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Thursday, September 14, 2006

State Influence On Federal Balance of Power

A war crimes trial and prosecution of Members of Congress will mean the State Governors will have the chance to affect the Federal balance of power.

* * *

The State Governors will have an important role in the unfolding national drama. Members of Congress are subject to removal and prosecution for felonies, failing to assert their oath, preventing violations of Geneva, and failing to protect the Constitution. After US members of Congress are indicted for war crimes, the Governors will decide replacements in the House and Senate.

* * *

Despite controlling all three branches of government, the GOP refuses to do its job:

  • Enforce the law; or

  • Prevent violations of Geneva.

    Whether the voters do or do not do “their job” is irrelevant. The Republican leadership needs to be prosecuted. Regardless the voter apathy, election results, or makeup of Congress, International War Crimes prosecutions can affect the US power balance.

    * * *


    Members of Congress are not immune to war crimes indictments.

    International players have jurisdiction, which reasonably affects American politics, especially when domestic politics and rule of law are insufficient catalysts to comply with Geneva.

    State Governors influence Congress. Regardless whether voters pick new leaders, prosecutions and Governor-replacement decisions will appoint new leaders.

    Legislative-Executive smokescreens over the military commissions are irrelevant to whether war crimes indictments are or are not prosecuted.

    The Future of the American Republic is not decided in the 2006 election. The 2006 election isn’t the final showdown. There will be ongoing war crimes indictments, and the election of 2008 can still tip away from the President.

    Voters do not trump the law, or whether the President is or is not subject to prosecution by the States for crimes.

    Whether the 2006 elections are or are not a specific result has no bearing on whether there will or will not be investigations or impeachment proceedings against the President. The New Congress takes its seat three weeks before the President’s term is over in 2009. With a new Senate in 2008, and possible war crimes indictments and removals, the first three weeks of 2009 could be the conviction and removal phase against the President.

    The Phase II report shows there was no imminent threat and the US has committed war crimes and grave breaches of Geneva. It means nothing that the US wanted to have a nice intention or that Saddam may have speculatively desired to do something. Prospective, speculative threats are not reason to engage in certain, war crimes today.

    * * *

    The issue for serious debate is what will be done to ensure this legacy of war crimes is shut down earlier, prevented all together, and that the illegal plans are thwarted well before they are put into effect. It is one thing to talk about pre-emptive war against terrorism. Putting aside whether that approach is or is not lawful or prudent, a balanced discussion is needed on pre-emptive government oversight of potential war crimes.

    Legal scholars will have to debate what should or should not be done to punish members of the legal community who exploit their positions, mislead the public, and otherwise fail to protect the Constitution and rule of law.

    Regardless the convenient excuses to ignore Geneva, Geneva requirements are on the detaining power – the United States. Whether the opposition does or does not appear to, or in fact, meet some arbitrary or specific standard in no way elevates the burden on the United States to comply with the Geneva Conventions.

    There need to be meaningful sanctions on Members of Congress, outside voter action or inaction, which sends a clear signal: These are the requirements, you shall enforce them, and permitting grave breaches of Geneva subjects you to war crimes. The fastest way to educate the Congress on their legal requirement is to subject them to War Crimes Tribunals. Their legislative stalling is evidence of their breach of the Geneva Conventions, and not protected legislative acts. Without lawfully sanctioning the Congress and reminding Members of Congress, especially the perpetual Senate, of its legal obligations under Geneva, there’s no basis to expect Members of Congress to enforce the law, regardless how they twist their legislative weapons to the design of the Executive.

    There need to be some meaningful rewards for reporting war crimes and preventing illegal activity. This does not mean that in the absence of reward there is no requirement to comply or enforce the law. The oath to God over a Bible has proven to be a meaningless standard and worthless public testament, promise, or security.

    War Crimes Trials can be a wonderful education process. They will remind the US contractors, government agents, and US officials they can be prosecuted for war crimes. The range of possible indictments range from supporting illegal activity; providing funds for illegal activity; and failing to prevent or remove oneself from the illegal war crimes. It remains to be understood when prior to Sept 2001 illegally acquired information was used to unlawfully violate Geneva or engage in human rights abuses.

    What is curious is that despite the US Supreme Court striking down illegal procedures for violating Geneva, the Congress is at it debating the requirements, not the crimes. It’s one thing to feign confusion over whether the procedures do or do not violate the law – they do violate Geneva; quite another to pretend the clear requirements are unclear, despite the prohibition against outrages and abuses.

    How one does or does not define torture is meaningless. Abuses are not permissible. Rather, by asking that evidence from abuse be admissible fatally admits the illegal abuse had occurred. The correct approach is to punish those who engage in the abuses, not to craft rules that would put the burden on the court to decide which violations were or were not rewarded. Despite the threat of war crimes indictments – and lawful penalty of death – these Members of Congress have done little to demonstrate they are serious about the law, their obligations, the rule of law, or the courts. Rather, they prefer, it seems, the alternative forum – the battlefield – to which they are equally ill prepared to enter, much less exit in victory.

    The question is what is to be done -- despite the prospect of death -- to remind the Members of Congress of the legal obligations. We could go on and on about how the GOP is or is not reckless; and whether the evidence of their recklessness was or was not a failure of their oath; and when they should have acted to end the illegal activity. Regardless our debate or position, the core truth is known: Congress knows it has a problem, but refuses to face it, much less end what is knows is illegal.

    Please indulge me as I take a detour back to the days of 2001, just before and after Sept 2001. Then the decision was whether the country would or would not respond; how it would respond; and what would be the objective. Putting aside the rashness of a decision, the speed of action, or whether the plan was or was not well crafted, the central point not to be lost was that there were legal requirements attached to each decision. The core lessons are regardless which option, the leadership had committed to plans which defied the law.

    One option was to declare war. Rather than do that, Congress authorized force. Yet in deploying combat troops in 2001, this attached with it the obligation on the United States to comply with Geneva. Again, it makes no difference what the enemy allegedly did or did not do; whether they were or were not illegal combatants – the requirements were on the United States to comply with Geneva.

    All arguments about why the United States should or should not treat the enemy at a certain standard were irrelevant. These obligations were not, and are still not obligations. They are requirements. The error in 2006, as with the Military Commissions Debate, is to pretend that the Geneva requirements can be waived, or that they are subject to bending based on the nature of the enemy. This is an incorrect and perverse notion of the law. The law is there as a guide and standard for the detaining power, and how the alleged criminals or enemy does or does not behave has no bearing on whether those requirements exist; what the Untied Stats must or must not do. The mistake in 2006 is to frame the debate in terms of the enemy, rather than focus on the requirements of Geneva. Rationalizations to follow or not follow Geneva are meaningless. The excuses to ignore Geneva are frivolous, illegal, and uncompelling.

    The United State leadership incorrectly believes they can delay judgment, and this will make their situation better. This if flawed. The GOP incorrectly believes that the voter action or inaction will be the final judgment. Rather, the courts have final say; whether the voters do or do not get it has no bearing on whether the member of Congress is or is not in violation of the law. The election outcome has no relationship to the criminal procedures Members of Congress are subject to.

    The US is engaging in phony debates for three general reasons.

    (1) Abuses have occurred

    How one defines torture is irrelevant. Geneva simply prohibits outrages against prisoners, which would include physical abuse. How that information is obtained, or what justifications there are for that abuse are irrelevant.

    (2) Procedures have not been followed

    The Geneva Conventions require that the procedures, rules of evidence, and trial access be the same for US military. The time to debate this is not in 2006, but should have been part of the debate in 2001. The US chose to engage in war, and attached with that was the agreement to comply with Geneva. It makes no difference what the status of the prisoners was, or what alleged crimes they may or may not have committed. It was the abuse of the Civil War at Andersonville which, in part, contributed to the Geneva Conventions of 1929. Relying on precedent of the Civil War is meaningless; the 1949 Conventions were known requirements in 2001.

    Despite Geneva being fully promulgated and well known to the White House counsel like Brad Berenson in 2001, it took almost five years until the White House accepted what was always a requirement: The Geneva Conventions.

    (3) Violations have not been prevented

    2001 was an interesting year. Before the events of Sept 2001, the NSA was already engaging in illegal surveillance. Whether the targeting was or was not at specific or illegal targets is meaningless. The FISA courts were ignored.

    On top of that, after Sept 2001, Congress did nothing to prevent violations of Geneva. Congress has done nothing to prevent the transfer of illegally acquired information to or from prisoner camps; and has done nothing to timely investigate the rendition sites; nor shut down the illegal surveillance.

