Illegal War Crimes Plan: Proposed American POW Trial Procedures
The United States Government has drafted legislation which violates International law.
This conclusion is stunning given the recent Hamdan case. The Supreme Court concluded that the procedures to try prisoners of war were not legal.
Spell Checked: Additional Comments may be added [Covering last 4-5 pages of draft bill]
Ask about the exceptions/waivers to these procedures; and the classification of those plans to not enforce these requirements.
Notice the actionable offenses: [28 of 32] -- These are the same things that DoJ Staffers could be convicted of in hiding evidence of DoJ AG knowledge of, and suppression of evidence related to DoJ Staff attorney violations of Article 82. All the provisions the US may seek to impose on others, are alleged violations committed by Gonzalez, Yoo, Addington, and others on the DOJ Staff. This bill, if passed, would form the basis to indict the DoJ Staff for alleged war crimes 2000-2006.
29 of 32: Illegal weapons: This applies to Iraq and US failure to stop use of illegal weapons. Haynes should allegedly know about this violation, but didn’t' stop it as he is required.
Discussion about "protected property" is meaningless: Under laws of war, foreign nations may attack civilians if the US abrogates the Geneva. The US government cannot reasonably expect American civilians will be immune to attack when US attacks civilians abroad.
The draft bill does not contain uniform notations: Not all deleted text from the UCMJ has been identified
Ref Following illegal trial procedures for POWs is a war crime. It is illegal to pass rules which permit, and/or fail to stop violations of Geneva.
Ref Geneva Article 3 is clear.
Ref Hamdan affirmed Geneva requirements, and struck down procedures which were not consistent with judicial procedure.
Ref These procedures are not lawful, and if followed would amount to a breach of Article 3.
Ref The legislation if passed would amount to a breach by the American legal profession for violating Article 82, in failing to ensure that the laws of war are fully implemented.
Ref 18 USC 2441 already defines this legislation as illegally permitting war crimes:
“war crime” means any conduct— . . .(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict
Ref 5100.77 is the DoD Laws of War program. A responsibility of the Secretary of Defense to ensure the laws of war and 5100.77 program is fully implemented and followed within the Department of Defense. This is a requirement. He has no choice.
It is not acceptable for American civilians, regardless the accusations, to be tried before a military commission, when habeas has been denied.
The procedures are, as they stand, to be drafted by the SECDEF. However, this presents a change from the UCMJ which imposes this burden on the President. [Ex: 16 of 32: Sec 222 (a) vs Article 46 ] Yet, the President faces the prospect of an impeachment for a crime if the President's-directed UCMJ procedures are not consistent with the District Court; no similar ready-consequence applies to SECDEF for procedures which violate Geneva. Please discuss the change, and how the DoJ plans to investigate SECDEF should the procedures violate Geneva. What provision will be given to ensure the DOJ is not allowed to classify, suppress, or otherwise thwart Congressional Committee and public access to any information related to these SECDEF violations of Geneva.
The requirements are clearly stated in Geneva: Ref
However, no proceedings or punishments contrary to the provisions of this Chapter shall be allowed.
The draft bill permits the following:
These provisions alone violate Article 3 of the Conventions which, inter alia
When asked about the proposals, Attorney General Gonzalez said [paraphrasing] he would have to think about what did or did not consistent abusive treatment.
This is a red herring.
The Provisions prohibit misconduct or outrages on prisoners. It doesn't matter whether the United States does or does not have a clear definition of torture, abuse, or other mistreatment. We've seen through the Bybee memo that these definitions simply become the wiggle room for DoJ and DoD to ignore.
Rather, the opposite approach must be taken: What procedure will fully comply with the Geneva Conventions, and ensure that the prisoners are treated with respect, and all times.
This bill fails to respect the Geneva Conventions, and simply duplicates the Article 3 abuses which Hamdan struck down.
Specific Illegal Activity
Draft: Ref
UCMJ: Ref: UCMJ Article Numbers in the draft bill correspond to the paragraphs in each section.
11 of 31: Section 211 Permits coercion or other mistreatment. This is not lawful. Also, it is not lawful for evidence from this mistreatment to be used at any time against the accused.
211(b) incorrectly, and narrowly creates the impression that the "confusion about whether something is or is not torture" would otherwise permit mistreatment. This is false. The correct approach is to rely on and start with Article 3, not the US Code [UCMJ], as the foundation for the procedures.
12 of 32, 213(b): Hearsay. It is incorrect, and a violation of Article 3, to permit hearsay with a broad brush. The correct approach is to say, "legally recognized exceptions to the hearsay rule are applicable, at the discretion of the court."
12 of 32, ADD 213(d): CERTIFICATION: The Secretary of Defense shall ensure in the report to Congress a reason why there have been exceptions to the hearsay rule. The Secretary of Defense shall certify that he is in full compliance with the Geneva Conventions, and the requirements have been fully implemented through the 5100.77 DoD Laws of War Program."
I'd feel more comfortable if there was specific guidance that, as with Article 36 the procedures are emphatically required to be consistent with the Federal District Court procedures. We need a summary table showing there is a comparison:
[a] Geneva requirements
[b] What the UCMJ requirements
[c] Proposed DoD procedures
[d] Federal district court requirements
12 of 32, ADD 215(c): It shall be unlawful for individual Members of Congress to propose a bill, resolution, or legislation targeting specific litigation or ongoing cases being tried by the Military Commissions or any Article III judicial proceeding or Article II administrative hearing. Only the Court asserting Article III powers may take any action affecting ongoing litigation. Violation of this provision by a Member of Congress is sanctionable by 1 day in jail, and a $10,000 fine, payable to the Chamber Sergeant at Arms.
12 of 32, Section 214 (b) This provision is meaningless. There needs to be an enforcement mechanism which expedites judicial review; reimburses attorney fees; accelerates the FOIA discovery requirements; and otherwise compels the GAO and Congressional fact finding on matters related to war crimes. The current language imposes a meaningless provision to “not sanction” those who report a problem. Rather, the time that a JAG spends on the proceedings should be considered when evaluating their qualification to attend senior defense training; JAGS should otherwise be afforded the options non-chargeable separation allowance time [read "a period of time after the discovery/trial process that is not chargeable as leave, but also does not count for purposes retirement"] so they can attend refresher training at government expense, as required/desired, at civilian institutions, and otherwise review information they have not had the time to review while on trial. These incentives should be substantial enough to attract military legal experts to be inclined to accept nominations for difficult, controversial, and otherwise unpopular high profile cases.
13 of 32, 215(a) : Need something that specifies with some precision the budgeting, and other staff that Trial counsel will have access to so that personnel support is adequate for the trial publication, media coverage, and release of motions and trial transcripts.
13 of 32, 215(b)2 need some better precision on what is meant by "relevant misconduct." Does this mean that "not relevant" misconduct is something that the disciplinary board may find is a problem, but otherwise still issue a "highly qualified rating" for Presidential nominations to the Senate for confirmation? Also, why are we restricting counsel to only US citizens -- what if someone wants to hire private counsel who is an expert in International law, is not a US Citizen, but is otherwise a fully qualified expert on the legal matters?
Also when talking about "eligibility" of access -- that is different than qualified: Does this mean that the trial could be delayed until the lawyer was "qualified" to review? Using this "edibility" criteria means that a lawyer could be "eligible" to review something, but not qualified or approved to do so, thereby ensuring counsel is never in a position to represent the client. This is an unacceptable delay in the trial. The language should be: "eligible and qualified for access to classified information within twenty [20] days of retention."
13 of 32 215(b)3 This section illustrates the problem of section (a) narrowly limiting civilian counsel to US citizens. If the defendant has two counsels -- a military and civilian -- then what is the rationale for (apparently) not allowing the defendant to have civilian counsel that is a non-US citizen from their native country that can interact with the defendant's military counsel. In practice, this should address the Geneva 3 requirements that counsel be able to understand the defendant’s cultural requirements, and otherwise effectively interact with the defendant and military counsel. Please discuss why there are two counsel provided, but no latitude on having non-US citizen civilian counsel.
13 of 32: Section 216: This illegally contradicts the right of the defendant to hear the charges, and other evidence they are otherwise entitled to hear. This violates Article 3, and is not consistent with the Hamdan finding that these requirements must be enforced and followed.
As with state secrets, the trial must disentangle the evidence; and the defendant must be in a position to challenge the veracity of the witness and cross examine them. The court should take measures to ensure that the information is presented in a non-classified setting; and that only information that the defendant can hear is used against them. If the information cannot be heard by the defendant and challenged, why should we believe that the information has withstood the challenge of the adversarial system?
Not withstanding the illegal procedure that may review evidence outside POW access, the defendant, if excused for any reason, should be given a fair chance to have a non-classified version of the data provided so that the defendant is able to understand what has happened behind closed doors and they are able to competently assist in their own defense. The last thing we want to do is confuse them further.
14 of 32: Anytime someone is escorted out of the court, A Member of Congress or their staff should be present to witness the proceedings. Members of Congress and their staff should be afforded deference to hear the classified information, and otherwise report back to their respective committees’ potential problems related to the Executive using illegal methods which violate the US Constitution. This information shall be forwarded to the House Judiciary Chairman and Ranking Committee Staff for investigation and review.
15 of 32; 216(4) We judge the blacked out text is "denial of a fair trial."
15 of 32: 219: Oaths. We're noticing many terms within the UCMJ removed. For example UCMJ reads: "prescribed in regulations of the Secretary concerned. " but the draft bill is different, prescribed in regulations of the Secretary." What's the reason for removing these words; and does Congress recognize that DoJ has removed key words from the UCMJ before introducing them into the bill? It would be helpful if there was great visibility of, and discussion on the reasons for this change in language.
Notice: "assistant trial counsel" is remove, but there is no provision in the bill for the associate counsel (those so designated) to get access as with the UCMJ. Please discuss the inconsistencies. [See 13 of 32 215(b)3; and 216]
Discuss the removal of Article 43 Page 16 of 32: IS there contemplated no statue of limitations on the crimes; are we presuming that all crimes are war crimes? If so, then what provisions will be made for non-judicial and administrative punishments that the Military Commission may conclude are more appropriate forums: What is the statute of limitations in this area?
