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Sunday, September 17, 2006

Alleged War Criminal Yoo Implies Gonzalez Violated Law

Yoo's 17 Sept 2006 NYT editorial is important. His comments point to important evidence for a war crimes prosecutor when investigating, inter alia, [a] US violations of Geneva/US Statutes against war crimes; and [b] failures to report, as required, those planned violations and conclusions to Congress.

A. Yoo asserts the President determined something was not constitutional to justify a signing statement. Title 28 requires the AG to provide a written statement to Congress outlining the details of this determination;

B. Failure to comply with a statute is no defense for war criminals. Where there is no document, where there should be, that can be an important evidence to lawfully prosecute someone for war crimes.

Yoo's written statement in the NYT forms the basis to conclude the AG did not put the illegal Geneva violations in writing because the AG statement would be evidence of war crimes. Yoo's editorial is not a defense, but implicitly a fatal admission which may be used in a war crimes trial.

* * *

Alleged war criminal John C. Yoo provides another absurd excuse to violate the laws of war:
That is why Mr. Bush has issued hundreds of signing statements — more than any previous president — reserving his right not to enforce unconstitutional laws.Yoo

Once the AG refuses to enforce a statute, this AG determination triggers at Title 28 reporting requirement. Yoo has effectively argued for an investigation of Gonzalez for violating Title 28 reporting requirements.

* * *

What You Can Do

Ref Send your memorial to Congress, to trigger an impeachment vote in the House.

Ref 12 October 2006: What you can send in the mail to make this happen.

Ref Meet on LiveJournal and discuss.

Points, Authorities

Ref The precedent of the Judge's Trial at Nuremburg finds it is a Grave breach of the conventions to opine in memoranda which abrogates Geneva; or fail to prevent violations of Geneva.

Ref US War Crimes statute prohibits grave breaches of Geneva, and bars failures to enforce the law.

Ref Draft War Crimes Indictments against US persons, including John C. Yoo.

Ref Retired judges remind us of Rasul, affirming right of prisoners to challenge their detention; and that federal courts can handle classified informaton.

Ref Senator Graham: No court would permit the Military Commissions which deny defendants right to review evidence.

Ref The Rebellious Republicans aren't serious about Geneva, or The Rule of Law -- if they were, they would order investigations of the illegal detentions and war crimes.

Ref Talk of compromise bewteen the White House and Republicans is a compromise on the Rule of Law.

* * *

I. Even if Unconstitutional, Attorney General Failed to Provide Memoranda To Congress As Required By Statute

I encourage you to read the entire statute (it's short), but here's an interesting part. The Attorney General has the statutory obligation to report in writing to Congress when he has determined a policy:
to refrain (on the grounds that the provision is unconstitutional) from defending or asserting, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law, or not to appeal or request review of any judicial, administrative, or other determination adversely affecting the constitutionality of any such provision

Yoo's words, again:
That is why Mr. Bush has issued hundreds of signing statements — more than any previous president — reserving his right not to enforce unconstitutional laws.Yoo

II. Yoo Provides No Credible Basis To Believe Comments in NYT Editorial, 17 Sept 2006

Yoo is arguing that Bush had the right, excuse, argument, defense not to enforce the law. Putting aside the absurdity of that argument (in that the President has to enforce the law), let's take Yoo's argument at face value. Yoo was Assistant Attorney General and should be able to answer:

  • Time: When did the President and Attorney General determine that the Statute, subject to the signing statement, was not Constitutional?

  • Determination: What is the reason the Attorney General has not complied with the Title 28 reporting requirement?

  • Evidence: Where's the Attorney Generals' memoranda, per Title 28?

  • Notification: Once the President, or someone, "determined" that the President and Attorney General were not going to enforce the law, what is the Attorney General's explanation for not enforcing Title 28, and providing the explanation to Congress?

  • DoJ OPR: Does Yoo or Gonzalez have an explanation why they have not provided their statements to the DOJ OPR, or complied with their mandatory duty to report violations of the Statute to the Office of Professional responsibility?

    * * *

    III. Detailed Questions For Yoo and Gonzalez On Title 28 ref.

    1. Title 28 Section 530D(a)(2) states that the Attorney shall submit a report to Congress, to include four of the Senior Congressional leaders. Either Yoo and Gonzalez have evidence that the report was filed, explaining why the Attorney General was not complying with the Congressional requirements; or Yoo and Gonzalez are illegally asserting that the President has the prerogative to violate the law, when they know, or should know, he has no discretion on this matter. Which?

