Constant's pations

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

Tuesday, September 05, 2006

Rendition: The Threat of Prosecution As Evidence

A prosecutor has one objective in silencing media coverage related to rendition and war crimes: To protect peers in the Executive Branch from criminal prosecution.

The abuse of power is not isolated to one branch of government. The States should be encouraged to review US Attorney Conduct for purposes of disbarment, and make referrals to The Hague for war crimes prosecutions. These are serious matters.

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Draft Indictment Against US Attorneys in re Rendition and NSA Surveillance

Ref FISA Conspiracy Draft Indictment


[ 407 F.3d 1195 ]

[ 866 F.2d 1304 ] Brady rules applies to rendition-NSA evidence.

1. The evidence is favorable to the detainees because it shows (a) the evidence has been illegally obtained; and (b) would impeach the government witnesses as to the dubious claims the activity was lawful, rather it is illegally classified;

2. The US Attorneys know the NSA has illegally obtained evidence, and was important and material in the decision to target, kidnap, and render the prisoners to Eastern Europe;

3. The illegally obtained evidence has been suppressed, as evidenced by the DoJ actions to thwart oversight, DoJ OPR access, or Constitutional review of the illegal CIA rendition and NSA illegal surveillance.

4. The Prosecutors have failed to disclose, as lawfully required, any of the evidence related to the illegal activity, as evidenced by the threats of prosecution against the media for discussing the evidence [ 473 U.S. at 675 ].

5. The evidence of illegal surveillance, if disclosed to the court, would impeach the government witnesses, and be inadmissible. This is clear prosecutorial abuse. There is no reason anyone would have confidence in the illegal, non-judicial verdict: Kidnapping, abuse, torture, and illegal detention without charges. [ 105 S. Ct. at 3383 ]

6. There were no lawful arrest warrants, as required. Based on the public revelations of illegal NSA activity, and the discussion of the need to change CIA procedures at the rendition, the US Attorney failed in their duty to investigate the facts related to the President's block of DOJ OPR, or the other likely evidence linking the United States to illegal kidnapping on the basis of illegally obtained evidence. The absence of any public trial should, alone, give the US Attorneys cause for alarm.[ 514 U.S. at 437 ]

7. There has been no judicial proceeding, as lawfully required, to review evidence or adjudicate a lawful punishment. The continuing detention after kidnapping and rendition remains illegal. The conduct amounts to a reckless disregard by the US Attorney for the Constitutional rights of the accused. This is a due process violation. Federal law has not been appropriately applied. Habeas corpus has been illegally thwarted using illegal violations of the law, and the US Attorney has failed in their duty to investigate these Constitutional violations by the Executive, CIA contractors, CIA officials, NSA Senior Executive Service personnel, the AT&T/Verizon intermediaries, and the CIA contractors which transport, render, and continue to detain the prisoners of war.

Ref Others

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Once a prosecutor working for the US Attorney's office threatens any newspaper for publishing information related to illegal activity, that threat of prosecution is admissible. Putting aside the potential war crimes liability on Members of Congress for failing to investigate the illegal rendition program, the issue becomes a matter of evidence.

The court may presume that the threat of prosecution is related to a desire to suppress evidence related to illegal activity. Where there is doubt about the veracity of claims, the court and grand jury may use the prosecutor’s threat of prosecution as evidence that the evidence and claims in the media are true.


The Rendition program is real. Threatening the media with prosecution puts the government in a less favorable light. Either

A. The information is valid -- the claims about Rendition are true -- and the US Attorney has maliciously threatened prosecution for discussing illegal activity; OR

B. The information is invalid -- the claims about Rendition are false -- and there is no basis for the prosecutor to threaten litigation: It is not illegal to make an error.

The only reasonable explanation for the government action -- the threat of prosecution -- is that the evidence is:

1. Correct;

2. Probative;

3. Material;

4. Admissible evidence of war crimes;

5. Not privileged, but the claim of privilege has only dubiously been asserted;

6. Has been illegally classified, and that classification is a subsequent crime;

7. Probable cause to sanction the US Attorney for malicious prosecution -- it is not lawful, and an abuse of power to threaten someone for revealing evidence of illegal activity;

8. Sufficient basis for the court to conclude the attorney has not sufficiently complied with their ministerial duty to engage in due diligence. Rather they have turned justice on its head, and are targeting those who have evidence the US government, US Attorney, and executive agents have engaged in war crimes, and other illegal activity.

