Constant's pations

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

Friday, September 15, 2006

Rose Garden Smokescreen

Where's there's smoke, there's a war criminal.

* * *

The current Senate rebellion is a disingenuous smokescreen. If the Republicans were serious in opposing the President, they would call for investigations of the illegal activity. The silence on impeachment is telling. The President has publicly started his war crimes defense.

The President’s Military Commission proposal is internally inconsistent. If the interrogators were honorable and would only do the right thing as the President suggests, there would be no reason to include language that would defend them before international tribunals.

* * *


The Republican opposition to the President is not credible, untimely, nor a final position. Rather than spark war crimes investigations and impeachment proceedings, the Congress is debating the clear, undebatable Geneva requirements.

The floor debate in both Chambers is a smokescreen to distract attention from the 2001-2006 war crimes. The bills, and reckless approach Congress takes toward war crimes, is evidence of war crimes: A failure to timely prevent war crimes; 2006 debates do nothing about 2001-2006 war crimes.


The Senate rebellion is not serious. Congress works through committees. The Committees, not the chamber floors are the appropriate forum to resolve substantial differences between bills from the same committee.

The Senate opposition is misdirected, unconvincing, and untimely. Without knowing the floor debate rules for these bills, the Senators and Representatives have quickly moved the inconsistent bills to the floors.

This is a sham exercise in phony oversight. These bills are not serious efforts by Congress to enforce the law, protect the Constitution, or see that the Supreme Law is protected.

The order of events is revealing. If members of Congress were serious about the 2001-2006 violations, and in correcting the phony ambiguity, then they would call for investigations to find out what went wrong before drafting language that corrects a problem they do not understand. The lack of calls for an investigation, and the rush to pass legislation based on non-existent fact finding is telling. Principled leaders, before they propose solutions, would find facts through the committee investigations. This Congress has done the reverse with the NSA-FISA bills and CIA detention abuses.

The inaction on impeachment is instructive. If the Senate were suddenly concerned with the law, they would publicly call for the House to impeach, and independently launch an investigation into the illegal CIA detention centers. The Senators are silent on whether the President is fit for office; and there is no plan to investigate the issues the Senators are supposedly rebelling against.

The objective is political not legal. The RNC hopes to sway wavering DNC voters with the mistaken belief that the RNC is finally serious about enforcing the law. The objective of the public statements is not to pass a legal solution, but to trigger discussion and test the effectiveness of the planned legal defenses before international tribunals.

Presidential War Crimes Defenses Are Invalid

The President has illegally ordered, and did not prevented violations of the Geneva Conventions and domestic law. Memoranda similar to the Bybee Memo outline the legal excuses to ignore Geneva requirements at the CIA detention centers and are admissible.

The consultations with the JAGs have not been with the intent to enforce or follow the law. There is no basis to point to the lack of enforcement of Geneva as precedent to continue non-enforcement.

The law and requirements are clear. There is no ambiguity whether Geneva prohibits abuse and outrages against prisoners. The US policy at the CIA detention centers violated this clear requirement. Americans freely engaged in, carried out, and failed to resist or change illegal orders.

The CIA officials knew, or should have known that the orders were illegal, and no reasonable CIA officer or contractor should have relied on these illegal orders. There is no credible case that there was any necessity to violate the Supreme Law.

The 5100.77 Laws of War program is clear. There is no excuse for similar guidance not to have been provided, or that contractors were not aware of the Geneva requirements.

Even if the interrogators and contractors were ignorant of the law, the well publicized lessons of Guantanamo and Abu Ghraib provided sufficient public notice of the Geneva requirements. These reports and investigations occurred well before the CIA detention policies were changed. The untimely delay in complying with Geneva is evidence the original policies were illegal, and the subsequent supervisory actions were reckless.

There were no honest mistakes in the illegal orders. The National Security Council illegally implemented illegal polices and orders; and was instrumental in issuing illegal policy which others knew, or should have known, were illegal and should not have been implemented.

Congress was in a position to intervene, investigate the NSC and Joint Staff illegal plans, and failed. Congress made no inquiry into the CIA detention centers, nor made any provision to timely alter funding profiles for what was known to be illegal activity.

Inconsistencies With Military Commissions Bill

If Ambiguity were real, there is no need to include language for legal defenses. Action based on the argued-clarifying bill should negate the reason for insurance. Yet, because Geneva is clear in prohibiting outrages against prisoners, the bill clarifies nothing, creates confusion, and creates the ambiguity requiring the insurance coverage.

