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Saturday, September 16, 2006

Memo Implicating Brad Berenson As An Alleged War Criminal

There's another memo. As was the Bybee memo, this memo proves the President is a war criminal.

Brad Berenson is an alleged war criminal.

The memo is substantially similar to the Bybee memo, which outlined the law as it related to prisoner detentions in Guantanamo.

The new memo relates to a like DoJ-White House Staff counsel opinion on the legal issues related to the CIA rendition, domestic surveillance, and use of that information to hold prisoners in Eastern Europe.

The memo, like the Bybee memo, outlines the clear statutes, legal liabilities, and reiterates the problems should the illegal activity be disclosed.

The Geneva Conventions were mentioned, as they were in the Bybee Memo.

* * *

The problem with the memo is that it is illegal. In no way does the Memo correctly state the war crimes liabilities which attached to the legal officers. The reverse is true: The authors of the memo implicitly argued that by drafting the legal opinion they were somehow immune to prosecution.

The rules of evidence are relevant. The memo is not a pre-decisional memorandum, which may be protected unless there is fraud; rather the memo is post-decision, illegal justification for Geneva violations.

Brad Berenson well knows about the memo and other memoranda.

Berenson's problem is that despite the illegal violations of Geneva, he's fatally admitted his knowledge of the post-decision planning and justifications.

His 2006 revelations are disclosures to third parties, and amount to a waiver of the privilege associated with the original communications.

Berenson's other problem is that because the illegal renditions and detentions started before the memo was drafted, the memo is not protected by the "pre-decisional"-defense.

* * *

The memo is also linked with the decisions and other technical communications and training related to prisoner treatment.

The full FOIA list related to Berenson's alleged war crimes is located here: Ref.

* * *

Berenson is an alleged war criminal for the following reasons:

  • 1. He's made out of court disclosures of his knowledge of the illegal activity in Eastern Europe;

  • 2. He has not denied he participating in the 2001-2006-era discussions related to the illegal war crimes planning in Eastern Europe;

  • 3. His defenses of the illegal war crimes are frivolous;

  • 4. The authority cited for the illegal activity is unrelated to Geneva or 1949, but relies on pre-1949 events including FDR, Lincoln, and Washington;

  • 5. The violations of Geneva cannot be justified on the basis of necessity;

  • 6. Bybee's memo well documents the knowledge the DoJ-White House Staff had of the clear, well promulgated Geneva obligations and requirements;

  • 7. Berenson was in a position to remove himself, prevent the illegal orders from being drafted, implemented or enforced;

  • 8. Berenson does not deny that he was present during the drafting of the Bybee Memo, discussions related to Geneva;

  • 9. The White House-DOJ Staff has not effectively demonstrated that they have reported the illegal conduct to the DOJ OPR, or that Berenson has timely reported the illegal activity, or his alleged participating in the unlawful rendition-detention planning meetings.

    Nuremburg convicted attorneys and court officers for failing to stop the illegal activity.

    * * *

    There are other memos and briefings related to Berenson's involvement, which relate to the planning, organizing, and public relations efforts. The data can be linked with the media messages and contracts used to monitor and disseminate media messages for domestic consumptions.

    Fleishman-Hilliard was on contract to do media monitoring, and has been linked with the AT&T domestic surveillance and data-use activity.

    Gonzalez, once he was aware of the illegal activity, failed to comply with Title 28 requirements to report to Congress in writing the non-compliance with these Geneva and statutory obligations.

    The approach has been to invoke the Iran-Contra argument of blaming "lack of" Congressional policy for the President's war crimes. This argument, as was then, is frivolous. Geneva as Hamdan reminds us, is a clear requirement. It makes no difference how then Representative Cheney in 1987 complained of the lack of Congressional leadership, policy, or investigation.

    Indeed, despite the Congressional failure to investigate 2001-2006 CIA war crimes, Berenson and others celebrate the "clarification" of something which the memo already articulated.

