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Thursday, September 07, 2006

Unconstitutional Military Commissions Act of 2006

4 Oct 2006: The Military Commissions Bill is illegal: Rumsfeld sued For violating Geneva, denying prisoners the right to have the court review their detention. [ Litigation ].

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This outlines the unconstitutional aspects of the Military Commissions Act of 2006.

This bill can be introduced to The Hague for purposes of indicting individual DoJ Staff and Congressional Staffers who have crafted this legislation. This is evidence of illegal war crimes planning, and failure by policy makes the Legislature and Executive Branches to ensure Geneva is fully enforced.

What you can do: Visit and make your voice heard.

Ref: Judges speak out.

[Update: NewsFlash -- US Planning to Defend Govt Officials At Int'l Tribunals]

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Ref Draft Bill.

Analysis [ Tool: Compare/Merge Documents ]

Merge (1) this single sheet of UCMJ with (2) the text of the bill in a document and you will see what has changed: Ability to confront witnesses and see evidence. This violate Geneva which requires defendants be afforded right to same procedures available to the military personnel.

Sample Rosetta:

  • A. UCMJ and Lawful Geneva Procedures UCMJ Article 22

  • B. Draft Bill Sec 204; Page 8 of 32

  • C. Unconstitutional Military Commission Act 2006 [ § 948h. 17 of 86, lines 1 ]

  • D. Ref Commentary on the original draft.

    * * *


  • To outline why the provisions are illegal;

  • Demonstrate the Congress is unlawfully targeting ongoing litigation;

  • Comment on the flawed assumptions within the draft bill.

    * * *


    US Constitution, Supremacy Clause: Oath of Office is To Geneva Conventions

    Oath of Office: Duty to enforce the Supreme Law and all treaties.

    Hamdan: Geneva Convention requirement: POWs are afforded same trial-treatment as that afforded to US military personnel.

    Rasul: POW's have clearly established right under the US Constitution and Geneva Conventions themselves to object to these illegal Military Commissions which violate the Geneva Conventions; and demand lawful intervention to enforce the laws of war against the United States Congress and Executive Branch.

    Nuremburg: Legislators, policy makers and judicial officers can be indicted for war crimes for (1) passing policies or statutes, or enforcing procedures which violate treaties and international agreements; or (2) failing, when they have the means and duty, to prevent violations of Geneva.


    Ref Innocents, without trial, have been illegally called unlawful enemy combatants. They were illegally held prisoners of war.

    Guantanamo Prisoners of War: Treatment during 2001-2006 failed to meet Geneva Convention requirements

    Egypt: Unreliable WMD/9-11 data extracted using illegal simulated death-burials

    Curveball: Danger of relying on statements that are not corrobrated

    Hubris [Book]: Well documented evidence of US political agendas driving prosecutions and combat operations, without any consideration for evidence, law, or Geneva requirements.

    * * *

    I. Illegalities

    The Military Commission Act in its entirety is unconstitutional. It illegal permits grave braches of Geneva. It is not lawful to permit outrages against prisoners of war. It makes no difference how cleverly the Americans have defined or mischaracterized their conduct.

    The Act illegally permits the use of evidence gleaned from abuse before a tribunal. This is improper. The Geneva Conventions require that prisoners of war be afforded the same judicial procedures as those given to American military personnel. Using illegally obtained evidence is not permissible against American military personnel, and the Conventions prohibit its like use against prisoners of war.

    The act illegally immunizes those who commit war crimes and violate Geneva, and retroactively, ex post facto defines new crimes and punishments. This is unconstitutional.

    The act also illegally prohibits the court from striking down the entire act. Rather, the language illegally requires the illegal procedures to remain in force until they are individually struck down. The language is an illegal assertion of Article III powers by the Legislature and is unconstitutional. Congress has no power to compel anyone to follow an unconstitutional act, much less silently wait until the Court so states.

    The bill is unacceptable and cannot lawfully be supported by any Member of Congress.

    - -

    This phrase is unprecedented in the United States Federal courts. This phrase unconstitutionally restricts the judicial review and application to a single case, and does not permit the courts to apply a finding from one case to another:

    [86 of 86, emphasis added] 11 SEC. 10. SEVERABILITY.

    If any provision of this Act, or the application of a provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act, and the application of the provisions to any other person or circumstance, shall not be affected thereby.

    This illegally says this act of Congress, which may be unconstitutional in one situation, the court has no power to strike it down pre-emptively for all future situations. This is illegal. The Act must be lawful for all for eternity.

    Courts have the power to strike down an entire Act. This section amounts to a Congressional assertion of Article III powers: That even if the Act -- taken as a whole -- is unconstitutional, the Court may only strike down portions of the act, not the Act itself. This is Unconstitutional and not something the Congress or the Executive have the power to do: To define when, if, and how the Court may or may not define and strike down an Act.

    - -

    Ex Post Facto; Affects Ongoing Litigation

    The problem is these procedures were drafted after the event; and the procedures in place -- that should be applied as they comply with Geneva, included provisions which afforded due process.

  • Ref Retroactive sentencing illegal.

  • Ref Congress cannot Constitutionally assert Article III powers, and affect ongoing litigation.


    This Act shall take effect on the date of the enactment of this Act and shall apply retroactively, including to any aspect of the detention, treatment, or trial of any person detained at any time since September 11, 2001, and to any claim or cause of action pending on or after the date of the enactment of this Act.

    Ref Neither of the "new rule" exceptions applies. Rather than forbidding punishment, as is permitted under the exception, the rules in the bill create new punishments. Also, the second exception does not apply -- these new rules do not support fairness or accuracy in any proceeding, but do the opposite: They are unfair, and in no way ensure accuracy, but reward inaccurate adjudication based on fabricated, secret evidence which the defendant is not afforded the right to examine.

    - -

    US Envisions Defending US Government Officials In Foreign Courts

    Another sign that the US DoJ is getting ready to defend US government officials for war crimes in foreign courts. [Note Section 1005, as modified by Amendment 84 of 86, lines 5-16 ]:

    (b) Counsel- The United States Government may shall provide or employ counsel, and pay counsel fees, court costs, bail, and other expenses incident to the representation of an officer, employee, member of the Armed Forces, or other agent described in subsection (a), with respect to any civil action or criminal prosecution arising out of practices described in that subsection whether before United States courts or agencies, foreign courts or agencies, or international courts or agencies, under the same conditions, and to the same extent, to which such services and payments are authorized under section 1037 of title 10, United States Code.

    * * *

    Ref This is a war crimes criminal investigation. The procedures under 5100.77, as promulgated in this FOIA were not lawful. The AR 190-8 changes are evidence that the procedures in place were illegal, and after 2001 despite known Geneva requirements policies were implemented which DoD personnel knew, or should have known, violated the laws of war. These are war crimes directly linked to the NSA illegal surveillance, the Joint Staff, and DoJ Staff counsel.

    Disclosure: Executive Has Waived All Claims of Privilege On War Crimes Related Evidence

    Ref: Authority: Once the information is disclosed, even inadvertently, it loses all claims of executive privilege. The illegal activity may not longer be lawfully classified. [172 F.R.D. 384, 676 F.2d 793]

    The FOIA has disclosed adverse information:

    [1] All privileges related to this activity are waived;
    [2] All correspondence related to these illegal procedures are no longer protected by state secrets.
    [3] All claims of "state secrets" and "classification" related to this post-2001-planning/communcation are irrelevant and not applicable.

    White House May Not Lawfully Prohibit Anyone From Engaging in Public Discussion of Illegal Executive Branch Activity -- The information may not lawfully be classified.

    You are free to discuss with counsel whether DoJ may credibly threaten to prosecute you for discussing evidence of illegal activity. Although DoJ may not lawfully threaten to prosecute for discussing illegal activity, you should consult a lawyer before doing so.

    * * *

    II. Unconstitutional Congressional Conduct

    Ref This bill retroactively asserts that all illegal procedures used between 2001-2006 are permissible, even if they violate Geneva.

    The bill also asserts that whatever has happened, regardless the legality or illegality with Geneva, must be accepted by all tribunals.

    This bill hopes to illegally allow illegally obtained, unreliable evidence to be used to prosecute people who may have no chance to cross examine that evidence.

    The bill permits illegal violations Geneva and the Constitution and is an illegal effort by Congress to retroactively permit conduct that is otherwise illegal. This affects ongoing litigation and is illegal.

    * * *

    III. Commentary

    2 of 86, line 24 Necessary and appropriate does not mean ignoring Hamdan, suppressing evidence, ignoring the JAGs, or engaging in simulated death by burials in Egypt to gather evidence.

    3 of 86, 7-21 Addington fails to show why the cited case is relevant, or why the JAG conclusions have been ignored.

    4 of 86, line 2 It is incorrect to call them "enemy combatants." They are prisoners of war. It is a matter for the government to prove at trial that the prisoners were or were not engaged in combat, much less on the battlefield. It is not acceptable to start the proceedings with the assertion that they were or were not on the battlefield. The prisoners of war could very well have been innocent civilians merely rounded up on the basis to false charges by anonymous accusers interested in revenge or bounties.

    4 of 86, line 3-11 Putting aside the issue of whether this order was or was not lawful, the President has a larger problem: Why, if this order was issued in 2001, were there not military commissions or some sort of trial procedure that would demonstrate that the evidence related to the detainees was non-existent? The government fails to explain why, despite the Supreme Court rulings in 2004, the Guantanamo procedures did not comply with the Supreme Court. Even when there are procedures in place, the President has ignored them when it comes to the periodic reviews of the illegal NSA activity. Putting side the issue of illegality, what is going to change to ensure that these new procedures are implemented?

    4 of 86, line 14 It is not correct to say that the Supreme Court ruling in re Hamdan was narrowly confined to domestic law. Rather, the actual finding was far broader: The procedures in Hamdan violated international law and the Geneva Conventions. It is not a solution to say that the incorrect problem -- deficiencies in procedures with respect to domestic law -- has been solved, when the Geneva requirements are ignored, as the JAGs have well stated, but the President, Addington, and Haynes have otherwise ignored, and mislead Congress over whether the JAGs were or were not informed of the original procedures. Haynes has yet to be called to account for his misleading statements before Congress.

    46 of 86, lines 23-25; page 51-3 The text is unconstitutional. It is unconstitutional for Congress to assert that the draft bill does or does not comply with the Constitution. This is an exclusive power reserved only for the Judicial Branch. Congress has no power to assert that the law has or has not been complied. This is a matter for the Court to review, and Congress has been expressly denied the power to engage in any judicial review. For this reason alone, the bill should be struck down as unconstitutional.