Article 44 has been removed. Does the Congress want to permit multiple trials for the same offense; how many times will the government be afforded the power try to defendant for the same crime; can the Judge retry the same case and charges at their own discretion?
Change between UCMJ and draft bill: Article 45: "sought" vs "adjudicated" 16 of 32. Please discuss the nuance of "seeking the death penalty" vs. "adjudicating". One is an affirmative objective [of whom/what: Government/court? If so, how are they impartial]; while the other is a matter that is decided after the evidence is heard, and something that is not certain. Please discuss the change in language and the objective of the trial. Would the defendant understand [a] the objective of the government at trial [death penalty] may be different than [b] what the court may sentence or what is permissible given the findings and elements proven?
Later inconsistency: [See: 18 of 32, Section 244(c): "if there is reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt"] where the objective is not achieved, and death is not sentence.
Also: 19 of 32: Mentioning non-capital cases.
16 of 32: 222 ["to any place where the United States shall have jurisdiction thereof"] This phrase is not acceptable. It provides discretion that should US forces, contractors, or other agents indirectly related to the US deliver a prisoner to non-US jurisdictions, that anything can happen to them. This is not lawful and Contrary to Geneva Article 3. Please discuss the change in language; and the plan DoD or others may have to deliver defendants and prisoners to locations "outside" US jurisdiction.
17 of 32 222(b): "As soon as practicable" -- Should SECDEF or anyone "not feel like" doing something, this requirement could mean "never".
Moreover, if there is evidence proving they are innocent, how can you say this is "classified"? Rather, the proceedings should simply end and the prisoner left. There's no reason to discuss whether the information is or is not disclosed. Rather, this determination should be immediately made when the information is obtained, not at trial.
The draft bill does not include UCMJ 49, 50, depositions and records. These sections are important. They include situations where witnesses are not available, or material cannot be authenticated. There is no possible way evidence from non-available witnesses can be challenged. This violates Article 3 and is not consistent with Hamdan. What will be done to review the lessons learned of the GTMO trial failures [lack of evidence, witnesses not available, non-existent evidence]; and ensure the proposed bill before Congress addresses these defects before we proceed with passing this bill?
Article 50A What is the reason for removing provisions to find not mentally responsive [See UCMJ 50A "the accused shall be found not guilty only by reason of lack of mental responsibility"] from 17 of 32: Section 223?
17 of 32: 224: How will the vote be verified, and what is the procedure to check this vote is accurately recorded and presented to the court? [Deleted: "The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court." and "The junior member of the court shall count the votes"]
Alert: Notice 18 of 32, 225(a): Text is lined out. This implies that there is an acknowledged change from the UCMJ. However, other changes have not been similarly identified. Please discuss the reason for the inconsistency on the disclosure of the differences between the draft bill and the UCMJ text.
18 of 32: 225(a)2: Death penalty by (2/3 + 1) vote is not consistent with the US Code. This deviates from Geneva 3 and is not consistent with Hamdan. This is a breach of the laws of war.
Alert: President is mentioned, but SECDEF makes rules: 18 of 32, 225(b)1: POTUS is given power (from where?) to state that an offense is a death penalty; but there's no provision for Congress to review this with 60 days of this bill. The President could say that anything is punishable by death. How is this possible; and what will be done to review what might be a serious infraction of Geneva -- sentencing someone to death for a trivial matter?
19 of 32: Article 53 removed, not indicated: What is the plan to announce the conclusion of the military commission?
The Senate Judiciary questioned the Attorney General on 2 Aug 2006. In so many words, the AG stated he would have to review the definitions of various terms before commenting. However, Article 3 clearly states that general abuse and outrages may not be committed. In short, it doesn't matter what torture is; the general mistreatment of prisoners is banned; and there is no excuse for the mistreatment of prisoners.
Rather, the mistreatment appears to be related to a larger effort to gather intelligence. Those who mistreat others to get information show they are not civilized.
20 of 32, Section 228 prohibits mistreatment of prisoners. Please discuss the Attorney General's (apparent) lack of comprehension of the Geneva Article 3 banning outrages. It appears as though the attorney General is relying on a legal nuance which is a red herring. The Attorney General should be able to respond to the question, and correctly state that the law cannot be violated for whatever reason; and that a legal definition of torture (however narrowly defined) does not give the government permission to engage in other mistreatment. Rather, more generally Geneva violates all mistreatment and outrages.
We judge the Attorney General is taking a legalistic view of a narrow definition of torture as a deliberate distraction from his known involvement, and failure to prevent violations of Geneva while he was White House counsel. In short, a case could be made using open evidence, inconsistent statements that the Attorney General has allegedly violated Article 3, and is currently involved in a deliberate effort to shift attention from his alleged war crimes by asserting that the illegal conduct is otherwise (illegally) classified.
Section 228 is flawed in that, when narrowly as the Attorney General prefers to (arguably illegally) do, would otherwise permit mistreatment that is not mentioned. This is a misstatement of the law; and the attorney General should be reviewed by the Texas bar for this apparent legal problem.
To correct this recurring problem, Section 228 should be updated to explicitly state that "Geneva Article 3 may not be violated when imposing punishments."
20 of 32 Section 229 is of concern. It contains references to the President. However, these procedures are not something the President, but the SECDEF, is responsible. The
"President", if he will be listed in Section 229, has to have a balanced reporting obligation and duty to report. This bill does not include this requirement. The bill needs to be changed. The correct approach is to include a mandatory reporting and certification in writing by the President, not just the SECDEF.
If this change is not made, we can reasonably expect the SECDEF to claim ignorance or confusion on something the President did behind his back without his knowledge. The solution is to impose the reporting obligation on the President, thereby confirming that the President is nothing more than a ministerial clerk when it comes to ensuring that the will of Congress is appropriately followed. Moreover, the President must have a mandatory reporting requirement within this bill so that should he refuse to report on his (arguably illegal) violations of Geneva, which will be a subsequent crime to which he is impeached. Moreover, this bill remains weak an ineffective.
To have real teeth, there needs to be a mandatory provision that the House Judiciary Ranking Member given the power to investigate the allegations of illegal activity. This will ensure that even if a party illegally thwarts investigations, someone in the Congress will have the power and 5 USC 3331-recognied ministerial duty to review the evidence. Without this provision, despite violating the requirements, there is no effective trigger than will compel a mandatory investigation by Congress of the President. Until these changes are made, this bill should not be supported.
If this bill is enacted into law, this defect should be made known to the courts that the Members of Congress have failed to include an otherwise mandatory requirement of Geneva that the requirements are fully implemented. This will thereby introduce into the record for a war crimes tribunal that the Congress, despite being knowledgeable of the Article 3 requirements, and the known solution that would compel investigations, that these Members of Congress were reckless in not enacting regulations that would put the Geneva requirements into full force. This would amount to a war crime by Members of Congress per Article 82.
Two [2] UCMJ Articles [ ART. 56. MAXIMUM LIMITS, ART. 57. EFFECTIVE DATE OF SENTENCES ] have been deleted. There is no notation of explanation why these UCMJ provisions have been excluded. Please discuss the basis for the exclusion; and the impact of not including these provisions:
- Is there a provision where POWs who have committed violations could be simply put on probation, released;
- How will they be tracked after release;
- Will the US have jurisdiction to enforce US POW-related parole in non-US jurisdiction;
- What happens if the released-POW engages in conduct outside the area where US forces are engaged in combat operations: Does the US reserve the right to kidnap the former POW and render them back to the detention center for subsequent trial?
- What method will be used to ensure that the US is fully respecting the sovereignty of those nations involved?
- How will interpol be used to track, monitor, and otherwise direct US forces to engage in this kidnapping?
- What happens if the US wants to violate the laws of another nation: What provision will there be to provide the POW information to the courts in those nations where US agents are being prosecuted for war crimes (as a basis to explain the violation of the law; what happens if those records have been destroyed; or there is no evidence in those POW files)?
[ 20 of 32, Section 230 Article 58 ] Section 229 and 230 are not consistent. The latter only includes SECDEF in procedure-making; while the former includes both the President and SECDEF. This inconsistency has not been adequately explained or justified. It indicates that different people have updated the various UCMJ provisions; but there has not been a consistent "single voice" applied to the entire document. Please provide Members of Congress with a copy of the final DOJ Draft, with all comments so that we may have a better ideas of the reasons for the inconsistency.
Failure to provide this question warrant the Senate Judiciary Scrapping the entire DoJ work product, starting from scratch, and publicly accomplishing the task of ensuring the procedures fully comply with Article 3. The current DoJ draft bill fails to provide us with sufficient information to understand what is inherently entrenched in the legislative language.
Section 230 incorrectly assumes Article 58 provisions do or do not apply. This phrase ["whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed"] has been deleted on the incorrect assumption that a POW will not be released.
It is clear from Guantanamo that some POWs have been illegally detained. Deleting this phrase is of concern. It suggest that the errors of GTMO have not been adequately factored into the bill, and there is no adequate provision for adjudicating that a POW is innocent, and can be released. This is not acceptable. The draft bill needs to be reworked.
Please discuss:
Section 230 contains a curious overlap with Article 58. Under the UCMJ and various NATO Status of Forces agreement, the base commander may choose to assent to local law; and local authorities can request that the serve member is tried in a public court. They may also request that the military member be turned over to military police.
The issue before us with the POWs is somewhat different. In order for the US to exercise power through a Military Commission, the US has to be physically in control of the detainee.
Yet this provision ["Persons so confined in a penal or correctional institution not under the control of one of the armed forces are subject to the dame discipline and treatment as persons confined or committed by the courts of the United States or of the State, Territory, District of Columbia, or place in which the institution is situated.] which has been lifted from Article 58, incorrectly states that prisoners not under US control would be subject to US Military Commission.
This is shocking. This implies that any US Citizen detained in a civilian jail could be subject to trial by a Military Commission. Conversely, it suggests that the US Military Commission would have jurisdiction over prisoners detained in any court worldwide. This is not consistent with Statute.