    It makes no difference that the DoD Planning cells had attorneys. Haynes already shows us the JAGs were shut out, and the failure of the White House to implemented Geneva in re Guantanamo-Bybee memo, is sufficient to show there was no serious effort by the DoD planning cells to incorporate the JAGs into the detention-rendition-surveillance nexus which supported the war crimes in Eastern Europe.

    * * *

    The problem Berenson has is that his public statements are no longer protected. Yet, despite the post-decision communications between the CIA, European logistics, and the legal community, there's nothing before us to suggest Congress is interested in reviewing these legal matters or making informed decisions.

    No matter, the war crimes prosecutors have Berenson's name, know where to find the alleged war criminal, and can easily download his out of court, inconsistent statements which raise reasonable doubts about his integrity or suitability to practice law in any American court.

    There is no statute of limitations on war crimes. More memos on are on the way. Stupid technical writers should do more than worry about their labor contracts, especially when sending e-mails and text messages to their attorney friends in New York.

    Yes, those have been lawfully intercepted as well. You cannot claim attorney-client privilege on a matter of war crimes when the attorney is also allegedly involved, and the target of the ongoing, broadening war crimes investigation.

    You wished this.

    * * *

    Questions For Brad Berenson

    1. The defective and illegal Bybee Memo which unlawfully denied protections to the Taliban. Once you knew other memoranda had illegally relied on this defective legal opinion, what was your purpose in making public comments to the legality of what the President now admits are violations of Geneva?

    2. Once it was known in 2002 that the Bybee memoranda had effectively abrogated Geneva, how do you explain your continued association with the White House?

    3. The decision to illegal detain prisoners in Eastern Europe is linked to your office, and the involvement then White House counsel Gonzalez had with the war crimes planning. How do you explain your public commentary on these discussions that you would otherwise claim are secret and privileged?

    4. The White House counsel and the White House staff do not enjoy attorney client privilege or a protected relationship. The Attorney General also has a duty to serve the public. Nixon clearly establishes that White House papers may be subpoenaed for alleged criminal conduct. Do you have a reason for commenting publicly on matters related to these alleged war crime discussions and plans?

    5. Regardless whether someone is or is not a party to a treaty, the United States is a party to the treaty. Please discussion your basis for stating in 2006 that the US participation in Geneva is not applicable or relevant.

    6. The Vice President's chief of staff was rejected by the Senate as General Counsel. The Bybee Memo cites the same case law, using selective questions and citations as in Addington's Iran-Contra Minority Report. When you knew in 2002 that the United States was not fulfilling its Geneva obligations, as Hamdan says was required, do you have a reason for not disclosing publicly in 2006 your reservations about whether US personnel could or could not be indicted for war crimes?

    7. Congress has the constitutional power to promulgate rules that enforce Geneva. Title 28 imposes a legal duty on the Attorney General to follow the law. When the Attorney General is aware that statutes will be ignored, he has an obligation to report to Congress these planned violations. There is no record the Attorney General has complied with this reporting requirement. Do you have a reason for not disclosing publicly your knowledge of the gaps in this Attorney General communication to Congress, or are you relying on an assurance that your participation in the White House will not be publicly discussed?

    8. Once it was known that Geneva had been violated, can you discuss your discussions with then-White House Counsel Gonzalez over whether Geneva had been abrogated or temporarily suspended?

    9. The discussions also related to matters of discretion. The rules of necessity are relevant. Please discuss your reasons for citing publicly in 2006 pre-1949 events as the basis to assert that there was military necessity to ignore, abrogate, or otherwise temporarily suspend Geneva.

    10. The retired judges have issued a memoranda indicating their concern the Military Commissions Act of 2006 effectively suspends Habeas and violates Rasul. What is the basis to ignore Hamdan, and argue publicly in 2006 whether the enemy's status has any bearing on the matters; and why US Geneva obligations can be ignored.

    11. Hamdan affirmed the Geneva requirements which the President says were ambiguous. But before a treaty can be struck down, ignored, or temporarily suspended, that treaty has to be specifically identified as being unlawful. restrictive, or specifically doing or not doing something that should be done. We see no evidence then White House counsel worked with the Attorney General to craft language that would ignore these treaty obligations, or not enforce the war crimes related terms in the statute. How do you reconcile the inconsistent approach the President has taken -- arguing that a specific treaty is vague; but then providing us with nothing to justify his suspension was based on specific within Geneva.