    5 of 86, line 3 DoJ and the President have demonstrated that they do not understand the Geneva Treaties. It is incorrect to state that the bill does or does not comply with the "law of war". The correct term, as the JAGs can well remind the DOJ Staff and Members of Congress, is the "laws of war." It is plural, and not something that Addington, Haynes, and the National Security Council can easily sweep under the rug.

    5 of 86, line 7. The draft bill makes a dubious claim that it is "impractical" to do something the JAGs have otherwise said is workable. Congress and DoJ have failed to adequately demonstrate the procedures are or are not impractical. Again, this is a matter for the court to review, not something Congress or the Executive can simply assert. Congress has no power to ignore well established, workable, and lawful procedures that fully comply with the law. Rather, the real objective of this claim of "impractical" is to pretend that the rules of evidence, confrontation, and other trial procedures should be jettisoned with one objective: To prevent the public from discovering that the evidence was gleaned through abuse; that the evidence is not reliable for purposes of launching illegal combat operations in Iraq; and that the case files in Guantanamo are largely devoid of evidence that would otherwise publicly show that the prisoners of war have been treated in a manner that violates the Geneva Convention. It is improper to hide the evidence of this subsequent abuse through unconstitutional procedures which violate Geneva. Geneva requires that the procedures be similar to those afforded to similar personnel. The only answer is to provide the UCMJ procedures. Again, to assert that the same procedures afforded to US military personnel are "impractical" is meaningless in that it is a requirement that those procedures be applied to both American military personnel and prisoners of war. There is no option. Indeed, the claim of impractical is dubious in that we see no evidence before us suggesting the UCMJ procedures are anything but practical.

    5 of 86, 7-12 This clause is unconstitutional. This is an assertion, something to be proven at trial, and is not appropriate for Congress to adjudicate. Congress has no Article III powers to conclude whether someone has or has not done something; nor that they do or do not have a specific objective. This is a conclusory statement, and in no way sends any message to anyone that the military commission will be fair, impartial, nor above board. Rather, the public should have every confidence that the trials will be stacked in favor of the government, and not reasonably rely on evidence to either prove or disprove the triable arguments.

    5 of 86, 12-16 This statement is unconstitutional. As stated above, the Congress has the requirement under Geneva to ensure that the procedures used to try prisoners of war are similar to those used to try prisoners of war. The government claims that something is "impractical," without a fair showing. Rather, this is a conclusory statement that only the Judicial Branch can make. Congress has no power to decide that the existing UCMJ procedures are or are not consistent with the laws of war, or the Geneva requirements. This is an exclusive power We the People delegated only to the Judicial Branch. It is the job of the government, before the judicial branch, to prove that the existing procedures afforded to US personnel under the UCMJ are or are not practical. Regardless the assertions, the Supreme Court in Hamdan has already reminded the government, Congress, and the Executive that Geneva is a requirement, not something that can be ignored out of convenience. Again, no independent observer of the proceedings under this bill should have any confidence the procedures are impartial or rightfully respecting the rights of the innocent-until-proven-guilty. Again, had the DoJ Staff, Addington, Haynes, and others in the Attorney General's office taken the time to discuss these issues with the JAGs in 2001, before making the decision to wage war, the JAGs would have told you that the decision to use combat forces attaches with it the requirement to lawfully follow the laws of war when engaging in combat, detaining POWs, and how they are tried. If the US did not wish to follow these requirements of Geneva, then the decision in 2001 should have been to reject the AUMF, and engage in non-combat operations to include prosecutions. It is not timely to make this argument. Rather, this bill is simply an attempt to rally the nation to pretend that the ongoing war crimes are something that can be explained away. This is also illegal.

    5 of 86, 23-25; 6 of 86, 1-4 This is unconstitutional. The language in the bill is not appropriate. This amounts to a judicial pleading that can only be adjudicated by a court. This premise is not something Congress has the power to debate or review. Rather, this is an exclusive power of the Courts to adjudicate. Whether the information is or is not classified is meaningless. The issue is whether the procedures, on their own, will or will not follow Geneva. This bill does not explain why a UCMJ procedure which similarly handles classified information can or cannot be used. Rather, the bill unconstitutionally asserts that the existing UCMJ procedures, which the JAGs well report are sufficient, will not suffice. This is not something the Congress has the power to assert, conclude, find, or judge. It is inappropriate for the Congress and DoJ Staff to use this bill to make judicial arguments about whether the UCMJ procedures, which Geneva requires be applied, are or are not able to handle the issues of classification. Any military lawyer can tell you that certain classified information can be presented in a manner that is redacted; and fully ensures the defendant is entitled to a fair trial. This bill side steps that possibility, asserts without proof that the procedures are invalid and not conducive to any alternative method, and simply asserts that the UCMJ procedures must be jettisoned. This is unreasonable, and only the courts can review whether this dubious claim has any merit. The answer is not to ignore or modify the UCMJ, but to tailor the evidence to fall under the Geneva requirements, which the UCMJ procedures nicely do. The JAGs can tell you more about this.

    6 of 86, 5-21 The draft bill fails to explain why hearsay evidence is admissible, more reliable, or should be trusted. This change and permission to use hearsay evidence that does not otherwise fall under one of the admissible exceptions, is not consistent with the Geneva requirement that the procedures of the commission be consistent with the provisions afforded to US military personnel. Even if the procedure was enacted, and hearsay allowed, this Bill unconstitutionally asserts that hearsay is always admissible, regardless the UCMJ requirements that that information be vetted, subject to cross examination. Moreover, the draft bill in no way ensures that the otherwise inadmissible evidence is subject to credible steps to impeach a witness. Further, it is absurd to assert that the hearsay evidence is the "best" evidence, when that evidence has been fabricated and is not neutral, but adverse, invalid, and unreliable.

    Let's put this in general terms. The objective of the trial isn't to put to death the detainees. The objective is to find out what happened, present evidence, and prove the desired punishment is reasonable with respect to that punishment. The problem with the draft bill is that it implicitly argues the outcome of the case -- that of being a death penalty -- should be premised on evidence that may have been fabricated. This is unacceptable. Nobody observing this debate should have confidence the Members of Congress, DoJ Staff, or the Executive Branch have bothered to read the Geneva Conventions, the requirements to comply with the procedures available to service members, or the Hamdan ruling.

    - -

    6 of 86, lies 16-21 It is circular to argue that the objective of the trial is to do justice, but deny justice: Cross examination, denying admission of hearsay that is not an exception, or ensuring that the original statements are based on truth, not merely convenient claims by disgruntled goat farmers in Pakistan who want to get rid of someone who dares to state the obvious: Living a life as a goat farmer is not the only option, and their daughter shouldn't put up with the goat farmer's wicked ways. Military commissions are no place for blood feuds between Afghan war lords to be sorted out; nor is it appropriate to have the US courts riddled with accusations that are essentially linked with employment disputes between abusive step-fathers and very intelligent Pakistani students who speak multiple languages, have international passports, and are being detained simply because they dare to use their mind, and question whether the US military war crimes are or are not sufficient to defend their homeland from invasion. Nowhere does this bill raise the issue of levee en masse, which allows foreigners to raise their hands, engage in combat, and defend themselves against an invading force.

    6 of 86, 22-25; 7 of 86 1-4 This argument fails, and is not appropriate to be included in the bill. Rather, this statement is clear evidence the objective of this bill is not to create a lawful tribunal, but to retroactively argue outside court that the illegal conduct between 2001-2006 is somehow legal.

    In truth, the decision to go to war attached within the requirement to lawfully prosecute those detained. The decision whether to gather or not gather evidence should have been part of the pre-AUMF debate. It is clear, the objective of the US government is not to comply with the laws of war, but to retroactively change procedures so that those who are detained without evidence have no right to challenge the reality: There is no evidence, as otherwise required to justify detaining them since 2001. It is too late to make this extra-judicial argument. Rather, the appropriate forum to make this statement is before a war crimes tribunal. Again this bill is not a bill to establish any lawful procedures, but is a joint statement by the alleged war criminals in DoJ, the National Security Counsel, and Members of Congress to retroactively pretend that the laws of war, which were requirements, can suddenly be changed, ignored, not followed, or explained away.

    If it is true that there is no evidence, and it was difficult to gather information, then the time to have disclosed this was in 2001 when the prisoners were being detained in box cars. If there was no evidence, how does the Congress explain its refusal to review the evidence of massive suffocation in the box cars in Afghanistan? Either there is evidence to justify their detention, or there is not. If there is evidence, let's see it. If there is no evidence, the crime is more than simply killing innocents, but in denying prisoners of war their Geneva convention rights since 2001. It is too late to make this argument. This bill is simply evidence that the Americans fear a war crimes tribunal, and the world comprehending that the Americans despite Geneva requirements, still have no evidence.

    If it was difficult to gather evidence, then the US has yet to explain what basis it was using to detain these prisoners of war. Either they have committed war crimes; or they have not. In this case, the objective of the Americans is singular: To sweep the issue of whether there was or was not evidence under the rug; and change procedures to make it legal to do what is unlawful: Detain and try people despite having no evidence. The incorrect approach is to change eh procedures to match the nexus of non-existent evidence; the correct approach, in 2001, was to have ensured that there was evidence, and that the basis for their detentions was based on something that would be justified under the laws of war. Again, this conclusion is something that only a war crimes tribunal can adjudicate. The evidence, based on this bill, is clear: The US wants to change procedures, not to protect national security, but because they know that the evidence that they have is scant; and in now way is connected with any logical connection with the treatment the Prisoners of war have been illegally subjected since 2001.

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    7 of 86, 4-7 We judge the statement is a meaningless statement. Let's recall where we are: The year is 2006. Combat troops do not have to be diverted from anywhere to cover a trial. Rather, the correct approach is to consider what was decided in 2001: That there would be no draft, and that reserve forces would be deployed in a theater wholly unrelated to the events of 2001.

    In truth, the complexity is one that the White House crated: To narrowly stretch its forces, engage in unlawful combat, then use it's thin reserves. The result is obvious: there aren't enough forces to engage in combat in either theater, hence the Taliban are on the rise.

    The problem in using the implicit argument of [paraphrasing] "we don’t have enough troops, so we're not going to comply with Geneva" is an irrelevant statement. Geneva isn't something that is contingent upon whether there are or are not enough troops to meet that objective requirement. Rather, in 2001 when the AUMF was passed, the decision at that time should have been premised on a robust debate to include inter alia:

  • Do we have enough troops to conduct the mission;

  • Do we have enough troops to fully comply with Geneva;

  • How will we ensure our Geneva requirements related to Prisoner of War detention, treatment, capture, housing, and care are fully complied, and allow us to fully support our lawful combat objectives?

    Putting aside the issue of whether the combat was or was no lawful, or linked with an actual, credible reason, let's consider the fundamental issue in 2001: The US at that time did not have enough troops to both invade, wage war, conduct combat operations, sustain Prisoners of War, then transition to a secondary theater.

