Hamdan: Nuremburg Provides Precedent
The problem is that the US leadership in all three branches, including the DoJ staff attorneys are subject to war crimes trials. The big game going on is how to pretend that there is confusion, and then appeal to that confusion to then find a "solution".
Congress, the officers of the court, and the DoJ-NSA-CIA-DoD staff attorneys know they have violated Article 82, which mandates that the Geneva Conventions be implemented. They failed, and this is a subsequent war crime.
The big game going on is to pretend that Hamdan is "narrowly" applied; in fact, it says the opposite: The requirements of Geneva-Nuremburg are applicable. Congress has no power to change/define the treaty or the precedents of Nuremburg. This is a strictly judicial function which the legislature, in our Constitution, has been expressly denied.
The problem, and faulty assumption has been, "The US would never do this." The US did, and you now have an international war crimes tribunal to confront.
Myth: "Congress needs to do something to bring clarity and certainty to Common Article Three"
Reality: Wrong, the clarity has already been provided by Nuremburg and The Hague.
Precedent: The legal liability that attaches to lawyers and the judicial branch for failing to stop what was stoppable.
817 F.2d 119: Specific intent to abrogate an agreement required
195 F. Supp. 2d 140: "when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null"
Recall, we're dealing with events between 2000-2006, nothing Congress does in 2006 can change the controlling law during 2000-2006: Geneva.
Let's consider the problem Congress has in the wake of Hamdan. Congress cannot exercise Article III powers by creating statutes that has the intent of redefining the legal outcome of litigation; in the case of Hamdan this would amount to denying what the Supreme Court said was fully in force 2000-2006: Geneva.
Let's consider the controlling language and authorities, which in the wake of Hamdan present a problem for the Executive and Congress: [Emphasis added
First, by expressly directing legislation at pending litigation, Congress has arguably attempted to determine the outcome of this litigation. See, e.g., United States v. Klein, 80 U.S. 128, 141-44, 20 L. Ed. 519 (1871); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 240, 115 S. Ct. 1447, 131 L. Ed. 2d 328 [*164] (1995); Coalition to Save Our National Mall v. Norton, 269 F.3d 1092, 1096 (D.C. Cir. 2001).
Second, by legislating no more broadly or narrowly than issues presented by this litigation, Congress has also implicated Article III of the United States Constitution. See Robertson v. Seattle Audubon Society, 503 U.S. 429, 441; 503 U.S. 429, 112 S. Ct. 1407, 118 L. Ed. 2d 73 (1992); National Mall, 269 F.3d at 1097.
Reed: Selective targeting of legislation is something that is behind Specter's NSA-fisa bill. [ Ref ] See 6 of 21, line 15-21 [ 6 of 18 line 41-43: "Any reason" for dismissial is absurd and vauge.]
DoJ is well familiar with Klein [Emphasis added]:
if Congress explicitly legislates a rule of decision without amending the underlying substantive law it violates the exclusive province of the judiciary. United States v. Klein, 80 U.S. 128 [from: 195 F. Supp. 2d 140]
Just as the President has no power to unilaterally change fisa, Congress has no power to unilaterally or retroactively amend Geneva. A legislative act of Congress to "define" a treaty obligation, without coordination with our international partners would amount to an unconstitutional, judicial act. The ICC was one forum which sought to provide this clarity; the US has rejected this approach; the only constitutional option the Congress has is to rely on precedent (yet, as a reminder, reviewing precedent is an exclusive judicial power, and Congress really has no option). The other options (abrogate the treaty, redefine terms, amend Geneva) are unconstitutional, illegal, imprudent, and not consistent with Hamdan affirmation that Geneva remains a requirement.
If Congress, after Hamdan chooses to legislate, as it proposes it may do, and effectively trump Geneva requirements, then it is the responsibility of the (arguably retarded) DoJ staff arttorneys to return to the Supreme Court to explain why the Executive and Congress have jointly agreed to assert Article III powers.
Hamdan, in so many words, isn't a call for Congress and the Executive to find "a new way" to violate Geneva; but a requirement to work within Geneva; for Congress and the Executive to do otherwise would amount to Article III assertions of powers, which Our Constitution denies to both the President and Congress.
If the US chooses to pass a statute that conflicts with Geneva, the United States is abrogating the treaty. The problem is that the US doesn't intended to abrogate Geneva, but its actions communicate that it has no regard for Geneva.
Yet, Hamdan affirms that Geneva is applicable and a requirement; and that Congress nor the Executive have the power to violate Geneva until the United States abrogates the treaty.
Hamdan tells the world: The US does not intend to violate Geneva; we remain bound by Geneva; and the Geneva conventions are something we intend to apply to all things without exception.
The issue going forward: How do we wish those we engage in combat to treat Americans, regardless whether they are or are not on the battlefield? If the US chooses to abrogate Geneva, which Hamdan otherwise affirms is fully in force, then no other combatant worldwide need to respect any law of war.
