem we face in 2006 is the opposite: What is to be done when, despite the Member of Congress being implicated in war crimes, the government fails? There needs to be some overriding principles.
The problem we have in 2006 is Congress, despite having not investigated the dubious claims about WMD, is that there is no evidence justifying the aggressive war. Dubious emergency situations were invoked to violate FISA; and Hamdan reminds us that the requirements are in place. The problem is that this relies on the government assenting to review the matter, and agreeing that the misconduct is not appropriate. What is to be done until that point? Should the civilian population that is the target of abuse, be required to take the high road?
We argue that when the government makes a dubious claim, and the government refuses to strike down that dubious assertion, then the States should have a recognized right to rely on the dubious assertion to assert the State’s right to take action, coordinate with others, and seek foreign assistance. If the US government is going to invoke dubious claims of imminence to justify illegal war, and threaten the Constitution and state’s right to a republican form of government, then the States should be able to use that dubious imminent threat to invoke the State-level coordination with other states and other nations to protect themselves from the internal enemy. This is a balancing theory. If not invoked, then there are two standards on imminence:
There should be a recognized right for the civilian population and states to invoke the dubious imminence standard so that absurd claims at one level will have a Constitutionally protected right to be asserted by other parties.
We the People, so long as government relies on absurd imminence, may lawfully reciprocate and use anything between 2000 and 2006 and evidence of imminent government threats to the state as the basis to lawfully rely on foreign assistance without any credible sanction by the Federal Government. This option may be the needed catalyst which wakes the Federal government up, or protects the Constitution.
Conversely, if the states may not rely on the dubious imminent threat of Congress in the period 2000-2006 as a basis to seek assistance, then neither may Congress or the Executive credibly invoke this “imminence” and “national security” argument ahs a basis to justify abuse, inaction, and suppression of needed Brady evidence or state-level options to challenge the otherwise reckless DoJ Staff Attorney who is giving a green light to war crimes, statute violations, or rebellion against the Constitution and treaties by Members of Congress and the DoJ.
As a rule, the court may strike down imminence and find members of Congress have engaged in war crimes; until then, the state may rely on the dubious assertion of imminent threat as the basis for them to seek external support or cooperate with other states with the intention of protecting their republican form of government from internal enemies in the federal government.
Balancing Theory of Jurisprudence
This relates to an individual citizen-person’s undisputed, Constitutionally protected right to protect the Constitution. It must be recognized in the Constitution and law of the land that any person has standing to protect the Constitution.
When government refuses to assert power, or fails to check power, then a litigating may take that power and fully apply it to rebalance the scales of power. The court shall oversee this process of rebalancing, and ensures that the power asserted by the moving party are linked with the non-asserted powers and abused powers.
Balanced Dubious-Balanced Uncertainty Principle
If government claims a law, Constitution, treaty, or other statue is uncertain, then the government privilege, power, and immunity (that they rely on to invoke that uncertainty) is also uncertain.
Delays in recognizing a private-individual right is matched by a balanced delay in recognizing power, privilege, and immunity of government. This will act as a check on the abuse of refusing to recognize habeas; when habeas is not timely recognized, abusive conditions are permitted to spread, and the climate of inaction, and malfeasance will invariably feed a cycle of larger corruption, abuse of power, and a smaller pool of innocents left to protect the Constitution.
Defense of Rights and Principle of Reciprocity
When government fails to protect the Constitution -- and passes laws, engage in conduct, endorses violations of the Constitution – that abuse may be lawfully reciprocated on individual members of Congress, the Executive or his agents, or Judicial offices without fear of sanctions.
Where government violates procedures, rights, requirements, and fails to punish the misconduct, the civilian population has the recognized right to ignore procedures, requirements, rights of the individual agents, staff, members of Congress, without fear of sanctions.
Information Flows
There should be a free fight of the public or private employee to report to anyone on matters related to anything: Misconduct, abuse, inaction, violations of procedure without fear of arrest or retaliation.
Although some have suggested that the Supreme Court precedent is firm, the Constitution can be updated to make it clear that the right to speak is not simply a public right; but a private right which belongs to anyone; no one may be restricted from communicating abuse or violations of the law; and the employer and government cannot have a superior right to mandate silence, when there is a larger issue of what is most needed in society: The prevention of abuse, and denial of rights. It is troubling when the nation supposedly says it will protect property; but then turns around and threatens to take property from those who dare to report misconduct.