    Rather, in 2001, it was well known that the plan to invade Iraq required more troops, which could only be supported with a military draft.

    Today in 2006 with this bill, it is too late in the game to argue that because the White House failed to plan, waged illegal war, and did not have a draft, that the result is acceptable: This is absurd. Rather, the correct conclusion is to judge that any statement that explains away Geneva, for whatever reason, on the basis of insufficient resources, lack of manpower, inconvenience, is merely evidence that the US war plan in Afghanistan was reckless, failed fully embrace the lessons of Nuremburg, and was in now way sufficient to meet the eternal requirements of Geneva which mandate that prisoners of war be treated, detained, imprisoned, and cared for until they are released or put on trial. This thinking never entered the planning, and is merely evidence that the plan to invade Afghanistan, as was Iraq, was wholly disconnected from the full requirements of Geneva.

    If you want to find someone to blame for this mess, talking to Addington. He new well he was ignoring the JAGs. Despite him attending the Naval Academy, he said the Geneva Conventions could be ignored, and at no time were the JAGS consulted, called before Congress, or otherwise asked to comment on the sufficiency or insufficiency of combat troops to wage lawful war, and still comply with the POW Geneva requirements.

    But to be fair, let’s snot presume the problem rests solely with Addington. The real problem is that despite this failure to comply with Geneva, in 2006 we are being asked to believe that the NCIS, OSI, and CID didn't have enough manpower to gather evidence. This is absurd. When the prisoners were being captured, the investigators in DOD did have the time to surf the internet, review non-official sites, and engage in conduct wholly disconnected from the illusion of "we are too busy to comply with Geneva."

    The IP numbers across the board in DoD link back to the very wikis which prove the assertions in this bill are false:

  • Personnel did have the time to engage in non-combat;

  • Non-combat activity was not so pressing that personnel in Iraq did not have time to incite American civilians to target NYT media;

  • Even NCIS personnel in the Maryland and Virginia areas had sufficient time to goof off, not do their jobs, and still play on the internet.

    The list of IP numbers goes into the hundreds, and is wholly at odds with any reasonable claim that the DoD was so short manned that it could not position, transfer, or assign active duty personnel to perform these requirements of Geneva: Ensure that prisoners of war were lawfully detained, and that their records were fully in compliance with the JAG-approved method of trying prisoners: The UCMJ process.

    The evidence before us is clear: The draft bill isn't anything related to a credible claim of anything. Rather, its a retroactive excuse by Members of Congress, The DoJ Staff, DoD, the National Security Counsel, and the White House to pretend that between 2001-2006 the Geneva Conventions were "too hard" to follow. But Hamdan makes it clear that these were requirements. The time to have debated whether we would or would not afford prisoners of war these rights was not in 2001, but in 1929. It's too late. This argument is not timely.

    The activities related to these legislative proceedings are admissible as evidence for a war crimes tribunal. There is no absolute immunity afforded to any Member of Congress, or the DOJ Staff for this reckless product. The problem is that the evidence proving this bill is a cover-up has already been released, has been disclosed to third parties, and because of that disclosure is no longer protected by any claim of privilege. Rather, the bill itself, and all work products, notes, and DoJ Staff communications -- into, out of, and through Congress -- are now admissible before the war crimes tribunal use the very rules of evidence which this bill hopes to deny to the prisoners of war.

    Even if you deny the Prisoners of War the procedures related to rules of evidence, the DOJ Staff communications, timelines, and communications with DoD are fully admissible, and not protected.

    - -

    7 of 86, 7-11 The last line in paragraph statement is not supported by the evidence:

  • Combat is not excuse to ignore Geneva requirements;

  • The Congress had the duty to ensure Geneva was followed, and that it sufficiently raised through Article 1 Section 8, sufficient combat forces to wage lawful war, and comply with Geneva;

  • The available troops were less than required, and this was known, evidence of recklessness, and violation of Article 82 which mandates the attorneys in DoJ ensure the Conventions are enforced;

  • Despite a claim of insufficiency, active duty forces were not transitioned to comply with the known Geneva requirements, and active duty forces around the globe did engage in non-official use of computers, and otherwise did not focus on Geneva requirements related to ensuring that pensioners were only detained if they were linked with combat.

  • Despite revelations from former prisoners of war after their release from Guantanamo that they had no connection to illegal activity, Members of Congress were individually reckless in their neglect of Geneva, and wholly deficient in their 5 USC 3331 oath of office obligation to ensure the laws of war were fully followed, and that combat troops were fully funded to ensure compliance with the laws of war.

    Any claim that the rules of evidence were or were not enforceable is something only The Hague can adjudicate, and it is inappropriate for any Member of Congress to assert Article III powers through this bill, and assert that something was or was not sufficiently easy to do. Geneva imposes a ministerial duty on the individual Members of Congress, DoJ Staff, and others in DoD to fully comply even if Addington is ignoring you.

    We see no evidence that the Joint Staff took lawful action to remove themselves; despite JAG repeated reports that there were failures and problems, the Joint Staff and Members of Congress failed to ensure that the Supreme Law of the Land -- both the Constitution and Geneva Convention obligations -- were fully protected, enforced, or put into practice. This conduct amounts to gross, reckless, and negligent conduct by individual members of the Joint Staff and individual Members of Congress and amount to grave braches of their 5 USC 3331 oath of office obligations, and are admissible before a war crimes tribunal. Members of Congress do not have the power to simply launch a war, authorize force, but walk away for the consequences.

    yet, despite the known failure to comply with Geneva, at no time do we see anywhere in the record any credible plan, activity, oversight, or evidence gathering by any Member of Congress to ensure that the fully Geneva Convention requirements in 2001 were correctly matches with sufficient resources. Rather, the opposite is true: Rather than swiftly move to review the facts, the Senate Intelligence Committee has glacially moved, and conveniently told us that the results of this report will not be available until sometime well after the election.

    Time is up. Game is over. The Hague beckons the individual members of Congress. This November, even if you are re-elected, you could lawfully be rendered to The Hague, and indicted for war crimes: Failing to prevent in 2001 illegal warfare, and failing to stop what you knew, or should have known what was going on: reckless, gross, and grave breaches of the Supreme Law, and doing nothing about it as required under your specific 5 USC 3331 ministerial duties compel you to do: Ensure the laws of war were followed in 2001 going forward, not retroactively explained away with trash legislation like this in 2006.

    - -

    7 of 86, 12-18 Paragraph (8) Is a gross distortion of history, precedent, and Nuremburg. The precedent of Nuremburg is clear: Geneva falls under the judicial branch to adjudicate. Ludwigsburg until the early 1990s, well after the DOJ Staff was born, clearly prosecuted WWII war crimes.

    The issue before us is not whether the courts did or did not involve themselves with prisoners of war. Rather, in 2001-2006, the unprecedented condition was for the United States, despite the Civil War Andersonville, to pretend that the laws of war do not apply, and could be ignored.

    SECDEF 5100.77 clearly stipulates as a requirement on the Secretary of Defense to ensure that all DoD Staff Counsel, and the DoD personnel in a combat theater are trained on and comply with the laws of war. This 5100.77 is the DoD-SECDEF bible for the Geneva Convention. It is the specific, ministerial requirement on the Secretary of Defense to ensure that the Geneva Conventions shall be followed, enforced, and trained at all times. No discretion, well known, and something Congress well knows is part of the record.

    Either the Secretary of Defense ignored this requirement; or he knew about it, and failed to ensure that the combatant commanders in Afghanistan before approving the invasion plan, had sufficient combat forces to wage lawful war and ensure the Geneva Convention requirements were fully met. This is a responsibility on the Secretary of Defense, it was known, and we see no evidence before us to suggest SECDEF took this Geneva obligation seriously, ensured there were troops, and despite published reports that the prisoners were killed in Afghanistan through suffocation, the record does not reflect that the Secretary of defense went to Congress asking for more troops; or explained that he had a problem in fully complying with the Geneva requirements going forward from 2001.

    - -

    It is reckless, unlawful, and outrageous for the American Congress to even suggest that judicial review of anything is or is not unprecedented. Congress has no power to state whether anything is or is not precedent. It makes no difference whether the Congress believes something or not: Only the Court may review whether the judicial review is or is not appropriate.

    Again, we see nothing before us in the record to suggest that DoJ has made any timely complaint with any court to suggest that the Judicial Review was or was not Constitutional; nor is there any credible action investigation, or review by any Committee of Congress into this so-called "unprecedented' judicial review. If the action was unprecedented -- and by implication, unconstitutional -- the record does not reflect a balanced action by Congress to investigate that deficiency, promulgate a correct, provide guidance to the court, or otherwise ensure that the Judicial officers under the Cannons were or were not sufficiently guided to the error of their ways.

    7 of 86, Para (8) This is pure fantasy. "Judicial review" is always exclusive to the Judiciary. Nuremburg and Ludwigsburg are ample precedent for judicial review of prisoner of war, and were sufficiently linked with US combat forces to provide guidance.

    The bill provides no credible basis to justify confidence that the "judicial review" [at 16] does or does not exceed anything. The bill merely asserts, without a fair showing nor a discussion of precedent, why the Geneva conventions as fulfilled with the UCMJ do or do not meet the needs of the day.

    Further, the bill cites no precedent, authority, or basis to believe that the criteria used to evaluate these procedures are or are not appropriate; that the compliance or non-compliance with the UCMJ is appropriately gauged by non-treaty terms; makes no credible case to justify confidence that the conditions of war -- however poorly planned -- have any bearing on whether the procedures and requirements are or are not followed; makes no credible argument as to why the nature of the enemy has any bearing on whether the laws of war are or are not enforced; and fails to justify any reasoned confidence that the presence or non-presence of US combat forces has any bearing on whether the Geneva conventions were or were not fully complied.

    - -

    8 of 86, line 3 - 12 Is evidence that the President illegally engaged in judicial review, and is a fatal admission for purposes of war crimes proceedings:

  • The President exerted non-delegated powers;

  • The President failed to ensure judicial review of his actions;

  • The President’s actions were unlawful

  • The President’s conduct was linked with an international war;

  • The laws of war were known to apply;

  • Rather than apply the laws of war, enforce them, follow them, or ensure they were fully met, the President self-certified, using non-delegated powers only delegated in Article III to the judiciary, that he was or was no complying with Geneva.

    - -

    8 of 86, 10-12 It is incorrect to say that the interpretation was one of the United Stats. The Judicial Branch had not, contrary to the bills assertion, exercised any final judicial power in re Article 3 until Hamdan; before then, the DoJ Staff had self-asserted that the irrelevant assertion of whether someone was or was not a lawful combatant had any meaning. They never did.