    12. Whether the enemy-of-the week does or does not violate a treaty is an issue to be raised when considering abrogation. If the enemy was never a party to the treaty, what basis is there to argue in 2006 that their conduct has any bearing on whether the US will or will not honor its agreements to enforce Geneva, and respect the United States agreements with its Geneva partners, specifically in the EU?

    13. Subsequent to the suspension of the Geneva, there were embassy communications which outlined the specific policies and public responses to questions. Yet, in 2006, the basis for these suspensions has been dubious. Hamdan affirmed the requirements as they relate to the United States. How do you explain your knowledge of this post-decision planning, yet providing public statements and assurances to the contrary, and implying that the conduct of the public officials was proper?

    14. In order to ignore something with specific actions, that plan and activity must be affirmatively linked with something specific. The memoranda outlines the specific basis with which to argue that a provision is or is not ambiguous, contradicting itself, and arguing with specificity what will be ignored; while publicly arguing these specific plans are related to ambiguous language. The public approach is not consistent with the specificity within either the memoranda, or Geneva. Some including the President in 2006 would have us believe that Geneva is ambiguous. If this is true, how does the President explain having denounced, renounced, or specifically suspended something that is ambiguous?

    15. Whether the US did or did not renounce a treaty with the Germans in WWII has little bearing on whether that treaty was subsequently used to conduct a war crimes trial. It is meaningless to argue the US has the power to renounce something, then point to whether the enemy is or is not complying with that obligation. If an entity ceases to exist as a legal entity, how do you explain your 2006 statements that the treaty obligations can or cannot be enforced; while at the same time, Hamdan and Rasul reminds the US that these obligations can be enforced?

    16. It is a serious matter when the American government, especially Congress, cannot maintain law and order, and fails to investigate Geneva violations, and the war crimes at the CIA detention centers in Eastern Europe. Once the United States ignored Geneva, what basis is there to argue that the US is a functioning state?

    17. Some point to the events in Iraq as evidence of a civil war. Yet, at the center of this violence is the illegal US presence and unlawful invasion. The US has failed to prevent violence, but uses violence without effect. Given the US reliance on violence over the rule of law to maintain order, how can it be argued the US is a functioning state?

    18. One criterion for an effective, functioning state is whether the leadership has effective control over the territory. The DoJ Staff counsel has effectively admitted it has silently failed to prevent war crimes. What other indicators of lawlessness is required before the world community may lawfully intervene, and provide humanitarian intervention forces in the United States to restore law and order?

    19. One of the criteria to determine whether a state is failed is whether they use or do not use illegal methods to raise funds. It was well known in 2002 that Afghanistan relied on drug profits. Can you explain the failure of the DOJ and White House counsel to include the JAGs in the Afghanistan planning, and ensure that the discussions with Haynes ensured the troops, manpower, and resources effectively addressed the known requirements in 2002?

    20. The list of excuses to argue whether another nation or entity is or is not subject to Geneva fails to account for Hamdan. The Supreme Court reminds us that regardless the perceived conditions in another nation, the United States has the obligation to enforce Geneva. In 2006, once you knew the President had admitted the CIA detentions were not lawful, how do you explain the failure to remove yourself from the illegal planning and memoranda while you were in the White House counsel's office. Either, you are ignorant of the law; or you interested in not rocking the boat; or were you reckless in failing to ensure that Geneva was enforced as you had the legal obligation to do. What is your explanation for justifying your statements in 2006 to rationalize what the President no longer justifies.

    21. The White House thinking was confused and convoluted while you were assigned to the White House staff. On one hand your office argued that the treaty obligations were vague; then turned around and said that the specific obligations could be ignored; then changed position again, arguing that Afghanistan was a failed state; then shifting position arguing that Geneva could be suspended, despite Hamdan concluding the opposite. How do you explain your statements in 2006 that anything was or was not certain in the White House counsel's office on the issue of whether Geneva did or did not apply to the illegal detention efforts in Eastern Europe?