    Rather than stop illegal activity, Congress wants to debate the issue. Congress has no power to ignore its oath or its Geneva obligations. The power of debate is not something that is a lawful excuse for inaction on treaty violations. Rather, the debates itself, and the failure to act are admissible evidence the Members of Congress are individually reckless in their disregard for Geneva. The debates are not protected legislative acts; nor are they sufficiently important to justify priority over Geneva violations. Congress has the time to craft bills to explain away Geneva, but apparently no time to enforce the law, investigate violations, or ensure the Executive enforces the law and lawfully investigates war crimes committed by Americans.

    Congress has illegally debated undebtable requirements; rather than prevent violations of Geneva, it continues to fund what it knows or should know are illegal violations of Geneva. The Tokyo War Crimes Tribunals imposed judgment on the Japanese Cabinet for failing to prevent the war crimes.

    American government has shared power. Policymaking is not unique to the Executive Branch. Congress has the power to shut down funding, promulgate legislative acts, and otherwise impose the legislative weapons at the throat of the Executive. This Congress has failed to do that. This is not a discretionary item, but a requirement. Indeed, the same Congress in 2006 that whishes to debate the Geneva requirements as they apply to the nation, executive, and prisoners of war have a larger objective: Pretending that the Geneva requirements as applied to them are also debatable. This is incorrect. Congress knew this prior to Sept 2001.

    The interest in debate, over prosecutions, is one shared by lawyers, lobbyists, and contractors. Appealing to confusion and ambiguity is a popular method to confuse the public, but does little to impress either the courts, or war crimes prosecutors. At best, the frivolous statements are evidence of lack of comprehension of the seriousness of the issue, and are fleeting excuses to avoid accountability. This conduct warrants an upward adjustment of the sentencing.

    Despite the prospect of war crimes indictments, the American contractors, legal community, and lobbyists pushed for illegal war, wanted immunity to prosecution, then a grant a Presidential pardon to seal their immunity. Not satisfied with that promise, they pushed for Congressional funding for their defense, and changes to the Geneva requirements to retroactively legalize what they know were war crimes.

    The changes are evidence that the contractors, lobbyists, and legal community know they have a problem. But unlike a civil court where the change in position makes the issue moot, the problem is the reverse in criminal court. The change is an admission that the original crimes were known; but the failure to address those crimes with debate is evidence that the long-standing crimes cannot be self-regulated. Other parties are required to impose lawful justice.

    * * *

    Irrelevant Reasons To Debate

    There needs to be a War Crimes Tribunal to adjudicate: Fact finding, litigation, and punishments. However, rather than face war crimes litigation, the American leadership has one goal: To do everything but face the reality of war crimes adjudication. An international war crimes tribunal is needed. It will recalibrate the United States Government.

    Geneva is a requirement. The standards are not debatable. The job of the Congress is to enforce the requirements, and ensure the standards are achieved, not explained away. The debate over Geneva, Military Commission, and other irrelevant things has several goals.

    (1) Delays

    Debate delays trials, but it does not delay reality. Delays merely create more evidence of Congressional malfeasance.

    (2) Denial

    Debate gives the defendants more time to create more non-sense, but non-sense is not a defense. The issue is one of power: Whether the delay in recognizing the powerlessness of the GOP will translate into Voter action to change the leadership. Despite controlling all three branches of government, the republicans cannot lead. They can only commit crimes and make excuses. That the voters are satisfied with Geneva violations in no way ratifies those violations. The job of the international prosecutors is to remain on the judicial stage, and accept the United States voters have freely permitted the American leadership to sway into international war crimes. International responses are no longer debatable but inevitable.

    (3) Defer

    Debate shifts attention from war crimes liabilities to irrelevancies, but the magic trick doesn’t change the crime. The evidence is there.

    (4) Distraction

    A debate on a phony issue is a distraction from the needed international oversight. Questions of sovereignty are irrelevant, especially when the system of American governance continues to collapse. Voters incorrectly believe their vote in 2006 will decide whether the RNC is or is not accountable. Voters can only hold criminals accountable through criminal prosecutions. Whether voters do or do not vote someone out of office has no relationship with whether than criminal or their policy should or should not exit the political stage.

    (5) Delusion

    Debate makes the voters confused. Voters have no direct power to prosecute, only the power to vote. Voters are inherently weak. As sovereign, they are powerful. The voters’ job is to mandate criminal prosecutions, whether from within or without makes no difference.

    * * *

    Consider the notion of power and accountability. Put aside the irrelevant, corrupt legislative and electoral process called voting. There are two forums for accountability and dispute resolution:

    (1) The judiciary; or
    (2) The battlefield

    If the US ignores the fist, the world may use the second.

    * * *

    Irrelevancy of Sept 2001 Events

    Geneva obligations did not change after Sept 2001. The events of 2001 have one objective: To rationalize abuse of power, and violation of rights. We’ve learned prior to Sept 2001 the United States was violating FISA. As with Geneva, the events of 2001 did not lawfully change the obligation to follow the FISA requirements.

    The Sept 2001 decision had three general options:

    (1) Wage war, invoking Geneva
    (2) Prosecute, invoking Procure
    (3) Covert operations, invoking limits on power

    Rather than choose one, the United States chose a hybrid approach:

    (A) Ignore Geneva
    (B) Not declare war, as only Congress has the power to do
    (C) Authorize force, without Congressional oversight
    (D) Illegally use regular forces, in a covert manner and out of uniform.

    The US has no Supreme Right to illegally wage war using covert operative which are out of uniform. By illegally using CIA operatives, out of uniform, in a conventional war, the US waged illegal war. This violation is a defense for the prisoners. Once they can show that the US has violated the same standards, the US may not lawfully prosecute the prisoners for waging the like war. This defense was successfully raised by the German U-Boat commanders when they were charged with waging illegal attacks on civilian shipping. They showed that the Allied forces did the same. Similarly, the enemy in 2006 can also show the United States has waged illegal war. The goal of the US is to deny the prisoners access to evidence that will prove the United States was engaging in illegal warfare. One way to do this is to have secret trial, hide prisoners, and hide evidence. The reason there was 9-11 was the perceived inability to get the United States to remain civil or lawful. If there is injustice in the court, the abuse of power -- and failure to accept that the US is contributing to the war crimes -- will inspire more illegal activity. The enemy has suffered. They no longer care whether they commit war crimes. The issue is not that they are or are not committing war crimes; but that they believe that even if they commit war crimes and are convicted, their conviction at the hands of those who commit similar war crimes, and is evidence in their mind the American system is unjust and should be destroyed.

    If the American Congress chooses to permit illegal procedures that encourage violations of Geneva, this will only embolden the enemy. It makes no difference how many troops you deploy. An unjust system is known not only to foreign fighters but to future Generations. The events of the 600s more than 1400 years later are a burning memory in the mind of many. So too will the events of 2006 for hundreds of years, rightly or wrongly, incite and inspire others to stand up to the perceived abuse of power and rule of law.

    The problem Americans have is that they view their enemy as being irrational. The reality is that they take the law seriously, and when Americans violate it, they view their resistance to that system as just. This is not irrational, but inspiring. It is what was behind the resistance to the British Monarchy: To resist that which was unjust.

    The American Constitution enshrines this lawful resistance and promulgates them as rights: The right to be free from abuse, intrusion, and interference. The enemy views these principles as admirable. Their dispute is not with American values or freedom; their dispute is with the arrogance the American government imposes the system using everything but freedom. At best, Americans say that the world should embrace the rule of law; at worst, the US violates the rule of law, and denies the world the forum of a balanced court to permit defenses for illegal activity.

    If the illegal activity of the Americans and Israelis were put side by side with that of the enemy, there would be a problem: The abuses are the same, innocent lives have been taken, and the abuse of power indistinguishable.

    It makes no difference to the enemy how many American civilians were or are killed. Their view of the engagement is that they have no other option: The American courts are closed to them; and the United Nations does not respond to their reasonable concerns with Israeli abuse of Palestinian rights. It makes no difference what reason the Americans and Israelis give to justify the abuse, or how the violations are rationalized. The enemy views the violations in the context of the law, what is reasonable, and what must be done to refuse to cooperate with what is unjust.