Those who threaten other with the loss of something to get their silence or assent to abuse, should be subjected to treble damages: If there is a threat to inflict damages, then treble damages may be assumed and awarded to the plaintiff. Those who threaten the loss of land and position to get silence, may lawfully be subject to judicial sanctions of actual loss of 3x that threatened loss. This is the principle of “actual infliction against the defendant of threatened damages against the plaintiff.”
The only loyalty anyone should have is to the Constitution. There should be a recognized 4th Branch of Government which engages in information flows, oversight, screening, audits, reviews, and open discussion.
Gone are the days when the government can be credibly checked by the good graces of the other two branches. Rather, there needs to be a system that is going to maintain the Constitution, report malfeasance, solve problems, and compel investigations and fact finding.
This system has permitted phony “state secrets” and dubious claims to shut down what is otherwise needed: Sunlight. This is no different than the abuses in the Securities Market.
Ti is time to charter this 4th Brach so that it tests and challenges the information it is getting from the other three branches; it can use NSA-like technology to sample data, and verify that the actual reports it receives are linked with credible information. When there are discrepancies, the duty of this 4th Branch is to expand SAS99 audit scope, and report the problems to the public – We the People, the ultimate source of sovereignty.
When there are problems related to abuse of power, incorrect information, and violations of the law, then the priority of the 4th Branch goes to open disclosure, and issues of secrecy go out the window. Indeed, there are operational requirements and capabilities that are secret; but when we’re talking about procedures, and statutes which are thwarted, the higher duty is for the 4th branch to report the problem, and ignore any claims illegal conduct has to be protected. The greater the disparity between the asserted claims and actual abuses, the less deference the 4th Branch should give.
Obviously, the question is who works in the 4th Branch, how do they get there. Given the abysmal failure of th4e government system, the 4th Branch should arguably be manned by those who are least connected from the government, and are hired through a system that wholly removes any consideration from money, favor, or other privilege.
Perhaps there could be a private system of grants that funds this 4th Branch; and people voluntarily appoint themselves to engage in fact finding, reporting, and discussion.
The 4th Branch needs to engage in investigations, ensures accountability, and conducts reviews. Perhaps power over the 4th Branch could be injected into the other three branches; where the other three branches abuse power, the amount of 4th Branch involvement, oversight, and intrusion would increase.
The fundamental problem facing America is that the oaths of office are meaningless. How do we get people to do what they’re supposed to do. There should be a constitutionally protected right of the people, if they choose to work in government, to report to the media and outside channels information related to:
The days of mandating that these reports be handled only by the IG need to end: The IGs have been shut down; and the Congress has proven that it is interested in suppressing the truth, not checking abuse of power.
The current fact finding model failed in GTMO. DoJ-DoD investigators like Spike Bowman went to GTMO and effectively failed to ensure that the Hamdan findings were not quickly embraced within the United States Congress. It’s absurd that despite the 2002 abuses, it’s 2006, and we finally “get around to” accepting Geneva applies.
It was known in 2002 that there were prisoners of war detained in GITMO without there being any credible evidence: There was no evidence, and they had no capacity to do what they were being held for; and there was no charge.
There needs to be a method to quickly disseminate evidence of abuse. There needs to be a mandatory lifting of restrictions on confidentiality. People should be free to discuss/report abuses and violations without fear of retaliation.
One approach is t have a %-control of the Congressional committees. Rather than assign Committee Control to a given party; assign the Committee Chairmanship on the basis of time: If One party has 45% Control, then that party should have the Committee Chairmanship for 45% of the time.
This will solve the following problems:
In the long run, what’s needed is some down time so that the Committee Chair has the habit of rotating, and when the Grand Jury issues an indictment, there is already in place an well understood system of rotating chairmanship, so the change in chairmanship will not be unusual or unprecedented. The reduction in risk of disruption will be an incentive for the Grand Jury to say, “Hay, we don’t have to worry about the impact this may have on Congress – the Committees have regular chairmanship changes, so another indictment isn’t going to be a surprise.”
Overall, this approach will remove an enabler of war crimes, and make it known: The Committee’s loyalty is to the Constitution, not the party that may control the chair for 55% of the time. The loyalty is 100% to the Constitution.
Ideally, it would be appropriate if the Committee Chairmanship changes were imbalanced: This is to say that the change in chairmanship across the committee was staggered so that at any given time no one party controls X% of the committees; and then at the same time they all change to the Y% for the other party. Rather, the approach would stagger, as does the three classes of Senators, into a system whereby the chairmanship on any one committee is not linked with who is or is not the Committee chairman on any other committee.
Let’s review what we’re looking at. The issue is what is to be done when the Congress, as it has done since 2000-2006 gets taken over by a mindless mob of criminals. We’ve seen what can happen: War crimes.