    22. There were valid arguments for never suspending Geneva. We see no evidence the Attorney General provided any memoranda to the Congress that Geneva, war crimes obligations, or the US statutes would be violated. The President’s change in position on the prisoners is evidence that there were violations, yet the Attorney general has failed to document this in writing per Title 28. How do you explain your complicity in permitting Geneva be suspended as it relates to CIA detention of prisoners in Eastern Europe?

    23. Putting aside the issue of whether Geneva was or was not temporarily suspended, how do you explain in 2006 your emphatic representations that Geneva was thought to have not applied, yet the record indicates the opposite: Hamdan and the Geneva requirements remained in force.

    24. Once the decision was made to delay enforcing Geneva, there were timing memoranda, and subsequent plans to violate Geneva, and not enforce the Geneva requirements in Eastern Europe. You and the President are not on the same page. Either you were aware that the Geneva Conventions were not being enforced as they should; or your 2006 statements of conclusions are at odds with what the President concludes is the governing law. When you were aware of these planning meetings, and other efforts to not enforce Geneva, how do you explain your 2006 comments that the enemy was or was not protected?

    25. There is also the issue of absolution and immunity. Regardless whether the US and the enemy do or do not enforce, comply, follow, or suspend Geneva, other Geneva parties can enforce non compliance. In 2006 you publicly stated that your view of Geneva does not apply. This assertion is dubious, and contrary to Hamdan. No reasonable attorney could argue that the nature of the enemy eliminated the requirement of Geneva to apply. Once it was known in 2002 that the US planed to continue violating Geneva, how do you explain the failure of the Attorney General to share with Congress his concern, per title 28, that lack of enforcement of Geneva would trigger enforcement actions by our Geneva partners?

    26. Because of your allegedly reckless war crimes, and illegal memoranda, the injured party is the United States. You have allegedly materially failed to enforce the law, and otherwise not down what you should have done. Why should we believe in 2006 that you deserve any consideration or lighter punishment other than what is lawfully permitted through a court, the adjudication of the death penalty?

    27. It's also a factor whether the breaching party does or does not permit investigations. As with Iran-Contra, this Vice President is not interested in the law, but the smokescreen of legislative activity, without any real accountability. What plan in 2002 did you have to cooperate with the ongoing war crimes investigation, and how did you document your post-decision communications to your peers related to matters of concerns with Geneva, or possible violations and liability you and other counsel may have.

    28. Once it was known that the US had violated Geneva, the White House, DoJ Staff, and former DoJ personnel were concerned. Putting aside the method that the e-mail from Viet Dinh's office was intercepted, and how this memo to his office is known, there were specific post-decision, non-protected communications related to former US government personnel liability. Could you discuss your involvement with Viet Dinh and others in providing inputs to the White House and DoJ staff on your desire to have DoJ personnel defend you and your peers for conduct related to your tenure at the White House?

    29. The laws of war also permit the UN to embargo the United States. How do your comments in 2006 reflect your concerns that your law firm could be embargoed or lawfully targeted by the war crimes prosecutors?

    30. You also well knew that any and all violations of Geneva subjected anyone to punishment. The error of the White House and DOJ Staff was to conclude that the trial would only be imposed if the United States lost. This is a fatal assumption. Rather, the Military Commissions Act of 2006 includes specific provisions to reimburse US personnel for their alleged war crimes litigation and investigation. This is a fatal change in position, and not consistent with the White House communications, subsequent Viet Dinh comments, or the 2006 comments related to who is or is not responsible for the war crimes in Eastern Europe. Hamdan reminds us that Geneva is applicable to the United States, regardless whether it wins or loses. What was the basis to not enforce Geneva in 2002; but then in 2006 say that the standard was only applicable relevant to whether the enemy did or did not do something?

