Constant's pations

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

Monday, September 11, 2006

GTMO POWs Valid Defense Against Prosecution

There is a story behind why Addington, Gonzalez, and others wanted to hide the prisoners in Eastern Europe and the CIA detention centers.

It had nothing to do with secrecy or interrogations. The United States government did not want to have its conduct challenged as a valid defense for what the prisoners did.

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Under the laws of war, prisoners are entitled to procedural rights. They also may not have outrages inflicted upon them. It is also illegal to have coercive torture or any abuse to gather information.

Putting aside the illegal detention, the United States has had a larger objective in preventing trials. It had everything to do with hiding evidence. Under the laws of war, when a defendant is charged with a crime of war, he can point to the detaining power and claim, "Because they did the same, I cannot be convicted." This is a valid defense to terrorism.

The United State's problem is the public well knows about the US abuses in Afghanistan, and the bounties which the President put on enemy fighter's heads. These actions are war crimes. The United States has illegally used illegal weapons of war, engaged in terrorism, violated rights of civilians, committed outrages, and has failed to provide prisoners of war substantive due rights. These are requirements under Geneva. As a lawful defense, the prisoners held at Guantanamo can claim using too quoque that because the United States attacked financial centers and waged illegal war, then the prisoners cannot be convicted.

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The United States' problem is that it wants it both ways. It wants to claim this is a war on terror. If that war, as the United States asserts, is an international one, then the conduct the United States engages in Iraq, has significance for the prisoners in Guantanamo, Eastern Europe, and Africa. The Untied States has committed war crimes against civilians. A lawful defense to what any accused war criminal is that because the United States inflicted outrages upon non-military targets, then other fighters cannot be prosecuted.

The United States refuses to explain the massive incendiary devices, or the disproportionate force used against civilians. This is not connected with any military necessity. Rather, the defendants at Guantanamo can lawfully claim as a defense, that when the United States senior leadership, economic planners, and prosecutors engage in, plan, and fail to prevent war crimes, they become legitimate military targets.

There is no credible, legal way to prosecute the prisoners of war at Guantanamo. The issue has nothing to do with whether there is or is not evidence, but the US Desire to prevent the defendants from engaging in discovery to explore the US war crimes.

The US wanted to keep the prisoners in Eastern Europe not for intelligence reasons, but to prevent their legal counsel from using their public trial as a conduit to explore the full outrages committed against American civilians.

Addington's goal wasn't to protect America, but to insulate himself from discovery and a war crimes trial. Members of Congress illegally colluded with the secret detentions not out of concern for the nation's interest, but because Members of Congress were complicit in illegal war crimes: They failed to prevent the war crimes, failed to investigate, and otherwise did not shut down funding to the ongoing war crimes committed against the Iraqis and prisoners of war.

A secret detention wasn't about protecting America but preventing alleged war criminals like Addington, Gonzalez, and Specter from being held to account for what failed prior to 9-11. Despite the illegal surveillance, the government failed to prevent the attacks, and is a violation of the Constitutional guarantee to defend America. These are matters of criminal law, and have nothing to do with terrorism.

If America wants to claim that the Taliban and others are just like the Germans, American leaders like Specter and Cheney will have to explain why the Taliban are not allowed to use the same defense the Germans used: Because the Allied forces during WWII engaged in illegal submarine warfare, the Germans could not be convicted of war crimes.

This was a valid defense. The German U-Boat commanders were not convicted of war crimes. Neither can the prisoners of war at Guantanamo be convicted of doing things which the Americans have done. America's real goal with the secret detentions is to hide the scope of the American war crimes, and prevent the public from discovering the other abuses and illegal outrages committed against American civilians.

Hamdan reminds American leaders of Geneva. It also applies to Americans. The Prisoners of War have legal standing to compel evidence related to American war crimes. Either

  • A. The prosecutors will free them, fearing the US Attorneys and DoJ could be implicated, and prevent a trial that would discover the evidence; or

  • B. The prosecutors will prosecute, exposing the American government to discovery, and revealing the truth about the American war crimes which justified the lawful attacks on 9-11 and subsequent non-triable war crimes committed against Americans; or

  • C. The truth about who placed the explosives inside the WTC will surface, and the DOJ Staff will explain their attendance at the Potomac Golf Association in July 2001.

    The real issue is at what point a civilian in America though neglect, then willful disregard for their oath of office is no longer protected, but becomes a legitimate military target. Innocent civilians are protected. But civilians who have the power to prevent war crimes, but otherwise refuse to act, are no longer protected. They are war criminals and legitimate military targets.

    This is the problem that the DoJ Staff, Members of Congress, and the chief legal advisor to the Vice President find themselves. Until they are brought to justice and lawfully subjected to Geneva, foreign fighters will continue to feel emboldened to target, what they view, as legitimate military targets: Anything related to supporting American war crimes and abuse of power around the globe.

    The solution is to have a war crimes trial, and prosecute those on the DoJ Staff, Vice President’s staff, and others in DoD who have engaged in war crimes; and then lawfully target Members of Congress for prosecution in their failure to investigate and prevent war crimes. America’s national security issues are resolved when we look to what cannot be compromised: Our values – The rule of law through the Supreme Law, the Constitution.