    America’s problem is that it views its unjust use of power as justified; and that the Americans have the Supreme Power to waive the requirements. If the principles Americans were truly fighting for were just, those principles would have been ingrained in 2001 and would have guided the decision to do the following:

    Treat the prisoners according to the law
    Prosecute with justness
    Wage lawful war
    Comply with Geneva
    Demonstrate humility
    Repair what was wrong
    Correct what was broken
    Solve the situation and resolve the dispute

    If Americans refuse to wage lawful war, then the enemy does not perceive that the damage done to civilians is something they should care about. This does not mean that they view attacks on civilians as justified, rather they consider it irrelevant. The are not barbarians, they simply show lack of compassion for something that Americans value in the same way that Americans show lack of compassion for something the enemy values.

    It does not matter what each side values. The point is that each side has shown it is equally capable of showing lack of compassion. Perhaps it is best to accept that each side shall not have compassion for the other, and agree on that.

    Americans can be nasty. Accept that. Until the Americans accept that their nastiness is what contributes to others’ responses, the Americans will not change.

    Rather, the solution is to force the Americans to assent to the standards that they say they want the world to follow: The rule of law. Then let that rule of law prevail, and pass judgment on the Members of Congress. If they are innocent they shall remain in office; if they are guilty of war crimes, then let the Members of Congress be punished according to the law. If the law says that their crimes are punishable by death, then let that punishment be lawfully imposed by the court on Members of Congress.

    This is the process of adjudication. If this process is not something that is good enough for Members of Congress, then Members of Congress have no foundation upon which they take their oath; nor standing before the court when they put their hand on the bible. To argue a Member of Congress is immune to the law would ask that they take an oath to something they have no relation. If their foundation is meaningless, then so too is their oath, and promise.

    But there is one certain thing: The Rule of Law. Whether it is in the Constitution or the Geneva Conventions, these are requirements. They freely took an oath. It is time for the Members of Congress to be tested before the forum they most detest: The Judicial Branch, away from the safety of the well, and far beyond the protection of the oval office.

    Yet, they avoid this forum for one reason. They believe there is a credible case to be made that they will lose and deserve to lose in the ultimate way. Yet, this was known to them when they took the oath. Their promise to God, the almighty, was a promise that they would relinquish absolute discretion, and agree to constrain themselves to the law.

    Members of Congress knew the penalty, knew the risks, and knew the responsibility. Yet, the failed. Despite their failure, rather than act to correct the error, this Congress permitted additional failures.

    Congress is a poor leader. It is incapable of training, overseeing, or doing much of anything, except making quite a mess of things. Yet, when compared to the cess pool in the oval office, even the serpentine stench of the well is far more palatable. No matter.

    We the People have a job to do. It’s time to lead. Time to impose discipline on Congress. Time to kick the Congressional leadership where it hurts politically, and continue the drumbeats on the war crimes tribunal. It doesn’t matter if the majority chooses to embrace war crimes, the Geneva obligations are there.

    Nor is there a need by the Military to wage war at home, or forcefully remove the leadership. That would be truly distasteful. Rather, the way forward is for the military and JAGs to work with the international war crimes prosecutors, and provide the legal and military protection to those who are best to impose the system of justice on the Members of Congress and the Executive Branch.

    The JAGs and military do not need to be concerned that the voters are or are not getting it. The only issue is whether the prosecutors will or will not have access to the evidence needed to lawfully review whether Members of Congress, DoD Personnel, the DoJ Staff, the White House staff, Executive Branch, and National Security Council have or have not violated the laws of war.

    The Joint Staff must decide which side of the rule of law they stand. You have no choice, but indulge me for the moment while I pretend that you have a choice. Your choice is between the lawlessness, and the law; between the Rule of Law or the Rule of Crime.

    Going forward I expect the Joint Staff to be fully supporting of the JAGs and international prosecutors. If you get in the way, you are an alleged war criminal. It is simple as that. The truth can be known, decided, and the court can make adverse judgments.

    In practice it should not matter how many stars a JAG has on his or her shoulders. Simply waving the Constitution – attached with it the oath, and requirement to Enforce Geneva – should be enough. But it was not.

    Americans have learned that despite an oath and promise to do something, that promise is meaningless unless there is something else in the way, a stick, a carrot, a symbol.

    But these are merely excuses. The symbol of the bible was supposed to be sufficient, it was not; the symbol of the oath was supposed to mean something, it did not; the symbol of the solemn signing of your oath was supposed to mean something, it does not; and the symbol of the court and threat of death was supposed to inspire something, it cannot.

    You have run out of options. The answer is not to promote the JAGs, although they deserve to be promoted. Regardless the symbols American rely on, lean on, throw about, dance before, or feign concern, that the symbols are meaningless.

    The only thing they value is themselves, their life, and their freedom to engage in abuse of power. They don’t speak for our system, our values, or our way of life. Rather, they speak for their system, their values, and their way of life: One without consequences, with double standards, and with selective application of the law.

    Ideally, where they have selectively applied the law, so too should the law be selectively applied. But that is not how our system works. Even to those most disgraceful creatures, we still afford them rights to a trial. This is the basis with which public defenders earn their living, the livelihood, and their unneeded criticism. Even to those who society has cast aside as derelict, our system still affords them the right to counsel, the right to defense, and the privileges and immunities afforded to all. Equal justice means just that: equal.

    So to the Members of Congress, lobbyists, DOJ Staff, and contractors, who have engaged n war crimes, failed to stop them, or have inspired others to illegally violate Geneva, congratulations: You now know why our system of justice is most hated by those who defy it. Your reactions show what is most fearful of the American system: It’s ability to impose power, order, and discipline on the wayward.

    The problem is that you have known this, but have been at the wrong end of the stick for many decades. Your predecessors have devised a system. But imaging if you will, suppose that you take yourself out of the situation, and consider that you were an innocent person, and subject to the wrath of American justice. Under our system, our principles, an innocent person should be released, found innocent. Ideally, based on the Magna Charta, our system of justice would compel the government to prove its case, and give us a chance to show their case was flawed. The free would remain free.

    Ideally, such a system based on evidence, justice, and order when applied and embraced should bring that: Justice, order, and evidence. However, this government has done the opposite. Where we might expect justice, we have injustice; where we might expect order, we have disorder; and where we might have evidence, we have fabrications.

    Evidence s a curious thing. It is something that can be tested. It can also be ignored when it is dubious. Our system creates a method by which the government is, or should be punished for doing things it not allowed to do. In theory, the threat of punishment against the government is to deter abuses; in practice, the American government at all levels hides abuses so that it is not punished.

    The way forward is to accept that when the system of justice fails, it must be fixed. Part of the solution is to punish the government for wrong doing. This is accepted. The way forward is not to feign confusion or worry about the treat of the enemy. Releasing one terrorist is not going to make a difference whether there are or are not other terrorists. There are already many more. One more will make no difference.

    * * *

    The United States botched the decision after 2001 – failing to wage lawful war, and refusing to compel compliance with Geneva. That failure is no basis to continue botching anything. Congress’ problem is that it knows that in admitting a problem, it is complicity. Yet, the ruse debate on Military Commissions and FISA is meaningless – neither debate addresses the abuse, violations, or the failed system of governance.

    The US government has basically two options: It can either self-correct; or it can be compelled through external means to correct. Whether that correction is through the courts or on the battlefield has already been decided: The US prefers the battlefield, will not correct; the Congress reluctantly imagines that the inevitable looms: War crimes prosecutions.

    Again, going back to the decision in 2001, the time was then in 2001, not in 2006, to commit to one course of action and the legal requirements that attached with that.

    Since 2001, the truth surfaces. The 2001 decision was a sham. Decisions are, in theory, a decision to cut off all options. But the US did the opposite: It doesn’t cut anything off, but left open the option to do what was not decided: Illegally do things, violate the law, and then do nothing about the violations.

    On a theoretical level, when the US chose forces in 2001, it was not choosing peace; when it chose to violate the law, it was not choosing to enforce the law; and when it chose to use covert operatives out of uniform, it was not choosing to comply with Geneva; when it chose to hold prisoners in secret locations and abuse them, it was not choosing to comply with the requirement to have open trials and treat the prisoners with respect.

    History is locked. By changing its position after Hamdan, the US has not solved anything, but admitted that its misconduct since 2001 was known, and illegal. As always, whether the US does or does not agree with Geneva does not eliminate the requirement of Geneva. Despite choosing to use force, the US had no lawful option to illegally use force.

    The US is using all the non-legal options after Sept 2001 for one reason: It was doing the same before Sept 2001: violating the law. 9-11 is a ruse, like the AUMF over whether the American abuse of power would or would not be popular, but never legal.