    31. Let's presuppose, there was some reason to suspend Geneva. These suspensions can relate to how civilians, former White House counsel, and current DoJ Staff are treated before a post-2005 international war crimes tribunal. You and others who have allegedly violated the laws of war are not guaranteed a trial; nor that you will be able to review the evidence and memoranda known to exist. You may or may not be given the chance to see the working papers and notes DoD staff personnel had after discussing the Rendition Policy with the CIA; or how the NSA intercepts did or did not support the illegal activity. Even those intercepts directed at your law firm, private residence, and intercepting your communications with your clients do not necessarily have to be revealed to you or your current, former, or future clients. What would be the basis for any other nation to recognize what you have ignored, and not enforced?

    32. In 2001, it was known the CIA detention centers would violate Geneva. The prisoners would not be treated lawfully. The White House counsel and State Department were brought into discussions through Rove and Armitage on various sensitive matters. The diplomatic backlash linked to these known CIA detention centers was not speculative, but foreseeable, and discussed. Please share with us your knowledge and participation in the various strategy sessions including Karl Rove and Mr. Armitage on these White House-State Department challenges. Please include the specific issues which were raised; and how the NSA intercepts related to public knowledge of the illegal activity was used by the AT&T subsidiary Fleishman Hilliard and other contractors to sway public discussion on the legal issues. You are free to include the specific Fleishman Hilliard Contract Numbers; and the information you were given on their progress. This progress data can be compared with the reports provided to the Joint Staff, NSA, and Senior National Security Council Members. These reports relate to cost-schedule-status; and cost performance reporting.

    33. Whether the US does or does not comply with Geneva relates to how the Prisoners choose to be treated. it was known that some prisoners were not treated according to Geneva requirements because it was beneficial for them not to be repatriated. Please discuss what thinking there was in the White House to explain how unlawful abuse, outrages, and other illegal detention of prisoners in the CIA detention centers could realistically be construed to be beneficial to anyone?

    24. The Geneva Conventions outlaw outrages against prisoners. The US War Crimes statues specifically outlaw this specific, clear requirement which Hamdan affirmed. There is a duty upon legal counsel to remove themselves from unlawful activity. The potential gathering of intelligence is no excuse to violate Geneva. How do you explain the thinking in your office, and your conclusion not to remove yourself from this allegedly illegal planning?

    25. The rules of evidence prevent information which is illegally obtained. One defense to war crimes is tu quoque. What concerns did the White House counsel's office have that the US Geneva violations would be a defense, and bar prosecution of the CIA prisoners; and how was this risk used as a justification to argue for secret trials?

    26. The JAGs well know that the US trials require prisoners’ access to evidence. The Judges Memo states that classified information can be handled. Spike Bowman visited the Guantanamo facilities. The Military Company involved in the Memoranda is linked with 6yth Group, with a direct reporting requirement to the Joint Staff. Once it was known that the pubic knew about the videos and other evidence of war crimes at Guantanamo, pleas discuss the White House concerns as they related to the CIA detention centers in Easter Europe -- How would the prisoners be denied of evidence; and how would the public be kept from understanding the prisoner files were empty, and there was no basis to hold the prisoners in Eastern Europe, or on the floating ships above, on, and below seal level?

    27. Despite public assurances that Guantanamo detainees were being treated lawfully, the facts prove otherwise. The 2002 memoranda imposed the requirement, and Hamdan affirmed that requirement. Despite requirements to review the law, ensure only lawful policy, the White House legal staff and DOJ Counsel have been affirmatively linked with non-legal-related activity on the internet. This show the White House and DOJ were not effectively overseen; and that public statements that counsel were too busy to comply with Geneva or FISA are not believable. Hamdan affirmed the requirement, regardless the tendency of White House and DOJ Staff counsel to spend time on non-official business, and communicating using non-protected communication systems. Why should we believe any 2006 statements by anyone connected with the White House 2001-2006 as to whether anyone on the White House staff was or was not effectively ensuring that Geneva was implemented; and that DoJ and White House staff counsel were taking action as they should to remove themselves from the illegal activity?

    28. One of the arguments was that because there had been no trial, the prisoners had not been denied Geneva rights. Yet, this thinking is flawed. The only way to lawfully classify the CIA detainees as illegal, and otherwise not protected, was if there was a trial. How do you explain your 2006 comments that the 2001-2006 were lawful, appropriate, or otherwise lawful when there is no evidence the prisoners were every lawfully classified as unlawful combatants?