Members of Congress are not passive observers. They are intimately involved with the policy making. They have plenty of time to debate issues. There is no emergency, or lack of time. There is no credible argument that there is an imminent threat.
Congress has a demonstrated ability to review information, ensure appropriations are only for lawful things, yet has taken o action on FISA, yet asserts the activity is legal. This is absurd. This Congress refuses to investigate matters it should reasonably know are violations of the laws of the land and Constitution. Hamdan reminds us that procedures must be followed.
This Congress well knows there’s no evidence to justify illegal war. Congress had turned into lawless mob of war criminals, refuses to remove itself, and fails to credibly defend itself against accusations of their complicity.
It is absurd that despite valuable consideration paid to Members of Congress, the private citizens have to do their job:
This Congress refuses to permit the public to do anything about the Congressional malfeasance; or mocks the public, “Oh, wow – what are they going to do – they’re the minority party.”
What needs to happen is have the full force of the non-exercised government powers to check the abused powers and malfeasance. If Congress is not going to assert the power of investigation, then private litigants, with judicial oversight, should be permitted to exercise that non-asserted power. If Congress does not like the court-citizen engaging in this power grab, then the Congress should use the power that they have, rather than assent to war crimes as they have done.
For purposes of remedying this abuse of power, this Constitution needs to be recognized as a contract between We the People and the Government, meaning: Any person has standing to bring a suit to protect the Constitution. Any person should have standing to, inter alia:
Where there are refusals to review and check power, there needs to be a Constitutionally recognized power of the media and 4th Branch to inter alia:
What is to be done when the public refuses to act, does not oversee the government, and as a mob assent to the illegal activity in all three branches?
There needs to be an automatic trigger that is going to compel reviews, attention, and an effective way for the public to assess the scope of the misconduct. Justice is not something that is imposed by popular vote; rather, it is the baseline or standard to which all people are forced to assent. There needs to be
Economic Tools
Let’s consider the economic tools that the public should be able to rely on. Keep in mind the big picture: We’re not simply trying to address what has failed between 2000-2006, or what has been highlighted with Hamdan. The goal here is to create an effective system of oversight and governance that will more quickly address the worst case situation: Where all three branches defy their oath, and blindly assent to war crimes against people around the globe.
To prevent this from happening, there needs to be bounties to report on illegal activity, and provide evidence of war crimes.
It is meaningless for the US to argue it is not subject to the ICC, when the Geneva Conventions stipulate that any country may try war crimes. The international community still has the power to impose the terms of Geneva, regardless the official US government position on the forum.
There should also be bounties to report malfeasance, or efforts to hide information of illegal activity.
Bounties:
There are also market forces that can be put into play. The Securities and Exchange Commission has disclosure requirements on the 10Ks. Part of the listing and disclosure requirement could include mandatory disclosure of potential risks of war crimes and other litigation.
This would ensure that the failure to disclose is a means for the market to impose discipline on the firm; and subject the corporate officers and board to liability within their Directors Liability Obligations (DLO). If there is no adequate disclose of the risks related to war crimes liability, this is a subsequent rule 10b violation under the Act, and is the basis for subsequent criminal and civil litigation for fraud n the market.
The central issue for the Securities and Exchange Commission is to ensure the market remains well regulated, and that the participants are complying with their reporting requirements. The SEC review does not mean that the company is following the law; nor does it mean that a listed company is in compliance with the reporting requirements. Rather, the objective of the SEC is to simply create the means by which capital can be allocated for the open market.
The issues for the SEC and investigate to review will be: Did the companies adequately disclose their involvement in:
The goal isn’t to duplicate what is already in the existing securities laws: Restrictions against engaging in illegal activity. The goal is to make the lessons of Hamdan something that is financially-linked with credible threats of litigation against corporate officers for them participating in something that is alter found to be:
Regardless how one looks at the securities market, or what the laws are, even though there are laws against doing illegal things, this Congress and Executive Branch are still appropriating/spending money on illegal things. The way forward is to create a system that is going to check the government through the very means by which the government accesses capital to wage illegal war or do illegal things.
When the firms (which raise the bonds, raise capital, or create the financial instruments needed to organize capital and support these illegal things) face meaningful sanctions for assenting to war crimes, then the government may face a meaningful check on power. Obviously, we have Enrons whereby the entire system breaks down. In the case of the Constitution, where eth government fails, there need to be more effective means to communicate the information related to war crimes, or other illegal activity. The free market is not intended to be the only means to prompt the Congress to do what it has failed to do; rather, these approaches are merely one of the many options to more quickly signal within a matter of minutes not years that there is a problem which needs immediate attention.