    The Attorney General’s problem is that by choosing the illegal route, he had the responsibility to follow the law and report that illegality: Title 28 requires him to report to Congress his planned illegal activity. Either

  • A. The Attorney General did report to the Congressional leadership his illegal plans, and Congress knows, but failed to stop; or

  • B. The attorney General did not repot to the Congressional leadership his illegal plans, and Congress no knows, but still refuses to stop.

    Regardless whether the Attorney General did or did not report, the common problem for Members of Congress is their joint agreement to do nothing, not enforce the law, and otherwise continue to pretend that requirements are something else and debatable.

    Requirements are not requirements if they are debated; however the debate of something does not mean that the requirement is discretionary. Rather, the opposite: The debate is meaningless, a ruse, and a deliberate waste of time. Congress has the power to waste time, but it remains to be explained by the Senate and House leadership why this fanciful diversion into the netherworld is not a violation of the Chamber rules: That of prohibiting frivolous debate on dilatory matters.

    Also, there’s nothing here to suggest that the White House “bill” – if there is such a thing – has any relevance. Point to anyone, any thing, any rule which says that the White House has the power to decide when the terms of the bill is or is not lawful. The Executive has no power to compel Members of Congress to follow or not follow. But this Congress takes its guidance and marching orders not from the law, but from those who have an interest in the opposite: War crimes, illegal acts, and not enforcing obligations.

    Even the most foolish of bloggers can see that the objective of the Congress is not accountability, but to delay. But to what end will the delay serve? It is merely evidence the Congress is interesting in one thing: Delay of justice, not justice itself. There is not statute of limitations on war crimes. There is only a limitation on life itself. If Members of Congress would like to spend eternity – a finite prospect – running from justice, go right ahead. Start running. Your words, wasteful debates, and other dilatory matters do little to inspire confidence in the American model.

    Your fate is known. The evidence is sealed. Your destiny all but assured. The only thing needed is the motion of justice. It is already turning.

    The only ting that 9-11 did was create a phony excuse to legitimize the continued abuse of power and rights. The abuse has been directed at the innocent, not subject to lawful proceedings, and accused and punished without justice. That is not an inspiring system.

    * * *

    Once the United States called this an “international war on terror” then the US international Geneva treaty obligations applied, and were known or should have been know to apply.

    All conduct after the decision is admissible. The truth is knowable: The public, jury members, court, and prosecutors can well understand the full range of illegal activity; understand the domestic violations, regardless whether 9-11 had or had not yet happened; and that the Members of Congress had the duty to investigate the abuses and violations both before and after Sept 2001. A legacy of inaction is no precedent; and inaction does not meet the requirement to affirmatively enforce and assure. Inaction does not fulfill a requirement.

    The trigger for the abuses does not matter. Geneva violations were occurring before and after Sept 2001. The problem is the Congress was doing nothing to ensure that the procedures were in place to compel compliance, identify wrongdoing, and enforce the law. It makes little difference why the Senate leadership failed, it only matters that they are named, and lawfully prosecuted. The Senate is a perpetual body, but it does not have perpetual immunity.

    These are not protected legislative acts. These are war crimes. Legislatures do not have absolute immunity when, after the decision, they engage in a course of conduct that serves one objective: To thwart detection, enforcement, and prosecution of war crimes by Members of Congress who have failed to prevent Geneva Violations.

    * * *

    9-11 is just an excuse to cross the line, redraw the line, legalize abuses, and restart the clock on when the public will or will not review a matter. But that’s not how a war crimes prosecution works.

    9-11 didn’t draw a real line in the sand. War crimes prosecutions can go back to the original crime, and break through any barrier. How far will we take the evidence?

    Nor did 9-11 create a barrier to review. Rather, all activities after the original decision – whatever that first event was remains to be understood – are admissible. They are post-decision communications. This is well known to the Members of Congress who are prosecutors. The issue is do we start the clock after Watergate, Iran-Contra, or some other point?

    9-11 certainly didn’t legalize illegal activity. The Geneva Conventions were first passed in 1929, ignored by some during WWII, and then more were passed in 1949. Thus any argument about what Lincoln, Washington, or other nations did or didn’t do prior to Geneva are interesting, but of little consequences. In 2001, the Geneva requirements – as they were written and agreed to – were the governing law. Lincolns abuses, and Washington’s commissions and Roosevelt’s saboteurs tell us nothing about what the laws were, and what requirements were known, or should have been known in 2001.

    Nor did 9-11 decide that all subsequent illegal acts were justified. Rather, 9-11, is not some precedent for the court. It is a meaningless event, a point in time that in now way has any relationship to whether FISA or Geneva did or did not apply after 1978 of 1949. An agreement will in the future guide action; an agreement cannot retroactively legalize what was known to be illegal; nor can it agree to illegal things – immunity from war crimes. It is also illegal for Congress to assert Article III powers and claim that the bill itself is or is not Constitutional. This is an exclusive judicial power.

    War crimes prosecutors may review a pattern of conduct. WWII guides us in reminding the prosecutors that when a requirement, treaty, or standard is abrogated, that the requirement remains in full force; and all plans related to that abrogation are part of the record. This is the problem facing Congress. Once Congress agreed in 2000 to quietly say nothing about the unfolding 2001 illegal activity, Congress is attached to those violations. IT remains merely a formality to understand how the illegal cooperation, plan, and scheme was hatched or devised. The only issue is that there is a common course of conduct to enforce neither the law nor the requirements; the second violation is to refuse to prosecute these violations. This is the problem the judicial officers in DoJ have, and the judicial officers in the court have.

    Nuremburg is precedent for not only prosecuting legislative actors, but also the judicial officers: Failing to prevent, encouraging, or otherwise rewarding those who have violated the law; or conversely failing to enforce the law.

    Arguably, in his role on the DC Court of Appeals, now Chief Justice Roberts failed to enforce the Geneva requirements. It remains to be explored by the War Crimes tribunal to what extent, if any, the Chief Justice was reckless in failing to enforce the Supreme Law. He is not immune to a war crimes indictment; regardless the Senate agreement to hide him behind the Supreme Court robes.

    * * *

    The Senate-House debate on the FISA-Commission rules is a smokescreen. It’s aim is to distract prosecutors, voters, and international players from the real issues: War crimes committed by US government officials in all three branches, and misconduct by contractors, legal experts, and others in the lobbying community.

    Geneva violations have already occurred. The war crimes liability lasts until one either through natural causes expires; they are prosecuted and convicted; or they are found innocent and released. Until there is a judicial review, the issue remains open. Nothing Congress, the courts, or the Executive can do will close the door to justice. Rather, the opposite is true: The harder they try to close Justice’s door, the harder and faster it will eventually slam them in the face.

    Indeed, the voters and campaign contributors will be distracted. The commotion inspires more financial streams. It would be more prudent use of capital if the dispute were resolved. But the defendants know the ultimate consequence: They may be deprived of their life and opportunity to enjoy their liberty and their financial gains.

    Issues which the voters in 2006 may or may not review or might be a factor should have been reviewed – but were not – in 2001. It is five years too late. This is untimely. Rather, all communication after the original decision in 2001 is subject to review.

    It is a distraction and a phony debate, and illusory issue of uncertainty on the electorate and White House whether there is or is not a resolution to this problem in November. This is not an issue of voting, politics, legislation, bills, procedures, or treaties. The treaty is not debatable; the procedures are not questionable; the legislative power of debate is irrelevant.

    It is a simple issue of requirements, the oath, and justice under international law. Congress is powerless to retroactively do anything. The debate was over the moment the President signed the legislation in 2001. From that day forward, the Congress both as a body and individually hitched its wagon to the war crimes this President planned and did execute. Congress’ subsequent violation was its failure to prevent the illegal activity. We see no evidence the Annual budgets were withheld; rather, despite the known illegal Geneva violations, the American Congress continued to appropriate funds for things that they knew or should have known were illegal. This too is an alleged war crime.

    There is only one outcome: Justice. All other statements, comments, and excuse to the contrary are frivolous, merely legal defenses, but have no relevance to ultimate justice and power. The truth will surface. The issue is whether the individual Members of Congress are going to comprehend their involvement, complicity, and need to resolve this issue; or whether they will or will not engage in more dilatory, reckless defiance of their oath.

    * * *

    The RNC should be encouraged to do nothing, not have any committee hearings, and push the matter aside. Their inaction since 2001 is sufficient evidence of reckless disregard for their oath, and subsequent war crimes. What they do or do not do between now and the war crimes tribunal is meaningless. The crimes have already been committed; and they have already failed to stop them.

