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

Wednesday, September 06, 2006

Presidential Smokescreen To Distract Congress From War Crimes Investigation

The President has committed war crimes. Today, the President fatally admitted that under his orders the CIA has detained prisoners of war in violation of the Geneva Conventions.

There is another problem. Rather than rely on the existing system of military commissions, which the JAGs have recommended, to prosecute the prisoners of war, the President wants Congress to make new rules. The President's approach is a smokescreen and a disingenuous attempt to move forward. The President is not interested in defending America, only himself.

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Fatal Admissions: President Has Violated Geneva

The President's public statements were fatal admissions. He's acknowledging, by admitting the CIA detention centers were real, that the prisoners have not been treated in accordance with Geneva. He's openly discussed something that was otherwise claimed to be a state secret, destroying any claim of executive privilege in the ACLU litigation related to the German citizen illegally kidnapped and abused.

Rather than use the JAG-recommended approach, the President is more worried the public will realize the progress since Sept 2001 is inadequate and the evidence gleaned is insufficient to convict those detailed. The President cannot undo the Geneva violations.

Rather than encourage the Congress to solve the problem by conducting investigations into the abuse of power, the President is directing Congress to focus its energies on something Congress has well demonstrated it is incapable of, but eager to do: Pass legislation before knowing the full story. This pattern was behind the Patriot Act, and how the Congress sidesteps confronting the President on his illegal NSA-FISA violations.

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There is no need to create a new system, especially when Congress has no comprehension of what has gone wrong. The correct approach is to listen to the Judge Advocate Generals: The existing military commission rules are fine. It is unreasonable to expect Congress to re-invent the wheel. Congress has well demonstrated it would rather crawl through mud with the snakes of tyranny, than soar with the eagles of freedom.

Presidential Defense Strategy

The President's statements are part of his litigation strategy. He is not defending America, but himself. The President remains concerned with war crimes liability. The issue isn't simply whether he could be impeached, but whether he will be prosecuted. The President is reluctant to embrace the proven, JAG-recommended system allowing open evidence, for two reasons:

(1) Phony War, Phony Results

The public will find out that the evidence is not there, as required; and that the asserted progress has been illusory. The costs have far exceeded any measurable justification for the illegal violations of the Constitution.

(2) War Crimes Implications

The threat of punishment for illegal government activity is much higher than the prospect the defendants are going to be convicted. Even if the Senate does not convict, the President is subject to State level criminal prosecutions. Although it remains unclear which Governor might be asked to pardon the President for state level criminal conduct, no pardon from any executive can immunize the President from international war crimes prosecutions.

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President Again Ignores JAGs on Military Commissions

The law is there as a guide. Geneva is a requirement. Article 82 of the Geneva Conventions imposes a duty on all legal counsel the requirement to enforce Geneva. The short answer is for Addington, Gonzalez, and Haynes to accept that they have illegally ignored the Judge Advocate Generals. The way forward is to listen to the JAGs, implement the JAG-recommended approach and rules of evidence.

The JAG recommendations are the preferred approach. This would free Congress to focus on the Constitutional issues related to the FISA-NSA violations and the war crimes. The way forward is to learn from what went wrong, then if needed, address the broader governance issues. Credible leaders would enforce the law as it is; examine what went wrong; then fix it.

Nuremburg, ICC, and International Law Precedents

There is no reasonable claim that there is ambiguity in the law. The precedents from Nuremburg and the ICC definitions are clear. Consider whether the time to craft new legislation is longer or shorter than a simple debate on the ICC itself. The easy way is to agree to fall under the ICC definitions of Geneva. The Americans are not interesting or willing to review their conduct, nor rely on treaty language, nor review judicial precedents.

The way forward is to rely on the ICC definitions of what is or is not torture; look at the precedents after Nuremburg; and present the known conduct to the court for review. If the US courts are incapable of enforcing the law, then it is time to ask other nations for assistance. The General Assembly should review this break down of governance in the United states.