Please discuss how the above provisions relate to the current detention of personnel, POWs, and other rendered personnel as they are detained in Africa, Europe, or other CIA-related facilities.
- How does the US propose to impose jurisdiction on courts outside the US?
- When POWs are held outside the US in non-US-controlled facilities, how can the US credibly say that the Military Commissions will have authority or jurisdiction?
- How will the agreements related to the POW transfer (between foreign jails and US Military Commissions) be formalized in a public document?
- What provisions will be made so that the Senate can publicly discuss the treaty implications of the POW transfers between US Military Commission and foreign jails?
- How many briefings has the Senate been given on the ongoing prisoner transfers?
- Has the US Senate approved any Secret Treaty terms which permit the transfer for POWs from foreign soil to US courts?
- When does the Senate leadership plan to discuss the Geneva implications of having secretly signed legislation that permits the kidnapping of personnel, detention in remote facilities, and then secret trial?
- How many American civilians has the US Senate, through this secret treaty provision, given the US Military a "green light" to otherwise kidnap, take to foreign soil, and detain them?
- Does the Senate leadership understand that secret agreements to permit Geneva violations against American civilians are a war crime?
- What did the Senate leadership get told to justify "classifying" this illegal agreement?
- What was the Senate leadership thinking when it passed this provision that would otherwise permit Geneva violations: How did the Senate plan to explain its agreement to permit war crimes; were the Senators under the believe that the illegal activity when so classified could not be discussed?
- What is in the mind of the Senators to make them believe that they have to be silent about Geneva volitions and changes to US treaties?
- Do the Senators understand that by agreeing to these secret changes, they have failed in their 5 USC 3331 obligation to ensure the US Constitution is protected?
- Do the Senators comprehend that their silent agreement with this illegal conduct, and their refusal to remove themselves, and their refusal to stop the funding for this illegal activity would amount to a war crime?
Note the last sentence 20 of 32, Sec 230: This has been added to the text of Article 58:
Any sentence to confinement will have no effect upon the ability of the United States, in accordance with the law [stet] of war, to detain enemy combatants until the cessation of hostilities.
This term is vague. "Hostilities" in the case of events between 2001 - 2006 are overly broad. Please discuss how the hostilities, which otherwise violate the laws of war, will or will not end. How do we have an "end in war on terror", when "terror" is not a thing, nor can it be defeated. Rather, the "end of terror" is vague.
The language is overly broad, vague, and note enforceable.
Let's consider the other issue: If someone has been "continued" as a punishment (as opposed to being put to death), it is not reasonable to permit them to be detained for a non-serious war crime for no duration.
As it stands, if someone is found by a military commission to have committed a minor offense such as simply 'being near' a battlefield, they could under these laws be detained indefinitely for innocent behavior, that the Commission may otherwise punish them for. The correct approach is to permit them to be released even if the United Stats continues to engage in the phony "war on terror."
Suppose someone has been accused of "aiding" terrorism; but in fact they have simply been accused by someone with a grudge. This Administration asserts the defendant can be accused without any evidence; nor are they entitled to get access to the accuser as this would "violate" sources and methods. This is not acceptable. Rather, in order to mitigate against phony accusations, the US should make it known that people in Pakistan and other nations who hold a grudge cannot rely on the US to blindly detain others; rather, when they make an accusation, they will have to be willing to back that accusation up. Moreover, the US agents and interrogators will also have to be mindful that they are not engaged in imminent hostilities, but in law enforcement. This means that they do not have the right to, as they do in Iraq, to beat down the doors and abuse those out of frustration.
Overall, the above language is overly broad and permits too much abuse. The proper approach is to ensure that the accusers are held to account; and that the detainee is given the chance to cross examine people who may have otherwise hoped to use the cloak of "sources and methods" to make wild accusations simply to remove someone from the commercial sector, or a competing firm.
This phrase ["(b) The omission of the words "hard labor" from any sentence of a court-martial adjudging confinement does not deprive the authority executing that sentence of the power to require hard labor as a part of the punishment."] has been deleted without comment.
Please discuss:
Please discuss:
- How will taping be provided to the ICRC to ensure that the interrogations and prisoner treatment are appropriate
- What will ensure that the taping of the prisoners is not published, thereby committing another abuse [barring outrages: Is a POW’s voice-publication/broadcast similar to a photograph-publication otherwise prohibited?]
- In those cases where the prisoners have been abused, what will be done to ensure that the "risk of violation of Geneva" (in a sudden "concern" for their rights) will not be the excuse to otherwise not comply with a Brady requirement to provide evidence of misconduct?
- Where prisoners have been abused, how will this evidence be used as a balancing to ensure that they are released as a means to act as a deterrent against abuses inflicted upon the prisoners?
- What provisions will be made to ensure that these safeguards are subject to no-notice random audits by the ICRC, Human Rights Watch, and government auditors?
- What will be done when the President's [made up term] "Civil Oversight Board" (or other review boards) are not willing to investigate patterns of misconduct?
- Where there is a pattern of misconduct amounting to what the legal community should know is a failure to implement Article 3, 5100.77, and the laws of war, what provision will be made to ensure that the legal experts are subject to a swift investigation for possible disbarment?
- How will continuing legal education (CLE) appropriately include the reporting requirements on attorneys for their knowledge of peer involvement in, and peer failure to stop, violations of Geneva?
- 5 USC 3331 currently is enforced when there are clear ministerial duties to enforce. What specific provisions and duties on Members of Congress will this bill include to ensure that evidence of misconduct triggers a mandatory investigation and review requirement upon individual members of Congress?
- Will members of Congress be briefed on the illegality of classifying illegal activity in violation of ORCON?
- Will Members of Congress be held liable for failing to ensure that the laws of war are fully implemented; and
- How will failures of Members of Congress to take action, investigation, order IG review, or follow-up on this matter have any meaning unless there is a recognized liability under Article 3 that Members of Congress can be held liable for war crimes if they fail to investigate the patterns of abuse?
Geneva Conventions stipulate that officers, leaders, and POWs will be separately housed. They will be appropriately reimbursed and given varying pay.
There are certain provisions that the UCMJ recognizes that impose consequences on enlisted personnel that are different than those imposed on officers. For example, an officer may not be required to perform hard labor.
This section of the UCMJ has been deleted [858a. ART. 58a. SENTENCES: REDUCTION IN ENLISTED GRADE UPON APPROVAL] from the draft bill. These provisions include reduction in privileges.
How do DoJ and DoD envision prisoners will be treated when they are not sentenced to death, but are otherwise indefinitely held. For example, in situations where the prisoner is punished, does DoD propose to "reduce them in rank" and otherwise impose on them punishments that would otherwise, because they are not prohibited in this bill, be endorsed?
- What will be done to ensure that the Military Commission does not impose sentences that are unreasonably disconnected?
- Will there by a system of parole, monitoring, and ongoing oversight to ensure that the [a] war crimes trials; do not [b] produce sentences that [c] then trigger administrative hearings because of discipline problems?
- What will ensure that conduct wile in detention is appropriately segregated from conduct that is on the battlefield?
- Some courts prohibit, under the rules of evidence, character related evidence. Some character related evidence may be related to people who hold grudges against the people before they became POWs. Also, there is some ongoing information related to the detainee conduct while in detention. Under the laws of war prisoners are instructed to use any means to escape. This is not a war crime.
(1) What will be done to ensure that the lawful resistance a prisoner engages in while being detained is appropriately separated from the basis for their detention?
(2) Will the Military Commission be forced to work within the character-related evidence restrictions used in Courts?
(3) What draft guidance does DoJ and DoD plan to provide to Congress on how non-combat related information will or will not be used against a prisoner [character related, otherwise prohibited; medical records, otherwise privileged; POW conduct while in detention]?
(4) Will it be permitted under Geneva for medical doctor notes to be introduced as character related evidence; or will the information be recognized as privileged and not admissible?
(5) what special rules of evidence will DoJ and DoD coordinate through Addington to ensure that the Article 3 Provisions are fully implemented and recognized?
(6) Do Addington, Gonzalez, and Haynes plan to make new excuses to suggest that there need not be special rules of evidence related to POWs?
(7) What is the specific reason -- other than they are lazy, stupid, and incompetent -- that Addington, Gonzalez, and Haynes are otherwise not willing to put into writing the specific rules of evidence they knew, or should have known were requirements and should have been in place since 2001?
(8) Once combat operations were launched in 2001, what discussion within DoD and DoJ related to the problem of rules of evidence?
(9) Why, in 2006, fully five years after agreeing to engage in Geneva-covered combat, are there no rules of evidence related to the trial of Prisoners?
(10) Do Members of Congress realize that in the absence of these rules of evidence, the US has failed to ensure that prisoners are given the information they need to know -- before engaging in planned activities -- what the consequences might be; if not published, does this really comply with the "fair notice" and "presentment" requirements?
(11) Would it not be easier to simply promulgate the standards of conduct the US plans to impose on all people; and then let the world debate: "Is this US-imposed standard of conduct something that we want to recognize?"
(12) Going further, would it not be in the interests of the US -- if it wants to send a message that it is for the rule of law -- that it promulgate the rules of evidence that the US plans to impose on any person around the globe, regardless whether the US is or is not in a position to lawfully enforce those rules?
Let's review. Essentially what the US is doing is defining that the US can impose US law anywhere, regardless whether the US does or does not have sovereignty over those regions or people. This is an expansive view of the US law and power, which, for it to be fully implemented, would require all peoples to be subject to the whim of the President. Recall, he has under this bill the power to define any punishment he deems. This is troubling in that it illegally creates the (unrealistic) expectation that the US President's will prevail over all world peoples; and that any nation that resists this encroachment might be (inappropriately) labeled an "non cooperative" with the phony "war on never-ending terror."
In short, by asserting a "war on terror" the US is asserting that the US has absolute power to ensure that anyone on the globe, regardless their citizenship, must assent to the US rule, even when that US action is illegal, contrary to domestic law, or otherwise violates Geneva. Under those circumstances, the US not only has no legal standing to expect a requirement; but under Geneva any citizen may lawfully resist that illegal abuse of power.
