Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Thursday, July 13, 2006

Hamdan: Administration Confirms Existence of Overseas CIA Detention Centers

These issues relate to the overseas detention centers where American citizens, after being kidnapped from the United States, appear to be held illegally in violation of the US Constitution and Geneva Conventions.

Recall the assertions that El-Masri rendition could not be litigated because it was a matter of national security. New information in the wake of Hamdan raises doubts about the claims about national security.

By confirming that Geneva would apply to the CIA locations, the Administration has fatally admitted information that it otherwise asserted could not be discussed: That the CIA detention centers exist. Also, by admitting what they otherwise claimed before the court had to be kept secret, the assertion of national security is dubious, and the Executive loses any bonafide claim of privilege.

Rather, it is more likely the evidence suppression, and motivation to dismiss the El-Masri case, has more to do with the common illegal objective in the White House, DoD, DoJ, and CIA of thwarting an international war crimes investigation.

* * *

We've learned many things in the wake of Hamdan, mostly that the White House still likes to publicly admit to criminal activity; and has a double standard on leaks.

The White House has fatally released damaging information, and it relates to the very thing it argues, if commented on, would be a risk of national security. Unless the United States exercises sovereignty and investigates these conditions, other nations are prepared to convene a war crimes tribunal.

* * *

Fatal Admissions by Administration Officials Confirm Existence of CIA Detention Centers

When someone makes a statement that is contrary to their interests, the court can accept this as an exception to the hearsay rule.

Here's information which fatally undermines the White House's contentions:
The administration also has decided that even prisoners held by the CIA in secret prisons abroad must be treated in accordance with international standards [ Ref Via]

The above information tells us many things:

  • There are prisoners being held overseas;

  • These detention centers are linked with the CIA;

  • There has been a memo, series of correspondence, and documentary evidence related to things which we were otherwise led to believe did not exist or was not occurring;

  • There has been a change from (1) something that violated Geneva to (2) an assertion of something else;

  • The previous conditions did not comply with the standards, and these conditions were [a] known to violate Geneva and [b] have violated Geneva, constituting war crimes;

  • There is likely a problem or an issue which deserves attention and court review: There's no reason to comment on [a] Hamdan, [b] Geneva, or [c] secret things unless (1) the detention centers, and risks of violations were real; and (2) there is a legal problem requiring a policy change, adjustment, or orchestrated appearance of adjusting the status quo;

  • This memo and action was related to the timing of Hamdan, and not linked with the events of 2001, or any other Congressional questions, or self-initiated DoJ-NSA-DoD legal initiative; and

  • There is great concern within DoJ, NSA, CIA, and DoD related to Hamdan, and it is well known to the Judge Advocate Generals and DoJ Attorneys that there is a real problem related to war crimes, and these conversations and message traffic has been archived in the DoJ Local Area Networks, White House e-mail system, and the Intel-Link messaging system.

    * * *

    Contrast the New Information With Court Opinion

    Let's test the validity of the above assertions by comparing the language in the opinion with the above information. The results are startling.

    Let's briefly consider the opinion, and consider the key problem the above information has with respect the court court's opinion. The court's language illustrates the problem for the Executive:
    And, as the public declaration makes pellucidly clear, any admission or denial of these allegations by defendants in this case would reveal the means and methods employed pursuant to this clandestine program and such a revelation would present a grave risk of injury to national security.10 of 17

    Again, you'll notice a strange similarity: The results between the original analysis (based on the new information alone) matches the conclusions when we compare [a] the new information with [b] the original court opinion.

    Based solely on the opinion, and the inconsistency with the new information related to Hamdan-Geneva-CIA detention centers, it is reasonable to conclude, inter alia:

    A. The admission that the CIA was not following Geneva means that the violations were occurring;

    B. That the revelations of the non-compliance is a fatal admission, and admissible;

    C. That the effort to suppress discussion of the information or conduct litigation -- premised on the assumption that any admission would present a "grave risk" of injury to national security -- is dubious;

    D. The Administration, despite not following Geneva, when it otherwise had the obligation to do so, was violating the law;

    E. The individuals in the Administration who are aware of the facts, memoranda, and change in CIA policy are well aware that the previous efforts were violating the law; and

    F. That the discussion of the CIA overseas locations has made the assertion of privilege moot and the appeals court should remand the case to the district court.