    The 2006 Hamdan decision, contrary to DoJ and the President's assertions in this bill, in no way drew a line in the sand and said "from this day forth, you shall now comply with Geneva." The opposite is true: From 2001, going forward Geneva was fully applicable, but was recklessly ignored by both the Executive and Legislative Branches. These amount to war crimes.

    Hamdan in no way afford any party a power to "clarify" anything. The requirement is just that: A requirement to comply with Geneva, without any nuanced clarification required: The existing judicial procedures, which are otherwise available to US military personnel shall be applied to the prisoners of war. This is a clear treaty requirement known before the decision to invade in 2001. If the US did not wish to comply with this requirement, then the DoJ Staff and DoD experts on the laws of war should have crafted a lawful way to meet the national security objectives. That approach was never discussed; rather, almost too conveniently, the nation launched itself into a war, using the Geneva Conventions as fuel.

    - -

    8 of 86 22-26; 9 of 86, 1-2 Contrary to the DoJ position in the draft bill, Geneva Conventions do not permit any nation to self-immunize itself for violations; nor can any nation absolve itself of civil-liability. It is not within the power of the US government to assert it is a signatory of the Geneva conventions, while denying prisoners the right to recover civil damages.

    If this provision of Geneva was not applicable, the US government cannot explain why it has done just that: Paid and offered civil penalties, damages, restitution and settlements to combatants, non-combatants in both the Iraq and Afghanistan combat theaters after 2005. Congress has no power to pick and choose which potions of Geneva will or will not be enforced. Hamdan reminds us that the US courts, not the Executive, is the proper forum to adjudicate this matter, and it is inappropriate for DoJ and the White House to use this bill to assert that the Conventions are or are not applicable. The Supreme Court has already concluded, contrary to the Congressional bill [8 of 86, 22-24, that the Geneva Conventions are a requirement, no matter how inconvenient those requirements may be.

    9 of 86, lines 1-3 This makes no sense. If the act does state that the matter is between the parties, then the issue of applicability or non-applicability of the Conventions has already been decided and need not be mentioned. Rather, by mentioning that the agreement is between two parties, but without enforcing those agreements, we have a sham agreement: An assertion of an agreement, without the balanced assurance that the agreements within Geneva themselves will be fully met. This is a worthless conclusion to paragraph (8).

    - - -

    9 of 86, line 3 The bill states that the commissions will not comply with the full requirements of Geneva. The proposed military commissions are not lawful. This bill is unconstitutional. The authorization this bill grants to create those Commission is not Consistent with Geneva, and cannot lawfully be enforced or followed. Anyone within the DOD who fails to read 5100.77 and the Geneva Contentions, but riles on this bill, shall have committed a war crimes.

    9 of 86, 5-9 It is not lawful to authorize the President to establish these military commissions. The JAGs inputs have been unlawfully ignored, subjecting anyone who enforces, followed, or implements this bill to a real, credible threat of an indictment before a war crimes tribunal.

    9 of 86, 10-15 This language is far too open to be Constitutional. It is vague, permits the President to create military commission to try civilians, and should he alone choose, the President could self-define any territory of the United States a combat zone, and imprison anyone without access to counsel, or challenge witnesses.

    Congress has no power to grant the President any authority that will deprive anyone of Geneva Convention protections; or otherwise violate the Constitution. The President's power are narrowly defined, the Constitution limits his authority, and the President may not assert at any time that he has unrestricted power, authority, right, or any ministerial requirement to establish illegal procedures that violate the Geneva Conventions. US States are not occupied, and the US States cannot be construed to be combat zones at anytime. For purposes of this bill related only to military commissions, it cannot be the intent of Congress to permit the President to designation any land inside the United States as a combat zone.

    "Other armed conflicts" is far to permissible to comply with Geneva. There are foreseeable situations where a state of emergency, armed insurrection, or other domestic violence could occur where Geneva as it relates to an international battle would still be applicable. It is foreseeable that external nations could invade the United States, and that American Civilians could be accused of being combatants, and detained as prisoners of war. It is not appropriate to subject unarmed civilians to these military commissions. Rather, these commissions, should the White House choose, could be applied anywhere the United States President says that he must wage war, even to prevent the Constitution from being enforced against him and his alleged co-conspirators. This is not Constitutional, and it is not lawful to permit the President to exercise any power that would violate the Constitution.

    - -

    9 of 86, 16-25 It is not constitutional to impose the death penalty on anyone who has been deprived the power, right, and opportunity to challenge witnesses, hear all evidence, and be subject to procedures afforded to US military personnel.

    If, in fact, the punishment for the illegal activity could include just a fine, the White House and DOJ staff cannot explain why they have detained people for the time that they have served:

  • Will the time served to date be credited;

  • What would be the basis to conclude that a simple fine, as opposed to death, is more or less appropriate;

  • Given evidence can be denied to the accused, is there any reason to believe that the judicial review would have a greater or lesser chance of justifying confidence in the verdict, but for the assertion of legality;

  • What is the basis to assert that the tribunal's punishment is or is not proper, given the procedures to arrive at that verdict is improper;

  • An appeal has to spring from a single standard: The Geneva requirements. Yet, this Act would create two standards: One that i the law, and another that is up to the President to decide. This is an arbitrary, moving, and malleable baseline that in no way is consistent with the Geneva requirements that the basis for appeal spring from a single standard. Given the proceedings violate Geneva, what measures will be in place to ensure that the record is sufficient to ensure an adequate appeal of any alleged improper procedures?

    - -

    10 of 86, lines 1-5 There is no basis to assert that the punishment is or is not reasonable. The proceedings are not lawful, nor consistent with Geneva. Once Geneva is ignored, no court could conclude that the punishment or sentence from those proceeding was lawful; or that the action the Secretary of Defense may take is or is not linked with lawful process or procedure.

    - -

    10 of 86, 8-14 This annual reporting requirement is meaningless. The government has already ignored this requirement with respect to FISA, crated extra-judicial procedures, and not as required under Title 50 complied with the reporting requirement. Congress has demonstrated no serious effort to enforce the law when there are clear violations. This bill similarly cannot be seen as any effective oversight. Nothing in this bill would ensure the Congress, if it fails to act or gets no response, will do anything for violations.

    Moreover, putting aside the legality or illegality of the procedures, even if there are violations of the procedures, but the evidence is suppressed, there is no credible way that the report at (e)(1) will amount to anything. There is nothing in the language that imposes any enforcement mechanism for Congressional failure to enforce the Act, much less the Executive's habit of recrafting the language to mean something else.

    * * *

    11 of 86, lines 5-15 The definition of what information is or is not protected is broad, sweeping, and inconsistent with public policy. The definition, as applied, fails to distinguish between classified information that legitimately classified, and classified information cannot lawfully be classified when it relates to illegal activity. It is not appropriate to say that “any” information that the Executive says should be protected has been lawfully classified; rather, as is the case with Rendition and the NSA-FISA evidence, the Executive has stated that some information, related to illegal activity, should be protected. This is not permissible, and a violation of public policy. It is not lawful to classify any information related to illegal activity. [See Executive Orders related to ORCON classification – the Executive does not have the power to declassify information classify under ORCON, where the originator, not the Executive, has the sole power and lawful authority to declassify that information, not the Executive.

    11 of 86, line 13-15 It is not appropriate to coming restricted data as “classified data.” The evidence related to “restricted data” has under this Executive been fabricated. The definition prevents Members of Congress and the Executive from lawfully reviewing evidence that the data itself has been fabricated. This is not permissible, and unconstitutionally prevents oversight, enforcement, and evaluation of Executive Conduct by the co-equal, and separate branches of government.

    The danger is in permitting a broad brush to all activity related to this sensitive information. The definition in 42 U.S.C. 2014(y), as applied, would prevent Members of Congress from reviewing evidence that the information related to atomic weapons has or has not been fabricated; or that torture has or has not been used to acquire this information; or that the evidence or admissions related to this activity is genuine. Rather than subject the source of the information, and accusation about WMD or other atomic information be subject to review, merely the assertion that the illegal, unreliable information is or is not related to atomic weapons would preclude Members of Congress, the Public, media, and judicial branches from getting information related to the abuse, mistreatment, and other illegal conduct related to hiding the Geneva violations. This is not permissible. 42 USC 2014

    11 of 86, line 22 It is not appropriate to define someone, in a criminal statute, as being or not being a “lawful” enemy combatant. They are a prisoner of war. The determination and designation is not a preliminary assertion, but the consequence and product of a judicial review. It is not appropriate to call anyone a lawful or unlawful enemy combatant. At this juncture, during the preliminary stages, the status of the Prisoner of War is unknown, they may or may not be a combatant, and the responsibility of the government is to prove, not simply assert, that the prisoner of war was or was not engaged in combat. The next step is to determine whether that combat was or was not lawful.

    12 of 86, line 17-21 The President has no power to determine whether someone is or is not a lawful or unlawful enemy combatant. This is a judicial power reserves solely to the judicial branch, and not something the President has the Constitutional authority to determine. The President under the Constitution is expressly denied all power to make judicial decisions, interpretations, or opinions. It is unconstitutional for the President in this bill to be recognized as having any judicial power to judge, imply, or assert that someone is or is not a lawful or unlawful combatant. The correct terminology is prisoner of war. Only a tribunal, consistent with Geneva and the provisions afforded to US military personnel, has the authority under the Constitution to judge someone as being a lawful or unlawful combatant. The Geneva conventions require, until someone is proven to be unlawful combat, that they are treated in a manner consistent with Geneva, and afforded all protections. The assertion of whether someone is or is not a lawful or unlawful combatant cannot be a preliminary assertion, nor does the Executive have the power to assert this; rather, the prisoner of war status can only change after the tribunal, using procedures consistent with Geneva and those afforded to US military personnel, adjudicate that the prisoner of war has engaged in unlawful combat.

    12 of 86, line 23 It is not appropriate to define someone narrowly, in advance, with a label that this group is or is not an unlawful combatant. Under the laws of war, and principle of levee en masse, partisans out of uniform are entitled to take up arms, defend their homeland, and are not required to wear a uniform. Arguably, the Taliban fit this description, and they may lawfully engage in combat operations against foreign invaders who enter Afghan airspace. Moreover, the name “Taliban” implies that anyone who is asserted to be associated with the Taliban using unreviewable information could, using a circular argument, assert that someone is an unlawful combatant, but that determination cannot be reviewed because the assertion is based on “restricted” data, which is actually linked with torture, abuse, and unreliable sources.

    12 of 86, line 21 “Affiliated” is vague, overly broad, and subject to abuse. Under the current NSA monitoring, “affiliated” could include anyone that has been indirectly connected to fourth- and fifth-level communications, and wholly unrelated to any illegal activity. Moreover, the material witness program has also been abused using this “affiliated” definition, but the United states has not provided funds to compensate American citizens unlawfully abused during their detention.

