Constant's pations

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

Wednesday, July 12, 2006

Hamdan: Revisiting the Use of Force Decision

Hamdan triggered a rude awakening: The laws of war apply to how we detain prisoners of war. Some have suggested that the relative risks of those we detain (that they might start fires, engage in riots while being detained) mean the Geneva conventions are granting inappropriate rights to those we cannot trust, or might abuse the Convention.

This argument although circular and irrelevant, misses the key issue: Geneva requirements to protect prisoners were known before choosing to use force. If Congress and the Executive didn’t like the Geneva requirements, the way forward was to not use military force, but engage in criminal prosecutions.

By choosing the former without regard to Geneva, American policy makers, lawyers and planners are targets of the latter.

* * *

Hamdan, although the final opinion of the Supreme Court, is telling. It shows how despite an opinion of the Supreme Court, the public filled with propaganda will stick to the original excuses and justifications for abusive treatment. As you proceed with the debates and near the election, keep in mind those in the RNC: Although Hamdan has been issued, the DNC will have to wade through the “propagandized” civilian population and remind them of the larger issues related to the laws of war, and the decision to use force.

* * *

This note hopes to dig into the nuances of something that may seem fairly irrelevant, but expand on the problems the nation has with the nation leadership. We hope to show that the events of 9-11, although curious for purposes of creating a mythology to justify abuse, is actually irrelevant: The decision to use force in Iraq was made before 9-11. Thus, any decision about “how terrorists might behave” (as a justification to ignore Geneva) is irrelevant: Once the United States leadership chose behind the scenes to invade Iraq, they knew, attached with that decision, can a responsibility to comply with the laws of war.

What this national leadership has done is illegally planned for an unlawful war before Sept 2001; then used an irrelevant excuse of 9-11 – that there were or were not nasty people, therefore we don’t need to comply with Geneva – as the excuse to separate [a] the decision to go to war; from [b] the legal requirements which go with that decision.

* * *

The point is simple: Once the United States chose to use force, regardless the means, method, or excuse, the United States knew that it was bound to the laws of war.

However, the same crew that used propaganda to justify use military force then used propaganda to argue that the laws related to the use of that military force did not apply. They can’t have it both ways.

* * *

We argue that both the invasion of Afghanistan and Iraq, however connected or disconnect from the events of 9-11, were both choices. War was never “thrust upon” the United States. Rather, if the United States after the events of Sept 2001 wanted to use force, that was a choice; however, the Untied States could have made another decision: To engage in prosecutions; but the United States has, until Hamdan refused to lawfully prosecute those they accuse of war crimes.

An accuser does not have an eternal presumption of divinity, especially when they violate the standards used to judge others. This crew accuses without evidence – because there is no evidence -- to distract attention from its illegal activity. That is an abuse of power and no different than the Iran-Contra affair or Watergate.

* * *

When people plan for war, whether they are civilians, lawyers, or military personnel, they are required to follow the laws of war. The reality of the events between 2000 and 2006 is that the decision to use force in violation of Geneva had already been made before the event supposedly triggering its use.

The United States had two lawful options before, during, and after the events of Sept 2001: Waging lawful war, or lawfully prosecuting those who committed crimes. The United States chose a hybrid approach: Illegally using military force to engage in police actions and prosecutions. What is noteworthy is that despite the decision to “use force to support prosecutions” the United States didn’t actually engage in prosecutions, but war crimes.

In simple terms, the United States waged illegal war so that it could justify more illegal activity both at home and abroad. We now know that the 9-11 event was in no way the triggering event for the Patriot Act or the NSA surveillance – these plans were already well underway, and fully implemented before the triggering event.

* * *

Hamdan affirms that the AUMF required following Geneva, and did not give the Executive discretion on whether the clear requirements and procedures were or were not followed. [Take note: This rule applies to the FISA courts.]

Let’s consider the issue of Congress, the authorization to use military force [AUMF] after Sept 2001, and the decision the Executive confronted. When Congress reviewed the matters of Sept 2001, it did so with great deference to the intelligence community and Executive, but with little regard to:

  • (1) Whether [a] the use of force was or was not consistent with [b] the laws of war; or
  • (2) Conversely, if they did not want to follow Geneva, what lawful alternatives existed which did not involve the use of force.

    It is one thing to authorize the use of an option; quite another to, as Congress is required to do, ensure that the Executive complies with the laws and uses that force in a manner that is lawful.

    This Congress chose to authorize the use of force, but did nothing to ensure that the larger issues of prisoner detention, treatment, and other Geneva Convention requirements were met. That is a sign of recklessness.

    Central to the debate, whether it is or is not in the Congressional records, is the issue of once that choice to use force is made, do the players understand that – attached to that decision – comes the responsibility to lawfully execute that decision. The core problem in 2006, in the wake of Hamdan is for anyone to argue that the people we have detained – prisoners of war – may or may not take advantage of their confinement conditions or other privileges afforded to them under the Geneva Conventions, and cause problems after their capture.

    Again, in the wake of 9-11, it was “known” who we were supposedly going after, their methods, and their approaches to using force and what was possible. If the Congress, despite knowing these risks, chose to approve force, then they were negligent in considering the nature of the enemy.

    * * *

    In the wake of Hamdan the discussion has turned to whether or not it is reasonable to recognize the Geneva requirements as they were originally written. Putting aside the issue that these are requirements and the United States has no choice, let’s consider the subtleties of this argument.