    2. Title 28 Section 530D(a)(2) states that the Attorney General shall submit the report to the ranking member on the House Committee on the Judiciary. Congressman Conyers has not reported that he has received this letter. Either the Attorney General and Mr. Yoo are making false statements about a Member of Congress; or Congressman Conyers has not had the courtesy of being provided a letter that the Statute otherwise requires. Which?

    3. Title 28 Section 530D(b) states that the Attorney General shall provide a letter to Congressman Conyers within 30 days of the illegal violation of Statute, and conduct which violates the US restrictions against war crimes within 30 days. We have no record that the Attorney General has complied with this requirement. Either Mr. Yoo is making an unsupportable statement about a matter of law; or Mr. Yoo has a copy of a secret letter that has otherwise not been lawfully provided as required under the statute. Which?

    4. Title 28 Section 530D(b) The rules of evidence also conclude that all post-decision communications are not protected by privilege. There is no banafide claim that the Attorney General can claim that these Congressionally-required communications about the Attorney General's determinations are secret. Rather, there are provisions whereby the Attorney General can provide in secret a response to the statutory requirements. Either Yoo and Gonzalez know that there was no communication as required; or they are both reckless in making public statements that the asserted compliance or non-compliance of those statutory obligations was discretionary. Which?

    5. Title 28 Section 530D(c) provides for a method to communicate the status of classified activity. There is no basis to argue that no communication was required; rather the statute requires that a letter be provided, with omitted details. There is no record of a letter having been provided. Moreover, the President's admission that the activity did not comply with Geneva shows that the flawed plans and legal opinions were also illegal, yet there is no record of the attorney General having complied with this section of 503. Further, there is no basis to assert that illegal activity can lawfully be classified. Either there is no plan to comply; or the public statements that the President may lawfully ignore the law without a message to Congress are reckless. What is the plan of Yoo and Gonzalez to correct the public record, outline their plan to comply, and ensure that the reasons for the refusal to comply with the statute are appropriately documented?

    6. Title 28 Section 530D(e) states that the reporting requirements apply to the President. There is no basis to lawfully classify any information related to illegal activity. The decision to violate the law and illegally detain prisoners was made near Sept 2001. The rules of evidence prohibit anyone from hiding during discovery evidence related to post-decision memoranda; and all communications related to the non-privileged communications are also not privileged, protected, or secret. What is the basis to suggest that the illegal detention of personnel in Eastern Europe is lawfully protected, and otherwise not required in section 530D(e)?

    7. Title 28 Section 530D (Generally) The rules of evidence state that fraud prohibits the classification, suppression, or refusal to provide information related to discovery. Disclosure of the information, as the President has done, waives any claim to privilege; and all communications related to that matter are discoverable [ 676 F.2d 793 ]. Attorney-Client privilege does not apply to the government setting [ 734 F.2d 18 ]. What is the legal basis for the Attorney General and Yoo to say that the President may lawfully hide evidence of illegal activity; not do what he is required to do; hide evidence related to the contractor-CIA communications related to that illegal activity; or hide evidence related to these war crimes?

    * * *

    IV. Back To Reality

    The problem is that the same crew that churned out the worthless legal trash in the Iran-Contra minority report are now running the Government. Ref

    The Bybee memo is of the same caliber as Yoo's argument: Trash; wholly at odds with the war-time power and requirement of the President to enforce the law; and struck down with Hamdan. The President has no choice but to enforce requirements in the US Code and Treaties.

    As does Addington, Gonzalez, and Viet Dinh, Yoo provides a selective interpretation of history, and ignores the Supreme Law. It makes no difference what did or didn't happen before 1978 (when FISA was passed); or what did or did not happen before 1949 (when Geneva was passed).

    * * *

    V. Evidence: War Crimes Evidence Admissibility, DoJ Staff State of Mind

    Yoo's editorial should be taken as a fair statement of the convoluted thinking within DoJ as they related to Geneva war crimes. Either Yoo is lying, and there is no evidence to support his 2006 statements of the legal thinking; or Yoo is correctly restating the illegal positions. The post-decision legal memoranda cannot lawfully be suppressed; once inadvertently disclosed, Yoo's 2006 statement amounts to a post-decision waiver of that privilege connected with the DOJ Staff and Asst. Attorney General discussions.

