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Friday, September 22, 2006

Senate-Presidential Agreement Is Evidence of Widespread American Geneva Violations

There are many illegal aspects to the specific agreement between the Senate Republicans and White House.

What You Can Do: Here it is. They wished this.

Tip: Recommend readers carefully review the illegal 1930's abrogation events in Germany. A comparison between the Nuremburg indictments, 1930s Nazi actions, and the US government actions 2001-2006 is available here. It is important to keep this in your mind as you review the details of this Senate-Executive agreement: The agreement is a document which supports the larger illegal effort. Notice the terms and the way the agreement was publicly orchestrated. The comparisons to the 1930s will jump out. The same has been happening 2001-2006.

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This agreement should serve as a guide for war crimes prosecutors. It outlines the range of conduct that the Americans would like to remain immune. The agreement's "permitted conduct" is expressly illegal and should be presumed to have already occurred. The illegal agreement forms the basis to issue a subpoena to gather evidence related to any and all acts illegally permitted under this unlawful agreement which would otherwise violate Geneva.

It should be presumed that all combat targeting and planned military and covert operations in Iran assume this illegal agreement will unlawfully immunize DoD, DoJ, NSA, and CIA personnel. This is not a reasonable assumption by any civilian contractor, Member of Congress, or any executive branch agent, intermediary, or support personnel associated with DOD. Relying on this illegal agreement is not a reasonable defense before a legitimate judicial tribunal adjudicating war crimes.

Warning: War Crimes Related Evidence Must Be Timely Reported

You are advised to seek competent legal counsel while reviewing this war crimes related information. This information should be construed as fair notice, inter alia : (1) The Congress and President have agreed to conspire to not enforce Geneva; (2) This agreement is evidence of war crimes 1997-2006; and (3) Members of Congress have individualized concern for their reckless failure to prevent Geneva violations, which they otherwise have the duty to prevent [Nuremburg, Tokyo War Crimes Tribunal].

Unless the individual Member of Congress have timely provided evidence of war crimes or are cooperating with the US Attorney and War crimes tribunals investigating this illegal activity, all 535 Members of Congress are, because of this agreement, are alleged war criminals; and remain targets of this ongoing war crimes investigation and face possible prosecution before an international war crimes tribunal. The ultimate penalty for war crimes can include the death penalty.

The general problems with this agreement are discussed here, with sample Q&A: See this link

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There is no statute of limitations on war crimes. This agreement is not lawful. Nobody in the American government, contracting community, or any other public or private entity would be reasonable to rely on this agreement as a defense to war crimes.

This agreement amounts to an outline to commit inhumane acts in violation of Geneva. It is not a lawful act or agreement. Members of Congress and the President should be presumed to know of the illegal activity, and the language serves only one objective: To create for Members of Congress otherwise invalid immunity for their failure to prevent violations of Geneva going back to 1997.

This agreement helps couch the scope of the war crimes prosecutors, discovery, and FOIAs. Based on information and belief, this illegal agreement should be interpreted by the war crimes prosecutors as evidence that the illegally permitted inhumane treatment has occurred and awaits discovery.

Moreover, it should be presumed that there are documents plans, records, and other admissible evidence not protected by privilege within the NSA, National Security Council, and White House staff and ODJ Staff counsel office related to these illegal activities. It should be presumed that this agreement was established because there exists evidence within CIA contractors, CIA archives, and the Intel Link database which illegally outlines, stores, and has records of the illegal activity this agreement permits.

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The current agreement is instructive. Putting aside the issues of whether this is or is not valid law -- it is not -- the central issue is to what extent this agreement is crafted to immunize US personnel from war crimes that have not been investigated.

The agreement as drafted is admissible and should be presumed as permitting various Geneva violations that have occurred at CIA detention facilities on, above, or under the land and sea worldwide. The illegal agreements also permits unlawful war crimes planning against Iranian non-military facilities unrelated to imminent threats.

The agreement should form the basis to broaden the ongoing war crimes prosecutors’ investigation to ask questions, engage in discovery, and forcefully direct questions to the DOJ Staff and CIA personnel on all matters related to the inhumane treatment this agreement allows. This agreement should serve as probable cause that the permitted violations of Geneva, that this agreement unlawfully allows, should be presumed to have occurred, and there exists physical evidence and testimony from participants in these illegal activities.

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Illegal Problems With Existing Agreement

Illegal Treaty Interpretation

Congress does not have the power in 2006 to define what the 1949 treaty means. This is an exclusive Judicial Article III power.