    The argument goes something like this:

  • The United States was faced with a terrible threat;

  • The United States took action to defend itself

  • The United States treated the enemy as they should be treated

  • Geneva is outdated, quaint, and offers too many privileges

  • Geneva allows the evil people access to tobacco, lighters, and they are likely to use the smoking materials to light fires, and cause confusion

  • The nasty people we are detaining will take advantage of the Geneva Conventions, and incite riots during their confinement

  • The nasty people we are detaining are likely to cause problems when they are house together because they are not all of the same religious background, and they will incite riots against each other

  • The nasty people we are detaining are given too many privileges: The Conventions require that the prisoners be held in a manner that closely resembles the housing conditions of those who are of the detaining power. This means that the nasty people are going to be given television sets, individual’s rooms, access to videos, and other things that are far better conditions than prisoners are afforded in the Untied States. They are living a life of luxury, and we cannot reward them for their nasty evil deeds.

    The central problem with the above arguments is simple: The Geneva Conventions were known prior to the decision to use force; and the above speculative possibilities were known prior to the final decision to [a] use force; and [b] take action that would trigger the Geneva Requirements.
    * * *

    Let’s consider the alternative. If the United States didn’t think that the protections afforded to the prisoners were “good enough” or that the detainees – when captured in either lawful or unlawful military engagements – were or were not going to be given to many privileges, the time to have discussed this was before the first shot was fired in response to Sept 2001.

    Again, the truth of the matters is that the events of Sept 2001 are irrelevant, and the decision to wage illegal war had already been made. Putting that aside, it’s too late in the game in 2006 to retroactively argue that the Prisoners in the wake of Hamdan.

    Again, the point is simple: If the United States, Addington, Viet Dinh, Haynes and others who said Geneva Conventions did not apply, then the right approach would have been to say:

  • If we use force, we will have to treat these people in a manner that we are not willing to do;

  • Thus, we should engage in prosecutions, and avoid war, so that we do not trigger the Geneva requirements.

    The above argument didn’t occur. Rather, the United States chose to do the opposite, arguing that the rules didn’t apply; and that the “appropriate” course – using prosecutions – was not acceptable. The US, as ever, wants to have it both ways – the very problem at the heart of the Iraqi insurgency, and the resistance in Palestine.

    * * *

    The problem with the above discussion is that it doesn’t much help us in 2006. Rather than resolve the issues of the detentions, the RNC-apologists have taken a different route: Blame the Supreme Court. Again, the point is that rather than embrace what they contributed to the problem, the Congress and RNC are doing what they are well known to do: Find a scapegoat for the problem this Congress helped the Executive implement.

    The above discussion also in no way is satisfying for purposes of asserting the rule of law, nor gaining a majority in Congress that will assert the rule of law. Again, just as the nation has been fed a load of non-sense about the “relationship of 9-11 to Iraq” and “why 4th Amendment requirements should be ignored to permit the NSA engage in warrantless surveillance”, so too is the nation being fed another line of non-sense: “The Supreme Court got it wrong because we have to grant evil people privileges that they do not deserve.”

    Here’s the short answer, Congress and the RNC:

  • A. If you are not happy with the privileges you have to confer, then why did you choose engage in the unlawful war?

  • B. If you are not happy with the protections and treatments the prisoners of war are granted, why did you choose to use force that triggered that requirement?

  • C. If you are not happy that the prisoners of war are being treated in a certain way, what was the reason that you voted to approve the very use of force that would trigger [a] the use of force; [b] the requirement to follow Geneva; and [c] the subsequent requirements of Geneva to treat the prisoners in a certain way.

  • D. If you are not happy that your choice to use force triggered Geneva detention requirements, why did you not chose the prosecution-method to go after those behind Sept 2001 events?

    Again, the point is that in 2006 it’s too late to argue, “The Supreme Court is telling us to grant these people privileges they do not deserve.” Again, that argument is circular, irrelevant, meaningless, and moot.

    Once the United States, through whatever convoluted logic train or mythology, invoked the power-right-authority to use force, the RNC-controlled-Congress knew or should have known, attached to that decision comes the responsibility to wage lawful war, treat the prisoners in a specific way, and that the Conventions would afford people who were detained with prote4ctions and privileges that the public may not fully comprehend. This Congress does not comprehend [a] the authorization of force does attaches with it [b] the responsibility to ensure that Geneva Conventions were [c] followed and [d] enforced.

    This is a mess the RNC, White House, and Congress have created for themselves. It is not something the DNC is in a position to take responsibility. It is interesting, but meaningless that the RNC-propaganda has excited the civilian population to whine that the “evil people” are being afforded privileges which the US – through the decision to use force – agreed would be immediately granted upon capture. Again, if the US didn’t want to grant these privileges, the solution was to free the prisoners of war. However, the US chose to retain control of the prisoners, abuse them for many years, and subject them to Geneva violations, and not free them despite the requirement to treat them humanely.

    The way forward in 2001 (after the RNC chose to assert non-sense to rationalize illegal abuse of power in Iraq and Guantanamo) was for the RNC to explain:

  • A. When we chose to use force, we also embraced the international requirement that we treat the prisoners in a certain way;

  • B. We considered prosecutions, and that would have ensured we did not have to embrace Geneva; but that would not remove use from our legal obligations to treat the prisoners humanely;

  • C. We chose to authorize force, but we did not explain to those in our own party, that we had the obligation to follow the Geneva Conventions;

  • D> We in the RNC leadership failed to explain to those in our own party that when we chose to use force, we were also embracing the Geneva Conventions which protected the prisoners, and granted them certain privileges that they are entitled to;

    E. Despite the RNC leadership failing to protect the nation before Sept 2001, and putting aside how upset the US Citizens might be – because we filled them with propaganda – it is now our job in the RNC to explain to those we have lied to that the Hamdan implications were known, ignored, and not followed – and the decision to ignore the Convention requirements – was made before Sept 2001.