    Putting aside the possibility that a treaty is mandatory, let's suppose there is some discretion. Indeed, violations of a treaty are permissible when the object of that violation may be for the benefit of some.

    Yoo and Bybee invoke Treaty obligations, and say that the laws of war do not have to be followed. Indeed, it may be a benefit to the prisoners of war, and a violation of Geneva, to not return the prisoners because returning them may subject them to death, as was feared after WWII.

    But the discretion to ignore the law cannot be premised on an absolute assertion by the Executive that the President, without a trial, can summarily execute anyone. FDR's precedent is inapposite. Contrary to Yoo's assertions that the Nazi saboteur-case was or was not a basis to ignore the law, FDR unlike Bush subjected the saboteurs to trial then had them executed. Yoo argues the opposite: That the President, relying on his assertion of guilt, may summarily deprive a prisoner of war of their rights and life without trial. This is a war crime.

    Exception To Hearsay: Contrary To Interests

    Even if we rely on Yoo's statement/editorial as credible, it wholly undermines the President's legal defenses, and casts Yoo in an unfavorable light.

    Yoo's editorial amounts to fatal admissions. Yoo must be saying them, even if they are contrary to interests, because they are true reports. Yoo is capturing his understanding of what he, as Asst. Atty General, understood the DOJ Staff was or was not thinking. These matters related to war crimes reporting, Title 28 requirements, and whether the issues of Constitutionality were or were not effectively incorporated into the notifications to Congress.

    * * *

    VI. Yoo Disbarment Project

    [ Ref Yoo is licensed to practice law through the state of Pennsylvania, not California where he teaches at Berkeley. The link provides details on getting Yoo investigated for his alleged complicity in the illegal CIA detentions, and other alleged illegal conduct by John C. Yoo. ]

    It is time to stop playing games with the arguably defective and alleged war criminals in Congress and the American legal profession. Yoo is licensed to practice law in Pennsylvania. It is time to put the attention of the blogosphere on Yoo's statements, and get the PA disciplinary board to investigate what Yoo's role was while in the DoJ; how he interacted with Viet Dinh and Addington; and to what extent he was or was no complicated in the alleged war crimes which Bybee said were permissible; and to what extent, if any, Yoo has been complicity in the alleged violations of Geneva at the CIA detention centers.

    This is not a matter only for Congress or the courts to review. These are matters of international war crimes. Any nation may prosecute Mr. Yoo for his alleged war crimes and failure to prevent war crimes.

    Yoo has no credibility in arguing that Geneva is vague. Geneva is clear. We can go round and round all day long arguing over whether Yoo is right or wrong. Time to haul Yoo and the other alleged war criminals before The Hague and conduct a trial.

    Yoo remains a threat to the Constitution, and arguably should not be near any "future legal leader" nor an educator at Berkeley Law School.

    Let's hear it for disbarring Yoo, and subjecting him to a war crimes prosecution for alleged complicity in war crimes planning, failure to prevent war crimes, and other violations of Geneva.

    * * *

    VII. What You Can Do

    Ref Contact the PA Disciplinary Bar to launch an investigation into Yoo's alleged war crimes.

    Ref Share with your friends evidence of Yoo's alleged war crimes.

    Ref Share with your friend evidence of Yoo's alleged complicity in the FISA Conspiracy.

    * * *

    IX. Even Misinformed Bloggers Comprehend Yoo's Alleged War Crimes Smoke Screen

    Ref The Senate and President are creating a poor smokescreen to war crimes prosecutions.

    17 Sept 2006 Yoo's NYT Editorial Is Meaningless Drivel

    New Title: Yoo's Failed Defense: How the President Could Be Indicted For War Crimes

    The President is a war criminal. There is no lawful or Constitutional foundation for Yoo’s assertions. Congress has not enforced the law and the Executive has not fulfilled his legal obligations. Hamdan is the Supreme Courts way of reminding the Executive that the requirements within the law must be followed.

    Contrary to assertions that Congress does or does not have to do anything, whether Congress does or does not make rules about Military Commissions in no way explains away the requirement that the trials comply with the Geneva requirements. It is disingenuous to suggest the President’s illegal commissions were every on any legal foundation.

    It does not matter what the President’s goals are. His primary goal must be to protect the Constitution. His oath is to the Supreme Law of the land, this includes all treaties.

    The illegal NSA activity started prior to Sept 2001. Despite engaging in illegal surveillance prior to Sept 2001, this President failed to protect the country. He does not need new power. He need to face the prospect of a war crimes indictment through an international war crimes tribunal.