    13 of 86, line 3 “Hostile act” could mean anything unrelated to combat, to include constitutionally protected free speech: Flipping the bird; making an obscene gesture; yelling at someone in a loud voice; pounding the table to make a point; jumping up and down, pointing to a DoJ Staff counsel member across the table and saying, “I think you’re a war criminal and should be indicted for war crimes.” Or Posting a picture of a US Attorney on the Internet, and putting a simulated bullet hole in the head saying, “Now you know why the Americans are war criminals: Their US Attorneys have holes in their heads.”; passing out flyers outside the FBI office with pictures of dead Iraqi children and with the words, “American war criminals in the FBI – Do they deserve the same fate at Hiroshima victims?” or Getting on the phone and joking with your friends, “Hay, maybe today we should place the explosives inside the Pentagon. Wouldn’t that be a fun birthday surprise for the Secretary of Defense? Do you think he’ll need to change his underwear? [Sounds of laughter] No! [Laughter] He doesn’t wear underwear. [Laughter] He wears women’s undergarments. [Laughter] Crotchless! [Laughter] ” or Going along with continued, relentless, unending pressure from someone to import arms; yet lacks the means to import the weapons, is not serous, and would not have considered the possibility had it not been for an FBI informant that couldn’t find a real job, and decided to make up a story so that they could get some money.

    13 of 86, line 6 “supported” is vague and subject to abuse. This could include someone engaging in Constitutionally protected speech shouting, “Down with America,” or “Put the fascist President in jail” or “You should read my other T-shirt: It says what I really think, but I can’t wear it near these moron-retarded contractor flight screeners since I’m an American.” or “USA out of North America,” or “The US Government should be abolished.” or “Osama Bin Ladin has a valid point” or “Rather than fighting the Taliban, maybe we should sit down with them and discuss what a solution to this problem might be.” or “I’m glad those assholes on Wall Street finally had their ass kicked in Sept 2001.” or “Finally someone has the balls to stand up to the arrogant war criminals in the White House, Pentagon, and Department of Justice.” or “It was the FBI agent’s choice whether he wanted to process or not process the information before Sept 2001 related to who was placing explosives inside the World Trace Center.” or “I think people that demonstrate in support of the Taliban, and are jailed for speaking their mind, are being treated unfairly.” OR “It is wrong to wage illegal war against goat farmers in Afghanistan simply because some disgruntled boss in Pakistani is jealous of the good looks of a Pakistani male, and he has provided misleading information to the illegal US invaders to have that Pakistani removed from the social goat-herding scene.”

    - -

    13 of 86, line 9-24; 14 of 86, line 1-2 It is incorrect to assert that the Combatant status review Tribunal determination cannot be appealed. Until there is a final adjudication by the highest court, the status of the prisoner is Prisoner of War. At no time may the prisoner be called an unlawful combatant unless the court, not the President or Secretary of Defense, has adjudicated that final conclusions. Until the prisoner has exhausted all legal options, they shall never be called an unlawful combatant, but a prisoner of war.

    [line 12] It is incorrect to assert that the detentions prior to 2006 have or have not been proper. This is something that only an international war crimes tribunal can adjudicate. The United Sates has denied outside observer access, there is no credible way to conclude that the detentions at any time have or have not been proper anywhere. At best, the detentions have been improper; most likely, the detentions have been illegal war crimes, and violations of the Geneva Conventions.

    [Line 23] “Protected person” illegally fails to include partisans like the Taliban who have lawfully taken up arms under the principle of levee en masse, are defending their homes, and are lawfully taking up arms to fight intruders. It is irrelevant what reason the United States gives to engage in combat. Under the laws of war, when local citizens are invaded, and there is inadequate time, resources, or equipment to properly uniform the partisans, then there is no requirement that they have uniforms. Note that the French resistance during WWII, despite many years of German occupations, lawfully supported US invading forces before, during, and after the invasion of Normandy. Partisans, who were lawfully defending the French countryside, engaging in protected warfare, and lawfully supporting an external army seeking to remove the illegal, abusive authority of the Nazis, did engage in counter-insurgency operations, demolished trains as far away as Marseilles, without complying with the strict uniform requirements of the Geneva Conventions. It is irrelevant that the Convention of 1949 was passed after WWII: This definition of unlawful combatant in this bill would outlaw, and make illegal the very forces the United States did rely on in WWII, and would likely rely on when protecting the United States in an international conflict against an attack from Canada, Mexico, Cuba, Venezuela or Iran. If the United Sates government wants to say that any American citizen, out of uniform, takes up arms to defend their property and work in concert with lawful military forces engaged in legal warfare, then the United States government clearly has no credible basis to say it is a legitimate government, not interested in ensuring the laws of war are consistently applied to all people, whether they be in our out of uniform, and is in no posit into credibly argue it has any interesting in uniformly ensuring the Geneva conventions are properly trained, much less enforced, should there be large scale combat operations on the North American Continent. Rather, the definition outlined would simply assert that anyone – in or out of civilian status –, who engages in lawful warfare to protect their property and Constitution, would be, by accusation alone, defined as an unlawful combatant and denied the Geneva Protections.

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    14 of 86, lines 3-6 The Laws of war, not the Geneva Conventions, are applicable. It is incorrect to narrowly define the laws of war as Article 3. Rather, they include all provisions of the Geneva Conventions which pre- and post-date the 1949 Charter. It is a misreading of the laws of war to narrowly define Article 3 as the only mentioned article. This in appropriately send the message that only Article 3 needs to be followed; or that Article 3, if asserted to have been met, is the only important requirement; or that by complying narrowly with Article 3, any other conduct, even if it violates another provision which was not mentioned in this act, is permissible. This is incorrect and a misstatement of the law. US Attorneys have under Article 82, a requirement to ensure that all the laws of war, not just Geneva, are enforced.

    14 of 86, lines 3-6

    14 of 86, lines 7-16 It is incorrect to rely on Hamdan to codify procedures which are illegal violations of Geneva. Hamdan may not be used as covering language to circularly argue that any provision after Hamdan is lawful. Rather, this is something the prisoners of war may lawfully bring before the court to challenge. It is not appropriate to use the Bill to self-assert that the provisions are legal; or that Hamdan made all subsequent promulgations lawful. This is incorrect, and a misreading of the Geneva requirements which must be followed, not explained away with silly, circular arguments as is the case here.

    [Line 13] It is incorrect to suggest that the President has traditionally done anything. What Lincoln did during the Civil War was not lawful. It is a separate matter and irrelevant that Congress did not punish the Executive for his illegal military commissions which violated basis human rights, and unlawfully sprung from illegal Executive use of narrow power. The only requirement is the laws of war, which must be followed: The requirement that military tribunals under Geneva provide the same rights afforded to US military personnel. It is a misreading of precedents to suggest that because the President in the past may or may not have violated the law, that he has the power to make commissions which may violate the law; or that the Supreme Court is doing something in appropriate by denying the President a power he does not have: The power to violate the Constitution and Geneva Convention requirements. Rather, it is clear that the Supreme court in Hamdan reminded the DOJ Staff and Congress of the requirements in Geneva that must e followed, not explained away; and the President in no way is being denied any power to violate the law: He was never delegated any power to violate either the Constitution, or the Geneva Convention requirement that the military tribunals match the procedures afforded to US military personnel.

    14 of 86, lines 20-22 This bill fails to explain why the Geneva requirements are being ignored. The conventions require that prisoners of war receive the same system of justice afforded to American military personnel. These procedures do not meet that Geneva requirement. They are illegal and unconstitutional. This is of concern in that the Supreme Court has already adjudicated this point, and it is not debatable whether the Constitution, Supreme Law, or the Geneva Conventions are or are not applicable, relevant, or requirements. This bill asks the public to believe that the Hamdan case, in name only, applies, but the essential kernel of truth in that ruling – that the Geneva convention requirements be enacted – can be ignored. That is impermissible and unconstitutional. It makes no difference whether the particular prisoner of war is or is not favorable to a majority of Americans: The law is the law, not one of popularity, or what can be scoffed at with the ebb and flow of lawlessness in the oval office.

    14 of 86, lines 22-23 It is not permissible to use the arbitrary nature of a combatant status as the basis to assert that the Conventions must be ignored, adjusted, or refined. The Conventions are requirements. Interpretations are not superior to the Act. The rules and procedures which exist are requirements; they shall be followed, enforced, and adhered. The particular nature of a combatant has no bearing on whether the requirements are or are not enforced: They remain requirements and shall be enforced without discussion, debate, or equivocation. There is no basis to assert that particular challenges of a prisoner of war do or do not present excuses to ignore the Geneva Conventions. This challenge was resolved after the AUMF was passed, and the decision to wage lawful war enacted. Attached with that decision in 2001 was the requirement to comply with the known Conventions, regardless how the prisoners of war did or did not cooperate on the battlefield. If the United states did not wish to enforce the Geneva Conventions and use lawful tribunals which were consistent with Geneva, then in 2001 the Congress should have chosen another path: To not wage war, but to engage in narrow judicial prosecutions. The Congress chose to wage war, and attached with that was the full knowledge of the Geneva requirements. In 2006 it is too late in the game to suggest that the nature of the opposition made between 2001-2006 compliance with the Geneva conventions inconvenient, difficult, troubling, upsetting, or extraordinary. The right time in 2001 was to assess whether the US has the resources and skills to comply with Geneva. The Congress concluded that the resources were sufficient, knowing full well that the subsequent detaining conditions did not comply with Geneva, and the individual members of Congress did fail to ensure that the Conventions were fully enforced. This attached criminal liability under the laws of war to the individual Members of Congress for continuing to fund, at unreasonable levels, insufficient combat forces to both wage lawful war, and still ensure that the Prisoners were lawfully treated in a manner consistent with the Geneva conventions.

    It is incorrect to assert that the nature of the Enemy allows for flexibility in what are rigid requirements: To ensure that the Geneva conventions are applied and that the judicial proceedings afforded to US military personnel are similarly applied to prisoners of war in all cases. The rules and procedures that are in place are sufficient, lawful, and fully consistent with Geneva. Any deviation from the procedures applicable for US military personnel, would subject prisoners of war to procedures that failed to meet the Geneva conventions. It is irrelevant what excuses some believe are or are not applicable as to whether the rules, procedures, or principles are or are not applicable to a narrow or broader class of prisoners of war. The rule is to ensure that the requirement remains the standard, and that there is no excuse to deviate from those requirements. Rather than blame the problem on “difficulty,” the correct answer in 2001 was to ensure that there were sufficient combat forces, and personnel handling the prisoners of war, to ensure the laws of war were fully enacted, not explained away as has been the case 2001-2006.