  • F> The RNC-controlled Congress chose to authorize force without ensuring that the full spectrum of legal requirements and responsibilities attached to that decision was invoked, applied, or sufficiently overseen.

  • G> Despite no track record of having demonstrated that the US was going to follow Geneva, and despite the violations between 2000-2006 in re Geneva, the Congress continued to appropriate funding, not adequately oversee, and chose to rely on fiction to explain away a treaty obligation.

    * * *

    Some have suggested that when Congress passes a law, the activity related to that law is legal. The flawed reasoning goes like this:

  • The Congress authorized force

  • The Executive implemented the force

  • The use of force must be legal

    In so many words, the RNC in the wake of Hamdan has chosen to make it appear as though the Congressional decision is final; and that what the RNC chose to do in 2001 confirmed and approved anything the President did.

    Keep in mind that this blind deference in the same non-sense used to link the AUMF with the illegal NSA activity: “Because the AUMF authorized force, then the NSA was permitted to engage in surveillance.” Put aside the issue that the NSA was violating the 4th Amendment before Sept 2001, and focus solely on the problem the Congress has as it relates to Hamdan:

  • Congress chose to approve some sort of response to Sept 2001;

  • The real story is that the illegal use of force, and decision to abuse a scapegoat, was made without regard to Geneva requirements that prisoners be treated in a specific way;

  • Congress failed to ensure that [a] the use of force, and capture and detention of prisoners was consistent with [b] the Geneva requirements related to treatment of prisoners; and

  • Congress took not credible action between 2000-2006 to effectively ensure that the laws were followed, or that the legal requirements – attached to the decision to authorize and use force – were followed, implemented, or otherwise respected.

    In truth, just because congress passes a law, doesn’t mean that it permits anything that is not lawful, unconstitutional, or contrary to a treaty obligation. Moreover, Congress has no power to pass a law or authorize action that violates a clearly established treaty requirement. Recall it was a manufactured treaty violation which was used as the ruse to invade a sovereign country. We now realize that the evidence was manufactured; rather, the real violation rests with those who created the ruse, but blame others.

    Further, it is legal fiction for anyone in the legal community to argue that the Hamdan case is simply about the US Statutes, standing, or a matter of jurisdiction. Rather, the full issues of Hamdan relate to broader issues of sovereignty, leadership, and whether a national leadership can or cannot be trusted to assert their oath and ensure that the treaty obligations are fully implemented.

    This civilian legal community immediately in the wake of Hamdan narrowly construed the case in terms of whether or not it was consistent with the US Statute. Rather than recognize the legal implications of abrogating Geneva – which some in the legal community and Congress were advocating – the American legal community looked at Hamdan as merely an obstacle that the Congress and Executive were going to “find a way” to overcome.

    The problem with this thinking is that it fails to recognize what has already happened, and cannot be undone: The Congress chose to authorize force, and with that choice in 2001 the requirements of Geneva.

    Congress has no power to retroactively assert that the requirements – which it knew were in place in 2001 – are not relevant in 2006 or in 2001 or at any other time between 2001 and 2006. Thus, any argument that the US legal community might offer – that Congress and the Executive are going to “find a way” to get around Geneva – is meaningless: Geneva was in full force in 2001; and remained in full force between 2001 and 2006. Nothing the Congress does in 2006 can change whether the Geneva requirements were or were not applicable; and there's nothing the Congress and Executive can do in 2006 to retroactively undo the decisions of 2001: The decision to use force, and the agreement to follow the laws of war.

    Again, the point is that in 2006 in the wake of Hamdan its too late to argue that the “nasty people” are going to be given privileges that they do not deserve. These conventions were known in 2001; they were part of the planning process, and it is irrelevant that they were ignored, not followed, or not considered. The Geneva Convention recognizes rights they already have; and the protocols are there to be enforced, not retroactively explained away. In theory, the living conditions should be “just as good” as those of the detaining officials: Addington, as such a detaining official, “should be glad” to stay at Guantanamo and be subjected to the same treatment. If he’s not happy, then that tells you something about the double standards: One for the arrogant attorneys, and a second for “everyone else” who is unfortunate enough to be at the wrong end of the Alexandria metro line.

    Congress has the obligation to ensure the legal community is fully trained, can provide the best legal advice, and that the US adheres to the laws of war. Despite the ABA certification standards and the so-called “benefits’ of the adversarial system of debate, this nation embraced the decision to use force, but ignored the requirements to lawfully attach to that decision all the ancillary requirements of Geneva.

    Congress and the Executive have a joint problem: As with the Downing Street Memo, they’re stuck with what cannot be undone. This Congress knows it has a problem in that it has done nothing between 2000-2006 to effectively communicate, lead, or otherwise check what Hamdan clearly communicates: There have been war crimes; the United States Congress and Executive have jointly assented to these war crimes; and there’s nothing in 2006 that Congress and the Executive can retroactively do to undo something that is a matter of international jurisdiction.