Congressional Focus on Investigations

The President’s approach mirrors the same failed approach with the NSA-FISA violations. Rather than focus on the existing law and enforcing it; or reviewing what went wrong and fixing what was broken, the President advocates a flawed approach. Neither investigating what went wrong, but rushing to legislate on issues which the court is best suited to resolve: Prosecution. The existing laws which the Judge Advocate Generals support are adequate.

The correct approach is to have an investigation and war crimes prosecutions. Once the indictments surface, the evidence is Presented to the Grand Jury, and Members of Congress have had time to consult with their directors -- we the People --the Congress will be in a position to decide the way forward.

The correct approach is to solve the problem. This means exploring the broad system of failures, and the needed solutions to that failed governance. The President's approach does the reverse and throws the problem to Congress. This is absurd. Congress has no information to make informed decisions. fact finding and prosecutions are needed.

Congress has insufficient information to make informed legislative changes

It is premature to send Congress into the netherworld of crafting legislation on issues they know nothing about. The full range of the Geneva abuses is beyond Congress current knowledge. It is absurd, as is with NSA-FISA violations, to compel Congress to draft legislation before Congress has a chance to review the full range of abuses; address the real problems; evaluate what has gone wrong; prosecute those who have engaged in wrong doing; then assess whether the problem is with the President or the statute. As with the FISA and NSA, the issue is one of leadership. The problem is not the law. The problem rests with Addington and Gonzalez: They are not interested in the Constitution, nor in taking responsibility for what has gone wrong.

The preferred approach is to examine the range of Presidential abuses; outline what is wrong; and create a comprehensive solution. In the short run, the appropriate way forward is to first review what has gone wrong, and only after Congress has reviewed the NSA and Geneva violations, will it be in a position to discuss what is or is not needed.

President Commands Snakes of Tyranny To Soar Like Eagles

The President's approach is backwards, absurd, and not credible. The President, rather than assenting to the rule of law, and agreeing to submit to Congressional investigations, has appealed to confusion. Rather than reviewing what went wrong, and how his signing statements have contributed to the disregard for Geneva, the President wants to have everyone making new legislation. The Patriot Act and Specter’s NSA-FISA reforms are examples. Rather than look at the problem, then explore what failed; the President with the Geneva requirements wants to ignore the needed fact finding.

The correct approach is to first discover what went wrong; then, if needed, enact new legislation to correct what failed.


As it stands, the President's approach simply sweeps the large pattern of RNC abuses under the rug, fails to address the known defects with the Congressional-DOJ Staff discussions on the commissions, and in no way is linked with credible inputs from the JAGs.

The President's direction to Congress to create legislation is a smokescreen to cover for the failed RNC leadership that refuses to investigate what, if anything, can be remedied with legislative changes. The President hopes to create a distract attention from his war crimes, and rely on the failed system of governance, which is broken, to solve the wrong problem. Senator Roberts of the Intelligence Committee has well demonstrated how glacially Congress will move when it is in the interests of the White House to avoid fact finding and war crimes prosecutions.

Failed Republican Leadership

The President's approach is further evidence of Republican incompetence. Procedurally, it is backwards, as is the case with the NSA, to require Congress to pass legislation without reviewing what went wrong. The actors who have created this mess and are arguably complicit with war crimes, are being asked to solve a problem they have no interest or competence to solve.

This President and the Republican leadership in Congress must face reality: They are clueless what to do. They have no track record of having reviewed simple problem and solving them.

Demonstrated Congressional-DOJ Staff Incompetence

It is absurd to ask the Congress, which refuses to enforce the law based despite clear violations, to then competently modernize legislation. This is like asking an incompetent to create an oversight plan for their training: They have no idea what to do, and need assistance. Similarly, Congress is not in the position to listen, nor is it sufficiently competent to take a step back and look at what it is doing to contribute to the problem. The President is in no position to provide this leadership.

DoJ Staff and Congress are reluctant to accept that the JAGs are the experts, and that both the DoJ Staff and Congressional staff attorneys have no demonstrated track record of ensuring their proposed procedures will be lawful. Congress and the DOJ staff have well demonstrated, despite secrecy, that they are incapable of ensuring the laws are enforced. Their memoranda fails to protect the Constitution.

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Listen to the Judge Advocate Generals, and rely on the existing system in place as it relates to evidence and procedure.