    15 of 86, lines 1-3 It is an illegal abrogation of the Geneva conventions to state that procedures otherwise entitled to American military personnel are not applicable, as required, to prisoners of war. It is unlawful to state that a requirement is not applicable; or that a requirement is not relevant; or that a procedure or interpretation is or is not lawful, when there is no discretion, but remains a requirement. Congress has no power to deny the courts of any review, and the prisoners of war may challenge this specific provision which states that the requirements are discretionary. 10 USC 47

    Waiving this requirement, and making it discretionary allows any assertion – however disconnected it is from reality – be unchallenged. This violates due process otherwise available to American military personnel. Geneva requires that the procedures afforded to prisoners of war comply with those procedures applicable to US military personnel. The language in this bill illegally permits violations of the laws of war.

    The correct approach is to ensure that the evidence collected is reliable, and can support the subsequent tribunals. The incorrect approach, as applied here, is to use the (1) defective national security council plan, and reckless disregard for robust military planning; as an excuse to (2) assert that there are insufficient military personnel; to then argue (3) because the Americans failed to plan and provide sufficient troops, that failed planning should be rewarded by loosening the requirements to comply with Geneva, and ensure that witnesses are presented for trial.

    Putting aside the evidence problem, it is absurd for America – through legal or illegal means – to impose a system of governance, while denying the enemy the very system we hope to impose. Title 10 Article 47 remains a requirement applicable to Prisoners of war. It is not lawful to deny the accused access to evidence or witnesses, especially when the evidence behind the accusations is thin or non-existent.

    The correct approach is to ensure, before waging war, that there are sufficient reserves combat forces in place to both wage war, and lawfully prosecute the prisoners of war. If the United States does not wish to comply with these procedures and requirements, then the US has the option to not wage war, and may us other lawful methods to achieve state objectives.

    The problem is that the Congress, in passing the AUMF, has illegally assented to violations of Geneva; and has unconstitutionally conferred judicial power to the Executive to self-assert that the procedures were or were not lawful, while denying the prisoners of war a timely judicial review, as was required under the Conventions. A joint failure of individual Members of Congress and the Executive branch personnel to train, organize, equip, mobilize, and deploy sufficient combat troops to support lawful warfare, and the foreseeable prisoner of war-tribunal requirements is evidence the Individual Members of Congress were reckless in failing to ensure the combat operations and prisoner trials were fully consistent with the Geneva requirements. Both individual members of Congress and the Executive branch personnel under 5100.77 are complicit in the war crimes committed against prisoners of war between 2001-2006. Individual members of Congress has the power to oversee, change policy, and prevent these abuses; they also have the power to prevent appropriations, shut down a military campaign, and otherwise prevent further violations of the laws of war. Individual Members of Congress failed to meet this requirement, enacted policies which violated Geneva, and failed, as they were required, to prevent further violations of the laws of war. There is probable cause to indict individual Members of Congress for war crimes for their reckless failure to enforce the laws of war.

    15 of 86, lines 23-25 It is not lawful to ignore The applicability of non-applicability of these lines is not consistent with lines 1-3 same page. It is not reasonable to allow Article 47 to be not applicable to US military personnel or accusers; but impose that ignored-requirement on the defendant. This is an unreasonable imbalanced application of the UCMJ. Moreover, the enforcement of this prevision, even if possible, is wholly inconsistent with the overall premise of the bill: there is no case to be made that portions of the UCMJ be applicable, while other sections are ignored. It is absurd to rely on the Gene3va Conventions as a basis to impose a UCMJ requirement on a prisoner of war; then turn around and say the UCMJ requirement is not applicable to member of the United States military or accusers.

    15 of 86, lines 4-8 It is not reasonable to use the label “unlawful enemy combatant.” This is something for the government to prove to the court; not something that is an assertion. The provision unlawfully allows asserted-illegal conduct, before this act is passed, be tried using illegal procedures which violate the Geneva Conventions. This amounts to a retroactive grant of absolution, asserting that any Presidential assertion of illegality – regardless his lack of power to so adjudicate – is firm, unreviewable, and en force. This is inconsistent with the separation of powers which requires the asserted illegality to be proven before a court, not summarily asserted on the pronouncement of the Executive.

    15 of 86, lines 5 The designation should read LAWS OF WAR (plural), not law of war.

    15 of 86, lines 4-8 It is not lawful to use these procedures to try anyone, regardless their prisoner of war status. The correct language should eliminate “unlawful enemy combatant” and use the phrase, “prisoner of war”. They are not an unlawful enemy combatant until the court has concluded this.

    [Line 8] the language related to Sept 2001 is meaningless. If the prisoner of war can be tried for any crime before, during, or after events of Sept 2001, then the appropriate language is to say: The prisoner of war may be tried using military commissions that are consistent with the UCMJ and laws of war. As it is written, the language incorrectly states that the date of Sept 2001 has any bearing on whether the prisoner of war is tried.

    However, more broadly, the problem with lines 4-8, page 15 of 86 has to do with retroactive application of these illegal procedures to incidents before the friable facts. This is illegal. Congress has no power to change procedures to something that do not meet the Geneva requirements; nor may Congress promulgate any rules that retroactively permit evidence before the court, that would otherwise be inadmissible had the Geneva Conventions been fully enforced 2001-2006. The language illegally and retroactively asserts that any assertion that a prisoner of war is an unlawful combat shall be accepted as a premise to justify their subordination not illegal procedures. This is circular and illegal. The correct approach is to ensure the UCMJ requirements afforded to US personnel are afforded to all prisoners of war, as required. It is not lawful for Congress to say retroactively that Geneva requirements are not applicable to the ongoing litigation of events 2001-2006. This effectively ignores the Hamdan and Rasul precedents which conclude the opposite: that the Geneva conventions are applicable requirements, and that the prisoners of war have the legal standing to challenge the illegal procedures in the United States Courts. This act of Congress ignores the law, Geneva, and the Supreme Court, and asks us to pretend that the lengthy, costly, and wasteful litigation – simply to remind us that the law is a requirement – is somehow a debatable point.

    This text is evidence that the Supreme Court has been ignored; and that Members of Congress hope to affect ongoing litigation, by creating rules which remove Article III judicial powers exclusively delegated to the Judicial Branch; and ignores the Judicial Authority of the Supreme Court which finds that the procedures must fully meet the Geneva Conventions, not as they are the case where.

    Moreover, this language tells us something about the DoJ Staff: They are thickheaded, unwilling to comply with Geneva, and despite the Supreme Court, they continue to craft language that has one objective: To ignore the Supreme Court and Geneva Conventions. The DoJ Staff as is the Congressional staff and lobbyists and legal teams at various universities who have crafted this language are creating rules which are illegal, defy the Supreme Court precedents, and simply re-argue already rejected notions.

    To be clear, the prisoners of war have a right to challenge these illegal procedures; and it is a waste of the Congress’ time to focus on this bill, all the while the real, broader issues behind the abuses – that of Presidential war crimes – is wholly sidelined and ignored. The correct approach is to scrap this bill, present the prisoners of war to a system of justice that matches the JAG-approved system, and then subject the President of the Untied states to an investigation for his abuse of power and war crimes, as they relate to illegal abrogation of Geneva between 2001 and 2006. This bill amounts to a smokescreen to shift attention from the President’s illegal conduct, and pretend that the Geneva Conventions are a debatable matter. This is incorrect.

    This bill is sufficient evidence to demonstrate there is no serious effort in the United States government to enforce the law, assent to the Supreme Court, or comply with treaty requirements. Rather, the appropriate conclusion is that the failed US government should be lawfully abolished, and replaced with a system that implements the Constitution and Geneva Conventions. This government, despite the law and Supreme Court wise counsel, refuses to awaken to this requirement, and pretends the Constitution has been abolished. Enough! Let us abolish this government and start afresh with one that will preserve, protect, and defend the Constitution and the Supreme Laws. This government refuses to do that, and despite the Supreme Court reminding the actors of their responsibilities, the individual government actors refuse to assent to the law, their oaths oats, these treaty requirements, or their duty to protect the Judicial branch from illegal encroachments by either the Congress or the Executive. This is impermissible. The choice is between following this law, or assenting to a new government that will enforce this law. There is no debate.

    15 of 86, lines 9-13 The language is interesting, but the objective of the bill is the opposite. This is the key requirement: That the procedures available to US military personnel – the right to confront witnesses, review evidence – are afforded to prisoners of war. This is a requirement. What is absurd with this bill is that the language between lines 9 and 13 on page 15 of 86 explicitly states the requirement, but the entire bill does the opposite and fails to ensure that the “indispensable” judicial guarantees are either recognized or dispensed for prisoners of war. No reasonable observer of the American legal community could conclude that the procedures are reasonable; or that the results will be anything that approaches justice. The objective is not to create a kangaroo court that pretends to go through the motions of review, all the while arriving at convenient conclusions that match pre-determined political objectives. Rather, the objective is to ensure that justice is done, and if there has been a crime during war, that crime is prosecuted, whether the crime was committed by a prisoner of war during combat, or by a Member of Congress of DoJ Staff Counsel in failing to prevent violations of the laws of war.

    [line 10, 15 of 86] “regularly constituted court” is an assertion, and not fact, and wholly disconnected from reality. The courts using these procedures are not regular, nor are they courts. They are shams, wholly disconnected from the Geneva Convention requirement that the proceedings fully grant all the privileges, immunities, and other protections to US military personnel. The courts are constituted under assumptions that are conclusory, devoid of evidence, and substantially subvert the principles which Geneva says are requirements. Any judicial officer which pretends that these proceedings are lawful should be impeached, as was discussed in Federalist 78: failing to ensure that the acts are Constitutional. This act is illegal, and cannot be enforced.

    The language in this section has simply asserted something, without credibly showing that the entire bill meets those Geneva requirements. This shows the DOJ Staff is using a checklist to say things, but not devising a system that meets the Geneva requirements. It is one thing to assert something meets a requirement; quite another for that bill to say one thing, and do the opposite. Very typical of the Americans to do this, then attempt to yell louder at those who say the obvious: This entire process is a sham distraction from the President’s war crimes; and the proper focus of the Country is in electing new leadership to Congress that is serious about the oath of office, and enforcing the law, not in blindly following this reckless President as he embarks on illegal wars, and violations of Geneva as it relates to the treatment of prisoners of war.