This bill does one thing: Establishes the President as the world dictator; and any person who disagrees with his encroachment may be targeted.
This is not consistent with the narrow confines of American sovereignty which only goes as far as the US borders and faculties under US control worldwide. The US does not have the power to promulgate standards of conduct that the US on a whim may enforce. Conversely, the problem with his assumption is that it fails to ensure that the same standards of conduct -- on DoJ Staffers a they relate to DoJ OPR -- are similarly disciplined.
Again, there are alleged war crimes by DoJ Staffers in their refusal to stop illegal conduct. The above rules when applied to the world fail to adequately demonstrate the US DoJ is willing to assent to the same norms of society that it would impose arbitrarily on everyone else. This is arrogant and should be reviewed by the American Bar Association.
Most telling is that the basis for the detentions in Guantanamo are not linked with evidence, but simply accusations. yet, when we speak of alleged DoJ Staff war crimes, they suddenly want a higher standard of evidence -- in this case, DoJ OPR is blocked. what's curious is that the rules of evidence as they related to the American legal community over their complicity over war crimes is not balanced by the rules in these military commission procedures. Again, this disparity is what will fuel greater resistance to the United States.
The proper approach is to narrowly define the laws as they relate to US DOJ Staffers; and demonstrate that the standards of conduct -- as outlined in this bill -- will be first imposed and applies to the DoJ Staff. After than date, the best approach would be for the US to work with the ICC and cooperate in ensuring that the rules of procedure and rules evidence which the ICC has promulgated on matters of war crime are fully embraced, not ignored, or replaced with a set of rules which violate Geneva.
As it stands, the US is crating a new system o international law and procedure wholly on a whim, without coordinating these procedures with any other nation. Rather than re-invent the wheel, what is stopping the US from saving time by working with the existing procedures in the ICC or US District Court? Again, there’s no merit to the argument that the ICC does or doesn't do something, as the US -- with these procedures -- similarly shows an inconsistent application of those basis principles.
It is one thing to explain away abuse on the grounds that we are looking for a 'perfect solution'; quite another to say, "Because we have no perfect solution, we would rather engage in war." That is not civilized. The proper approach is to work for peace; once peace is achieve, we can amicably discuss which core principles -- if any -- will or will not be respected. At this juncture, the US has no credible basis or moral authority to argue that its view of peace or general principles are or are not superior to anyone else’s. It's clear the US approach is once sided; and the evidence that DoJ Staffers know of misconduct and have failed to report is simply inspires greater contempt for the American legal community which otherwise embraces the expansive view of power, without regard to whether that power as it is applied is lawful or consistent with either the law or US treaty obligations.
20 of 32, Sec 231[Article 59: "substantial rights of the accused"]
Geneva requires information to be provided to prisoners. This relates to the rules and other conditions of their confinement. The US justice system also permits prisoners access to legal documents.
The term "substantial rights of the accused" is something that he courts have opined on.
- What provision will be given to prisoners so that they may independently review what the terms "substantial rights of the accused" means?
- How will, as required under Geneva posting requirements, the prisoner be reliably and timely informed of the "substantial rights of the accused"?
- Will POWs, upon capture, be read their rights?
- If this provision is violated, what remedy will there be: Will the court downgrade their sentence; will their case be dismissed; will they be freed upon showing that they were denied the Geneva Conventions?
The point is that if there is a requirement, as with the US justice system, those rights have to have a remedy. One remedy is for the Court to impose sanctions -- by way of suppressing evidence, ignoring misconduct, or otherwise ignoring infractions.
- What will be done to ensure that procedure requirements of Geneva and the provisions within this bill if violated will face some sort of sanction?
- How will the JAGs be given the information they need to ensure, when they are working with new, untested procedures, that they are given the recognized power and right to file a motion that would throw the case out [full dismissal, release] on the basis of a procedural violation?
- Will the 5100.77 laws of war program appropriately include these Miranda=like provisions so that the DoD personnel, CIA civilian contractors, DHS personnel, and others on the DOJ Staff fully know what is required, and what abuses may not be lawfully classified in contravention to ORCON?
It is one thing to assert that POWs have "substantial rights" but if those rights, when violated, face no remedy, the right is simply a word on a piece of paper. we need to have a mandatory sanction that the world understands the US plans to abide by, and thereby give fair notice to all on the DOJ Staff, DoD, CIA, and NSA: If you violate these rules, it is not lawful to classify this misconduct. Rather any effort to block investigations is a subsequent illegal act, and no President or Member of Congress has the power to block reviews or hide the illegal conduct behind secret treaty agreements or in classified settings.
Under our system of laws, our constitution outlines our substantial rights. What is disturbing with this bill is that it consistently undermines the basic judicial tenets which Article 3 otherwise says must be enforced: Right to a speedy trial; power and right to cross examine witnesses; and reasonable notices of what the requirements are.
This bill attempts to rewrite world law while at the same time ignoring the basis tenets of the US Constitution. This is not acceptable. In doing so, the crafters of this bill have simply sent another signal to the American public: The DoJ Staffers have a poor understanding of the Constitution, Geneva, international law, the UCMJ, and human rights.
Moreover, it raises serious questions whether, upon stumbling across these infractions, any member of the DOJ Staff, or DoD General Counsel will be able to comprehend a DoJ OPR reporting requirement.
Again, the point is that the JAGs have been (once again) shut out of the process. It is inappropriate that the Judge Advocate Generals, who well interface with issues of war crimes, military law, and other international law in re Nuremburg and Ludwigsburg -- have been shut out. They are trained professionals.
I expect the American Bar Association to exercise some leadership, and ensure that the draft bill as proposed includes a timeout whereby the DOJ Staff is given some refresher training on their Article 82 obligations, Article 3 requirements, and given some better leadership within the DOJ Staff. Clearly, the DoJ Staff is suffering from a leadership problem. If the US chooses to dovetail military law, Geneva, and DoJ, then we need to appoint a permanent position on the White House staff, Vice President’s staff, DoJ Staff, and the White House legal counsels office a Judge Advocate General who will have the ability to freely report to the media and members of Congress evidence of:
Until the JAGS are given the access, power, and the authority to check the reckless disregard Addington, Yoo, Gonzalez, and Viet Dinh have shown toward Geneva, this nation is wasting its time trying to pass rules that otherwise do nothing to ensure that the US Judicial System (cross examine witnesses, be present for trial, see evidence) has any meaning. This bill throws that out the window, then would ask the world to accept this absurd system which violates Geneva be imposed.
This is not acceptable. It is a war crime to follow these procedures; and not nation or its citizens need seriously look to the US as a shining example of judicial leadership. Rather, this bill will simply be used as further evidence the US plans a Pax Romana approach to the world, without assenting to the established procedures in the ICC.
The US is free to go its own way. But the world has no legal barrier to taking up arms and lawfully engaging the US on the battlefield to remedy the inherent war crimes within this bill. This bill is reckless.
Ref [ 860. ART. 60. ACTION BY THE CONVENING AUTHORITY ]
21 of 32: "shall be reported promptly" is vague. In the minds of "prompt" [as Gonzalez has interpreted FISA], this amounted to illegal conduct between 2001, and 2006, but no action.
Either: Prompt means what it means: "Immediately", or it means something else: Hours, days, months, years.
Which? Again, if you fail to define the specific time limit, then Gonzalez and Addington will simply do what they've done: Define "prompt" to mean "as is convenient or could be waived by another excuse" to mean "never." We need a specific number: 24 hours, and then a meaningful sanction if this is violated:
- How will the US government remedy the defect;
- What will the US do for the family of those who are being detained;
- How much money will the prisoner be paid for the failure to comply;
- What evidence will the US agree to provide to the ICRC for the violations;
- What method will Congress use to investigate;
- How will the patterns of abuses, violations, and mistreatment be publicly available so that there is pressure on the otherwise lazy members of Congress who do nothing about war crimes and other violations of Geneva?
- Will this conduct be something that is subject to review, audit?
- What will be done hen the auditors destroy their working papers?
- When Members of Congress now of this conduct, is it a war crime for them to pretend that it is "classified" even though it is something that the world community should be told about?
- What incentive will there be for US personnel to report illegal war crimes outside military channels when the President blocks investigation into war crimes and other conduct which violates the US Constitution?
- Will Members of Congress be given the discretion to use campaign funds to otherwise reward members of the National Guard, local militia, and other forces under Congressional control to report this evidence?
- What will be done to ensure the bounties to report misconduct an war crimes are substantial?
- Will there be "extra big bounties" for reporting evidence that shows the DoJ Staff is aware of war crimes, or that the Attorney Geneva has lied about whether the DOJ Staff was or was not "too busy" to comply with the law?
- What effort will be made to impose sanctions on DoJ Staffers who attempt to pretend that illegally activity is "classified," when they should otherwise know that ORCON does not permit the classification of this illegal activity?
- Will the Senate be compelled to investigate illegal activity or alleged war crimes violations per Geneva 82 when that lawyer appears for nomination?
- What provisions will e made to compel fact finding on judicial officers when they are fond to have been part of a conspiracy to violate the laws of war?
- Will Members of Congress "provide standing" to the POW so that the POW can initiate s suit against the Camp Commandant if the Commander violates the laws of war; or the DOJ Staff refuses to take action on well known violations of Geneva?
- Will Members of Congress know that they face an Article 3 investigation if they are connected with an effort to pass legislation affecting ongoing war crimes litigation?
- Will Members of Congress have, through this bill, a mandatory requirement they self-report their knowledge of illegal activity to anyone; or can they "be sure nobody will find out" so long a the DoJ Staffers keep saying, "Hay, you can' talk about this illegal activity, it's dubiously classified in violation of ORCON"?
This phrase ["such a submission shall be made within 10 days after the accused has been given an authenticated record of trial"] is meaningless. Hamdan found the US Senators had altered with retroactive changes to the Senate transcript.
- What method will be used to impose sanctions on the court officers and government if the trial transcript is changed to misrepresent the facts?