    29. Some have suggested the events of Sept 2001 permitted the United Sates to do something. Yet, the evidence indicates that the illegal surveillance started before Sept 2001, and the White House counsel and CIA-NSA personnel should have known that the surveillance was illegal. How do you explain your 2006 reliance on 9-11 as a justification for the Geneva violations, yet the illegal activity started before Sept 2001?

    30. Some suggest that the detaining power has time to comply with POW detention requirements. How was it determined that five years later, the 2006 prisoner detentions did or did not fall inside or outside this window of transition before the US would or would not comply with the POW detention requirements?

    31. Article III powers belong to the Judiciary. The President's plan has been to deny Habeas, and prevent Rasul from challenging their status. It remains unclear how many prisoners to United States were holding outside Guantanamo at other locations or on, above, or under the sea. How was it viewed that a delay from 2001 to 2006 would be a "reasonable" delay in implementing Geneva, when Geneva was a requirement before 2001?

    32. Putting aside the issue of whether Geneva abrogation was based on specific or unspecific criteria that has not been documented under Title 28, there is an issue of classification. This can only be done through a tribunal. How does the White House explain the post-2001 communications that would deny trials, but publicly assert Article III legal conclusions without Court involvement?

    33. Hamdan reminds us that the President has no power to interpret a treaty, but must comply with the clear, specific requirements. Whether the President and Congress choose to ignore the already-committed Geneva violations is a subsequent war crime. Hamdan is the lawful assertion of Judicial Power in compelling the President to assent to the law, comply with Geneva, and enforce his oath of office. This obligation is perpetual, and was fully en force and applicable to all DoJ and White House counsel 2001-2006. How does anyone connected with the White House 2001-2006 justify staying connected with those illegal detentions, not leaving, when they knew or should have known that the detentions were not lawful; and the President had no Article III powers to conclude whether someone was or was not subject to Geneva?

    34. There is no legal justification to ignore Geneva. It is incorrect to suggest that a treaty obligation will prevent victory. Treaties are to ensure the conflict is conducted within established norms, regardless the enemy's choice to do otherwise. It is not reasonable to conclude that US violations, and failure to enforce Geneva, are anything but grave breaches of Geneva, US law, and the oath of office. Please discuss the oath of office issues raised by your staff, and questions of DoJ OPR reviews into the DoJ Staff conduct and alleged complicity with the illegal war crimes planning, and failure to prevent war crimes in the CIA detention centers.

    35. Once it was known that the US planned to engage in war crimes, deprive prisoners of rights, and treat them abusively, no reasonable attorney could continue their work, and remain compliant with their professional obligation to prevent and report illegal war crimes, memoranda, orders, and policies. Geneva is a perpetual requirement. Hamdan imposes a responsibility on the US to explain its conduct between 2001 and 2006 as it relates to Geneva. The Hamdan result, in part, triggered the US to fatally admit there had been violations of Geneva; and there was a need to change the prisoner treatment to comply with Geneva. How do we explain the war crimes discussions, refusal to enforce Geneva, but the absurd conclusion that there have been no war crimes committed?

    36. The President took an oath to uphold the US Constitution. Within that document is the requirement to uphold requirements of international law. Curiously, one absurd assertion was that the President, because he was not related to international law, had no requirement to enforce Geneva. Hamdan and the resulting change in CIA prisoners destroys this nation. Please discuss the basis for concluding the President was not subject to international law, did not enforce it, and why there was no public refusal by DoJ or White House counsel in cooperating with the President's illegal war crimes orders?

    37. Fatal to the President's position is the assertion that Geneva was not Constitutional. this should have triggered Title 28 reporting by the Attorney General. there is no record the Attorney General complied with Title 28. We presume the discussion in the White House concluded the Geneva obligations were not enforceable, and could be explained away using some other excuse. Please discuss the staff reaction to being told that treaties, customary law, and other international obligations could be ignored; and contrast this with your 2006 comments after the President disclosed the CIA detention centers. Include in your response a statement as to how DOJ-White House counsel agreed to do nothing about violations of Geneva; and agreed to cooperate with the unlawful orders, policies, and illegal detention centers.