    Why does America bother having elections when the leadership assents to illegal procedures? Americans might as well shut down Congress, send them home, and scream loudly: “There, we did it: We didn’t like the law, so we closed Congress.” King Charles did it, why is this President afraid of using his power to silence those who dare to speak about the law, oath of office, or the Constitution? The answer is the President knows that he can lawfully be prosecuted outside Congress, regardless whether Congress does or does not impeach; and that trial can occur at the state level before the supreme Court; or it can occur at a war crimes tribunal before the Hague. The evidence is there. The President has committed war crimes and violated State criminal statutes. Whether this Congress does or does not do its job is not longer an issue: It is incapable of doing so.

    The way forward is to abolish this government, and let the States prosecute the President, then hand the President over to The Hague for war crimes prosecutions.

    - -

    The bill uses inconsistent terminology. On one hand it uses UCMJ nations for the paragraphs; then it uses the US Title numbers. This is inconsistent.

    For example: section 948a does not exist under Title 10 However, above the bill refers to section 47. Either:

  • Use the US Code Numbers and cite them as 947 and 948; or
  • Use the UCMJ numbers 47 and 48.

    Consistency! The inconsistent numbers are signs that different contractors and university outside-counsel have recrafted different portions of the original draft-bill, but there has been no sufficient internal review within DoJ to ensure that the entire work product is consistent. This is evidence of poor leadership by the President, Attorney General, and the Legislative Liaison.

    The problem is that by either designation, the DOJ Staff is adding this text to the tail end of the very UCMJ that it ignores. This amounts to an inconsistent statute, and an unreasonable mess for the Court to wade through. This is not acceptable and it is unconstitutional.

    The President does not have the power to call anyone – outside a judicial review – an unlawful or lawful combatant. No one in DoJ can point to any provision in the Constitution which permits the Congress to grant this power to the President. Rather, this power is expressly Article III powers, which are reserved only for lawful tribunals.

    Let’s turn the tables and consider the real problem: Let’s presume that an individual member of Congress of DoJ Staff Member, who has violated the laws of war, is subject to these provisions. Take a random name: Senator Lieberman who voted for the war, and failed to ensure that the Conventions were applied; take a random DoJ Staff member – Peter D. Keisler.

    Both are equally likely to be brought before The Hague for a war crimes tribunal. The issue for both the Senator and the Asst Attorney General to consider: Would they like to have these procedures used to try them; or would they prefer something else? Once these procedures are passed, they are evidence of war crimes planning, and not applicable. Rather, Senator Lieberman and Peter Keisler will likely demand that they be tried using a new set of procedures that are not regularly and tailored to their unique situation. This is not speculation. Rather, we need only look at the bill before us: Have Keisler and Lieberman supported unlawful procedures or not: The answer is that they have implemented unlawful procedures, and have violated their oath of office by failing to ensure that the prisoners between 2001-2006 were fully protected by the Geneva Conventions and tried. Both Keisler and Lieberman have (arguably) committed grave braches of the Conventions: First bay failing to stop violations; then by implementing policies which violate rights; then by failing to repent violations when they had a duty under Article 82 to prevent these violations.

    The issue before us is not whether these procedures are or are not legal. The real issue is which procedures will the likes of Senator Lieberman and Peter D. Keisler assert should be imposed on them. Keisler and Lieberman have to explain which procedures they want applicable to them; which procedures they wish to be exposed to; and which specific rules of evidence they would like to be tried. The Hague may or may not hear their request; and The Hague may or may not accept their concerns.

    it is time for Americans to face the core issue: Which laws of war do you want enforced against the leadership in Congress; and which specific rules of evidence do you want to apply against the reckless DoJ Staff, and the likes of Peter Keisler and Addington, that have permitted these grave breaches of Geneva to go unchallenged. The law applies to all. The Constitution requires that the law be uniformly applied. If the procedures that Keisler and Lieberman say are sufficient for the prisoners of war, then they are saying that these procedures are also god enough for them – as defendants – before The Hague. Yes or No.

    However, if Keisler or Lieberman assert that these procedures are not applicable to them, why should they be applicable to anyone? The real answer is that Lieberman wants three standards: One for him; a second for everyone else has to follow; and then a third standard for those who have been conveniently targeted as the scapegoat. Let’s see the evidence, Joe. Where is the evidence that someone has or has not fulfilled their military service obligation; let’s review the evidence; and let’s examine the record. The only way this nation is going to move forward is if the nation moves forward along the law, not along the mythology of double-triple standards.

    Keisler has a problem. He’s linked to the AT&T litigation, and should well know that the illegally intercepted information was used to detain and abuse American citizens. This conduct violates Geneva, yet we see no evidence Keisler has removed himself, or otherwise taken action not ensure that the illegal intercepts were not used to abuse American citizens. It’s the job of Lieberman and Keisler to explain whether they do or do not want to have these procedures apply to them at their war crimes trial. Both of them are alleged war criminals, and both want the world to focus on this phony debate, so that there is no attention non the reckless disregard Lieberman and Keisler have shown to their oath of office.

    Lieberman says he is fit for office. Surely, any unlawful combatant could argue the same. The issue is, regardless what the voters decide, is whether there is or is not sufficient evidence to prosecute Lieberman and Keisler for violations of their oath of office. The evidence of this war crimes is pervasive, reaches deep into the bowels of Congress and the DOJ Staff. There is no immunity for Senators or the Asst. Attorney General when it comes to issues of war crimes planning, and failures to ensure that Article 82 is fully enacted. It is time to turn the focus of this debate onto the Members of Congress and DoJ Staff: Which laws of war do they want applied to them; and which procedures are they willing to submit. The laws of war apply to government leaders.

    If the proceedings and procedures are not sufficient for Senator Lieberman or Peter D. Keisler, why should they be sufficient for anyone? There is no answer because the answer is illegal: It is unconstitutional to require anyone to assent to these proceedings. These procedures are not sufficient for any court which Keisler or Lieberman will assent; they are obviously not regular, and are wholly inconsistent with the requirements both Lieberman and Keisler would demand. The prisoners of war are in a position, thanks to the failed legal arguments of the New York employment attorneys, to exercise their right to challenge these proceedings. Why is the nation spending time on this? The only answer is that the President wants to distract attention, as does Keisler, from what he has or has not done, and find a convenient excuse. Laura may be a teacher, but she also knows when someone has been drinking too much. The excuses need to end.

    Either this nation is going to be a nation of laws, and apply the law to all in Congress who have committed war crimes; or the DOJ Staff shall rewrite these procedures to meet a standard that the DOJ is willing to agree to be subjected to before The Hague. Get to work, stop wasting time, American voters have two months to digest your recklessness. In the meantime, we continue our work to lawfully abolish this government, and replace it legally with one that will show an inclination to respect its oath of office, and enforce the Supreme Law, Constitution, and the Geneva Conventions. This government has failed and remains in defiance of the law. Abolish it!

    * * *

    15 of 86, lines 19-21 It is not appropriate to permit the Tribunal to try “any” offense. The laws of war specifically state that offenses committed while in custody are not considered a violation of the laws of war. Rather, the language should change to reflect the broader distinction between (a) combat-related allegations; (b) non-combat related allegations; and (c) allegations related prisoner of war during confinement. The draft bill fails to ensure that the Geneva-mentioned administrative procedures, as they relate to non-combat-confinement related misconduct are sufficiently distinguished. It is incorrect to use the broad term “any”. As opposed to re-inventing illegal procedures, the preferred approach of leadership would be to use the existing UCMJ procedures as the JAGs have already stated comply with the Geneva Convention requirements.

    15 of 86, lines 21 Change “unlawful enemy combatant” to prisoner of war. It is not appropriate to assert, at the outset before proven, that someone is or is not an unlawful combatant. This terminology sends a clear signal to this blogger that the system of justice being proposed as premised on an assumption of illegality, not one of impartial justice. This is a reckless approach to the law, and the prisoners of war through the JAGs should challenge this designation if ever asserted by any Member of Congress, DoJ Staff, or anyone else who has failed to timely coordinate with the JAGs combat operations-related duties of prisoner confinement.

    If the DOJ Staff and DoD General Counsel do not like the JAGs, then the DoJ Staff and DoD General counsel needs to find another line of work: When you are an attorney, your job is to rely on the military experts in the Judge Advocate General’s office. It makes no difference whether the buffoon Addington in the Vice President’s office is or is not capable of comprehending the law. You have an independent duty, a sworn oath to the Constitution, and an Article 82 obligation to ensure that the 5100.77[ laws of war program] is fully enforced, and that the JAGs are fully supported. If you refuse to do that, then you may lawfully be impeached and/or prosecuted for war crimes. Indeed, you have failed to demonstrate that minimal legal competence despite the so-called rigors of the bar exam. Clearly, there needs to be a higher bar to prevent in the future more of your kind from approaching the Constitution, much less taking an oath to protect it. The fact that your DC Bar and State level disciplinary boards have failed to timely investigate these matters is irrelevant. There is no reason for anyone to discuss these details: The JAGs have already well documented their objections. Anyone in the DOJ OPR should be able to comprehend that the DoJ Staff has failed to adequately exercise due diligence in ensuring that the Article 82 Geneva obligations of the DOJ Staff have been fully complied with this bill. This work product is a disgrace to the Constitution, reflects discredit upon the United States, and materially undermines any reasonable basis to find anyone in the DOJ Staff has or could at any time bring any credit upon themselves or the United States of America.

    15 of 86, lines 18-25 this paragraph is the core problem with the entire bill. The wording incorrectly asserts that, before trial and judicial review, there is or is not someone with the executive branch and military chain of command that will be able to independently decide whether someone is or is not a lawful combatant.

    The problem is that this is something that is the fruit of justice, not an incoming assertion, which can be made devoid of evidence. Until the court concludes that there has been illegal conduct, the prisoner of war shall be a lawful combatant.

    The problem with the current approach to the prisoners of war at Guantanamo, is that the assertion of illegality has been accepted as a premise without proof; and the process itself denies the prisoner to right to see evidence. What is most absurd is that this violation of Geneva inherent in this bill is after the Supreme Court in Hamdan and Rasul have affirmed the right of the prisoners of war the right to a trial; and the right to have their status challenged.

    This phase of the bill jettisons that oversight, and permits someone – anyone for that matter – to extra-judicially assert that someone has or has not violated the laws of war, then because of that accusation, launch them into a proceeding which violates Geneva. The core problem is one of leadership in the Department of Justice. Ideally, it would have been appropriate, in the wake of Hamdan and the many other cases related to the prisoners of war, to develop a checklist with the JAGs that will ensure the lawful requirements of Geneva are fully understood. Then if needed with the JAGs jointly work with Congress to promulgate standards and procedures that complement the existing standards, not re-promulgate procedures the Supreme Court has already struck down as illegal. Arguably, this work product is evidence of the DOJ Staff incompetence, the failure of the DOJ Staff leadership, and an unwillingness of the Executive Branch to rely on the legal experts within the Judge Advocate General’s office. The voters are in a position to discuss this conclusion, and make adverse inferences. To be clear, the issues before us in September 2006 have little to do with national security: The real issue is whether the laws will or will not be enforced by this Congress, which remains in office until January 2006. It is reckless for the individual Members of Congress to throw up their hands and say, “Well, the election is near, we really can’t do anything but talk about horse meat.” That is absurd. The purpose of the elections is to ensure that the Members of Congress remain responsive to their oath to the Constitution, not the opposite: An excuse to make excuses to defy the Supreme Law.