    Bluntly, unless the United States effectively oversees an internal war crimes tribunal, the world population will have to conclude: The United States is not effectively ensuring the rule of law prevails.

    The way forward is simple: There needs to be a broader examination, as there was with Nuremburg trials, Iran Contra, and Watergate, of the large pattern of abuse:

  • Ignoring legal experts. What was the mechanism by which DoD Attorneys like Haynes were permitted to shut out JAG military law experts; how will this be remedied; and should this happen again, what is a timely mechanism whereby the public can be timely informed of the problem, and that credible leadership can be injected into the nexus to swiftly compel full consideration of the legal implications.

  • Meaningless debate and oversight. How was Congress able to authorize force, but there were no sufficient internal controls, oversight, and mechanisms in place to ensure that Geneva was followed 2001-2006;

  • Legislative recklessness. To what extent was the debate in 2001 narrowly confined to specific topics, but the larger legal implications ignored: Once we approve the use of force, are we in Congress willing to take action to ensure that force is lawfully applied; and if not, are we willing to take action to regulate that use of force, even shutting off funding; if not, then individual Members of Congress show that they are reckless, and are equally complicit in the illegal conduct – they were in a position to engage in policy making, but refused to assert their delegated Constitutional powers to ensure the laws of war were followed.

  • Executive recklessness. Once Addington, Spike Bowman, Cheney, and Members of Congress visited Guantanamo, how did they get it in their head that the abuses were tolerable, regardless their view on the applicability or non-applicability of Geneva;

  • Detention patterns. Once Hamdan was decided, how do we look at the treatment of US Citizens in similar detentions: The RNC detentions after the 2004 demonstrations; and the “material witness” detentions immediately after Sept 2001.

  • Screening. How does someone like Baybee, who wrote a memo saying torture was permissible if it did not inflict bodily harm; yet Geneva requirements prohibit this excuse – how does someone like this get Senate approval to become a member of the Judicial Branch?

    Obviously, Congress made a decision, but that decision is not final, especially when there are issues of war crimes and the jurisdiction for these war crimes is not isolated to the United States, but is international:

  • Hamdan affirms the principle of the rule of law over all, even those in the legal community. Baybee does not have a Congressional immunity to have planned war crimes, nor assented to their occurrence; rather, he may lawfully be indicted by an international tribunal and lawfully executed if found guilty. No Presidential pardon is going to help him if the laws of war are fully applied. It makes no difference that he has or has not been impeached; or that the Senate is or isn’t controlled by the RNC majority.

  • Hamdan affirms the principle of procedures. Cheney, Bowman, and Addington were in a position to know the law; and they visited the facility; and they actively chose to ignore the Geneva requirements which Hamdan said were applicable. It makes no difference what they convinced themselves of, or what they did or did not share with Congress: They were personally witness to conditions that were not acceptable, and refused to take action that would fully implement the requirements. These are also war crimes.

  • Hamdan affirmed the principle of respecting requirements. It is not lawful to violate Geneva; and any decision by Haynes, Viet D. Dinh, or Addington to ignore the laws of war, or engage in conduct and planning that circumvented Geneva is also a war crime. That Congress voted to use force is irrelevant; attached to that decision to use force is the requirement to follow Geneva, not just on the battlefield, but in all aspects of warfare, not just as they related to the treatment of prisoners, but how the military treats civilians, including American civilians.

    The implications present a major problem for the United Sates Government over the NSA surveillance. Geneva Conventions mean that the United States may not use military power and technology – as the NSA is – in a manner that violates civilian dignities. In other words, even if Congress chooses to do nothing about the FISA violations, the Executive has already admitted to unlawful conduct against American civilians that is prohibited by Geneva.

    History is stuck. Congress has no power to undo what the Executive did or didn’t agree with AT&T before Sept 2001; rather, the Geneva Conventions protect American civilians against the abuses committed by its own government. In times past, the US government would have a higher standard, and exceed requirements, and the issue of international jurisdiction was not an issue: The US system of laws was sufficient to ensure that the US maintained the moral high ground (put aside the issues of illegal firebombing of Dresden and Tokyo).

    In 2006, the US as it was in 2001 is at the cross roads:

  • A. Will the rule of law prevail;

  • B. What excuses will be crafted to assert the laws do not apply;

  • C. What ruse can be crated to make the legal community – on all sides of the aisle – embrace legal fiction, and narrowly apply the law, when it should be broadly applied;

  • D. What legal non-sense is the ABA failing to challenge;

  • E. What will the ABA do when civilian lawyers – with no military law background – are publicly (incorrectly) asserting what Hamdan is or is not, and (absurdly) asserting that Hamdan -- an affirmation of Geneva requirements -- can be undone by an act of Congress.

    They might as well wish for the moon to be made of cheese.

    The experts are the problem. Again, the point is that the American public debate has been infected by a cess pool of stupid lawyers who are being given undue deference, influence, and power. They have abused the public trust and actively engaged in war crimes. Rather than fully enforce the reforms to ensure there is a reliable regulatory regime, they seek to further dilute the needed oversight. Enough.

    History provides a guide. The way forward is to broadly apply the lessons of Nuremburg, Watergate, and Iran-Contra and introduce to the legal stage independent prosecutors – from non-US jurisdictions – who can gather facts, objectively look at he matter, and make some informed assessments.