- When an official transcript is not correct, inaccurate, misleading, or otherwise misrepresent the situation, what will the remedy be?
- What recognized rights will the JAGS be able to assert on behalf of the POW to ensure that this misconduct is immediately reported outside DOJ OPR to the relevant State Bar for attorney discipline?
- Will the trial transcripts be something -- if tampered with -- be considered an official document, which the personnel will know is action subject to sanction for tampering with?
- How will evidence of transcript tampering be factored into charges against the US Government and military personnel involved in these Geneva 3-related violations?
- What will Congress do to strip the Executive of the power to invoke "executive privilege" on a matter that is actually a record of the defendants case?
- Will there be restrictions on the "terms of release" that will restrict DoJ or DoD from imposing any gag order on any defendant for false claims abuses?
- Shall it be illegal for the US government to pay someone a "settlement" or a "discharge fee" in exchange for dropping all claims?
- Should the agreement to "not sue" the US in exchange for "we'll let you go" be something that is not enforceable?
- When someone commits abuse, it is not recognized that an "agreement not to sue" sufficient consideration to enforce that agreement. Is the US willing to promulgate procedures of what will be done when the US officials do violate this principle of civility; and will the POWs be provided information of what to do if this kind of misconduct occurs?
- What plan does the US have to invoke "state secrets" to keep prisoners quite about misconduct that violates Geneva?
- Where in the US Constitution does Addington, Gonzalez, Yoo, or Viet Dinh find language that permits the President to classify evidence of war crimes, illegal activity, or FISA violations?
- Unless there are legal tools and support and incentives to report and investigate war crimes, this bill is meaningless. Does Congress plan to make it known that the US will reimburse all attorneys fees, as it does with 42 USC 1983, when DoD personnel attempt to litigate unlawful retaliation for reporting [a] war crimes, [b] violations of the Constitution, [c] FISA violations, or [d] other conduct that violates clearly promulgated statues and clearly established rights?
- What is the DoJ Position on Brady requirements [to provide evidence possibly in favor of the defendant] when it comes to ensuring that the software companies developing these data-archiving systems [as a means to support the Military Commission] will fully comply with the Geneva Conventions?
- Recall the lesson of FISA: Software was crated that allowed violations of the requirements. Will there be a bounty system in place, and contract language within the DOJ or DoD contracts that lets software engineers and contractors know they can be rewarded for reporting software glitches or problems that permit violations of Geneva?
- Will this bill expressly include language that makes it illegal for a software company or other information technology firm [Like IBM] to illegally support war crimes, or otherwise provide data system which permit war crimes to continue without detection, report, and avoid sanctions?
- What technology development incentives will Congress give to cooperating contactors so that the US does not rely on one contractor for IT support, thereby making "prosecution of their war crimes support" something that is a bar to their prosecution: "Hay, we can't find anyone else to do this, so we can't possibly hold the software engineers or company liable -- if we throw them in jail, we'll have nobody who can do this work."
- This bill should direct the SECDEF to update the 5100.77 program to ensure there are incentives and protections in place for DoD personnel to report violations of the Geneva Conventions. What sanctions and remedies will be promulgated through the DoD Laws of war program 5100.77 what may happen to DoD personnel when they are threatened with retaliation for reporting on war crimes?
This sentence has been deleted: ["(3) In a summary court-martial case, the accused shall be promptly provided a copy of the record of trial for use in preparing a submission authorized by paragraph (1)."] Article 60
Given the deletion of this phrase, does Addington and Gonzalez stipulate: "Because there is no mention, we will not recognize the right of the defendant to use or rely on the transcript?"
By deleting the phrase, does DoJ envision that the defendant should not reasonably expects to rely on the transcript?
Is it a DoJ Policy that the transcript need not be in a native language, understandable, correct, or provided?
What is DoJ's position on the reason for deleting this paragraph?
Is it DOJ's position that "promptly" could mean (as Gonzalez did with FISA warrant requirements), "Subject to waivers, exceptions, and other excuses that essential defeat the bill's intention: To ensure there is a transcript available within six [6] hours of the end of the days proceedings?
Given we have real-time translation capability on CNN (real time translation that posts the text on the screen for those who [a] do not like to listen to whiny CNN anchors {complain about meaningless drivel, while ignoring the fact that our Constitution is being trashed by godless heathens and alleged war criminals on the DOJ Staff}; or [b] are hearing impaired), what's stopping the government from promising to meet a reporting-delivery of the transcript immediately after trial, and then a certified copy of the transcript (to it's correctness and accuracy) within 12 hours?
This sentence has been changed: [The authority under this section to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority]. Article 60
A change-reconciliation page includes original; changes; reasons for the change; and a discussion of impacts. What plan does DoJ Staff have to provide a change-reconciliation report to Members of Congress?
As to the specific language:
The authority under this section to modify the findings and sentence of a court-martial is a matter ofcommandprerogative involving the sole discretion of the convening authority.
The current military commissions are a hybrid, and arguably problematic. Rather than ensure that civilians are protected, and otherwise tried in open court, the military is given wide latitude to prosecute conduct that might otherwise be prosecuted in a civilian court.
Part of the UCMJ process, as with FISA, is a commingling of powers within a well regulated system. In practice, this Executive, Addington, and Gonzalez have taken the liberty to ignore the principles, and the rules. Of concern is the possibility that the President could invoke Article III judicial powers, and self-appoint himself as a convening authority thereby granting himself the absolute power and discretion to wage an illegal war; hide the evidence of war crimes; then accuse those who speak about the illegal conduct as being terrorists; then retroactively change the trial transcript to fit into his world view. This is tyranny.
The current bill fails to act as a circuit breaker. Rather, these are rules, as with FISA, which even if implanted, strike at the heart of the Judicial System: They permit violations of the practices civilians are otherwise afforded, thereby violating the Article 3 requirement that the trials of POWS follow civilized norms of the commonly held judicial system.
The bill leaves open the question whether the President can unilaterally change the findings of the Commission, and what crime he will have committed by intruding into this otherwise Article III judicial matter. In so many words, this bill permits the President to retroactively define crimes, define procedures, and then change the transcripts to ensure the evidence of American war crimes is never known. This is not acceptable.
There needs to be better definition of how the principles of the UCMJ -- a they relate to recognized Command authority to impose judicial remedies -- is contrasted with the US civilian courts which separates this consolidation of rule making, adjudication, and record keeping into three branches. This separation would be consistent with Article 3 requirements that bars the President from interfering with ongoing litigation; and would otherwise Prevent the President from crating false trial records in order to prevent reports of violations of the law.
A better approach is to have a recognized right of the defendant-POW and defense counsel to independently file in US district court a motion when it can be shown that the trial transcript has been alternated. Also, there need to be methods by which defense counsel shall get an independent transcript, outside US court control, which can be used to compare the official transcript with the backup. At this juncture, given the US Senate's recognized misconduct in Hamdan of retroactively changing transcripts, this should be something that is resolve at the outset.
A better solution would be to simply follow US District Court procedure and rules of Evidence, rather than attempt to mandate US citizens be tried before US military commissions using this UCMJ approach which permits abuse, and unreasonable consolidation of legislative-judical-exuecutive power within a single forum.
A better approach is to ensure that the war crimes transcript is independently fed through outside observers; and the transmission -- if interrupted -- would be the basis to rely on the back-up system. The interruption would be probable cause to conclude that there is a problem with the evidence, and that evidence of prisoner’s abuse or government misconduct is warranted. It would be appropriate that the UN General Assembly have a keen insight into these US procedures, and ongoing litigation so that Members of the UN General Assembly can decide whether the oversight system of the US is sufficient, or whether the UN General Assembly should independently make adverse inferences that the US is engaged in illegal war crimes, or conduct that violates the US rules of procedure that are otherwise available through the US district court.
Is DoJ willing to submit in writing a certification to all members of Congress that the President has no plans to assert Article III powers through this means?
This phrase is problematic ["The convening authority or other person taking such action, in his sole discretion, may approve, disapprove, commute, or suspend the sentence in whole or in part."] ARticle 60 (c) (2) 21 of 32: Section 232 (c) (2)
The convening authority could be the President. This means that he could "suspend" the sentience.
- Does the President plan to outline the procedures for probation of the POWs?
- Where will the President detain those who are on probation?
- If the sentence is "suspended" how will the President release the personnel?
- A suspended sentence means that if something happens by a specific date, then a result will happen. However, this is vague. In this case, the "end date" of the POWs conduct is not related to conditions that the POW can control; but are up to the President to define: When is the "war on terror" over. How does the President plan to engage in "ongoing combat operations" [which otherwise have a non-end to them], while at the same time doing something by some specific date?
- Does the President plan to suspend a sentence until X-date, even though the prisoner might be still detained as a POW?
- What use is to "suspend" a sentence, when the actual combat operation (which are apparently endless) may be well beyond that end date?
- What does the President plan to do when the "suspended until-date" is met, but that date is well before the end of Combat: Does the President plan to use the parole-hearing process that will determine whether someone is "worthy" to be released?
There could be American civilians detained in such a system. The President has the power to make rules, define the punishment, and keep the "war on terror" forever going. What is to be done when the accused-civilian is found to have been detained for reasons that are dubious; and the US has simply locked people away, with the hopes of silencing them on the evidence of war crimes:
- What provision will be used to ensure that the POWs is actually related to a bonafide charge;
- How will Habeas be introduced;
- How does the Congress reconcile the [a] apparently endless campaign; with [b] the possibility of parole or " prisoner get well date" with [c] the possibility that the American justice system (as required under Article 3) has a Habeas standard compelling the court (not the Executive Branch or Commission) to review?
- If someone has been thrown into this military commission system, what will be done to ensure that the POW is actually a bonafide POW, and not someone who has been accused on dubious evidence of being related to something that is not criminal conduct?
- How will the US Justice System (which includes Habeas) factor into the equation: How many days can a POW sit in limbo before the Defendant/POW and POW's counsel can move in district court to have a Habeas review
- What if the POW contends that, despite the changes -- which DoJ has not coordinated with Congress; or new rules the President promulgates outside the UCMJ, as he did with FISA -- the actual process is not lawful: Will Congress give that POW standing to have within 45 days a Habeas review outside the Military Commission?