    15 of 86, lines 23-25 If, as the bill states, the prisoners of war are lawful combatants, why is there any need to have a military commission or new rules? Again, the process is backwards: The entry point to the judicial review is expected to be neutral: No determination as to whether the prisoner of war is or is not a lawful combatant. All prisoners of war shall be treated the same before the court. The only difference is whether the court does or does not after the trial convict them of being an unlawful combatant or not. The correct approach is to eliminate the double-talk over a prisoner is or is not a lawful or unlawful combatant; and use a single system which the JAGs support that neutrally treats all prisoners of war as lawful combatants until proven otherwise, as is required under Geneva. On the surface, any differentiation between lawful and unlawful combatant sends a clear signal that the government is making judicial decisions about the guilt or innocence of the prisoner of war without a trial, and outside the legal process Geneva requires. This is illegal.

    16 of 86, lines 2-3 This section fails to ensure that the punishments are narrowly confined to combat-related activity. It is contrary to the Geneva conventions to promulgate a procedure that permits a military tribunal for punishing prisoner of war misconduct during detention. This is an administrative procedure, and not appropriate for the military tribunal to adjudicate as an alleged violation by the prisoner of the laws of war.

    More fundamental is the concern that a so-alleged “unlawful combatant” has not been afforded the chance to present evidence that they have been quickly invaded, and are protected under the principle of levee en masse. This principle clearly requires the accused to have the chance to show that, because of the speed of the US invasion, the particular prisoner of war had no reasonable time to procure a uniform; and that their combat related activity should be presumed to be lawful. Also, the nature of combat is different. Merely becomes a fighting force chooses to engage in insurgency and unconventional warfare was no bar to their treatment as prisoners of war. During the undeclared Viet Name conflict, American troops were told to treat all enemy forces, regardless their use of non-use of uniforms, to be treated as prisoners of war consistent with Geneva. For example, Lt. Calley’s defense -- that the prisoners were irregular and no protected -- was ignored and Calley was convicted of war crimes.

    * * *

    [16 of 86, line 13] “Other tribunals” This needs more discussion. Does DOJ and DoD envision have a third line of secret tribunals, and a third set of procedures; and will the nation require a third round of court appeals to the Supreme Court? That would be a waste of time. It would be more appropriate to have single system, not something that permits the President to illegally designate someone as a prisoner that “does not apply, therefore we can subject them to secret trials outside the proposed process.” We’ve already seen it with FISA-NSA violations: The President creates new procedures that are illegal, and many despite knowing of that illegal conduct, assent to the non-lawful procedures. Time to have a debate and discussion: Is the DoJ or anyone else planning on creating a third-system beyond the view of Congress? If this is the case, Congress needs to expressly state that this system alone is the only acceptable system; and that it shall be a war crime for the President or anyone else to create a secret system outside the single system which the JAGs ultimately agree fully complies with Geneva.

    * * *

    Article 64: Ref

    Technically, this bill is flawed at [16 of 86, line 15] Putting aside the issue of whether that definition is illegal or illegal, the definition “protected person” should be only defined in the definitions-section of the bill; this section should not include a detailed discussion of that definition.

    [16 of 86, line 10] References to Geneva Article 64 76 is muddled, non specific, and adds to the confusion. Rather than reference the Geneva convention, why isn’t the bill including the specific language. A plain reading of the Geneva Articles 64 through 76 in no way fully defines this term. Rather, the correct approach would be to rely on the ICC precedent, and definitions of the ICC as they relate to what is or is not illegal combat or protected classes of citizens. The current bill’s reference to Articles 64 through 76 in no way provides any reasonable clarity, most likely to the joy of Mr. Yoo who apparently likes to believe that Geneva is ambiguous at all levels. This ambiguity – in his own mind – would be clarified if only he was willing to look to the Nuremburg and ICC precedents as much as he enjoys ignoring the US Constitution. Maybe Mr. Yoo can find a 2L to work on that project if they’re not to busy cruising downtown Berkeley. Listen to the JAGs and comply with Geneva!

    [16 of 86, line 16] The reference to Article 4 in no way adequately accounts for the present problem of levee en masse, Afghanistan, and the non-sense evidence provided by the Pakistanis they provided to get bounties. Article 4 does not mention levee en masse; and it should be the intent o f Congress that levee en masse as is the case with the Taliban in Afghanistan, fully protect the Taliban as prisoners of war. However, the language of the draft bill incorrect asserts that action outside Article 4 or prisoners of war who are not asserted to be part of Article 4 are automatically asserted to be illegal combatants. This is muddled.

    A better approach is to put the burden on the government to prove that the individual prisoner of war – regardless their accused connection or non-connection with any group – is or is not an unlawful combatant as a triable issue, not something that is premised as the basis to deny or confer rights to a trial, process, or choice of tribunal. Also the preferred approach is to have a single system of tribunals which all prisoners of war face, and this affords all the prisoners with the same rights to challenge witnesses, evidence. If the United Sates government does not wish to engage in this type of judicial review, then the United States should remove its forces from the combat theater and find another lawful way to treat prisoners of war. Again, the decision not comply was set in 2001, however resourced-challenged the US may retroactively say in 2006 that it was between 2001-2006 as a basis to ignore Geneva.


  • 1. “Protected persons” cannot be something that is decided on the battlefield;
  • 2. All prisoners, regardless the suspicions about their actions, shall be treated as prisoners of war, and entitled to all rights recognized under the laws of war which all prisoners of war are entitled;
  • 3. Only after a lawful review and determination based on evidence subject to cross examination, can the prisoner of war be punished for war crimes;
  • 4. The US has the obligation to ensure it has sufficient combat forces to wage war, and also conduct military commissions that fully comply with Geneva;
  • 5. The US may not credibly argue that its military personnel had “other things” to do; the evidence is clear: US military personnel around the globe were engaged in non-combat related activities like surfing the internet on websites unrelated to official business; these personnel could have been transferred to back-fill positions left open by military personnel who would otherwise be required to appear before a tribunal;
  • 6. If the United States is not willing to ensure people – regardless their alleged misconduct – are afforded due process, then the US is an illegitimate government, and it should lawfully abolished.
  • 7. Individual members of Congress, DoJ Staff, and Joint Staff -- who have prevented the JAGs from fully enforcing Geneva -- have engaged in war crimes, and have failed to comply with specific ministerial duties to ensure the laws of war and 5100.77 were full enforced. This is a violation of their oath of office, and because of its relationship to Geneva violations is not simply a war crime, but a basis to lawfully remove that individual from the political stage forever.
  • 8. Voter Action over the next 26 months [Sept2006 –Nov2008]: Voters should relentlessly challenge individual members of Congress to respond whether they, as an imminent defendant before The Hague for war crimes, would or would not be satisfied subjecting themselves and their peers to these procedures; or whether they have reservations that they could be accused of something, but denied the evidence and chance to cross examine their accusers. If the individual member of Congress equivocates, or otherwise refuses to respond, the voters should be encouraged by their peers make adverse inferences, and conclude that the Member of Congress wants two standards of justice: one of Members of Congress, and a second for those the Member of Congress opposes, regardless the truth of fiction of the alleged infraction. Moreover, this Member of Congress should be labeled an alleged war criminal; and all voters surrounding this member of Congress should immediately distance themselves, and gather evidence to present to The Hague to lawfully try the individual Member of Congress for alleged war crimes, and failure to prevent violations of Geneva 2001-2006.

    * * *

    Notice the change between the UCMJ, the draft bill, and this Act.

    A. Changes between the UCMJ and draft bill: [UCMJ Article 45 includes “sought” not adjudged, as is at 16 of 32 in the draft bill, the change should be explored.]

    B. This Act 16 of 86, lines 20-21 [adjudge any punishment]: Punishment is imposed after trial; legal matters and orders/sentences are adjudicated at the end of trial. It should read, “Adjudicate any matter not prohibited”. However, this correct phrase is problematic in that the President or anyone could self-assert that an unlawful conduct is not within a definition, and otherwise the compel the Commission to adjudicate on a matter that should otherwise not be a triable issue.

    It is a problem to say, especially with this clerk in the oval office, that anything that is not prohibited, is permissible. He, Addington, Gonzalez, and Haynes have a bad habit of redefining reality to meet a definition that conveniently permits them to wage illegal war, and otherwise abuse power and violate rights.

    Take the broad view. Each of the prisoners at Guantanamo is presumed innocent until proven guilty. Despite the requirement that they have evidence presented, and face timely prosecutions and determinations as to their status and sentence, they have been denied due process, left in limbo, and had substantial rights and Geneva requirements denied. Ideally, the public should accept the simple remedy: That in exchange for accepting that the United Stats has violate the Geneva Conventions, the prisoners may all be released, and permitted to bring suit against the individual Members of Congress who have otherwise failed to ensure the laws of war were followed or enforced. It is outside the control of Congress whether other nations, relying on evidence these prisoners of war provide, bring criminal charges against the DOJ Staff and individual members of Congress. These are not matters of civil litigation that the individual member of Congress can retroactively self-immunize; rather, these are matters of international war crimes, and any nation may lawfully prosecute individual Members of Congress and the DoJ Staff for their alleged complicity and failure to stop this criminal activity.

    In reality, the discussion today is really about the procedures that Individual members of Congress and the President should be subjected to should the be subject to a war crimes tribunal, and forced to confront those they have abused – the victims of the illegal violations of Geneva.

    The evidence before us is clear: The evidence, even if it does exist, is not reliable. Whether the prisoners have been tortured or abused is matter for the war crimes tribunal to review. The problem is that relying on this illegally obtained information, the United States government then launched subsequent illegal targeting of American citizens, and illegally waged war against American citizens at home, subjecting innocents to forced detentions while denying them the right to trial.

    The way forward is not to re-impose an illegal system on the innocent. Rather, the way forward is to refocus the energy of this interest in the law on the real alleged war criminals, the people like Peter D. Keisler and Senator Lieberman who have failed to ensure the laws of war were implemented.

    * * *


  • A. UCMJ and Lawful Geneva Procedures UCMJ Article 22

  • B. Draft Bill Sec 204; Page 8 of 32

  • C. Unconstitutional Military Commission Act 2006 [ § 948h. 17 of 86, lines 1 ]