    These are matters of self-governance. At this point, it’s clear the Congress, American legal community, and the Executive are part of the problem. Hamdan was narrowly decided by a thin margin; had Chief Justice Roberts been permitted to vote and the White House given the chance to appoint another favorable judicial officer, the rule of law as recognized by and enshrined in Geneva might not have prevailed. This possibility cannot be lost; and the way forward is to devise a credible system that is going to ensure that the requirements are not cast to the wind as has the Congress and Executive done.

    The implications are serious. If the American civilian leadership is not willing to assert the rule of law, and you shut out the JAG expertise, then the US civilian leadership is subjecting itself and the civilian population to lawful retaliation and reciprocation by the international community. These are not idle threats. If the US refuses to self-govern, then the world has no other option to use military force – as this President asserted had to be done in Iraq – in order to return a nation to the family of law abiding nations.

    Yet, despite Hamdan, the US leadership and RNC Congress continues to believe that it can inter alia:

  • Negotiate its way out of the Geneva requirements;

  • Point to the Geneva Conventions as something that are discretionary;

  • Create legal fiction as to whether the use of force was or was not appropriate;

  • Spew forth convoluted arguments as to whether the use of force was or was not appropriate; or whether the prisoners of war were or were not appropriately treated; and

  • Ignore the real problem of not having accepted that the 2001 decision to use force attached at that time the explicit requirement to comply with Geneva, even in a manufactured war of aggression on another unrelated theater of combat.

    * * *

    Again, the point should not be lost: Once the use of force was being debated, the time to have discussed these issues, and the “complexities” of complying with the Geneva Requirements, was in 2001, not in 2006 after Hamdan.

    * * *

    When we look at Hamdan it’s incorrect to look at the issue narrowly in terms of whether the US Congress can or cannot make a law to legalize violations of Geneva. Rather, the larger issue is: What else do we have to examine before the decision was made, between 2000 and 2006.

    Someone inside DoD, the White House, and DoJ jointly agreed that the “way forward” was to use force; but that there would be no regard for the decision or non-decision to implement Geneva. Hamdan presents a problem for Viet D. Dinh, Gonzalez, Yoo, Addington, Baybee, Haynes, and others who, inter alia :

  • - Attended the planning meetings,
  • - Were well aware of the legal requirements,
  • - Had full knowledge of the illegal activities,
  • - Had full access to lawful resources to implement lawful plans, and
  • - Were instrumental in influencing the information provided to Congress.

    Also, not to be lost in this discussion and analysis is the use that the RNC made of propaganda, media messages, and other WMD-related arguments. Although the apparent public decision to use force in Iraq was “not until 2003,” in truth, we find the decision was made long before President Bush 43 was elected to office. When that decision was made, regardless the form of means the decision was made, attached to it, at that time, was the requirement that the laws of war would respected, followed, and adhered.

    It makes no difference that the Supreme Court in 2006 in Hamdan “narrowly” applied Geneva to the Guantanamo prisoners. The larger issue and application is that Geneva applies to the United States at all times including the period 2000-20006.

    As with Iraq and Katrina planning, there was a decision made without any consideration with the legal methods and resources required to fully support that decision. It’s one things to recklessly plan a war; it’s another thing to engage in war crimes; but a far serious matter when the pattern of war crimes is unchecked for six [6] years, and the DoJ FOIA-department continues to stamp, “We will not release that information related to our criminal war crimes planning.”

    We have on the legal plate pervasive war crimes. Someone was involved, they did not self-germinate as if mushrooms. There is no merit to any argument that the information is related, as it was argued with Watergate, to “national security.” Rather, the real problem is the secrecy has one objective: To permit the abuse of power to go unchallenged.

    We need to find out more in advance of the November 2006 election before we can make an informed decision. If we don’t get the information, we have to make the adverse inference that the information is material, relates to illegal activity, and would otherwise turn against the RNC. For that matter alone, we should conclude that there is a reasonable basis to do just that: Vote against the RNC. If there was good news, they’d be sharing it. Rather, they are silent with the good news, and trumpet non-sense and irrelevancies.

    * * *

    It’s time to listen to the JAGs. The issue is civilian-legal community war crimes committed by the personnel in the Executive Branch, fully supported by the Members of Congress, and a failure of the American jurisprudence and the ABA and civilian legal community to ensure the rule of law prevails. This is an utter failure of self-governance.

    The problem America has isn’t simply that it has committed war crimes, but the civilian legal community still has yet to grasp the enormity of the problem: The JAGs – the military experts – are still being sidelined; and the civilian legal scholars, most of which have no military law background, continue to spew forth non-sense about the implications of Hamdan.

    It is disconcerting to realize that the American civilian legal community despite Hamdan is stil spewing forth legal non-sense. The time to listen to the JAGs is at hand:

  • What discussions were the JAGS excluded 2000-2006;

  • How were the JAGs removed from the pre-Iraq-invasion plans, and how were their concerns (as documented in the UK Goldsmith memos and other memoranda inside the US DoD) sidelined, not given the needed attention, and resulted in additional war crimes in Iraq through the illegal war of aggression;

  • What evidence of Article 82 Geneva – the legal duty lawyers have to ensure the laws of war are implemented and adhered to – have Addington, Gonzalez, Yoo, Baybee, and Viet D. Dinh violated;

  • Which specific Congressional debates and decisions were made with reckless disregard for the Geneva Requirements;

    * * *

    It is misinformed legal fiction and delusional to argue, “Congress voted for something it must be legal.” This Congress voted to authorize force, but failed to ensure the laws of war were followed.