The agreement prohibits enforcement of the Geneva conventions, and prohibits those who commit violations to be immunized to civil penalty. The United States did not invoke this as an exception in 1949, and is not part of the original agreement.

The United States cannot prevent other nations from suing US officials in other courts. The language is no more enforceable than the language the President invoked to bar detainees from bringing suit in US court to challenge their status.

This agreement, even if enacted, cannot retroactively bar suits which have already occurred in violation of the Geneva Conventions. Denying someone the ability to invoke Geneva as a basis for suit amounts to a denial of the means to enforce violations of that. The Geneva Conventions when crafted could not have been meant to have prohibited a means to enforce the treaty.

The Geneva Conventions are incorrectly narrowly construed to ignore pre-1949 protocols, and other common law the Armed forces have agreed to follow.

War crimes in 18 USC 2441 includes:
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

Note, the draft agreement shows evidence the President and Senate do not understand what The Hague is. It is not the Hague convention, but The Hague Convention, the Hague is incorrect, and should be capitalized to read The Hague.

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Section 8

(1) The illegal acts are not the sole means to commit inhumane treatment.

(2) Congress has no power to say whether conduct does or does not meet a treaty obligation. This is an exclusive Article III power for the judiciary. It is not lawful for the United Stats to say that Nuremburg precedents, which are not related to the United States, cannot be invoked as precedent to prosecute American war criminals. The US has no power to prohibit other nations from applying precedent against US personnel.

(3) The President has no power, and the Congress may not create nor confer any judicial review power to decide what the Geneva Conventions mean. This is an exclusive Article III power. Whether the President does or does not promulgate other standards that exceed the Geneva Conventions is meaningless. The existing violations have not been investigated; promulgating new standards fails to ensure the Geneva conventions are enforced against CIA personnel.

(B) The President has no power to assert that a rule which may violate Geneva is the Supreme Law, nor are they necessarily authoritative or lawful. The President has no power to determine whether conduct is or is not a grave breach of the Geneva Conventions. This is an exclusive Article III power only the Judiciary may exercise.

(C) Is meaningless. It says it will not affect the Judicial Branch, but the terms of the agreement do just that. Whether Congress does or doe snot enforce the law is meaningless to whether the law imposes an obligation on the Member of Congress to prevent violations of the Geneva Conventions.

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(c) Definition.— As used in this section the term “war crime” means any conduct—

(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or

The language incorrectly redefines Geneva to say something that as not intended. Geneva specifically requires humane treatment.

it is a separate matter, and irrelevant how one defines inhumane treatment.

This is meaningless:

“(3) which constitutes a grave breach of Common Article 3 as defined in
subsection (d) when committed in the context of and in association with an armed
conflict not of an international character; or”;

"Grave breach" cannot mean that the standard of what is "inhumane" is loosened. Rather, the standard in Geneva is a bar against all inhumane treatment.

The proposed changes are not consistent with Geneva, and amounts to an effective abrogation of the intent of Geneva in 2006. This reservation was not included in the 1949 Senate Debate and is not considered enforceable. Rather, this change serves as evidence that there have been CIA breaches of Geneva within this new-illegal zone.

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It is meaningless to define what is prohibited as exclusive. Geneva does not do this, but takes a broader approach of requiring the treatment be humane.

Because something is "not prohibited" does not mean that it is humane nor does it mean the standard.

This agreement, as the President ma interpreted, could define something as being lawful, but it still violating Geneva and being inhumane. This is not lawful.

The US Statute, as it is applied, is failing to ensure that the conduct is or is not meeting the Geneva requirement for humane treatment.

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War crimes have not been interpreted to include conspiracy. It remains to be explained why this agreement would define conspiracy as being a war crimes associated with torture.

Also, it is illegal to define a war crime as something is much higher than any inhumane act.

"Minor physical pain" is not lawful under Geneva when it is intended, but this agreement would illegally permit that inhumane treatment. Someone who intends to commit "minor" physical pane, under Geneva, is engaged in inhumane treatment.

The definition also fails to ensure that the abuse or inhumane treatment is done for purposes unrelated to intelligence gathering. Some in the CIA enjoy imposing abuse on others for psychotic reasons; they have been arguably subjected to bizarre training, and view senseless violence as warranted. The current agreement fails to impose a sanction on violence committed that is unrelated to a specific objective, as has been the case in the CIA detentions and Guantanamo.

The agreement fails to impose a liability on supervisors for failing to ensure that supervisors remove from interrogations those captors and jailors who are engaged in senseless violence as we have seen in Abu Ghraib.

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This section fails to prevent all inhumane treatment, nor does it assert the higher requirement that all conduct be humane. It allows for moderate to sever pain; and minor to serious abuse.