Overall, it is not impressive that the clear Judicial requirements under our system of laws and jurisprudence is being trashed; and this UCMJ system is being imposed on what could e innocent civilian behavior. This is a subsequent violation of Geneva which requires that US law be followed: American civilians be tried in civilian courts, not hauled before a military commission in a distant land, out of reach of any number of private counsel they may choose to consult at any time.
This bill permits marital law, codifies a system of laws which permit the President to define anything as an illegal act, and in now way meets the what Hamdan affirmed was the obligation of the US under Geneva 3 to ensure the US system of justice is applied. Rather, this bill is a mechanism to pretend that American civilians, and any citizens in the world can be arbitrarily detained on the basis of dubious evidence, without any prospect of challenging the detention. This is merely another bill which codifies tyranny, a dictatorship, and military control of what is a civilian issue: Are we free or not to report evidence of illegal conduct; or will we be threatened to remain silent about the illegal conduct under punishment of infinite detention or possible death based on dubious information.
Given the reckless disregard for the law, there is every reason to believe that members of DoD will -- in this hyped sate of non-sense, whereby they blindly assent to violations of the Constitution -- will fail to comprehend the real problem: This bill merely confines the illegal imposition of military law on anyone who attempts to assert the law against those in the Executive Branch.
if this is what you propose, rest assured, you are simply inspiring the combat forces of other nations to train with greater resolve to defeat Americans not just on the battlefield, but in your homes, and in your places of worship. This bill does nothing to send a signal the US is serious about the rule of law; but sends a clear signal to even the most convoluted thinkers that the US will make excuses to abuse power. Such an approach clearly violates Geneva 3, and forms the basis for Americans to reasonably conclude this DoJ Staff remains a threat to this Constitution, and continues to defy its 5 USC 3331 obligations.
If you would like to impose these terms on Americans, then you are sending a clear signal that you arbitrarily state that the Constitution can be abrogated on a whim. That is not lawful. This Congress and Executive have unlawfully assented to the abuses between 2001 and 2006; there is every reason to believe it will require similarly Herculean efforts to win another Hamdan like case.
This DoJ needs to be very clear: Are you proposing that US Citizens be subjected to military law on the basis of accusation alone? If that is the case, then American citizens should take note: We have had a coup; and this DoJ Staff is fully prepared to continue to defy its 5 USC 3331 obligation to make your Constitution irrelevant.
If this is DoJ's position, then we need not seriously discuss your proposals. We are to return to the Supreme Court, review the Hamdan and ask the question: What does it take for the DoJ Staff to put their legal training into practice: Your Supreme Court has already spoken; Geneva is a requirement; and civilians may not be subjected to the outrage of having the US Constitution abrogated; nor may civilians be tried on your whim by a military court.
If you refuse to cooperate with the rule of law, then all nations in the UN General Assembly may lawfully conclude that the problem is within one building: The DOJ Legislative Liaison office, and your arrogant, reckless defiance of your 5 USC 3331 obligations to protect the Constitution. You demonstrate you are not serous about your oath, or the US Constitution; rather, you clearly demonstrate you fail to comprehend military law, this bill, and the Geneva 3 requirements to ensure the US Constitution is fully enforced as it relates to civilians.
Your conduct demonstrates that you are not reliable, you remain a threat, and the world nations may lawfully take up arms and force you to assent to the requirements of civilized society. Is this what you prefer? The world has been reminded with this bill that the problem at the heart of the US government is the defective legal training the DOJ Staff has, and its reckless disregard for the rule of law.
You are alleged war criminals: You are making plans to violate Geneva; and you continue to defy your Supreme Court. If you choose to impose this requirement on anyone, the world is already prepared to use combat forces against Americans. The US, because the DOJ staff has refused to assert the rule of law in re Geneva, has waged illegal warfare in Iraq, and now the US forces are in retreat, and outnumbered. Also, US combat reserve forces have been defeated and exhausted.
How does DoJ Staff plan to defend itself against what the world may look at as a green light to launch combat forces into the US and directly target your offices? Your NORAD shows that it cannot do simple things during peace; you have no prospect of a credible defense or barrier to being lawfully attacked. Do you comprehend that this is the course you are taking this nation; and the lawful retaliation that other nations may take under Geneva if you continue with this arrogant disregard for Geneva 3 is to bring the combat operations and battlefield to DoJ's doorsteps?
This phrase has been deleted: ["The recommendation of the staff judge advocate or legal officer shall include such matters as the President may prescribe by regulation and shall be served on the accused, who may submit any matter in response under subsection.]
- Do Addington, Yoo, Gonzalez, Viet Dinh, and Haynes stipulate that this "Deletion" is a "removal of this restriction"?
- Is it DoJ's contention that by removing this clause, the President is not barred form doing this?
- Is it the Executive Branch's contention that by "not making a comment on this" the President has "in the vacuum of no language" the discretion to define the language and assert powers where "Congress is silent"?
- How does the President, or others in DoJ and DoD, plan to assert power and preserve "new relations" that otherwise violate the Constitution, and ignore Geneva 3 requirements a they relate to this bill?
- Is it the plan of the Congress and Executive Branch to preserve the "unitary theory" which permits the Executive to draft secret memoranda, outlining programs that violate the law?
- How does Congress explain passing legislation and appropriations bills which effectively permit expenditure on things that are illegal, contrary to the law, and in violation f Geneva?
This bill is fair notice that DoJ has a hard time understanding Geneva, Hamdan, and the Constitution. What is the reason that Members of Congress, after reading this bill do not immediately put on hold all nominations of DoJ Staffers who have had an impute to the drafting of this bill?
Do Members of Congress feel comfortable having on the bench Members of the DoJ Staff that have approved these procedures which amount to war crimes?
What plan doe members of Congress have to review the Nuremburg war crimes against prosecutors, attorneys, and other legal experts for their crafting of language which permitted violations of Geneva?
Does the Congress comprehend that by passing this bill, the Members of Congress have failed to stop illegal activity; their inaction and failure to stop this activity is a subsequent basis of war crime indictment?
Do Members of Congress comprehend that those who drafted this bill have no intention of complying with Geneva; and that this bill forms a reasonable basis to question their commitment to the Constitution, US treaty obligation, and other 5 USC 3331 obligations they have to ensure the rule of civilian law, not a military dictatorship is in work?
Do Members of Congress comprehend that, this bill will be the catalyst for increased combat requirements, additional DoD outlays, and other government expenditures to combat the very people who use this bill to take up arms?
Do the individual Members of Congress comprehend that this bill is a catalyst for world outrage and contempt of the US -- in that the US makes a mockery of the rule of law and civilized society -- and will likely drain additional valuable financial resources and extend the "end date" for the already nebulously defined "end date" for the war on "terror"?
In so many words, this bill, as does the action in Iraq, will do nothing but make the problem worse, backfire, and be in the long run costly, further isolating the United States. These risks are foreseeable. It is well within the scope of possibility that this bill, if enacted, will lead to substantial combat requirements around the globe, require a military draft to support, and replay the events of Vietnam. The only difference is that he US could go bankrupt.
If that is the kind of world you want to create, then feel free to pass this legislation. This bill is reckless, and sends a clear message to the world" We will do what we want.
If that is the case, then Members of Congress and the DoJ Staff are making that bold statement without the resources or credible forces in place to put your money where your mouth is. Rather, by making a bold commitment, but failing to ensure you have the lawful resources in place to support that arrogance, you will simply insure the world to continue their resistance to this absurdity.
Members of Congress are already outnumbered. You have squandered American resources. You have the power to shut this off, but you continue. This bill will be the green light to the world: The only way this Congress and this DoJ will be forced to assent the rule of law is through open combat and defeat on the battlefield. Is that within your scope of mental capacity to comprehend? Your Supreme Court has already stated the requirements; yet this bill throws your Supreme Court's ruling to the wind.
Perhaps it is time that the world, General Assembly, and those who desire to enforce Geneva throw the DoJ Staff and Members of Congress to the wind: And compel you to appear under threat of lawful use of force, to appear before a Grand Jury to explain this reckless approach to the law, and utter contempt you show for Geneva, and your apparent inability to comprehend the law. This is absurd. It is no wonder the world takes up arms against Americans: Americans are stupid, refuse to adhere to treaties, and make excuses.
Does DoJ Comprehend that this bill takes us down the same road that has led to failure in Iraq; and asks the American people "to put up" with what is not lawful? There is no reason to take your seriously. Rather, there is every reason to form a parallel system of governance that compels you to assent to the rule of law.
That system can be created. It can be devised. It can compel you as Member of Congress and DoJ Staff to run through a very large maze We the People create for you to run through, check with, and otherwise coordinate with.
This system need not be created with your agreement or cooperation. We can devisee this system with one objective in mind: To force the legal community to assent to he law; and force Members of Congress to coordinate with We the People before your committees act or refuse to act. You no longer have legitimate power. You no longer can be believed. Nor can you be trusted to govern.
We the People have the power to turn the Constitution on its head and ram it down your throat. We outnumber you. This bill sends a clear message that you fail to understand what has happened since 2001; and clearly sends the signal that you fail to grasp Hamdan implications as they relate to the American Bar Association self-governance. We the People may make rules without the DoJ Staff input; and we may do this without you agreeing, or having any input. Rather, we may fully coordinate this action outside your control, and you shall continue to be denied any opportunity to input.
We need not ask the DoJ Staffers "their view" on anything: We need only look at the law, and presume they will devise a system that will violate those requirements. You are alleged war criminals and we need not coordinate with you.
[Article 60 22 of 23: Sec 233]
[23 of 32: Sec 234] These define procedures for appeal. However, consider the FISA Court Appeal Process. Addington has ignored FISA requirements; why should we believe that DoJ Staff and others in DoD will not ignore the clear requirements in this provision?