    Rather, this Congress after being informed there was no evidence of WMD – the necessary element to justify a first use of force – failed to comprehend the gravity of the situation: The US had illegally waged a war of aggression in Iraq; yet this Congress was still providing funds to that illegal war of aggression.

    Congress is not in a position to say, nor should anyone believe, “Congress voted for it , so it must be legal.” Rather, the answer is: Unless Members of Congress remove themselves from their unlawful support of war crimes, they could be indicted by an international court for their active planning, assent to, and failure to stop war crimes.

    It is also legal fiction for anyone to argue, “Because we voted for Bush, we’re all in this together, so keep your mouth shut.” Rather, those who were involved are responsible; those who refused to distance themselves are complicit; those who were the targets of this abuse are not to blame.

    It’s our job to send the wake up call: The leaders (who where in a position to [a] know the laws of war, [b] ensure they were followed, but [c] failed to prevent unlawful activity) are the ones who have committed war crimes. The primary responsibility belongs on the legal community, Members of Congress, and the Executive Branch that planned, supported, and fully executed the illegal activity.

    * * *

    Yet, there’s another major problem for the American legal community, Members of Congress, and the Armed forces: You’re all volunteers. You freely chose to inter alia:

  • Take oaths to promise to follow the laws of war and all treaties

  • Ignore the laws of war

  • Wage, support, and plan an illegal war of aggression and violations of Geneva

    The other problem is that you have freely certified through your Continuing Legal Education that you are interested in the law, willing to protect the Constitution, and that you are going to assert the rule of law to protect the Constitution. Yet, on all counts, your conduct shows the opposite:

  • Professional negligence. Despite the training you have received, you’ve failed to assert the rule of law on matters which you supposedly have demonstrated that you are trained and an expert;

  • Professional malpractice. Despite your ABA-related requirement to not make legal misrepresentations, you’re continuing to make comments about the nature of Hamdan, yet you fail to fully grasp the legal issues, and significance Hamdan has for the legal community, Members of Congress, and the civilian planners;

  • Professional malfeasance and recklessness. Despite there being no draft, nor a requirement by the government that you serve or perform any duty, you volunteered to ignore the laws of war, support/wage an illegal war of aggress, and not ensure that the Geneva requirements were fully implemented as required.

    What’s the RNC’s approach? They blame the DNC minority. That’s not leadership, but more evidence the RNC despite Hamdan isn’t serious about leadership, accountability, solutions, or ensuring this does not happen again.

    * * *

    The real issue of Hamdan is that by affirming the US between 2000-2006 was subject to Geneva, it doesn’t matter whether the Executive and Congress assent to illegal NSA activity. By choosing to do nothing despite what is known, Members of Congress and the American legal community have illegally agreed to assent to violations of Geneva by the US military against the American civilian population. These are subsequent war crimes, evidence of malfeasance, and further evidence of the problem which the JAGs need to speak publicly:

  • What is to be done when the civilian leadership assents to war crimes committed by the Executive against the American civilian population;

  • What is to be done when the civilian leadership refuses to investigate evidence of illegal activity, violations of Geneva, and other war crimes committed against American civilians;

  • What is to be done when the civilian leadership pretends that they can explain away legal requirements, but they have an other to ensure that these requirements are fully implemented.

    It is the job of the American military to protect the Constitution from domestic enemies. The issue is how bad does the situation have to get before the JAGs speak out, and provide the necessary legal information this American legal community needs:

  • What is the plan to gather evidence of Geneva violations committed by Members of Congress and the Executive in failing to ensure US citizens are treated with respect, despite legal obligations and oaths to preserve civil society.

    Either the US legal community can do this, or the external nations – as they are already doing in the EU in re rendition – can do in parallel. The point is that as with Nuremburg, it was not the Germans who self-imposed order and discipline to Germany, but it was an international court which did what the local population refused to do: Assert the rule of law.

    * * *

    We have no leadership. None. We have excuses, hand waving, and whining about why the laws of war are or are not giving people rights and privileges. Irrelevant. It’s time for the real discussion to begin.

  • Poor return on investment for legal training. Why is the nation spending vast sums of money to train military personnel and JAGs on issues of the laws of war, but ignoring that important information;

  • Reckless leadership. Why is there an American Bar Association that apparently has no internal controls, nor assent to outside monitoring, and has failed to show it can credibly ensure that the best legal minds rise to the top to effectively challenge illegal employment of executive power

  • Oaths are given lip service. Why are people taking an oath to protect the Constitution, but they show no inclination to stand up to the domestic enemies of that document, and refuse to implement orders and plans related to illegal violations of treaty obligations;

  • Loyalties to things other than oath. Why despite a so-called oath to the US Constitution, do Members of Congress assent to violations of the law, treaty arrogations, and other misconduct which wholly undermines any reasonable public confidence that the Members of Congress take their 5 USC 3331 obligations seriously

  • No evidence of asserting rule of law. When there is no evidence of an imminent threat, when does the civilian leadership in the United States plan to conduct a war crimes review of the war of aggression and hold accountable for the deceptions and illegal war.

  • Failed checks and balances. How are this many lawyers in DoD, DoJ, and the White House and Congress able to organize a plan of this scale, and cause this many problems around the globe, yet there is little evidence in the period 2000-2006 that the rule of law was going to prevail;

  • Refusal to shut down funding for illegal things. What is it going to take to ensure that wars of aggression are adequately mitigated;

    If you look at the above trends, you’ll see that it’s a complete breakdown of civil society, governance, and the rule of law. Why would anyone in Iraq want to embrace such a system or those who advocate it’s “benefits”?