The subsequent sanctions on companies, if they engage in war crimes, but do not disclose, could be severe. But this complicates the issue. Firms are not isolated to a single government; rather, international players can quickly investigate, and communicate through the market what is going on. At this juncture, even if the world knows that there is a problem with war crimes, if Congress chooses to do nothing, then nothing is done. That is not acceptable.
Members of Congress should know that their blind trusts could be a trick of being decimated if their funds are in a market like the United States that is mobilized for illegal war as has been the case 2000-2006. The SEC disclosures will relate to illegal activity like:
It is one thing to violate the law; it is subsequent violation to fail to report that illegal activity to the SEC. If you fail to inform the market, the market shall impose discipline within a short time, far faster than the comatose war criminals in Congress currently assenting to unconstitutional conduct.
Auditing
There needs to be a method that ensures outside auditors provide information to voters on the risks to the Constitution.
Let’s consider the Statement on Accounting Standard 99 (SAS 99). The pervasive pattern of conduct, war crimes, abuse of power is stunning. Auditors, when faced with this scope of a disaster need t identify the weaknesses early on.
In other words, rather than let this disaster get this large, early in the process and reviews Auditors should have already reported these emerging trends:
The auditors then should have a direct communication line to the Grand Jury to provide ongoing updates on what the problem is. Again, Congressional leadership and voting “should” check this; but in situations where the abuse if broad, and malfeasance deep, there needs to be something that swiftly imposes discipline.
The Grand Jury and public need to get information from the auditors related to
Auditors need to issue a statement on the risks that Members of Congress are associating themselves (through assent, malfeasance, or other reckless disregard of their oath) to conduct that is illegal, violates the laws of war, or is otherwise incompatible with public policy.
Again, the dubious claims of “national security” and “imminent problem” are wholly at odds with what auditors have discovered:
Auditors needs to make a periodic, meaningful, and enforceable statement on the effectiveness of measures in Congress to detect, identify, remove, and report involvement with illegal activity or other Conduct contrary to the Constitution. This information needs to be a formal reporting requirement, just as the President is required to provide an annual state of the Union: What it the State of Our Constitution.
Other than the fact that his house caught on fire, is stupid, and not all that bright, we know which Metro line he likes to take to work, Addington’s major problem is that he cannot explain why he shut so many people out of the process. We know about the dispute with General Gordon in 2002.
Addington has no explanation how the auditors, JAGs and other experts in the laws of war were shut out from the pre-2002 Iraq invasion planning; nor how Goldsmith would discuss the potential risks of war crimes, without there have been some mention of the risks known to the legal community, DoJ, and others on the DoJ Staff.
It’s time to take a second look at the Downing Street Memos:
Consider this example: Keisler in DoJ formerly worked with Sidley Austin, which had AT&T as a client. The curious thing is if you look at the Sidley Austin client list in the Securities and Exchange Commission: The questions:
We can make the following adverse judgments:
A plain reading of the public data related to Sidley Austin, AT&T, and the other illegal war crimes suggests that there is a reasonable basis to increase audit scope per SAS99. Yet, the audit reports are no where, and the litigation is on hold pending a curious decision on multi-jurisdiction litigation. That does not inspire confidence the voters are going to get the information needed to make informed voting decisions within 120 days in November.
The issue is: What is to be done, not just in 2006, but as a systemic change to quickly educate the public on the problem.
The Grand Jury needs to quickly ramp up their investigation, specifically target and, in light of Hamdan, indict Members of Congress for war crimes well before the 2006 election.
With this pervasive abuse of power and violations of Geneva in Hamdan SAS99 warrants an increase in audit scope against Members of Congress for performance audits. There are some broad issues:
Private Firms
Hamdan recognizes that there has been illegal activity. The issue is how was this illegal activity financed, supported, and otherwise put into effect. The Grand Jury needs to target the companies, lobbyists, defense contractors, and civilians who supported the illegal activity:
Each of the above support actions is instrumental in supporting a war of aggression. At some point, each company discovered that there was no bonafide war off aggression; and that they knew or should have known that their conduct violated the laws of war.
The Zyklon B contractors in WWII knew that their product was being used to support violations of Geneva, illegal war, and other uses that were wholly at odds with the laws of war. From 2006, going backward, as we saw with Qwest, individual contractors reviewed DoJ-DoD information and determined that something was or was not appropriate. Hamdan destroys any reasonable believe any contractor, civilian, or corporate officer can put on these claims of “national security” and “imminence.”