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Put aside the above discussion over whether the information about rendition is true or false. The problem for the government is to explain how it plans to prosecute the media. There are several problems:

(1) Evidence

If the government wants to litigate against the media for reporting this illegal activity, the government has the responsibility to provide evidence to the defense. This is a requirement under Brady.

(2) Due Process v. Dubious State Secret

The government contention of "state secrecy", regardless its truth or falsity, puts the government in the position of making accusations, but denying the defendant of the evidence required to defend themselves. This would violate the due process requirement. No reasonable court observer would conclude that any defendant, so deprived of any information, could face a reasonable trial verdict.

(3) Illegality under ORCON

ORCON stands for "Original classification" and is part of the Executive Orders. It is illegal to classify evidence related to illegal activity. The government may not claim that the evidence, the media otherwise is required to present to defend itself, is not admissible; while still asserting the reporting of that illegal conduct is impermissible.

The argument overwhelming tips away from the government. The US Attorney threat of prosecution is linked with a concern that the public may make adverse inference, a grand jury could convict the US Attorneys for war crimes, and that the judicial branch will strip the Executive of any further privilege.

The motivation, intent, objective, and ultimate aim of the government is unlawful. The government unreasonably abuses its power to silence those who have made valid claims. Surely, if the claims were invalid, the government could use non-legal methods to ridicule the "obviously incorrect" media.

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The government's contentions are dubious. The burden of proof rests with the government to demonstrate, inter alia:

(1) Why anyone should believe the government claims;

(2) Why the US Attorneys involved should be immune from sanctions for abusing their prosecutorial position;

(3) What reasonable bar to discovery exists;

(4) How the government plans to litigate something they claim is a secret, but cannot be discussed;

(5) How the government plans to demonstrate to the public that the proceedings are fair and consistent with the due process requirements.

On all counts, a reasonable grand jury would likely conclude:

A. The government claims are dubious;
B. The US Attorney involved should not be immune to sanctions for abusing their discretion;
C. There is no reasonable bar to discovery of the rendition activity;
D. There is no lawful way for the government to litigate this case against the media, but denying the defendant access to the evidence related to the charges; and
E. There is no credible basis with which the government can demonstrate that the proceedings are fair.

Each of the above problems are related to:

1. Violations of the Constitution, clearly established rights, and loss of government employee qualified immunity [42 USC 1983];
2. Abuse of executive power;
3. Abuse of prosecutorial power;
4. Reasonable basis to bring charges against the US Attorney for illegal activity; knowledge of and planning for war crimes; and failure to prevent or remove oneself from the illegal activity [Article 82, Geneva];
5. A reasonable basis to conclude Rendition is a real, illegal activity relying on illegally intercepted information [FISA violations, kidnapping, torture];
6. Illegal suppression of evidence [Brady];
7. Volitions of the oath of office [5 USC 3331, 28 USC 544];
8. Denial of guaranteed due process;
9. Illegal classification of unlawful conduct [Executive Orders];
10. Interference with the clearly established right to freely report the news on matters of public interest: Criminal activity by the US Attorneys, DoJ Staff Counsel, US Attorney General, CIA, CIA Contractors/intermediaries, NSA, NSA Contractors/intermediaries, and President of the United States [Conspiracy against rights].

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We have shown that the US government has illegally threatened the media for reporting truthful information related to unlawful kidnapping, rendition, and abuse. It remains to be understood the full scope of the illegal activity.

The US attorney has fatally undermined the US government interests in thwarting discovery and litigation. The public threats against the media are adverse to the government interests. This litigation action is not privileged; rather, the adverse information and public act is admissible as an exception to the hearsay rules. The only plausible reason the US government would threaten litigation has nothing to do with a crime of reporting a secret, but because the information about illegal activity is true.

The public and voter should take the US Attorney threat against the media as meaningless. Rather, the litigation tactic is merely a sign of desperation: The US government has no lawful way to defend, justify, or rationalize the illegal activity. Their only option is to target those who dare to report reality. This does not inspire confidence in either the American government, or the policies this government advocates.