    It is meaningless to argue over whether the President has a goal of doing or not doing something relative to his Constitutional role. He has no choice. It is absurd to suggest that the President’s goal of “invigorating” anything is linked with failing to do what he has the legal obligation to do.

    Cheney’s assertions that the Executive Branch powers have or have not been eroded are meaningless. Cheney provides no evidence nor are his arguments credible. His assertions in the Iran-Contra Report have been wholly discredited. The Vice President illegally confuses power and ministerial duties.

    It is not lawful to violate the laws of war, invade other nations without an imminent threat; nor is it lawful to fabricate evidence to justify an illegal war of aggression.

    It is not lawful to commit outrages against prisoners of war. It is meaningless to discuss what did or didn’t’ happen prior to 1949 and the Geneva Convention. The Nazi saboteurs were afforded a trial, and then convicted. Yoo’s example fails to mention this fact.

    Power never shifts, it is only permitted. It is meaningless what a President may or may not have done with or without Congressional authorization. FISA and Geneva are specific requirements which impose duties on the detaining power. What Truman or Bush-41 did, as absurdly discussed in the Bybee Memo, is meaningless. If Clinton’s alleged war crimes were self-evident, Yoo fails to explain why the Republicans did not spend time on this matter, but only focused on a "trivial" perjury statement.

    Lincoln is not a precedent to ignore the law. It makes no difference that Congress was or was not enforcing the law. The President and Attorney General have made no findings of fact that say the President has specifically revoked Geneva, as the Bybee memo states.

    It is not lawful to classify evidence related to illegal activity. The Executive loses all claims of privilege when he discloses, even inadvertently, that evidence.

    The President has no power to sidestep any law or Constitution. The President’s specific, narrow ministerial duties must fall under the Constitution. He may not invoke a notion of power that violates a specific ministerial duty.

    The only way that the President may reject a law is through the veto. The means by which the legislature imposes power on the Executive is through legislative acts. The President has no power to sign a law, but then choose to not enforce it. This failure to enforce is not a protected act, but a fatal admission that the President has not asserted his oath of office.

    The apologist war criminals working in the White House staff, DoJ Counsel’s office, and laws schools incorrectly believe that the President is above the courts, law, and Constitution. This should be expected of those who have no defense for war crimes.

    This President has no legal boundary other than what he defines as the law. That is not constitutional. If there is a problem with the President’s legal counsel, they should have worked those issues out during 2L. The President has no power to ignore the law.

    It is meaningless to cite the reason the laws were or were not passed. The laws are as they are: requirements to be followed. The time to have debated the laws is over. It is meaningless in 2006 to debate FISA is or is not a problem. The President has no power to declare illegal war; this is only something that the Congress can declare, but shares joint reliability for illegal combat operations.

    It is disingenuous to say that the DSP could not have combined the FBI and CIA information. Putting aside the false problem with the law, the President knew enough about things to order illegal surveillance prior to Sept 2001. Clearly, there was no failure before Sept 2001 – the President was already violating the law without any public evident. We have yet to hear from Yoo who placed the explosives in the WTC towers.

    It is meaningless to blame Congress for something the President refuses to do –- enforce the law as it is, not as he wishes it was. It is meaningless to argue which direction the powers shifted, or that this shift was real. It is true that Congress has no power to manage, and this president has no will to lawfully manage. Despite admitting that Congress has the power to enact laws not simply draft them, Congress has the power to impose ministerial duties on the clerk in the White House.

    Regardless what the Judiciary may or may not have done, nothing is stopping this President from appointing candidates who share a love of the law, not war crimes. This President has shown now legal reason to show any deference. There is no basis to assert that the specific requirements in either FISA or Geneva are vague, unclear, or convoluted. The real problem is the President and his alleged war criminal-counsel have ignored the laws, been caught, and are looking for an excuse.

    The President has no power to choose between illegal options. Contrary to assertions that there are or are not vague statutes, the FISA requirements are clear; and the Geneva obligations are well understood. It is meaningless to cite what Congress may or may not have done, when the issue before us is whether the President will be held to account for war crimes by our courts or by an international war crimes tribunal.

    Hamdan was clearly a rebuke to war criminals: You shall comply with Geneva, or be convicted of war crimes. Whether the president chooses to follow or ignore the law has no relationship to Congress and the Courts.