The terms also allow someone in the CIA to argue, "They weren't under US control, but located in another country. I just happened to be there." This is an invalid defense. Being present, failing to prevent, and otherwise assenting to the violations, even if you are in another country, makes you complicit with the offenses.

Biological Experiments -- This definition fails to exclude all other types of experiments including mental, physical, heat, or social-related experiments. This is an illegal permission to engage in illegal experimentation if it is not excluded. This statute is not lawful as written.

As written, biological experiments, if they were shown to be related to a "legitimate" purpose, could be lawful. This is not allowed. No prisoner has free will to choose to enter or not enter the experiment. This is a subsequent violation of the Nuremburg Code.

Defining an experiment as "legitimate" is illegal. Prisoners shall never be the subject of any experimentation ever.

MURDER This section fails to consider how the jailer-detainer-interrogator used sufficient inhumane treatment to kill someone. The issue is not to raise the level of permissible inhumane treatment, but to lower it to where Geneva exists: A bar against all murder.

This bill amounts to saying that anyone who engages in moderate to severe force, who "just happens to" kill someone is innocent of Geneva violations. This is absurd. Geneva bars all inhumane treatment, and requires the prisoners be treated humanely at all times. Whether there is or is not intent is a separate legal issue and only the judiciary can decide this. This Congressional act illegally targets pending legal matters, and is not Constitutional.

The terms of this agreement is for an unlawful objective: To review the scope of CIA abuses and define all their conduct which violates Geneva as being permissible. This is an illegal assertion of Article III powers by the Congress and is not lawful nor enforceable. Any contractor, lawyer, or judicial officer who relies on his document may be punished for subsequent war crimes.

(E) MUTILATION OR MAIMING. — Whether someone does or does not intend to do something is irrelevant. The issue is whether their supervisors did or did not prevent all inhuman acts, and otherwise meet the Geneva conventions which require prisoners be treated humanely.

This agreement illegally puts the judicial review only on the primary actor, and fails to hold the defective, reckless civilian leadership, CIA supervisors, and others on the National Security Council who should have known that the CIA detention centers were engaged in inhumane treatment.

The correct approach is to attach liability to anyone who permitted all conduct which was less than humane treatment. This clause illegally narrowly attaches liability to only the CIA jailers, and illegally sends a false signal to the Joint Staff, CIA contractors, Boards of Directors, White House counsel, DoJ Staff counsel, DoD General Counsel, and others in a position to prevent illegal detentions that there is no way that they can be prosecuted.

This is not lawful. Tokyo War Crimes Tribunal precedent, outside US laws, clearly prosecuted those similarly removed. This narrow definition of what is or is not murder illegally communicates to those who plan, schedule, provide support, or otherwise assist the facility in engaging in any inhuman treatment that they have no fear of prosecution. Nuremburg Precedent is the opposite. Even those involved with the train scheduling, data punch cards, and supporting equipment were indicted for war crimes.

“(F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.— This is an absurd standard. This clause means that anything that is minor to serious bodily injury is permissible even if it is intentional. This is illegal.

Also, the phrase illegally communicates to all supervisors that only the primary actors, and not those who fail to prevent all inhuman treatment will be free from prosecution. This is contrary to precedent under the 1949 protocols.

Inhumane acts include any bodily injury. Whether that bodily injury is or is not intentional, severe or moderate, is an issue for the court to decide as the basis to execute the war criminal. This standard illegally narrowly defines the basis for judicial review to be a much narrow standard of abuse than what the Geneva Conventions require.

RAPE This section fails to sanction illegal orders of CIA personnel who have directed other prisoners to commit acts of abuse against their peers. The clause fails to include the words, "Direction, supervision, and failure to prevent" as Nuremburg and Tokyo precedents establish.

Whether this language does or does not include this restriction is irrelevant. The precedents of Tokyo and Nuremburg already communicates the law. Whether the US chooses to ignore or enforce that law is meaningless to whether the Courts will or will not rely on the clearly established precedents of non-US law.

(H) SEXUAL ASSAULT OR ABUSE -- The standard fails to punish those who have provided alcohol, achieved their immoral objective through involuntary consent.

This standard fails to punish those who are in the CIA who have abused their authority, and improperly imposed themselves on prisoners. Prisoners should never be the targets of any unwanted sexual attention, threats, or innuendo. This is degrading. If the Members of Congress say that this level of abuse is permissible, you should not complain if your daughters are subjected to the same taunts at school or while in detention for underage drinking.