    The Hague is the next step. Whether the voters do or do not get confused, debate, or provide more contributions is meaningless. Indeed, the apologists for the DNC and RNC are already crafting words to explain their setbacks, lack of progress, or what have you.

    The RNC’s gift is its ability to lead; it's failure is its unwillingness to follow the law or lead within Geneva. The strengths cannot be an excuse to enable the weak deference for the law.

    * * *

    The plan to provide insurance or other coverage for government officials is evidence the concern is real, and the concern is linked with something that has certainly happened, not with a prospective risk that something may happen. The existence of the insurance and the draft language to pay legal costs associated with defending before international tribunals is evidence linked with specific conversations and acts that can themselves be admitted to the record.

    Some might suggest the US has benefited from torture. Putting aside that benefit, the issue is not a defense, but an admission – there has been abuse, and the abuse cannot be rewarded, nor can there be a lawful benefit from that illegal abuse.

    Even if there were successes or results from the use of that information, the government has yet to show that the speculative or actual use of that questionable information has translated to a real result. When given the chance, the President pointed to an illusory attack on aircraft in Los Angeles. Putting aside the illegality of the abuse, the failure to show the evidence or provide the real success casts doubt that the alleged benefits are real.

    Rather, the assertion of a benefit of abuse in no way justifies the abuse, merely admits to the wrongdoing. It remains unclear how the American abuser “just knew” that the target of that abuse was the right or wrong person. Perhaps it is the accuser who should explain the basis of their certainty, despite the uncertainty which compels the abuse.

    The US cannot justify torture. There has been doubt about information, otherwise there would be not need to abuse – certainty would have been known, not subject to debate or inquiry.

    The abuse takes Americans to the netherworld – after the Magna Charta and in the middle of the inquisition. The target of the inquisition is not as important as the reversal of history. The lessons between 1215 and 1949 have been cast to the wind. In theory, those who throw away the rules for some, also throw away the rules applicable to their defense. Should we debate the method by which the international tribunal might inflict torture on specific DOJ Staff counsel, or for that matter Addington himself? He said the Geneva protections were quaint; surely the protections are quaint for him. Sadly, despite his decision to deny it to some, he shall be afforded the Geneva protections. Reluctantly.

    * * *

    Addington and Berenson’s shared confusion of the law should not be precedent for Geneva to be confusion. Geneva is clear. What is unclear is why despite Addington’s failure to get confirmed to DoD General Counsel, was that not a spark in someone’s imagination to dig deeply and have him disbarred long ago.

    The United State’s flawed position is to pretend there is uncertainty in the law, where there is a clear requirement: Do not abuse prisoners. Regardless what the prisoners may or may not have done, they cannot be abused until the court adjudicates. Calley reminds us of this.

    The United States is unclear whether it committed in 2001 to a course of action that was consistent with the law, war, or barbarism. The time for guidance and leadership was eternal, not something for Congress to cast to the winds, pretending it was someone else’s problem. Despite the rumors and evidence of war crimes, Congress refused to act, did not investigate, and was reckless.

    The responsibility falls onto the Committee Chairman, and the Republican Party. It remains a matter of evidence, fact, and law to understand the arrangements, agreements, and other things which dissuaded Members of Congress to do what they promised; and to do that which was forbidden: Permit violations of Geneva.

    Members of Congress, taken individually and as a whole, cannot be trusted to do what they should; nor can they trusted with power – they refuse to use it when they should, and refuse to constrain it when it should. Power is not something that can be wielded or claimed as an absolute right; it is something that the Executive and Legislature jointly agreed must be used with discretion.

    Power was not delegated to be used without regard to the law, but the opposite: that it only is used when consistent with the law. It makes no difference whether the law is or is not understood: the time to seek clarity was before action, not the reverse and selectively choose a time when the law was something else; or selectively choose actions which would and are illegal under today’s law.

    Law cannot be chosen. It is only imposed or not imposed. The law is as it is, not as we wish it were. The law between 2001 and 2006 is as Congress knows it to be: Imposing a requirement on the Individual Members of Congress to act, to prevent violations, and to shut down illegal things. It makes no difference that the Members of Congress claim to be confused. The confusion is evidence of their inability to lead or find clarity.

    Questions and consultations with legal counsel well before the illegal acts might have defined the law, but that was not something this Congress sought, or did. Once the decision was made to ignore the law, not enforce it, or otherwise do noting about the violations, Congress is no longer passive, but an active participant in the violations.

    The oversight, questions, audits, and prosecutions will with time discover what went wrong, what should have happened, and what might have been. The issue for Americans is what is going to happen to ensure, despite the manipulation, the rule of law and nation do not diverge.

    The Founders created the system of governance as a protection against the passions. In the 1700s, it was through that common folk could not afford the time to pay attention to serious issues. It was thought that a system of governance whereby elected officials could devote their time to governance would be better. In theory, the governors in the Senate, as the eternal body, would carry the torch from the Founders, ensuring that the light of liberty and rule of law never flickered.

    The assumptions of the founders have been turned on their head. The expected expertise within the Congress has proven worthless; and the anticipated incompetence of the voter realized. Rather, it has been merely a few who have spoken, and with time their words struck a chord.

    It is disturbing that the so called “Supreme Court” of the land is neither looked at as Supreme, nor is it respected as a Court of final justice. Members of Congress, despite the Court conclusion in Hamdan that Geneva was a requirement, continue to debate the issues as if Geneva were discretionary.

    It would be fitting if the debate focused on something related to what is debatable – not the law, but the fitness of the Senate to compel believe or deference. The Senate as an institution is in question. Something failed that the Founders did not anticipate. The goal should be to remedy what has gone wrong within the Senate -- until that occurs, the Senate merely dances as if it had the time to dance, while it should silently consider what the Senate should do differently.

    The Senate can either do this on its own, or it can be decimated lawfully with a New Constitution. Until the Senate changes, there will be no reason the public or tribunal should expect Americans to change. The Senate, not the law, must change.

    * * *

    Civilians cannot be risked. Nor may the manipulated civilians be pointed to as evidence that the Senate’s recklessness is preferred. The role of the Senate is to lead and provide continuity, not do what it has done – provide disjointed guidance to a disjointed Executive.

    What is to be done to make a reckless government responsive to the law, and deny the government the power to target civilians, or blame others for their failures?

    Standards are to be enforced, but there can be no excuse for having to standards on whether standards are or are not enforced. One standard is whether there is or is not abuse – as if it were debatable, despite it being prohibited; the second standard is whether that abuse can or cannot be admitted.

    One claim is that abuse is permitted by the US to get information. Yet, if it were known who to abuse, surely it would be known from someone else, other than that target, what information there was to justify the abuse. [See the Ticking Time Bomb Discussion]

    The second claim is that the evidence of abuse -- as used by the prisoner -- is not admissible.

    How do we explain the contrast: That abuse is permitted to get information; but when the abuse is mentioned, it is not permitted to discuss the abuse?

    The correct answer is to consider whether the system of governance -- not just the methods of the jailer-interrogator – was or was not permissive. On that count, the conclusion is easy: Indeed, the Senate’s governance was not government, but barbarism. It makes no difference why the jailer did or did not abuse; or why the rules were or were not enforced. The simple answer is the Senate’s asserted position of superiority – based on eternal continuity and link with the Founders – proved meaningless to ensure eternal link with eternal founders. Something was broken, and then reconnected in the wrong way. Something I suspect was disconnected after WWII, and the power of the government to abuse was assumed.

    Whether this delinking is connected with nuclear weapons, the cold war, Iran-Contra, Watergate, or the folly of muddled minds in the wake of the JFK Assassination or Vietnam may or may not be of importance. The issue is that there is a problem and despite the reforms of Watergate, and the FISA requirements, someone figured out a way to convince the nation and the Senate to agree to something that it should not.

    How does this happen? Ideally, the oaths of attorneys were supposed to have been the insurance; ideally, the checks and balance on power was supposed to be sufficient; ideally the system of governance, oversight, and reporting was supposed to do the trick. The remedy and how this defect was discovered are not as important as understanding how the defect was allowed to spread and blossom into something else.

    There are other defects waiting the right time and right crowd to embrace. The solution is not to take a narrow view of the defect, but to look at the means by which the defects, despite being hidden, suddenly get exploited without objection. Next time a defect is found, it must be understood and addressed, not simply permitted to fester then blossom into the disaster this Senate has permitted.

    This Senate’s solution has been to rubber stamp more appropriations. It is not reasonable to blame the minority party as the minority party has no power but to block what the majority has otherwise threatened to take away.