Again, the point is simple: You can make rules all day long, but if you have no enforcement mechanism and a requirement in Congress to ensure that these procedures are enforce, these are meaningless: DoJ has already shown they will ignore both the Supreme Court, and work with Members of Congress to adjust transcripts.
This DoJ Staff is utterly contemptible. The conduct of Addington and others in DoJ show this Congress and Executive are not persons about the procedural violations. Even if there are known violations, the US Government refutes to investigate.
Again, this is merely a waste of time: We've already gone through FISA; had clear procedures ignored; but this DOJ Staff wants to -- as it did with the Patriot Act -- make rules which they have a demonstrated pattern of not following; and Congress has no intention of enforcing.
The American Government is utterly useless. It's leadership is lazy, incompetent, and it should be seen for what it is: Utterly reckless is ensuring that it asserts its 5 USC 3331 oath. This government and its individual actors are not credible, nor are they serious about asserting eh rule of law. The world should take this draft bill for what it is: Evidence the US plans to give itself the Green light to do what it wants, not subject itself to review, and otherwise, explain away these requirements.
What's the use of this bill? DoJ will likely ignore it; and Congress and the IG (as shown by the 9-11 Commission) isn’t likely to review evidence of war crimes, fraud, or other evidence of perjury. This entire system of governance as it is practiced is wholly defective and a reckless disregard for the rule of law.
Change from 72 hours to 5 days
UCMJ: "(2) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within 72 hours of the order or ruling."
Draft: "(2) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within five days after the date of the order or ruling."
Change from President to SECDEF: Does the change get interpreted to mean, "The President is not prohibited from . . ."?
UCMJ: [An appeal under this section shall be forwarded by means prescribed under regulations of the President directly to the Court of Military Review ]
Article 62 23 of 32: Section 234
- Do Addington, Gonzalez, Yoo, Viet Dinh, Haynes or any other ABA-associated attorney, clerk, or government/contractor affiliated person in the US or anywhere in the universe or any other dimension (speculative, desired, or imaged) plan to use the "change from Presidnt to something else" as a blanket permission for the President to "do what he is otherwise not prohibited from doing"?
- What situation does the President envisions will be "waivers" and "exceptions" to this requirement?
- How will the POW-Defendant be given the standing to challenge this "exception" and/or "waiver" and/or "excuse to ignore" and/or "other conditions as the Attorney General, or anyone else may deem appropriate" to these requirement?
- What plan does DoJ have to issue guidance that will say, "discussing the details, of what are otherwise dubious reasons for exceptions, is classified"?
- Do Keisler, Yoo, Gonzalez, Addington, Haynes, and the DoJ Staff plan to issue memoranda, as Bybee did, finding a "good reason" why the "exceptions" classes (that the Senate may have secretly negotiated) will be invoked without the POW being told?
- How will these exceptions to these requirements be made available?
- Does Congress have a plan to require that "all exceptions" to these requirements be fully provided to Congress and the public before those exceptions are put into practice?
- Has DoJ fully discussed with Members of Congress and the public their plan to invoke exceptions to these requirements?
- Under what circumstances with DoJ and DoD invoke these exceptions?
- If the "notion of exceptions" is "hypo ethical" -- why should we believe this: The Attorney General said to the Senate Judiciary the same: That the no-known FISA violations were "hypothetical". What is the DoJ AG, President, and DoJ Staff plan to specifically assert, under penalty of perjury that they have not classified any plan, information, or other writing that speculates on the need to create exceptions to these rules?
- Has the speculated plan related to that waiver, exception, or otherwise speculated plan to ignore the law been reported to the DOJ OPR; why or why not; when was the DOJ OPR made aware of these dubious claims to "legalize" the exceptions?
- How has DoJ OPR hoped to, actually, or plan to classify discussions, plan, or working notes related to illegal violations of the law; or exceptions or waivers or other procedures that will create a result that otherwise does not fully comply with these procedures?
- Does the DOJ Staff or Attorney General plan to, have they, and could they invoke -- as they did with FISA -- a gag order on Contractors to make them be quiet about illegal contracts; and then violate ORCON by stating that the illegal conduct cannot be discussed?
- How many contractors have agreed to create operational plans, exceptions, and otherwise support this illegal planning?
- When were the contracts, agreements, notices, memoranda, e-mail, or other vehicles to create an agreement or silent consent to this illegal activity issued?
- How far along is this planning?
- Does the US plan to rely on a portion of the public to remain silent about these plans?
- Has the United States, its agents, or DoJ Staff, or any contractors, or indirect party done what was done in FISA: Created a contract vehicle which threatens Contractors with loss of liberty if they discuss illegal activity which cannot otherwise be classified; and if classified would amount to a violation of ORCON?
- Will Members of Congress and the Judiciary be given the chance to take notes about DoJ plans to invoke exceptions, waivers, and discretion to these requirements?
- What is the plan of DoJ Staff and DoD to say, "We have no plan to make exceptions," while invoking a Presidential "rule" that says "it is permissible to lie about those exceptions because they are classified"; when it is actually illegal, and they know or should know it is illegal, to classify evidence that the DoJ Staff plans to invoke exceptions to these rules.
- Which confidentiality agreements have Members of Congress, DoJ staff and DoD personnel signed to promise to keep silent about secret exceptions that they have jointly agree not to publicly comment on?
- Does the DoJ staff realize that secret agreements to ignore the rules is the same mess they have given us with the FISA violations?
- What is the DoJ Staff plan to report plans to violate the Constitution?
- Has the DOJ Staff been threatened with unlawful sanctions for discussing these illegal exceptions?
- Has the DoJ OPR been blocked from reviewing reports that the DOJ Staff, DoD, and other government contractors have discussed exceptions to these or other procedures that are dubious, and illegal classified?
- Do Members of Congress realize that exceptions to these procedures can be adversely inferred based on the approach DoJ Staffers are taking: Secretly discussing using UCMJ procedures to try civilians, and otherwise deny Article 3 protections?
- Is there plan in the Executive branch to impose a gag order on anyone who talks about the retaliation efforts against those who are discussing these secret procedures, exceptions, and self-issued waivers DoJ, DoD, and the President plan to invoke?
- Has the Congress digested the lesson of the Civil War -- and Lincoln's abuse of power -- to see that the illegal violations of Habeas were not lawful?
- What secret agreements has the DoJ Staff coordinated with contractors to implement exceptions to these rules, but not go to Congress to seek changes, and otherwise ignore the Habeas requirements?
- If a POW is aware of exceptions, or exceptions have been crated, but are not lawful, does Congress grant the POW standing to challenge these exceptions in US District Court?
- If the Supreme Court, despite these violations, refuses to hear the case, is there a mandatory investigation requirement on Members of Congress to review where the Supreme Court has violated its oat, and otherwise taken action to not review apparent violations of Article 3?
- What is the enforcement mechanism that will ensure that the DOJ Staff efforts to create secret exceptions is not something that the Executive can claim in any court is a "state secret" or "issue of national security" or "executive privilege" when the conduct clearly violates the procedures?
- How much time will Mebm3ers of Congress be afforded to "do nothing" over these violations before they an be reasonably be inferred to have committed 5 USC 3331 violations?
- Will Members of Congress, if they refuse to take action, accept that they are subject to Nuremburg President, and could be held liable for war crimes for failing to [a] learn the lesson of the FISA violations; and [b] reasonably applying those lessons to the like set of excuses to ignore these procedures and [c] then ensure that the lessons of FISA as demonstrated are fully implemented to ensure that the Geneva requirements are fully enforced; and [d] if there are violations of these procedures, there is a clear statement that it is illegal to classify any information related to that illegal activity; and [e] no contractor may invoke "executive privilege" or "national security" or "sate secrets" or any other dubious term to otherwise provide services, support, or otherwise assist the US government in engaging illegal conduct, violations of FISA, war crimes, or create dubious exceptions to the clearly promulgated requirements to follow these procedures?
Removal of terms related to delays and remedies: ["(c) Any period of delay resulting from an appeal under this section shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit."] Article 62 (d) 23 of 32: Section 234
- Why was this deleted?
- Does the Executive envision using the "lack of this term" as discretion to engage in delays?
- What language will Congress include to define the maximum number of days that will be allowed before there is a "delay" in the Military Commission?
- Why is this provision, which Article 3 says must be respected, being excluded?
- How does DoJ, in the wake of Hamdan, explain removing a requirement afforded under the UCMJ, and deny any comment on what is to be done when there are delays?
Members of Congress: Notice carefully what DoJ is doing -- they are taking things out of the UCMJ -- something that Geneva 3 said had to be maintained. Hamdan said that these requirements afforded under this system of justice must be uniformly applied; they are requirements; and that the Geneva 3 requirements related to judicial procedures must consistent.
How does DOJ explain the "non comment" on this matter?
It appears DoJ plans to use the "failure to comment" as the Green light for Addington, Yoo, Gonzalez, Haynes, Viet Dinh, Bybee, and the DoJ Staff to claim: "Because there was no language, and no restriction, the President has decided to exercise his discretion." It is also likely that there are envisioned situations whereby these exceptions will be invoked; and that the President will be given the discretion to do what Hamdan has otherwise struck down: Violation of the procedures, and failures to see that Geneva 3 is fully implemented.
The way this DoJ Draft is written, it clearly shows the DOJ Staff is not serious about Geneva 3, and not serous about assenting to the Supreme Court in re Hamdan. This is important. It forms the basis for the DOJ OPR to review the mater; increase audit scope; and compel Members of Congress to sample the attorney work products.
Also this work product raises substantial questions in mind of the public the seriousness any DOJ Staffer may have about other procedures and rules they might also consider "quaint": Judicial Cannons, ABA Model Rules, Oath of Office, 5 USC 3331 violations; the Constitution.
Do Members of Congress comprehend the state of mind of those who work on the DoJ Staff; their apparent reckless disregard for the law; and the reasonable conclusion that they appear to have little respect for the Constitution, Geneva, Article 3, and other requirements?
What's to be said when they are on the bench, away from oversight, alone, and responsible for ensuring the laws are followed: They've already shown they have no interesting the law when they are near peers: Why should we believe they'll suddenly start doing what they've otherwise failed to do? If we can get them to follow simple rules, why should we believe they're going to do something more difficult like stand up to the Executive?