This translate into, in response to US violations of Geneva, other nations violating the same provisions; and engaging in lawful retaliation against targets that are otherwise protected. Although Geneva says that civilians cannot be the target for retaliation, once the US abrogates Geneva, there's no enforcement mechanism to impose discipline on those who attack US civilians because of US violations of Geneva in other locations.
Congress hasn't effectively complied, nor ensured compliance, of the Geneva conventions it has failed to abrogate. Yet, even if Congress were to abrogate the treaty, this doesn't address the fundamental issue: Once the US abrogates a treaty related to the laws of war, as Hitler did, the US has no legitimate claim to the moral high ground. Rather, the United States asserts the right and power, as Hitler did, to do what it wants.
Until Hamdan the US failed to send a clear signal that it intended to be treated in differently than the Third Reich.
Ref Via 40
We proceed with the assumption that Hamdan is the controlling guidance, and that the intent of the United States is to remain in harmony with the Geneva Conventions.
Let's consider the what is to be done. Once the United States Supreme Court in Hamdan affirmed that Geneva applied and remained a requirement, the way forward is to ensure that the laws of the land are consistent with the treaty; and that no action, legislation, or policy violates the Conventions.
We arrive at a question of deciding what does this mean. The risk of one nation deciding what a term means is that it may conflict with another nation’s interpretation. Again, on issues of interpretation, this is a judicial power, and not something the Congress, so long as it agrees that Geneva is fully in force, can competently interpret; nor does Congress have the power to exercise this judicial function exclusively reserved to the judicial branch.
If we assume that Geneva is to be fully implemented, and that all nations are to jointly agree to the common terms of the treaty, then a single action or decision by Congress in re what a treaty term does or does not mean, cannot stand; otherwise, they are effectively stating they will (1) pick and choose when and if they will comply with a treaty the wish to enjoy the benefits, while (2) still ignoring the inconvenient parts, while at the same time (3) arguing that they are fully compliant with the laws. The goal is harmony, not selective reading of the text.
Hamdan settles the dispute: Geneva remains the controlling umbrella, and Congress and the Executive must craft rules that stay within that framework.
Method by which you examine the meaning of a treaty, isn't to codify it with statute, but to look to precedent, inter alia: Nuremburg and Ludwigsburg
ICC provides the jurisdiction which in a judicial manner provides the "clarification" which some would like Congress to do. Whether the US wants to assent to these terms is a separate matter; there is still the precedent of Nuremburg and The Hague.
Congress has not judicial power to "interpret" -- this is an exclusive judicial function. Rendition fits in with Article 7.
Congress has the Article 1 Section 8 power to make rules that ensure compliance with treaties. But Congress has no judicial power to neither interpret the treaties nor define what does or does not comply with the treaty obligations.
The only things Congress can do is define how the treaty will be followed. It is not appropriate for attorneys to do the opposite: Demand a definition so they can subsequently explain away that specific treaty requirement or statute.
The American legal community has no vote in how the laws are or are not debated: The debate is over once the Congress in 1929 and 1949 passed the Geneva Conventions. The only lawful legislative debate is the means by which those requirements are fully implemented, not the requirements and definitions themselves. To accomplish this objective, the courts, not Congress must turn to the precedents of international law. Congress has no role in interpretation, only in overseeing the Executive in ensuring the treaty obligations are fully implemented and respected. Conversely, if the Supreme Court asserts that international law is not applicable, then the Supreme Court has failed to fully implement the Geneva Conventions and has committed a violation of Article 82, subjecting them to lawful sanctions at an international tribunal.
Where the treaty is "unclear", there is ample precedent from Nuremburg, Ludwigsburg, and international law to define what is or is not a war crime. It is legal fiction for any American lawyer to assert that "there is no international law" or that the Geneva conventions are "quaint" or "unclear." They are simply creating the illusion of ambiguity, despite the thousands of war crime convictions offering ample clarity as to what is not permitted: Torture, abuse, and mistreatment of prisoners of war.
Where there is uncertainty, the responsibility of the legal community is to ensure the law is complied with, not explained away. The job of the legal advisor is to provide lawful solutions, not excuses to ignore the law. To do otherwise puts them in bed with the those threatening international peace, order, and stability.
There in no magic bubble that precludes American war criminals from being extradited to any other nation on earth – all nations have jurisdiction to investigate and prosecute war crimes.
The American legal community has abused the public trust; recklessly disregarded, and failed to ensure clearly established treaty obligations and requirements were implemented; and remain an unreliable source of legal advice and counsel. It would be reasonable if the United States demonstrated leadership and conducted this internally, in full view of the international community; whether the United States follows the precedent of The Hague, Ludwigsburg, Nuremberg, and the war crimes trials against Milosevic and Hussein.
Put aside the above discussion on unlawful Congressional assertion of judicial power. The current Congressional approach, absurdly advocated by Yoo, is for the Congress to "define" what the terms mean. This is problematic: It results in different nations, parties to the same treaty, having different legislatively-driven interpretations of the same terms.