The government litigation strategy is at odds with its interests. The public can easily see the US attorney is at odds with the rule of law.

The information related to rendition cannot be protected. Regardless whether the information in the media is true or not, the US Attorneys have put themselves in a worse position. Either:

A. The information in the media is correct and rendition is real, and is evidence of war crimes; there have been violations of executive orders prohibiting the classification of illegal activity; and the possible lawful sanction against the US Attorneys for their involvement in war crimes is the death penalty; OR

B. The information is incorrect, there is no basis to prosecute; the attorney conduct amounts to malicious prosecution; and the US Attorney has engaged in conduct that could subject them to disbarment.

If it is the latter, they are personally putting their legal careers at risk; if it is the former, then they are putting their lives at risk. Either way, the US Attorney's position is undermined.

It would be appropriate for the US attorney to comprehend their loss. The public knows this, and the States have the legal power to prosecute you for violating the US Government's Constitutional Guarantee to protect the State's Republican form of government. That guarantee includes an enforcement mechanism to prosecute violations of the Constitution, public statutes, and state level privacy. It is of little consequence whether the objective of that illegal activity is to protect a President from accountability, or prevent war crimes evidence reaching The Hague.

The States have options. The voters comprehend this before the election. The American Department of Justice has well demonstrated it has engaged in unconstitutional conduct, and cannot be relied upon to protect the Constitution. The US Attorneys shall either freely assent to the rule of law; or you shall lawfully be defeated on the battlefield. Take note: Your legal arguments are meaningless. There was little the Israeli army could do to defeat a marginally equipped force. Last time we checked, the Department of Justice is substantially less firepower than the defeated war criminals in Israel.

You're going to lose. Give up peacefully, or you shall lawfully be rendered to The Hague for war crimes prosecution.

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Detailed Links and Material

Ref There is precedent from post WW II Germany to indict members of the Judicial Branch, including prosecutors, attorneys, and staff legal counsel for their complicity in war crimes.

Ref Ref The US Attorneys involved in the above misconduct have violated their oath of office, an oath covered by a different statute than 5 USC 3331 applicable to Members of Congress and the President. These are serious breaches which should have been reported to the DOJ OPR. It is not reasonable to conclude any US Attorney has faithfully executed their duties when they are in a position to know, or should know, that the illegal conduct and war crimes of their peers and President must be prevented and prosecuted.

Ref The misconduct matches the apparent pattern of abuse in Oregon, where prosecutors hope to suppress evidence related to the illegal use of NSA intercepts of attorney-client discussions.

Ref This threat of prosecution is additional evidence to support the contention that Rendition is as real as the NSA illegal surveillance.

Ref Other adverse inferences related to the CIA admissions, following the Hamdan ruling, that the procedures at the overseas facilities would have to be revisited. The conduct at the overseas detention centers illegally violates Geneva, and is evidence of a war crime.

Ref This President and US Attorneys have failed to protect the Constitution, but defied their oath, and violated state criminal statutes. They have no defense to state prosecutions.

Ref The states citizens may review this information, and either conclude that new state legislators are needed so that more credible checks on power exist; or that the State Attorney Generals should move to prosecute the President, DoJ Staff counsel, and US Attorneys for violating State criminal statutes. There is no reasonable basis to conclude that the US President cannot be prosecuted by the States for violating State law. The Magna Charta shows that even a King is not above the law.

State Citizens should observe whether your elected officials do or do not use all the lawful options to protect the Constitution. If they fail to act, as they are otherwise required to do, then the State Citizens should use this adverse information to elect leaders who take serious their oath of office and the specific ministerial duty to protect the Constitution.

Magna Charta

The US attorneys, by threatening to prosecute the media for commenting on rendition, are violating not only the American law and US Constitution, but are ignoring basic principles of the Magna Charta, 1215.

Ref The Magna Charta outlawed imposing justice unless there was evidence and witnesses. Rendition, the US Attorneys well know, fails to meet the standard of the Magna Charta.

Ref Even the Magna Charta offered safe passage. The only thing the US Attorneys, through threats of prosecution, do is conceal evidence of violations which were outlawed in the Magna Charta.