    38. The United States overrode customary law, ignore Geneva, and otherwise engage in illegal abuses against Prisoners at the CIA detention centers, and otherwise deny them access to a trial as required. How do you explain the massive ignorance of Geneva, and the DoJ-White House refusal to prevent violations of the law?

    39. Some have suggested that customary law is not applicable to the Executive Branch. No international treaty requires that former White House counsel be required the luxury to see the memoranda, DoD planning memos, and the NSA intercepts of your ongoing communications with clients. Please discuss why some are permitted to have access to evidence; but others are denied the right to review the evidence related to their international war crimes tribunal. Is there a basis to suggest that customary law, as other nations may implement, does not need to be enforced in all war crimes prosecutions against formerly-assigned White House counsel now involved in private practice?

    40. Some New York law school professors argued in Rasul that the prisoners do not have a right to have their cases adjudicated. Please discuss what prevents a foreign power from lawfully entering US airspace, lawfully detaining you, and lawfully rendering you to The Hague. What requirement is there that would compel current and former DoJ and White House counsel to have access to evidence, or be present at a war crimes trial where you might be prosecuted and convicted for war crimes?

    41. The US has no treaty with some nations. Treaties, even where they do exist, where they do not prohibit things, cannot govern them. Please discuss your explanation why any nation on this planet that does not have a treaty with the United States could not lawfully enter US airspace, land outside your home, and lawfully render you to The Hague.

    42. Some have suggested that inconvenient laws cannot bind the President. Hamdan belies this contention. It is true that the President can be lawfully prosecuted for war crimes, and no act of Congress can defend or immunize him. Please discuss the White House counsel concern that even if the US won a war, the United Stats President could lawfully be detained, and prosecuted for war crimes by any nation.

    43. The President does not have the power to violate the law. Please discuss the basis with which the President plans to continue violating the law, thwarting Congressional oversight, and preventing a war crimes prosecutor from gathering evidence of illegal evidence of war crimes in Europe. We observe no magic bubble with which Brad Berenson can create, hide behind, or bury himself under to avoid the EU war crimes prosecutors and investigators. How does the United States plan to interfere with the EU effort to review mattes of war crimes within their jurisdiction, and outside the protection of the United States; and is there some magic space vehicle Berenson plans to use to scurry to a distant plant to avoid the war crimes prosecutors?

    44. Hamdan reminds us that international law can constrain the President’s power, and Article III powers can limit the President's discretion. Your continued presence in the White House indicates you were in agreement, failed to stop, and did nothing to stop illegal war crimes memoranda from being issued. You had a legal duty to prevent illegal activity, unlawful orders, and illegal policies. Please discuss your reasons for not remove yourself from the illegal war crimes planning; and explain to the war crimes prosecutors why you did or did not agree with this contention.

    45. There is no credible or legal excuse for ignoring Geneva 2001-2006. Your 2006 comments indicate you have only excuses. The lawful penalty for war crimes can include the death penalty. The Tokyo War Crimes Tribunal indicted members of The Japanese Cabinet because they were in a position, as you allegedly were, to prevent illegal war crimes orders, or otherwise prevent unlawful polices from being enacted, enforced, or carried out. Do you claim that you were mistaken in your beliefs at the time; or were you reckless in not removing yourself from the war crimes planning; or do you have any other reason you wish to share with the war crimes prosecutors for your alleged refusal to remove yourself from this alleged these planned, implemented, executed, and not prevented war crimes?

    46. The Bybee memo has been discredited with Hamdan. Nuremburg prosecuted attorneys and jurists who failed to enforce the law. Please provide a reason why you should not be prosecuted, as were the German lawyers, for their failure to ensure that the 1929 Geneva conventions were enforced. Include in your response an explanation why the 1949 Geneva protocols do or do not apply; and the specific reasons why the NSA intercepts of your ongoing attorney-client communications should not be secretly reviewed by opposing counsel, the war crimes prosecutors, or others involved with this ongoing war crimes investigation.