    This is a joint problem. The time to have used the filibuster has long passed. The potential threat that the filibuster might be denied is not a basis to not exercise it; rather, it should have been the goal of the DNC to ensure that the RNC did remove that option so that the tribunals realized that the DNC had exhausted all options.

    Power can only abuse if the abuser permits it. The DNC is complicit, but this does not mean that the DNC should have the burden of equal blame. Rather, the resolution to this problem is for the RNC to be compelled to deny the filibuster – so that the RNC no longer has the power to claim there is any lawful option but to impose justice on the RNC through a war crimes tribunal.

    If you are afraid of what the RNC might do, then you are already defeated. It is your job to compel the RNC to deny the DNC of any options, thereby showing the world that the RNC is unwilling to follow the law on its own.

    Both sides have the power of filibuster. The issue of why the filibuster was or was not used is not something that rests with one party, but with the Senate. Both sides of the aisle have to explain why the chose to assent to what should have been agreed. It remains to be understood which agreement to concur with what was illegal took an illegal precedence over the duty to Geneva, the Supreme Law, and the oath.

    If the RNC will not permit the filibuster, the RNC should be compelled to explain why it should be permitted to exist. If the RNC will not permit debate or blocking of things that are illegal, then nothing should block the RNC from being subjected to indictments and jailed where appropriate. Whatever the RNC has said is not permissible must be imposed on the RNC as a reality – the RNC cannot rely on that which it does not recognize, accept, or believe. Yet, this is not the case with the Constitution. Despite failing to honor the Constitution, the RNC would have us believe that it has the power to rely on the document and governance it does not value. This is merely evidence of the RNC ruse. It is not serious about governance; it is only serious about abusing power, not in solving problems with that power.

    The way forward is to create a system that will quickly detect the abuse, violations, and then compel timely action. Members of Congress when they delay fact finding, or refuse to do it, should be held to account by something more credible than whether the manipulated voters may or may not do something. The law itself should be a credible, fierce, and sharp stick to the small minded ones that have infested the Senate, and otherwise brought discredit upon the Founding Father’s legacy.

    How does one shut down the abuses, end the non-sense, and otherwise return the nation to the rule of law based on prudence. War is an ugly thing, but the greatest ugliness is the despicable nature of man, especially a Senator, to turn a blind eye to the ugliness of his or her government, and explain away the abuse as if it were a matter of discretion. The Senate has no discretion on the law, it only has discretion whether it will or will not freely, or by force, assent to the law applicable to all.

    Abuse is not permissible. The definition this Senate debates is irrelevant. Where there is a threshold, this Senate has shown it will cross that line, and have no regard for the law. There is little to believe other than the Senate is irrelevant, as it should not.

    What will compel relevance? What will awaken the passion of the Senators to enforce the law? Passion is not a bad thing when the Senate uses it in the right way; it is a bad thing when passion is used as an excuse by the government to ignore its requirements. Curious thing passion – once though the danger of the mob, and the reason to deny the mob an ability to have power. Surely, the same argument could be applied to the Senate – it’s passion in 2006 as equally misguided as the passion the Founders Feared in 1789. Then the remedy was to deny the passionate ones the power; today, the same rule applies. There should be a means to deny the Senate the luxury of passionately assenting to illegal abuse of power, or violations of the Supreme Law.

    How does one remove discretion? What’s needed is a tribunal system with more power to remove, oversee, and intrude into the Senate and prompt them with questions. Rome had a method of vote, unlike our own, whereby the consults could enter the floor and veto – “I reject” – what the senate was doing. Rejecting can mean more than blocking legislation; it can reject the inaction, incompetence, or the assent to illegal violations of Geneva.

    Should there be a powerful consul or consuls appointed in a special way by the State Governors and State Legislators to constantly remind the Senators of their duty to be passionate about their oath, the law, and their duty to enforce the law. Indeed, something must excite the Senate in a way their tired promise to God has seemed incapable.

    Rejecting the Senate on a daily basis would do nothing unless that rebuke was in the form of a real stick to compel questions, straight answers, and force the Committee chairmen to do what they have well proven they are not interested in doing: Being passionate about their survival as an elected official. Justice might do something, but it is slow. Something compelling is needed to awaken the lazy Senator to its legal obligations.

    There is no ready answer. Until then, the prosecutions of the Senators must proceed with all due speed. It means nothing that their electorate is satisfied with war crimes – the voters are meaningless when it comes to the International War Crimes Tribunal.

    * * *

    The way forward is not to point to the uncertainty as an excuse not to face what has gone wrong, or what must be done –- but to accept what has happened: the Americans in the Legislative, Executive, and Judicial Branches have engaged in, permitted, and not stopped war crimes.

    Uncertainty and confusion are manufactured as excuses against debate. There is no credible reason to explain away Geneva. Nor is it relevant that some in the Senate may want to change the subject from war crimes to something else. Nothing will make the war crimes go away – they have happened, and continue to happen. Nor can the evidence be suppressed, but it is all around us, oozing from the very bills this Congress entertains.

    There is no excuse not to indict and prosecute the members of Congress. Where they have a defense and can show they defended the rule of law, and otherwise did all they could to prevent war crimes, that may or may not be considered. America is a land of many faces. New leadership can be found, but the Governor’s power to replace those convicted of war crimes does not mean that the new Congress can start with a blank slate. Rather, it needs to start with what has failed, and remedy and repair what is not working. Whether that remedy is something the senate is capable of doing on its own, or is something which requires a transformation of the entire Senate is something for We the People to discuss. To date, the Senate has not well demonstrated that sticking with what is not working is anything other than failure.

    There is an alternative. It is called a solution. It depends on whether the Senate is serious in solving the problem or saving itself. The Constitution is supreme to the Senate and the Senate Rules. The Senate rules as they have been crafted permit discretion where there must be a requirement; and allow for tolerance where there must be rejection.

    The likes of Berenson, Keisler, Yoo, Addington, Roberts, and Alito have given us what we have. The question is whether these actors will be subject to the judicial system they profess they love, or whether we are forced to endure – through silent consent – their excuses for why they should not be tried for war crimes. There is no evidence before us to suggest they have immunity, absolute or qualified on any issue. The question is what will send a clear signal of what is required. Berenson is the one who is confused. Berenson is the one that has a poor comprehension of the problem he faces. It was he who chose to justify the excuses to ignore Geneva. The arguments he has freely provided out of court have not been compelling. The requirement of Geneva is something that Berenson cannot explain away on the pretext of what the enemy is or is not; the Conventions are requirements on the detaining power. The fact or non-facts alleged or asserted about the nature of the enemy is a convenient ploy but not an argument, nor a defense.

    Berenson’s problem is that he was there, in the White House, and fully capable of resigning when he first heard of the excuses, but he chose to stay. In 2006, he has not broken ranks with those who have subsequently been allegedly linked with war crimes. Berenson, like the senate is the one that is the subject of the public discussion.

    Legal animals like Berenson need to be studies for what they are, and lawfully removed from the political and legal stage. They offer nothing but excuses to defy the Supreme Law. There should be no excuse for his conduct, yet he is rewarded. This is not permissible.

    * * *

    Berenson’s failed arguments stem primarily from the rude reality that America has committed war crimes, and he did nothing to timely remove himself. He’s stuck. Berenson is an alleged war criminal.

    The Americans’ problem is that despite the Bybee Memo and warning, the country was led to believe that the abuse of prisoners was permissible. This is incorrect. The status of the prisoners has no bearing on whether the United States does or does not comply with Geneva.

    Berenson’s problem, like others who are allegedly linked with the war crimes, is that history is fixed, the evidence cannot be changed, and the truth is something that is stuck in history. But it can be understood.

    It is time for the public to treat Berenson as an alleged war criminal. He should not be given respect as an attorney, but treated as an alleged criminal who is under a cloud of suspicion and doubt. Berenson is the one that says the comparisons with one group and another is offensive. It is Berenson who is offensive.

    It will be impossible to make this problem go away. The US, as Berenson apparently well knows, is looking for a way to make the issue go away.

    Regardless what the US courts, Congress, or voters do, the International war crimes trials are possible. Members of Congress and the American legal community have shared in the joint decision to fail to prevent war crimes. Justice will understand the reason, and how this came to be. In the end, we will be better off.

    The sad lessons of infinite exile off the Coast of England brought us the Habeas. going forward, this sad legacy will create new tools and requirements far more powerful than a simple change in the Constitution. Progress will occur. Will the likes of Berenson and the current Senate mesh with what is required; or must an International tribunal outline the needed reforms?