“(I) TAKING HOSTAGES.— The US has violated this provision. The US has illegally detained prisoner family members. This standard as written, fails to impose a sanction unless that hostage taking is attached with other actions. This is a separate crime. That someone has been detained in a crime itself; there should be no requirement that the "taking of hostage"-elements require threats; or that there be a specific requirement to continue detaining them. The initial taking is sufficient.

It is illegal to permit taking of hostages, but only punish them if there are other acts of abuse. The initial taking, as the CIA has done in Iraq, is illegal.

The standards in this section fail to impose a sanction if the hostage is taken without a threat; not does it prosecute those who, after taking a hostage, tells the outside party that the hostage may be killed. These rules illegally permit US persons to take hostages; but threaten others that unless they cooperate the disappeared relative may be harmed. An invalid defense of the CIA is that the person who was taken hostage was never threatened. Regardless, this forced removal amounts to inhumane treatment and is contrary to Geneva.

This standard also fails to sanction the US for similar acts and threats against a nation. An invalid defense is that the threat was large, sever, or against a nation, not against a specific individual. Such threats are illegal, and when the US threatens a leader with bombing, that threat is a grave breach: It implies an imminent use of force despite no imminent justification for that illegal threat.

The standard does not appropriately include an act by a state, nation, government body, or amorphous organization, or ill-formed non-state actor. It unreasonably sends the message that if "an entity like the United States" orders something, that that order cannot be illegal, and is not related to the illegal act. This is also not lawful.

Severe implies that anything that is "less than" sever is allowable. This is illegal.

"Serious" implies anything less than serious is permissible. This is inhumane and illegal.

"substantial risk" of death illegally permits "less than substantial risk of death" and is not permissible under Geneva.

"extreme physical pain" illegally permits anything "less than extreme" which is contrary to Geneva.

burns of a "serious" nature illegally sends the signal that "minor burning from cigarette butts, matches, or other temporary blindness is acceptable. This is a violation of Geneva.

Burns that do not cause "cuts, abrasions, or bruises" under their standard would be permitted, but is contrary to Geneva. It is not lawful to threaten to burn someone. This standard does not prohibit threats of all burning, minor disfigurement through jabbing or non-visible bruising

This standard illegally permits cuts, abrasions and bruises. These are violations of Geneva.

"Significant loss" means that anything that is "moderate to significant loss of mobility" is permissible, and is illegal.

"serious mental suffering" means that the US will engage in inhumane treatment that causes "moderate to serious" and is illegal under the laws of war.

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COLLATERAL DAMAGE OR INCIDENT OF LAWFUL ATTACK.— This fails to ensure that Civilians are protected, or that bombing under asserted-legal orders is outlawed.

This standard only requires that the attack be legal, as authorized; not that the attack itself is lawful or against a military target. This is not lawful and a breach of Geneva. This standard cannot mean that the B-2 Crews are immune to Geneva war crimes prosecution when they bomb Iranian facilities which are unrelated to imminent military threats.

Collateral damage is not something that can be explained away, but must be linked with proportionality and necessity. The targeting by STRATCOM is not legal in that it is knowingly, or failing to verify, it is targeting civilian/non-military-related facilities in a disproportionate way that is not linked with an imminent threat.

A lawful attack is not the same as a lawful use of power in that attack. An attack could be awful, but the use of force incident to that lawful order to attack can be illegal. This standard incorrectly permits recklessness, or something that is not intended. The correct measure is whether that outcome is foreseeable, regardless the rushed combat targeting, illusory White House deadlines, or the fumbling the bombardier or pilot may assert while diving toward the illegal military target in an F-16, A-10, F-111, B-2, or B-1.

RETROACTIVE APPLICABILITY.— For purposes of the war crimes investigation, we presume this date was chosen for a reason, is not arbitrary, and there are known war crimes that should be investigated, do violate Geneva, and fall within this time window.

The 1997 date is not enforceable, and no reasonable CIA agent should presume that the illegal Geneva violations committed 1997-2006 are immune to prosecution.

IN GENERAL. This clause incorrectly says that prisoners could be subjected to something that is less than humane. The correct standard is humane treatment. The 5t, 8th, and 14th Amendments are meaningless comparisons; US jailers regularly violate this standard. The Geneva Conventions are not the same as the inhumane abuse US jailers have committed in New Jersey.

(3) The Presidential compliance requirement is meaningless. The President’s signing statement could include an illegal promise to not enforce. This clause is not credible, and an illegal abrogation of Geneva. The clauses do not outlaw signing statements, nor prevent the President from violating his oath or illegally asserting Article III powers to do something in secret, or establish another set of assumptions that illegally permit less than humane treatment or any treatment other than humane treatment.