Ref How do the US Attorneys plan to explain the resurfacing of those who have been abused? Surely, they do not hope to silence even the victims of the illegal kidnapping; or do the US Attorneys believe that the prisoners of war [POWs] will remain forever imprisoned, or killed? Americans who have been kidnapped retain their citizenship, and can return; or are the US Attorneys saying that the American citizens -- simply on the basis of accusation alone -- will be barred from commenting on reality?

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US Attorneys Could Be Disbarred For Violating Attorney Standards of Conduct

The US Attorneys, by threatening prosecution for discussing illegal kidnapping, put their legal careers in jeopardy: They have essentially asserted that the allegations of illegal kidnapping are true. These have serious implications for the US Attorneys standing before the state attorney discipline system.

Ref The US Attorneys would like to pretend that Geneva, the war crimes implications, and the DoJ OPR reporting requirements are someone else's business. Yet, even in the days of the Magna Charta, the requirement was to appoint prosecutors who knew the law, as opposed to explaining it away, or violating it as is the US Attorney practice in 2006. Will we see the American law and Constitution protected, much less enforced; or must we rely on the Magna Charta as the basis to impose order upon the reckless US Attorneys, and lazy DoJ Staff Counsel?

Ref Either the US Attorney is making a frivolous claim and there is no basis to indict anyone; or the information is true as reported and there is illegal rendition.

Ref There must be a reasonable basis for the US Attorney statement. Either the US Attorney is lying, and there is no basis to prosecute; or the US Attorney, by threatening prosecution, is worried the truthful reporting may be a problem. Either way, the problem is for the US Attorney, and alleged abuse of prosecutorial power.

Ref The only reasonable explanation for the US Prosecutors' action and threat is twofold: there is a genuine desire to suppress truthful information using illegal threats and intimidation; and the information is true, and would materially damage the defense of all executive branch personnel involved in the war crimes. This is a course of conduct that is not lawful. The US Attorney involved could be disbarred for engaging in illegal conduct, and violations of the Model Rules.

Ref By threatening prosecution of information related to illegal activity, the Prosecutor is either concerned about the revelations; or they have no regard for the Constitutional rights of others to report and inform others of illegal activity. Geneva outlaws efforts to obstruct reporting of war crime-related evidence. This course of conduct is not lawful under the Geneva conventions, and could be a war crime.

Ref Prosecutors have a reason for threatening prosecution related to rendition: The allegations are substantially true as reported. However, the evidence cannot lawfully be classified or protected.

Ref Ref Prosecutors do abuse threat of prosecution, and may be sanctioned. The subsequent action against the US Attorney or prosecutor may include indictment and disbarment. The violation is not narrowly the abuse of prosecutorial power, but the alleged attorney involvement in failing to prevent illegal activity and war crimes; and their subsequent failure to remove themselves from the criminal enterprise.

Ref What type of inquiry should we expect? Surely, we should expect fact finding. Yet, unlike the days of the Magna Charta, the US Attorneys, DoJ Staff, and FBI are too afraid to assert their oath, and silently agree to standards the King of England was not allowed to violate. The US Attorneys, by threatening prosecution show they are not serious about reality or the Constitution. Rather, they are in love with taking Americans to a time pre-dating 1215. Should Americans be so lucky to have a King. Nay, the US Attorneys prefer tyranny of Caesar.

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Roman Tyranny

In Ancient Rome, the Senators had exclusive control of the Judiciary, legal community, and the law. The Senate had the power to control and kill the counsels who defied the Senate. There were no independent courts, no right to appeal. The Senate had supreme control over the system of Justice. Is this what the US Attorney would prefer?

Under Roman Law, sons who defied their elders were killed. That the Elder Bush (41) impose the same standard on his son (43) because the younger had defied and embarrassed his father. Is this what the US Attorneys would prefer?

The Roman Senate, not the Executive, controlled the purse, and could independently shut off funding for illegal wars. To this end, the people sought to not displease the Senate. Perhaps this is what is needed -- to ensure that the clerk in the oval office remains responsive to the Senate. Is this what the US Attorney would prefer? It can be arranged.

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Ref Do the US Attorneys plan to cooperate, and return those illegally kidnapped to the United States; or are the likes of Hamas, Hezbollah, and other lawful combatants required to intervene to ensure the US follows the laws of war?