    One approach is easy: It is embracing prudence and then doing what out to be done. The second route is the same path to the same outcome. Berenson does not have discretion whether the outcome will or will not be an improvement; he only has discretion as to whether he freely or by force cooperates with the war crimes tribunal.

    Congratulations, Brad Berenson, you are an alleged war criminal. Your public statements after the original decision are no longer protected; and you may not rely on your position as a defense; rather, your position is evidence of your expertise that you have allegedly failed to apply, and otherwise allegedly recklessly failed to ensure was lawfully implemented and put into force as you were otherwise required to do.

    War crimes are a serious thing. It’s one thing to be a Member of Congress and watch this disaster, quite another for a memory of the American Bar Association to not exercise the simple rules of analysis and logic, and put them to good use.

    Americans have seen the legacy of defective legal assistance. Lawyers, by their nature, have a good understanding of the law; their fatal trap is to believe that the interest of the client, however illegal, can trump the law. This is incorrect.

    American lawyers are unfairly rewarded for their sleight of hand. They should also be punished severely when they use their defective legal reasoning, and position of access and power to the determent of justice as Berenson has allegedly done, permitted to happen, and done nothing to correct. His out of court statements should be admitted into the record as evidence of his state of mind, comprehension of the law, and whether he does or does not understand the primacy of Geneva over political agendas. Berenson, like many in the Senate, appears to have confused the position with power, access to power, and the lawful use of power. They are not the same.

    Power can only be lawfully used if it is lawfully used. Power is not lawfully used when it is asserted to be lawful, but its results are illegal. Berenson’s problem and confusion stems from his loyalty to an idea of justice, not to justice itself. It is one thing to be loyal to an agenda that asserts as its goal a notion of liberty, values, and power; quite another to accept that that agenda, however well intentioned it is, wholly threatens the fundamental Supreme Law. This is Berenson’s error.

    You will notice his arguments are defective, not simply because he is an alleged war criminal, but because he has failed to realize that rather than invoke his right to silence, he incorrectly believes that if he speaks he can convince the war crimes prosecutors of his innocence. Berenson has made a fatal error. It is too late to put the genie in the bottle, or close the barn door.

    Berenson like Senators should know that the law cannot be bent to accommodate what is illegal, nor can the impermissible be rewarded or go unpunished. Berenson’s problem is that by invoking the likes of Washington, Lincoln, FDR, and others who were alive before 1949 does nothing to explain Berenson’s alleged failure to enforce the 1949 protocols in 2001.

    Berenson cannot wave the flag, or point to Abraham Lincoln, nor invoke the Name of Washington as an excuse for what Brad did or didn’t do. Those names are not defenses. They are excuses to commit, and not prevent war crimes.

    Berenson remains under alleged investigation for war crimes. He remains at risk of being indicted for actively aiding, working with, and failing to prevent unlawful violations of Geneva. It is not reasonable for him to state in 2006 what did or didn’t happen in 2001. That is irrelevant. If what he did was acceptable, there would be no need to point to an irrelevant excuse – 9-11 – as justification for ignoring the requirements. Berenson’s conduct fails to send a message that he’s done anything since his tenure in the White House to inspire confidence that he is sorry, concerned, or otherwise remorseful for what he allegedly failed to do.

    The Bybee Memo is instructive. It well states the concerns about Guantanamo. However, there is a problem. The opinion is narrowly confined to Guantanamo. That is the problem. How do we explain the President’s behavior with the CIA detention centers in Europe and Africa? Despite the Guantanamo video tapes, and Supreme Court ruling that US law applies to overseas installations, its as if the President was somehow convinced that there was a legal basis to do something else.

    It is reasonable to conclude Berenson knows of the other memos related to the CIA detention centers in Europe. For all we can speculate, perhaps Berenson worked with Bybee and Addington to craft other memos; then Gonzalez said “OK” as Yoo and Keisler decided to agree to go along with that.

    Guantanamo shows us there is a process in place in the White House to document legal opinions. We know that the decision after 9-11 was a final one, and that prisoners were moved and detained in violation of Geneva. All communications, memoranda, and other documents related to that subsequent, post-decision illegal activity are not related to anything that can lawfully be privileged.

    Rather, the aim of Berenson appears linked more with a desire to impose privilege on documents he wrote that would otherwise be disclosed to the court and made part of the public record. It makes little difference whether Berenson was given information through the NSA or a foreign power – Berenson appears to have relied on that informant to support ongoing violations of Geneva. Whether the information is or is not true is irrelevant; the information, regardless its truth or falseness – cannot be the basis to justify any abuse of power of Violation of Geneva.

    Berenson like Bolton need to explain to the war crimes prosecutors which information he received, how he relied on that information from a foreign power, and what evidence the White House was using to justify violating Geneva. It is important to know whether the White House legal staff is getting information form Syria or Iran in private that is incorrect; while publicly the US is claiming that the Syrians or Iranians are not reliable.

    Berenson appears to have sat on the principles meeting with the National Security Council. It remains to be understood how the NSA-NSC connection has created an impervious politburo-like system whereby information from whatever source enters, and then acted upon without regard to the rule of law.

    To what extent foreign powers know they are under NSA surveillance, and are deliberately providing information that the US feels it should rely on as an excuse to engage in further violations of the law.

    It is the job of Berenson to explain to the public why the US has a higher loyalty to secrecy that it has to the notion of Rule of Law. Indeed, there may be strange bed fellows on issue of Executive power. But this does not justify putting loyalty to the foreign secret above loyalty to the Constitution, rule of law, or Geneva Conventions. This is where Berenson’s argument falls down. The oath compels us to have no higher loyalty that the Constitution; the oath cannot mean something else, nor permit compromises which put the rule of law at risk.

    Berenson’s problem is that he’s taken the idea of an oath – as a means of power – and like Addington and Cheney has turned the notion of loyalty on its head. True loyalty is to the law; in practice, Berenson’s loyalty, like Libby’s, is to Cheney and Addington, not the Constitution.

    The Senate has the power to screen people. In practice, this does not mean that people are screened, only that they are permitted to claim a process of screening as an excuse to not do what they should. That the Senate has the power to screen does not mean that the process used to Screen senators is effective or lawful; at best, the voting result should be the first hurdle, and there should be ongoing challenges to ensure the Senate does what it should, not sits idly permitting what it should not.
    * * *

    The war crimes liability is well into the national security council. They’ve received information they knew was from illegal NSA monitoring; then acted on that information ordering war crimes. The NSC is also the means by which FEMA is coordinated, and Katrina is a proxy for what the NSC does when it is surprised: finds a scapegoat, and explains away reality.

    The NSC is in a position to explain through the e-mail system, and its offsite storage location, what was in their head, why they failed to stop the illegal activity. Also DoJ Memoranda in and through the NSC and White House also show the thinking that justified the concurrent illegal activity at Guantanamo and the CIA sites. The same memoranda used to justify the abuses in Guantanamo are also linked with the National Security Council, DOJ Staff, and those who were working on the CIA and NSA activities. These are connected to the Domestic interrogations, warrantless domestic renditions, and the illegal transfer of American citizens from their home district.

    The National Security Council also well knows Operation Falcon was a ruse; and how DoD personnel were coordinated through DoJ to embark on what was sold as a training exercise. The same patterns exist within the NSA.

    The NSC’s problem is, like the NSA, it is in a position to know, but failed to stop the illegal violations. But the ability to block, intervene, and otherwise take lawful action creates a liability. Not only with military power and information, but a responsibility to lawfully work with the Congress to review in public the illegal activity and crate a solution. This Attorney General's idea of working with Congress is to make some changes where they are convenient, but violate the law when he alone decides its in the interests of the state.

    The Joint Staff and NSC are linked with the war crimes activities. The e-mails are lawful targets for the post-decision 2001-2006 illegal activities.

    * * *

    The problem the National Security Council has is its inability to prevent foreign prosecutors from getting information. One objective of the White House and national security council is to prevent the prisoners from discussing what happened, and block public understanding of the lack of evidence used to detain the prisoners. The NSC has well known from the early days of Guantanamo that innocents have been detained. The initial whitewashes with Spike Bowman failed to address the abuses which the White House admitted occurred in the detention centers, not to mention the sea-based detention centers.

    The question is to what degree the US is hiding evidence of war crimes in other areas that the prisoners, if they had access to, could invoke as a defense and escape punishment. We judge the full American prisoner rendition activity, if known to prisoners, would immunize the prisoners from prosecution – the scale of the American abuses is sufficiently high to create not only primary liability for the initial wrongs, but subsequent liability for failing to prevent the wrongs.