    * * *

    We can do this the easy way or the hard way. You can be permitted to flounder around, further embarrassing yourselves, and making it more obvious to the voters that you’re incompetent and are unfit for leadership; or you can step aside, and let credible people who are willing to truthfully report the facts and outline a credible system to solve the problem.

    Either way, you’re not part of the solution. Right now, the problem the world has is that you’re in a position of power, but you have demonstrated no competence to use that power, nor are you willing to use that power in a manner that is consistent with what you freely promised to do and are required to do: Assent to the rule of law, legal obligations, and the US Constitution and Geneva.

    The way forward is to plan for an international commission that is going to investigate; and something that the public is fully aware and has confidence. The problem is that the US leadership is disparaging the very people who might be able to objectively review the facts. Consider the problem of Rendition, EU, war crimes, and the UN. The larger units like the EU and UN are pointing to problems; but the US in both cases of rendition and war crimes is saying the EU and UN are irresponsible. How absurd, especially given the US has shown no evidence of fully meeting its legal obligations.

    Bolton and Rice have taken quite an interesting approach to the laws. The problem is that they haven’t provided the leadership, they’ve contributed to the problem. DO they have a credible system in place to gather facts, present a bonafide argument, and outline a plan? We need only look to Iraq to find the mess the State Department leaves us.

    The problem is that the US has failed to produce a single person who can credibly come forward and say:

  • We are independent

  • We have the power to gather evidence and look at any document

  • We will objectively review the full events between 2000 and 2006, including the sham 9-11 investigation, and review the abuse of power this Congress has assented to.

    The problem is that the US refuses to assent to this review; the only option you lave the nations of the world is to lawfully subdue you on the battlefield or through international pressure. The reality is that despite the potential of international sanctions, the world community – and the US through the veto – refuses to assent to the rule of law.

    There are many options:

  • The States can independently conclude that they have an imminent threat to their republican form of government, and discuss among themselves and other nations what is to be done, and the State AGs can take action to prevent the violations of Geneva [Ref: 14th Amendment];

  • The International Community in the General Assembly can discuss this matter outside the Security Council and coordinate a common plan;

  • The voters can wake up and find new leadership;

  • The world community can simply agree to gather and organize the facts and issue indictments, then lawfully render to The Hague those who have engage in the war crimes.

    * * *

    Internally, it’s rather simple what can happen: Competent fact finding, careful investigations, and a review of the situation by legal experts who have full, unfettered access to the full National Security Council information, White House documents, DoD planning memos, and the internal memos within the Department of Justice and DHS.

    We can either use the evidence as it exists; or we can make adverse inferences against those who refuse to cooperate and provide that evidence.

    The problem for the legal community is that the courts can reasonably conclude many things based solely on the open, public record:

  • There have been crimes;

  • The Executive has assented to and confessed to those crimes;

  • Geneva applies, but there remains no evidence of an immediate or imminent threat needed for a war or aggression;

  • At the time that the FISA violations, the Executive branch did not follow clear requirements nor conduct credible reviews;

  • Personnel in positions of leadership, legal expertise, and at the working level within DoJ, DoD, NSA, and White House knew these requirements were ignored, and actively planned and cooperated with others to avoid detection of that criminal activity;

  • The American legal community, specifically Addington, Yoo, Gonzalez, Haynes, and Viet D. Dinh among others well knew they had a legal duty to uphold Genera, were aware of Geneva, and well discussed the legal risks of war crimes violations, but chose to ignore those requirements;

  • Members of Congress have individually known about, suspected, or were present when they should have taken action to prevent the abuse of power, or conditions which assented to the abuse of power and violations of the law; and

  • This Congress has assented to, not stopped, and is now actively thwarting inquiry into the violations of the law, lack of required imminent threat, and other illegal acts related to Geneva violations.

    We make the adverse inference that this has one objective: To deny the voters of the needed information to make informed decision about:

  • Who they can trust

  • Whether there is or is not a plan in place to find facts

  • What reforms are needed, if any, to resolve this problem and prevent its recurrence.

    The only thing the RNC is offering is non-sense and excuses. That is not leadership. That is malfeasance. The way forward is to decide whether you, as a voter, are serious about protecting your Constitution.

    You are going to continue to hear non-sense about why things do or do not apply. Arguably, those points are irrelevant in that by choosing to support the use force, the Congress chose in 2001 to attach with that force the agreement to follow Geneva. This Congress failed to implement and impose that requirement.

    It’s been six [6] years. They’ve known since 2000 what they planned to do in Iraq: Engage in war crimes, engage in a war of aggression, and violate the Geneva conventions. You were also denied in 2004 the evidence of the NSA illegal activity; and the Executive, Gonzalez, and Yoo has not cooperated with the court to ensure the court was involved in the decisions as the law required.

    * * *

    The problem the RNC has is that they abuse others to get power, but that does not inspire the best. Rather, they drive out the best, and ensure that when they really need help the experts are not there.

    Curious that a system that prides itself of using force to export democracy is incapable of engaging in civil debates and free exchange of ideas at home, even among those who are supposedly afforded the protection of secrecy. For anyone to credibly believe that the information related to the Cheney energy commission needs to be “secret” in order to “ensure free flow of ideas” is fooling themselves: If there was a legitimate goal of “exchanging ideas,” then we should benefit from that secrecy: Have a better flow of ideas from the experts. This did not occur.