    Until America forces the Constitution to prevail and prosecute alleged American war criminals, foreign fighters view their cause as noble: To wage lawful war against those who defy the Supreme Law--the laws of war.

    * * *

    A valid defense against charges of terrorism and treachery is that the United States President has done the same:

  • Putting a price on the enemy's head;

  • Illegally planning to use a blue-painted U2 to bait an Iraqi attack;

  • Illegally planning to invade from western Iraq from Jordan, establish a free Iraq, to incite an Iraqi attack against the domestic population, thereby prompting a US invasion; and

  • Illegally planning to attack non-military targets in Iran, using disproportionate military force, and unrelated to any military necessity.

    Each of the above plans is no different than any other alleged discussion which alleged terrorists may have participated in. Even if there were attacks, it remains to be seen whether the US will permit discovery of its similar war crimes as a defense.

    Unless the Prisoners can get the evidence related to the similar American war crimes, there's no reasonable basis to prosecute the prisoners, nor assert to anyone that the prisoners have enjoyed substantive due process as is otherwise required under Geneva.

    * * *

    Putting aside the reality that many at Guantanamo were never in combat, another defense is levee en masse whereby fighters are invaded so quickly, as they were in Afghanistan, that they had no chance to procure uniforms.

    Addington was quick to claim that non-uniformed fighters were automatically unlawfyul combatants. It is possible for a lawful combatant to commit war crimes; and just because someone commits a war crime doesn't mean that they are unlawful combatant.

    This status can only be adjudiated as a result of a trial, not smething asserted as the basis to deny prisoners due process. The denial of the due process, and assertion without judiical review in the Congressional Miliary Commissions Bill is not a protected legisative act, but evidence of war crimes planning.

    * * *

    Another valid defense includes the claim that the CIA officers, as foreign fighters, were not in uniform while conducting combat operations. This is a war crime. Similarly, there's no reasonable basis to prosecute some who are out of uniform. The prisoner-defendants may lawfully claim they are immune to prosecution because the CIA officers were also out of uniform.

    It is a denial of substantive due process, and a subsequent war crime, to deny the prisoners the evidence that is useful to their defense. Unless the United States is willing to have its illegal war crimes publicly challenged in public courts, the US has no legal foundation to detain prisoners, prosecute them, or ask that anyone else join them in committing additional war crimes.

    Because these issues related to admitted war crimes, there is no credible basis for the CIA to deny access to evidence of CIA officer misconduct. The failed supervision is not a management issue, but an issue of failing to prevent Geneva violations. Claims of privilege by Goss on the CIA-misconduct report in re 9-11 fail. The report is probative, cannot lawfully be protected, and it is evidence the post-decision communications failed to enforce Geneva.

    The CIA report is no longer secret, its existence is known to outside parties, it is post-decision-related communication, and it is evidence of war crimes. If the CIA refuses to release this report, then the defendant-prisoners are being denied substantive due rights to demonstrate that the CIA was engaged in like war crimes and misconduct.

    * * *

    Terrorism isn't a protected form of warfare. Rather, the United States cannot lawfully convict anyone of war crimes which the United States has also committed.

    Terrorism is a form of warfare which cannot lawfully be prosecuted when the jailers are war criminals and engage in similar war crimes.

    Terrorism isn't banned. It's simply punished selectively. It is a separate matter whether the prosecutors have clean or unclean hands.

    One's hands are not cleansed by immunizing war crimes. The correct route is to keep clean hands; or admit your dirty hands removes the basis to illegally deny substantive process to the prisoners.

    Until the prisoners are convicted of illegal warfare by prosecutors with clean hands, the prisoners shall be treated humanely, afforded all substantive due process rights. Any memoranda asserting otherwise is illegal and evidence of subsequent war crimes.

    Rather than secretly detain those you do not wish to challenge your unclean hands, the remedy is to release the prisoners.

    Yet, rather than admit your error, you illegally violated the Supreme Law and have committed subsequent war crimes. It is not lawful to classify these grave breaches of Geneva; nor compel anyone to remain silent on war crimes.

    These acts are post-2000, and unrelated to whether the United States was or was not attacked. The plan to commit grave breaches was well known before the events of Sept 2001. All communication related to the events 2001-2006 are post-decision communications, related to illegal fraud, is connected with illegal things, and cannot lawfully enjoy any secrecy claim, privilege, or immunity.

    Regardless how the prisoners are or are not treated, the subsequent change of position is a reasonable basis to examine in detail the DoJ Staff course of conduct related to the secret detentions and breaches of Geneva. These are not matter of politics, but of international war crimes. Nothing the President or Congress does can immunize any of the DOJ Staff. Any nation may lawfully prosecute the DoJ Staff for their alleged war crimes.

    Until the DOJ Staff assent to the rule of law and sees that justice is done, foreign fighters will continue to wage lawful war against America, and the DOJ Staff has no credible legal foundation to prosecute the foreign fighters. The remedy is to follow Geneva and assert the Supreme Law, not the Supreme Arrogance of war criminals.