    Otherwise, we are left with only one conclusion which is fatal to the Administration: That there are White House leakers who have, by discussing the Geneva conventions in re the CIA overseas sites, have taken action which risks grave injury to the US national security, and this disclosure -- because it (arguably in the words of the White House and RNC) is a threat to our way of life -- demands a full investigation.

    Either way, the way forward is to gather facts, and expand the probe not silence the discussion.

    * * *

    Links for your consideration

    Pattern: Other dubious claims of state secrets: Ref

    Hope: Republican effort to limit Executive Privilege: Rep. Shays, R-CT

    * * *

    There's A Bigger Problem

    The Hamdan case as it relates to the CIA rendition sites cannot be understated. The problem is, much to the distress of the DoJ-White House legal advisors, US violations of Geneva between 2000-2006 cannot be undone, either by Congress in 2006 or by a Presidential pardon.

  • A. The decision on whether Geneva did or did not apply occurred in 2001 when the US chose between using military force over criminal prosecutions; and

  • B. Article 82 of the Conventions in the period of 2000-2006 was known by the legal community and DoJ counsel to apply. By failing to assert their oaths and not ensuring the Conventions were fully implemented, US legal planners in DoJ, DoD, and the White House committed subsequent war crimes.

    The US Congress has no power, nor does it have the authority to retroactively immunize anyone for misconduct between 2001-2006 over issues of international law. Congress has no power to help them, nor can a Presidential pardon immunize them against an international war crimes tribunal.

    The risk of a war crimes indictment was fully known, discussed, and documented in White House and UK memoranda: [a] During the illegal Iraq invasion planning was ramping up, and [b] as the NSA illegal domestic surveillance was had started. (Recall: Planning for the illegal war of aggression in Iraq and NSA surveillance had started before the events of Sept 2001.) Any claim that the Executive actions were linked with the events of Sept 2001 are dubious, but evidence of a conspiracy to hide evidence of international war crimes. [Details: Ref ]

    * * *

    The problem in making the above assertions deserves discussion:

    (1) Fatally Contradicts Federal Court Motions

    By confirming the very things which the CIA-White House said, "could not be even admitted or denied as it would endanger American lives," has proven to be a sham. This is a reasonable basis to find that the original motions before the court were based on dubious claims of privilege. These raise issues of fraud upon the court, misstatements before the tribunal, and attorney conduct which warrants the bar disciplinary board investigation on the original DoJ Attorney filings. (Constellation)

    (2) Timing Raises Further Doubts Executive's Claims To Absolute Power

    The change in policy, however it was designed, is shown to be linked with the Supreme Court, not with the President's public-assertion that he can do what he wants. This sends an important signal to the Executive Branch employees: Your leadership is not always correct; your legal advisors are not competent; and the leadership you have is recklessly violating the laws of war. By following these illegal orders, the executive branch agents and contractors have to wonder when the President will leave them hanging, and take the fall.

    (3) Tarnishes Original Executive Branch Legal Assertions

    The inconsistencies undermine public confidence in the original excuses not to investigate the original allegations of criminal conduct in re rendition, war crimes, FISA-NSA violations, and obstruction of DoJ OPR in reviewing the matters.

    (4) Discredits Basis to Dissuade Public Discussion On Illegal Presidential Activity

    The public comments also contradict the litany of excuses given to suppress evidence of criminal activity. This White House has argued that even talking about illegal FISA-NSA violations is a threat; and that openly discussing how evidence is illegally obtained then used to harass Americans is something that cannot be discussed. Yet, the revelation about the CIA policy changes at the overseas detention centers contradicts these absurd assumptions. The implication is that the public rebukes of the reasonable concerns are less to do with a bonafide claim of national security and bluntly about voter intimidation.

    5. Broader, Deeper Track Record of Dubious Claims Raises Reasonable Doubts About Executive Claims of Privilege

    We are reminded (again) that the White House will make dubious claims to the court and public. This adds to the body of evidence litigators can use to demonstrate that the pattern of conduct is pervasive; and that the White House has previously made inconsistent statements. This could increase the chances the courts would adjudicate that the Administration claims related to "national security" are dubious, especially when they openly discuss the information they say is privileged. Not only is it impossible to invoke privilege on something that is openly available, and further diminishes the credibility of the Administration's original and subsequent claims.