Rather, after Hamdan the issue is whether the corporate officers, firms, and other government employees continued to do what they knew was no lawful and actively support illegal war and unconstitutional conduct.
From this perspective, it appears that nobody can rely on any assurance that any firm, of government employee is making about the reason for the abuse of power, or the invocation of state secrets. Rather, the primary objective isn’t to protect sources or enjoy inputs from experts, but to thwart what is otherwise unlawful planning for war crimes. This does not enjoy any credible claim of privilege. In light of Hamdan it is time to open the public discussion to explore when this is going to stop:
There are non-governmental circuit breakers. The lesson of Nuremburg is that people cannot support illegal activity. The way forward is to inject these methods into the Constitution and economy and ensure there are timely reports of illegal conduct. Where privilege is abused, the public needs to have other tools that are going to ensure rights are protected and power is not abused. We the People need a mechanism that will trigger circuit breakers in the commercial sector.
This approach needs to require corporate officers and the board to review information; and punish those who reported that these systems were in place, but they provide no evidence that they have complied with the procedures they have reported to the Securities and Exchange Commission. Hamdan is the reminder that procedures and requirements have to be followed, not explained away. American firms have the obligation to follow the laws of war, and can be held liable when they provide direct support, or fail to do what they should to prevent what is happening.
Members of Congress also have a liability through Nuremburg and Tokyo war crimes tribunals to act.
Whether someone is in the commercial, private, or public sector, all people have duty to:
American firms and Members of Congress have permitted what we have with Hamdan it remains to be seen how wide this abuse goes, where the Grand Jury ends, and what must be done to protect this Constitution. Corporations that assent to the illegal activity can be stripped of any confidence that they will be paid or reimbursed. There can be also criminal penalties on corporate offices for their direct or indirect support of the illegal activity.
Members of Congress have engaged in war crimes by actively planning, assenting to, and failing t stop what they otherwise know, or should know are dubious assertions of imminent threats. Rather, if there was a bonafide emergency, Congress should not be able to do what it is now doing – spending time self-immunizing itself for liability over Unconstitutional conduct and war crimes.
As you prepare your Grand Jury report, ask the US Attorney about the provisions for making your report public. This can be done in specific situations. Your job is to do what you have to do to gather evidence to determine facts and matters related to illegal activity. This isn’t simply about putting people in jail, but sending a clear signal to all Members of Congress: If you don’t do your job as you promised with 5 USC 3331, there’s a Grand Jury that will hunt you down and make you.
Going forward, it remains to be seen what happens. Clearly, the US model of governance has failed. It remains to be seen whether the dollar remains the standard, or whether the international markets transition to another denomination which appears to have a slightly more favorable respect for the rule of law: The Euro.
The world community, as it reviews the evidence from America, will have to decide whether the option is to shut off funding for the war criminals in Congress. Despite no evidence justifying the war of aggression or illegal activity, the free market for the moment chooses to continue providing funds.
It remains to be seen, as was done in recent litigation in France against the banks and railroads, whether US bankers are personally held criminally liable for a war of aggression they knew, or should have known was devoid of facts. Indeed, the auditors may have a vested interest in doing nothing in that their consulting contracts for the illegal war are contingent upon their assent to illegal warfare.
Members of Congress cannot simply wave a wand and produce money; the banks are central to the illegal war;. The Congress has to work with the Executive and Wall Street to secure the funds. The banks which issue the bonds have to decide: As they willing to take the blame, or are they going to accept the larger issue: They were actively part of the planning for the illegal war, as were members of Congress, who in 2006 continue to pretend there is a bonafide reason.
Hamdan fatally destroys any reasonable public confidence that the Members of Congress are asserting their oath or protecting the system of governance. In 2006, the court stepped in. In the future, if Addington and Cheney have their way, there may be no prospect that there is a judicial check on war crimes.
It is time to develop a system that this going to mitigate this chance. Unless Members of Congress are held to account for their complicity with these war crimes, rest assured that you haven’t seen the end of the abuse of power. Where the free markets refuse to intervene, there’s always the 20:1 ratio against the United States. America doesn’t have enough people to make that many bullets.
Because of the failed American system, the Taliban have greater confidence. The world knows there is no credible defender of America around the globe. The world is not happy with American, especially after seeing the videos and photos of war crimes. Rather, it is only a matter of time before the world’s militaries choose to unite and bring the warfare to America’s heartland.
If your family has a problem with security, you can blame your President, Addington, and Vice President. Then look to Congress: They have failed to do what should be done. Your job is to decide whether you are going to do what should be done, or let other nations make that choice for you.
posted by Constant @ 7:20 PM
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