    Despite working with Congress on many occasions to update FISA, this Executive and Attorney General flagrantly violated the clearly promulgated requirements. Indeed, alleged war criminals in the DoJ Counsel’s office, and former counsel assigned and working in academia, have ever right to be upset: they have betrayed their oath, and have no one to blame. Even the most stupid of bloggers has figured out the American legal community, especially alleged war criminals working at Berkeley, is a threat to the Rule of Law.

    Most of the legal community’s failure to comprehend the law springs from a corresponding failure in their collective minds. The role of the oath is to compel action and remove discretion. We see no evidence that the legal community, despite its many hours surfing the internet, has taken the time to digest laws or opine lawfully. Rather, this DoJ Staff has recklessly ignored the law, failed to remove itself, and points to imaginary excuses to distract attention from the reckless DoJ Staff.

    Whether alleged war criminals like John C. Yoo are or are not mentally deficient is a matter for the court to review. Indeed, they can be found to be academically incompetent, but still fit to stand trial and lawfully executed as war criminals.

    Regardless what historians may argue about Executive power, the issue is what will be done today in 2006 about these abuses. America has three general options:

  • 1. We can encourage the International war crimes prosecutors to continue their work, and lawfully indict alleged war criminals like Yoo, Gonzalez, and the others on the DOJ Staff;

  • 2. We can permit foreign nations to militarily intervene, provide humanitarian assistance, and compel the American government to comply with its Geneva requirements; or

  • 3. We can write a new Constitution which substantially undermines, diminishes, and removes any discretion of Congress to enforce the law.

    We the People are the sovereign. When Congress refuses to enforce the law against alleged war criminals in Academia, there are other options through The Hague and state disbarment investigations. It is a dubious assertion that the President has better access to anything – that assumption has been discredited as evidence by the reckless disregard for the real evidence related to WMD – there was none.
    Whether the President has better access to anything is a meaningless assertion. Information cannot be lawfully classified. Nobody is saying the President cannot defend the nation; or that the President cannot do what is within his narrow, defined powers.

    Regardless how the President may or may not arrive at results, his legal conclusions and plans have not been lawful. It is the shroud of secrecy, and failure to have open discussions based on facts which has illegally permitted this President to wage illegal war, abuse prisoners, and violate the law.

    It is time to investigate. Congress can either cooperate, or it can be the target of the war crimes prosecutions. Congress has the power to jointly work with the President to pass, implement, and support lawful policy.

    This executive refuses to accept responsibility for his failed, reckless approach to the law. Even when ignoring all variable and constraints, he still fails. Congress has clear laws which the President has violated; it makes no sense to pass new laws which will not get enforced.

    It is meaningless to blame Congress for the President’s violations. However, it is appropriate to blame Congress for failing to enforce the law, and investigate the President. There is no merit to any argument that the talent in the Executive branch is anything but wanting and reckless. Congress does not need to provide any more guidance. Geneva is clear as is FISA. Congress has no responsibility to redefine what is already clear. It is the job of the DOJ Counsel and alleged war criminals working as alleged shills at Berkeley to plead their defense to the war crimes prosecutors. This course of conducts has been reckless and arguably wholly at odds with the Nuremburg precedents. The war crimes tribunal may adjudicate the ultimate penalty upon the alleged war criminal Yoo: The death penalty. Should we be so luck to have a trial, much less witness one?

    Congress has no requirement to provide leadership or do anything. Congress has already (partially) done its job by enacting legislation. The law is clear. The way forward is to call Yoo's statement what it is: A reckless defense by defective legal counsel to retroactively find excuses for war crimes. The Executive Branch is a sham and should not be trusted.

    The President has wide latitude to wage war abroad. At home, under the Youngstown criteria, his discretion is at its lowest ebb. The nation is not at war. Congress has only authorized force, but has not declared war. War must be legal. This President and his alleged war criminal-stooges in DoJ and at Berkeley have done nothing to inspire any confidence American governance is anything but a sham. No insurgent in Iraq should be inspired by Yoo, who offers only excuses for insurgents to continue waging war against the illegal invaders who fail to implement any credible plan. Congress is not stopping the Executive from waging lawful war; only the Executive is the one that asserts he is above the law.

    May the Executive and his alleged war criminal friend John C. Yoo face lawful justice before The Hague sooner than later. Without timely justice, the poor students at Berkeley must endure more of alleged war criminal Yoo’s drivel.

    X. Summation

    Go to Stanford, not Berkeley: Their law professors are not alleged war criminals.