What record have they shown that they are willing to assert the rule of law while under this Executive that is an alleged war criminal?
Do the DoJ Staffers understand and comprehend that lawyers prosecutors, and attorneys were indicted in Nuremburg for failing to stop violations of the Geneva Conventions?
This bill shows they’re not serious about Geneva. What is gong to trigger Members of Congress to start reviewing bills without bothering to invite DoJ?
Given this reckless disregard for the law, why does Congress bother taking any input from DoJ on any matter?
Why isn't Congress holding hearings and changing the location of that hearing at the last minute? W
Why is Congress bothering to information members of The Executive "what is going on" given the Executive has shown no similar deference?
Congress can make new rules, the "Exception rule" -- that any time the Executive fails to coordinate, Congress may under these rules arbitrarily and without notice conduct a hearing of importance, and only after the hearing is over, then invite the Executive to that already completed matter. What is stopping the Congress from doing what this Executive has reputedly done: Not coordinate, hold hearings in places where the DoJ Staff cannot easily attend, but where the Cameras are there for all to see: The DoJ Staff is being punished, and there is nothing they can do to stop this punishment
The DOJ Staff has already been denied access to the discussion on the New Constitution. Why are they incapable of finding out what is going on; does the DoJ staff have a problem getting the agenda for this meeting? What is their problem?
This is problematic (emphasis added): ["In ruling on an appeal under this action, the Court of Military Commission Review may act only with respect to matter of law."]
This means that the Review court can only look at issue of law, but they are denied the power to review:
- Where, and how will these non-law related issues be reviewed?
- Is the DoJ saying that these matters which could be reviewed in our system of justice, are denied simply because someone is before a military commission?
- How does the DOJ Plan to circumvent the District Court evidence, procedures, and other model rule requirements?
- Under what set of conditions does the DOJ envision shutting down civil courts, or introducing legislation that would close US Civil courts, and make the Military Commission the governing court for anyone in America or the world? [Gonzalez said things were hypothetical, but we found out later that he lied.]
Bottom line: US Government has legitimacy problem. There's no reason the public should trust it, believe it, or have any confidence in it. It is staffed by people who are incompetent morons, buffoons, who are unwilling to credibly assert their oaths.
We the People should simply ignore this government, and established a New Constitution, and established a more responsive system. No, this doesn't mean overthrow the government -- it means ignore it, and pay attention to the ones who dare to use their brains. Not these buffoons in DoJ. They are recklessly incompetent, and fail to send any message that they are serious about the rule of law.
This phrase is problematic: ["Upon a rehearing the accused may not be tried for any offense of which he was found not guilty by the first court-martial, and no sentence in excess of or more than the original sentence may be imposed unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory."]
Consider where we are: We're dealing with POWs. Also, the President has a "war on terror" (that has no end in sight)."
Consider this simple issue: The POW may have been found not guilty of something.
Notice this: "no sentence in excess of or more than the original sentence" -- this means one thing: The Sentence (other than death) is a sentence that keeps this prisoner around in confinement for eternity.
What happens if the "terms of the sentence" (less than death) result in a punishment that is completed before the end of the hostilities:
- Does this mean when the non-death-sentence is satisfied, that he POW is released?
- Conversely, if there is "no release" (despite having completed the sentence), why bother having trial: Why not simply tell the world what's going on -- we're going to detain you indefinitely. If we have a trial, we're going to sentence you to "X-years" in your sentence; but we're going to actually detain you indefinitely because there is no planned end of this "war on nebulously defined terror."
The real sentence should be known to Members of Congress: These trials are a sham; and all non-death sentences could foreseeable be a sentence for "life in prison", even though the actual evidence (never seen, not able to be challenged, and dubious) was fabricated, and based on a grudge by someone in Pakistan who simply wanted to carry favor with the imperil forces of doom from the US Special Forces, or the arrogant miscreants in the CIA.
23 of 32: Section 235: UCMJ Article 63 Index
[Check back for additional comments]
It is not acceptable for Members of Congress to pass legislation which would "permit" evidence from coercion to be introduced at trial. The Geneva requirement relates to judicial procedure.
It does not matter what excuse is given to inflict outrages on prisoners. Using evidence from coercion violates two tenets of Geneva:
(1) Treatment
(2) Judicial Procedure
Article 3 is clear:
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
It does not matter how you define "torture" -- the overall principle is that you may not -- repeat NOT -- engage in any conduct that is degrading or is an outrage upon the personal dignity of someone.
You may not "define torture narrowly" or broadly to then argue, "Other forms of mistreatment are acceptable."
It also has no relevance how US service personnel in DoJ or Ft. Huachuca may or may not have been mistreated while they endured Survival Evasion Resistance Escape [SERE] training. The SERE training provided is not an excuse to inflict that punishment on others. The SERE training had one goal: To prepare you for what may happen if you are taken prisoner and abused.
The United States may not turn Geneva upside down and argue, "This is what US Service Members are taught; so it's OK to inflict the same treatment on prisoners of war at Guantanamo or any other location."
Let me say this again:
It's as simple as that.
Thus any discussion that this Congress is having needs to start with a line-by-line review of the Geneva Convention requirements, and then formulate procedures that start there.
The current approach is backwards: It is starting from a legalistic-definition-approach which takes us down the same path as in 2001: Finding a way to find excuses to abuse others, inter alia:
If you do not like these requirements, then you should have decided in 2001 "not to wage war," but to use non-war-related methods including prosecutions.
You had other lawful options. You chose war. You also chose to comply with Geneva.
There is no longer any debate. You cannot change history. You cannot change a law of war. Rather, if you choose to ignore a law of war you are a war criminal. It doesn't matter if you believe a prisoner deserves something else. You have no choice.
All I've heard since 2001 are excuses not violate the law, ignore requirements, and pretend the US treaty obligations are not required.
It is too late. Again, the time to have made the decision "how will we treat these people" was before the decision to use force. Once the United States said, "We will use force," the US decided that it would fully comply with the Geneva requirements.
Why doesn't the US simply invite the Human Rights Watch, and the International Committee of the Red Cross, and develop procedures that fully satisfy the ICRC? They can fully report what the problems are with the treatment; and ensure that US forces fully comply with the Geneva Requirements.
You may not like the ICRC or Human Rights Watch, but that is meaningless and irrelevant.
Rather, the issue for all Americans to ask your elected officials is: Why is this American leadership unwilling to consult the very experts who have been repeatedly reminding them in writing of the Geneva requirements.
We can only conclude that despite Hamdan, this joint Congressional-Executive approach to complying with Geneva is just as we saw with Iraq and the Patriot Act:
The world is tired of watching this non-sense. These are war crimes. Americans refuse to follow the law. You make excuses.
It is no longer a hypothetical that US personnel may or may not be mistreated.
The issue going forward is that if the US does not fully comply with Geneva, then no other nation around the globe that may oppose and engage US and civilians in combat is required to respect the provisions which the US violates.
Hamdan has affirmed that Geneva has applied since 2001 to all conduct. If the US chooses to abrogate Geneva, then rest assured all other nations will continue to hold the US to be a rogue nation.
The issue isn't simply how US forces on the battlefield are treated. If the US refuses to respect human rights, then American civilians -- your neighbors, family, and friends -- could be targeted because the American government refuses to follow the laws of war.
If you do not care about your constituents, and you are perfectly happy with the possibility that American civilians may not be protected, then you have failed as a Member of Congress in your 5 USC 3331 oath. You show you hold your American citizens in contempt and you are not serious about ensuring the Geneva Conventions are respected.
If you do not want to follow the laws of war, then you may be lawfully tried for war crimes for failing to stop what you have the power to stop.
American no longer has sufficient reserve forces. The point is simply the American government can no guarantee to its citizenry that citizens can be protected. The world is less inclined to honor commitments to come to America's defense.
If the US government -- Members of Congress and DoJ Staffers -- choose to arrogantly pretend that the Geneva Conventions can be ignored, then you may lawfully be tried for war crimes.
It is clear the US Congress and Executive Branch do not comprehend Hamdan or Article 3. The proposed legislation they pass demonstrates the American government is serious need of international assistance. It is clear the American Bar Association, he DoJ Staff Attorneys and others who may have drafted this legislation have little understanding of:
Rather, this American legal community is more interested in finding excuses to violate the requirements; and pretend that abuse can be legalized, so long as it is defined in an acceptable manner. This is the same approach taken in 2001 which got the United States into trouble at Guantanamo and Abu Ghraib.
What is stunning is this non-sense continues despite the clear guidance in Hamdan: Follow the requirements.
This approach to legislation is not acceptable. It is not acceptable that this bill was drafted, yet not presented to Members of Congress on the Senate Judiciary Committee before Attorney General Gonzalez appeared before the Committee. [ Admonishment for DoJ ]
The Senate Judiciary Committee needs to digest the bill, Article 3, and the Hamdan decision. Then the Committee will be in a position to review the document in committee.
I encourage the Senate Judiciary to have an open meeting without any witnesses, and simply discuss in public the draft bill, Article 3, and Hamdan. I'm not interested in hearing more non-sense from DoJ. They've had plenty of time since 2001 to pretend they know the law. It is clear the staff attorneys have a problem comprehending the law.
The proper approach is to comply with the highest standards; not find excuses to ignore the lowest standards.
If you do not like the requirements, then resign.
Also, the draft legislation, if passed, would be an illegal act of Congress: It unlawfully permits violations of the laws of war. All military personnel under the 5100.77 laws of war program that might follow these illegal provisions should reasonably know, if they agree to follow these procedures, they are committing war crimes.
Those who participate in, help support, or otherwise allow illegal judicial procedures can be tried for war crimes. There were many German lawyers who were indicted for war crimes: They permitted, and did not stop the illegal activity. Ref
Over 100,000 Germans were subsequently tried for war crimes at another, little mentioned location, other than Nuremburg. The place is called Ludwigsburg. Ref
posted by Constant @ 3:17 PM
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