The program clarification should provide guidance, yet the bill is internally inconsistent and at odds with the Legislative and Executive actions and statements. The inconsistency between what the leadership says, and what they have included in the bill is revealing:

  • If personnel followed the law, there would be no need for changes, debates on guidance, or offers of insurance;

  • If the bills' goals and intended outcomes were what the President stated, there would be no need for protection or a defense;

  • If the conditions of uncertainty were real, the bill in providing clarity would eliminate the need for insurance;

  • If the personnel involved were professional, only doing the right thing, there would be no need to include resources to defend them for doing what was wrong.

    The American leaders are not serious about providing clarity, but creating confusion. The United States government is not serious about enforcing the law or prosecuting those who committed violations of Geneva 2001-2006.

    Rose Garden Strategies

    The President offers meaningless assurances. The goal is to provide media messages to the President’s supporters can later state the President did all he could to publicly defend the honor of the CIA interrogators. These claims are dubious. If the President had the interests of the CIA at heart, he would not blame them for his failed Iraq plan; and would have ensured his orders to them, and the detention centers were consistent with Geneva.

    The United States has legal obligations. Whether the enemy does or does not do something has no bearing on whether the United States 2001-2006 had Geneva obligations. The President isn't protecting America from his illegal activity, and its consequences.

    The President's legal obligations are eternal, but notice the President's shell game. When arguing for both prisoner abuse and illegal surveillance, the President points to 9-11, and specultive danger, to engage in certain illegal activity; yet uses these images to dissuade scrutiny of his criminal activity.

    The President is appealing to ignorance and confusion. The President hopes to create the false impression that Geneva was ambiguous. This is incorrect. The conventions were well articulated after WWII, and Nuremburg precedent makes it clear what is or is not illegal. The President is changing the standard from whether there is or is not legal compliance to whether there is or is not speed in arriving at a decision.

    The President is blaming the Supreme Court and shifting the burden of compliance to whether Congress does or does not draft a bill. Congressional action or inaction, and Supreme Court decisions in no way detracts from the Presidents’ primary responsibility to enforce the Conventions.

    Whether the US does or does not comply with Geneva is up to the President. All three branches of government have the power to prevent anyone from implementing illegal orders. Congress and the Courts share responsibility with the President for failing to hold the Executive Branch personnel to their legal obligations. US officials have failed in their duty to prevent and stop ongoing illegal violations of Geneva.

    Contrary to the President’s assertions that foreign courts do or do not have a role in conducting trials against American war criminals, Geneva grants to any nation the power to try any alleged war criminal.

    The US is not willing to cooperate with any nation to enforce Geneva standards. Public statements that the President would welcome Iranian and North Korean compliance with the President’s proposal are meaningless, premised on the false assumption the US, Iran, and North Korea’s cooperation on anything was relevant to whether the US did or did not adequately defend US war crimes 2001-2006.

    Public statements about the concern the US may or may not have toward immigrants are meaningless. The President’s assertion that the US may or may not treat others with dignity belie his actions, policies, and failure to enforce Geneva 2001-2006.


    Prosecution of DoJ Staff counsel and individual Members of Congress is warranted. The Hague also has jurisdiction to lawfully prosecute American war criminals in the White House, Department of Justice, Department of Defense, and National Security Council, and Central Intelligence Agency.

    US actions are inconsistent with core principles. Americans have violated Geneva. They have failed to timely prevent illegal activity. Congressional actions in Sept 2006 in no way sends any signal the Congress is serious about its legal obligations. Rather than investigate or direct prosecutions, Congress debates irrelevant matters.

    The Congressional approaches, even if they were to maintain the Geneva requirements, in no way stem from an understanding of why the existing requirements were not initially enforced; or what needs to be remedied with the failed oversight, enforcement, and training within the Executive Branch.

    Whether a program or activity is or is not needed is irrelevant to whether conduct and policies must comply with the law. The President has consistently ignored the law, and only when caught crawled to Congress asking for retroactive immunity. The 2006 effort to immunize the illegal conduct is evidence the President is not serious about accountability but excuses.

    There is no credible defense for the well documented Geneva violations between 2001-2006 at the CIA detention centers. The President had the lawful obligation to enforce Geneva. There was no ambiguity. His counsel well discussed in the Bybee memo the risk that the conduct would implicate Geneva litigation. The President chose an illegal course of conduct, issued illegal orders, and there is no defense for anyone relying on those illegal orders.