    The only reasonable reason to hide evidence of illegal activity isn’t that the US violated the law, but that the US violated the laws of war first, and the CIA and NSC personnel know that they cannot rely on NSA-sourced information as their defense because the abuse was committed against civilians and is never justified.

    The objective doesn’t appear to be state secrets, but to suppress within the NSA-secrecy-nexus abuse evidence that US officials have known, and failed to stop; and preventing NSA employees from working with the CIA to reveal worthless evidence that in now way justified the abuses the National Security Council, DoJ Staff, and legal community have permitted. The net result of the secret data base is violations of Geneva, defiance of the Supreme Court, and no respect for Hamdan.

    Their loyalty isn’t to the Constitution, but to the database holding the illegally captured data, how it was acquired, and what has been done with that data that violates Geneva.

    There needs to be a method that will screen the data, ensure the illegally obtained information is separated. The wall between the CIA and FBI needs to be examined. Nothing prevented the DSP from meshing the two lines of evidence from the CIA and FBI. A FISA-like court needs to have a second-review of the NSC operations, not simply on a recurring basis, but to understand what recurring problems from Iran-Contra have continued.

    It’s one thing to engage in covert operations to defend the country; quite anther to fabricate and inject into that secret system false information that is used as the basis for an illegal war. Just because an issue is foreign affairs doesn’t mean it can be immune to cross examination, whether by a court or by a credible challenge by other views.

    This leadership took the view that FISA oversight, CIA analysis, and public discussion would reveal a problem. In reality, the opposite occurred: Invalid assumptions proved instrumental in waging illegal war, committing Geneva violations and failing to plan.

    * * *

    The prisoner status is irrelevant. The legal requirements are on the detaining power. The memoranda asserted the opposite: That discretion hinged on how something else was or was not defined.

    The focus needs to be on the requirement, not the excuses to explain away the requirement. The reason for tolerating a flexible view of the law was that the people had no timely consequences for that view.
    The issue of whether US military personnel are or are not treated unfairly is a disingenuous concern. The real issue is whether American civilians are subjected to retaliation with the full expectation that the enemy will use American attacks on civilians as a defense to prosecution. The United states fears open trials because this will expose American actions to public scrutiny. The public relations problem will be when prisoners are released, tried, but not convicted because of American involvement in like activity.

    It is illegal to deny a prisoner Geneva protections based on an assertion that they are an unlawful combatant. This is something that Berenson knows, or should know. Rather, their status as an alleged unlawful combatant is meaningless until the courts so find; even if they are an unlawful combatant – which has not been prevent, merely asserted – this does not mean that someone can be punished. That punishment must be linked with a military commission that implements the Geneva requirements. This Congress has done nothing about the punishments that violate Geneva. Members of Congress know, or should know, that the range of evidence that relates to Guantanamo should also be available with the CIA detention centers, but have not publicly asked for that war crimes related information. There is no excuse for inaction.

    Berenson’s argument fails in regard to the events of Sept 2001. what did or did not happen on Sept 2001 in no way justifies American violations of Geneva. The historical references are excuses. Berenson should not be invited to provide his legal views on a matter, but only called as a witness without any promise of immunity or special treatment. Berenson cannot explain why the procedures afforded to US military personnel were or were not denied to prisoners. How the NSA did or did not collect information is meaningless, and whether the information is from Cuba, Israel, Syria, or Iran is irrelevant to whether the Geneva conventions apply. The duty to enforce Geneva springs from the oath and treaty itself, it is unwavering, and irrelevant whether the uncertainty of war or the enemy are favorable or unfavorable to one legal opinion. The law, not the enemy, is the barometer to correct conduct.

    Whether someone is or is not a lawful combatant is irrelevant to whether they have their rights deprived. Their status is only the fruit of a tribunal, which has not happened; and there is no credible case to be made that the district court procedures are unworkable.

    That procedures may or may not “get close” to Geneva is meaningless. Geneva is a requirement. The law states the prisoners shall be afforded the same procedures given to US military personnel. It is too late in 2006 to explain away what was a requirement in 2001 going forward: The requirement to comply with, enforce, and prevent violations of Geneva. The Status as lawful

    The Geneva conventions outlaw abuse. The definition of torture is irrelevant. The approaches to FISA and Geneva are substantially the same. The violations have occurred, and the United States is not in a credible position to self-immunize or assert issues of sovereignty. These are issues of international war crimes, not exclusive to United States jurisdiction.

    The excuses to commit torture are illegal. The personnel assert that someone should be tortured have a burden of proof which demands public accountability. It cannot be a protected accusations to suggest that anyone be tortured; rather, if the NSA has collected information suggesting that someone is or is not participating in something, that SIGINT is related to a source that can be checked using other sources. If there are no other sources to check, then who was the person sending the signal? If it cannot be determined, then there is a poor basis for NSA to asset that the SIGINT is actionable. There has to be a reason, and that reason is up to the analyst to justify, not for the Vice President to assert to argue.


    The rationalizations for Geneva violations are not protected, indefensible, and no bar to prosecution. The failed White House leadership, for whatever reason, is no basis to assent to the lawlessness. Rather, the way forward is to lawfully prosecute the President and Vice President for war crimes, and find suitable alternative leaders that are serious about the rule of law.

    Until the American leadership is either forced to or freely embraces Geneva, it is reasonable to expect worldwide American combat casualties to mount. Even if a military draft were ordered under a transitionary American government, there is insufficient time to deploy over 1M activity duty personnel required.

    The Iraqi insurgents are not longer seen as illegitimate, but are regarded as lawful combatants not required to cooperate with an illegal invasion. Although US involvement alone will not secure the situation, the US does not have enough time or troops to contain the situation in Iraq. Rather, the way forward is to work with the Iranians, encourage their participation. Even if the Iranians were violating the NPT, the US can ill afford and does not have the means to impose sanctions against Iran.

    The United States has already abused prisoners in violation of the Geneva Conventions. US government officials in all three branches, and civilian contractors are subject to lawful indictment and prosecutions before an international war crimes tribunal. Prisoners are likely to raise these illegal acts as a defense: The war crimes, even in proven, were not isolated to one side of the conflict.

    There is no basis to define the current conflict to what did or did not happen after Sept 2001. The United States did violate Geneva requirements before Sept 2001 without the attorney general reporting in writing to Congress these deviations as required to Congress.

    * * *


    Chief Justice Roberts could be indicted for alleged war crimes in failing to enforce the Geneva conventions. The potential challenge of finding a new Chief Justice should be no bar to prosecuting an alleged war criminal. This indictment would not be unprecedented against a justice. The Nuremburg Justice trial convicted German judges who failed in their oath to enforce the law, or prevent abuses when they had the power.

    There is probable cause to find Brad Berenson was allegedly engaged in illegal war crimes planning, and linked with unlawful activity while on the White House. He cannot claim immunity, and the evidence related to his post-decision-related communications is no longer protected. There is a second line of evidence which Berenson appears to know exists that closely matches the Bybee Memo and Guantanamo-related memoranda. The individual actors appear to suspect this memo is going to be released shortly with a FOIA

    The National Security Council knows full well the war crimes liabilities are real. The NSC e-mail is located in an offsite location.

    After Members of Congress are indicted and prosecute for war crimes, State Governors will be in a position to make changes to the makeup of Congress, affecting the balance of power between Congress and the White House after the 2006 election.

    The Congressional debates on FISA and Commissions are smokescreens, and do nothing to resolve the war crimes liabilities. The to-be-discovered evidence most likely tilts away from Congress. The debates are evidence of their failure to enforce Geneva. The post-decision communications between Congress and the Executive are not protected, but post-decision memoranda and admissible.

    Members of Congress individually have been complicit in war crimes planning, oversight, failure to prevent, and are likely to be indicted before war crimes tribunal. Language at the end of the Military Commissions Act of 2006 shows the concern is real, and Members of Congress individually do not have sufficient financial resources to defend themselves before The Hague. The issue isn’t one of unfair procedures, but the evidence is overwhelming and Members of Congress have no credible defense that they would otherwise like to use to delay the inevitable conviction.

    The objective of secret trials is to prevent prisoners from discovering the evidence of American war crimes. The White House fears the evidence will be insufficient to convict; and that the failed convictions will raise questions about the basis for detention.

    CIA personnel have every reason to fear war crimes indictments. They have no defense, Geneva was a clear requirement, and despite the publicity over Guantanamo they continued to violate Geneva. This is evidence of recklessness.