One credible way forward is to have a subsequent treaty that will, as this treaty does, define with precision what everything means.
The ICC was one means to do this, but the US has rejected this approach.
Addington well knows the international precedents. He reads them closely and is well versed on the implications. Consider this ICC language, which the US pretended did not apply, or provides no guidance:
For the purpose of paragraph 1:
(a) "Attack directed against any civilian population" means . . .
(b) "Extermination" includes . . .
(c) "Enslavement" means . . .
(d) "Deportation or forcible transfer of population" means . . .
(e) "Torture" means . . .
(f) "Forced pregnancy" means . . .
(g) "Persecution" means . . .
(h) "The crime of apartheid" means . . .
(i) "Enforced disappearance of persons" means . . .
1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
2. For the purpose of this Statute, "war crimes" means: . . .
Here's what Nuremburg said: When you violate the laws of war, and you prosecute them -- which are what was done at Nuremburg, so that is a definition -- not only are the primary actors in trouble, but also the Judicial and Legislative Branches are liable.
Here's the trial against those in the Judicial and Legislative Branches. Ref
Wake up: The problem Hitler had was that he refused to comply with the treaties. We have the same in the United States, but this is a problem that is common to all three branches:
In those cases where the US is bound by the Geneva conventions, but refuses to assent to the court that has jurisdiction over the matters, what is to be done?
Answer: An international tribunal, after Germany and Japan were forced to assent to external military power, tried the defendants.
Unless the United States wakes up, and internally complies with the "reasonable interpretations" of the treaty (as promulgated under the ICC), then the US subjects itself to world counter strikes, attacks, and military intervention. Congress has no power to "interpret" a treaty, this is a judicial function, something -- by not "falling under the ICC" -- the Executive and Legislature incorrectly asserts, "Makes us immune."
You are only immune to the law if you have bigger weapons that those who are attempting to enforce the law.
Americans have to choose: Are you going to assert sovereignty and embrace the international norms of the Geneva Conventions, which Nuremburg has already established as precedent; or does the United States require a defeat on the battlefield, and then forced to assent to the same standard?
Regardless whether the US is in our out of the ICC, the precedent of the Nuremburg Trials clearly establishes what is or is not a crime.
This appeal by Yoo that "things are unclear in the treaty" is as meaningless and interesting as what Hitler said, "Those are not relevant." The precedent of Nuremburg provides the judicial interpretation for Geneva; and the US Congress has no delegated judicial power to pretend otherwise.
The answer to Yoo's "big confusion" is the Nuremburg War Crimes Trial. This is a real possibility: Grand Jury indictments against Members of Congress based on the precedents of Nuremburg. It is a jury, not the Legislature that decides what has or has not violated international treaty obligations [ ref ]
Whether someone does or does not want to craft meaningful war crimes jury instructions, as they relate to the full abuse of power, and then craft these instructions to properly try Members of Congress, the US Judiciary, and the Executive Branch is irrelevant.
You either comply with Geneva and the precedents of Nuremburg, which provides the clarification for what Geneva means, or you have this judicial approach imposed on you. It is not acceptable to say, "we did not consent to the ICC," yet you have consented to Geneva. You have agreed with the requirements; how those requirements are enforced is a separate matter. Congress has now power to make a judicial interpretation, nor promulgate standards which contradict Geneva-Nuremburg precedents.
The answer is: The Hague is the court which the US recognizes.
The International Court of Justice: Is the Judicial arm of the United Nations
Big problem: The US is a member of the UN, and a signatory to the UN Charter. War of aggression is defined as an act without evidence of an imminent attack, as there is with "no WMD."
Just as Saddam says, "I do not recognize this court trying me," so too could the US personnel say, "I do not recognize this court," but the ICJ still has jurisdiction as the forum which The Hague imposes the Nuremburg Precedent on all three branches of US Government, and there's nothing Congress can do to stop this.
This mess was sealed in 2000, when the decision was made to illegal invade Iraq, and then violate the US Constitution with the NSA surveillance. The problem is that six years of letting this non-sense go unchallenged, then fueled the arrogance -- as was Hitler -- of saying, "We can pick and choose."
Game over. The American Congress and Executive Branch have been complicit in war crimes, and this is clearly established precedent from Nuremburg: The primary actors, the lawyers, and the legislators who failed to prevent the war crimes are complicit and can be indicted.
There is no confusion, only denial--the same denial which permitted the Nazis to rise to power, abuse it, and then unlawfully invade other countries. The RNC has done the same: Abuse power, unlawfully invade, and then assert that the norms of civilized society do not apply to them. Hamdan is the first wakeup call.
The only goal the RNC has at this point is to delay until after the election, the voters from digesting this fact –their complicity for violating the Nuremburg precedents against war crimes. There is no ambiguity, merely another RNC ruse to delay accountability and voter comprehension of the war crimes violations directly facing the RNC leadership in all three branches of government and the US legal community.