    Where there is no record of a benefit of that secrecy, but the contrary, we cannot permit that secrecy to continue. Rather, we have to conclude the opposite: Secrecy has been invoked evidence of illegal planning, and deliberate efforts to thwart discussion of the known war crimes attached to this war of aggression in Iraq, and the illegal activity which would impose an unlawful government in violation of Geneva.

    This is a dubious contention. The reason America has a problem is that it has silenced the experts, and refused to listen. The world no longer has to sit idly by waiting for Americans to get it. You have to demonstrate that you have woken up, and are willing to assert the rule of law.

    Judicial deference to expertise is problematic. It is foolish for the officers of the court to ask the public to “defer to experts on matters related to the law and other national security information” when the pattern of abuse clearly shows that those experts have abused teir public trust, not applied their expertise, and have used “national security” to hide the abuse of power and violations of domestic and international law.

    * * *

    The world no longer cares whether Americans do or do not get it. They do care that they, as sovereign nations and impendent people, are given the respect that Americans demand as a birthright around the globe..

    With respect to the current problem facing the DoD in Guantanamo and applying Geneva, there are some simple things that can be done:

  • Create the open detention centers that comply with Geneva, and permit open co-mingling of the prisoners in large groups;

  • Conduct lawful, respectful inspections of the facilities for contraband;

  • Engage in frequent changes of the living conditions so that prisoners are moved out of the central area, placed in a reserve holding area of suitable housing, and then conduct a thorough search of the facility, grounds for evidence of tunneling.

    I have little regard for those who say that things are too difficult. Under the laws of war, prisoners of war have a lawful obligation to make every effort to escape and aid others to escape. That should be expected. The way forward is to recognize that they are lawful combatants, prisoners of war, and the US chose to create this problem in 2001 when it authorized the use of force. If the US does not like the situation it finds it self, then it had the option to choose another route in 2001. The Congress chose to hitch its wagon to the Executive’s fiction in 2001, and the Congress has refused for five years to review whether those facts need to be revisited.

    * * *

    History offers a guide. Unlike WWII where the United States mobilized for war and defeated many Germans and Japanese, in 2001-2006, the United States is merely engaging in a largely police action against a few thousand angry and violent individuals. Rather than swiftly contain the problem, the Untied States has waged unlawful war on a second, unrelated front, and compounded the problem. This is not something for the DNC to solve in 2006 – there are two more years until there is potential election, but the real change in the national leadership will not come for another 2.5 years in 2009.

    There is plenty of time to gather evidence. There is not statute of limitations on war crimes. At home we have an election in 2006 and 2008. Between now and then, there’s every possibility the Senate could shift to the DNC majority; in 2009, in the final weeks of this Presidency, the Executive and his able companion Cheney could lawfully be impeached and removed from office. After 2009, other nations may lawfully prosecute war crimes and no Presidential pardon can immunize anyone from an international tribunal.

    Leadership means creating a solution, and supporting an environment which will solve problems. The RNC is fooling themselves if they think, as a solution, that they can yell louder, make excuses, or spew forth non-sense. Unlike 2004 where it was simply the US domestic population that was upset, now the entire world knows the problem: The US has engaged in war crimes, there is no evidence warranting a war of aggression, and the US refuses to self-govern.

    Again, WWII was about a clear mandate. Sept 2001 was another mandate, but this RNC leadership has not simply squandered it, we find out that they were already violating the law before the mandate existed.

    In 2006 we and the world know more: There are options, and the present RNC control on power is not eternal. There is no excuse for the failure of the American Bar Association and the American legal community in failing to ensure that the real experts on Geneva were timely heard, given the needed platform within the system of governance, and that the legal community timely, aggressively asserted its oath. Where you have failed, you have let down your clients – the American public and Our Constitution.

    Your job as an attorney is not a singular position to abuse power, nor is it to protecting your war criminal clients from accountability. You may choose to pretend that this is merely a criminal matter. No longer. When you choose to defy the courts, and permit the rule of law to be subjected, you are no longer a civilized member of the legal community. Rather, you are now subject to international law, not something you may have expected. However, you’ve assented to what is not lawful, and you are now you should have forseeably known was possible: Targets of an international war crimes investigation, not simply your clients, but you – as an attorney – in your active role in planning and assenting to illegal conduct and war crimes.

    Putting aside the issue over your disbarment, when you choose to corrupt the courts and refuse to protect the Constitution, you are sending a clear signal that the only forum you recognize is the battlefield. You are legal experts, not trained in the ways of combat. You have shown since 2000 that you have little respect for the laws of war. Should it come to pass that this “issue” with the failed, reckless American legal community must be resolved on the battlefield, may you be subjected to the full range of abuses and mistreatment you have failed to prevent, stop, or otherwise contain.

    Congratulations, you have successfully awoken a civilian population to the domestic threat to the US Constitution: The American legal community.

    This legal community has failed. They have actively cooperated with war crimes. They have worked hand in glove with Members of Congress and the Executive Branch. This failed American legal community is reckless. It has permitted war crimes to continue unchecked, and assented to an abuse of Executive Power. It cannot be trusted to assert its oath.

    The American legal community has failed in its oath. There needs to be a mechanism that will effectively oversee the officers of the court. Even if the oversight mechanism is reformed, they must be subject to the full force of justice they well perverted.

    They wished this