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Saturday, October 07, 2006

House Investigation Has Flawed Independent Verification System

The House investigation letter is, in itself, evidence of interest to war crimes prosecutors. The letter indicates a standard of care that falls well below what the American legal community should reasonably employ.

Failing to do what one should do, in this case, ensure the investigation is competently led, is the basis to question whether the leadership is asserting its 5 USC 3331 oath of office.

The House letter raises reasonable questions about the adequacy of this investigation, and whether the patterns of conduct will or will not be contrasted with the Geneva Conventions and Nuremburg Precedents.

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Raw released a copy of the letter sent to Congress. There are several problems with the letter, suggesting there is an inherent flaw with the oversight of the investigation.

The flawed letter is linked with flawed House rules which should be modernized. We outline the problems with the House Ethics Committee rules. Nothing in the rules prevents the House from modernizing the rules or promulgating effective procedures. Failure to implement needed reforms may be adversely considered.

This letter outlines why there's a leadership problem within this investigation -- there is no single leader, with the skill and wisdom to credibly direct this investigation: More. What's needed is an organized approach to the investigation as here.

This Investigation: Supremacy Clause of the Constitution, Geneva Conventions

Reference: House Ethics

To adequately serve the public, We the People need information. If we do not get the information, we will have to make adverse judgments. These are the standards which should guide this investigation:

1. Put loyalty to the highest moral principals and to country above loyalty to Government persons, party, or department.

2. Uphold the Constitution, laws, and legal regulations of the United States and of all governments therein and never be a party to their evasion.

. . .

9. Expose corruption wherever discovered.

This means: During the investigation into the House Management -- in re alleged failure to review information in re Foley-- if the Committee finds evidence that the House Management:

(a) Failed to enforce Geneva; or

(b) Engaged in a course of conduct that obstructed required reviews on matters related to war crimes
this additional information discovered during the investigation, should be publicly discussed before the November 2006 election.

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Evaluation Criteria: Is the American Government effective?

Here are some criteria some may find interesting to consider when reviewing the progress of the investigation, and the Committee's letter. This criteria could be considered from the perspective of the lead investigator, and how they might view the progress and oversight of the investigation:

___ Are we moving quickly to outline for the public the investigation issues

___ Have we formulated a coherent plan which the American public understand

___ Are we taking steps to independently gather and confirm information, and not rely on cooperation from people who may or may not support fact finding

___ Are there periodic updates so the voters can make informed decisions

___ Do we have the right people in place to understand what happened

___ Have we well reviewed the inconsistent statements reported in the media

___ Have we factored the inconsistent statements into whether there have been other alleged crimes committed

___ Have we considered how these inconsistent statements could be used to impeach other witnesses who may appear before the committee

___ Are we looking for patterns of conduct that may indicate a wider pattern of malfeasance on statutory obligations under the Geneva Conventions

___ Are we competently gathering evidence that should immediately be disclosed, and relates to allegations that members of Congress blocked investigations into war crimes, or otherwise failed to prevent war crimes as required under the Geneva Conventions

___ Are we demonstrating that we've applied the lessons learned from previous investigations to ensure there is no abuse by investigators against witnesses

___ Regardless where the facts may lead, or the initial conclusions, are we conducting ourselves in a manner that will inspire Confidence in the Constitution, system of checks and balances, Rule of Law

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Problems With the House Committee Letter

Now that we've considered the House Ethics rules, and the success criteria for American governance, let's consider the letter and the specific flaws.

You'll see there's a disconnect:

(a) The letter in now way outlines a credible plan to gather evidence;

(b) The approach is poorly organized;

General Observations

(1) There is inadequate leadership to ensure the trends and evidence are appropriately contrasted with the Geneva Conventions, which require Members of Congress to timely act to prevent violations of Geneva.

(2) House Leaders have made inconsistent statements on the timing they were informed, raising doubts about the adequacy of their responses on other issues including Geneva obligations, prisoner abuses, FISA violations, and Iraq war crimes.

(3) There is evidence the American legal community is complicit in failing to ensure that the pattern of conduct -- failure to investigate abuses against pages -- was suppressed because of similar failures to investigate greater abuses against Prisoners of War.

[Note: It is a war crime to enact policy that permits war crimes; or for the Congressional lawyers to fail to prevent war crimes, or fail to prevent conduct that allows war crimes to continue: Precedent ]

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The Letter

The letter asks that the Member of Congress take action. Consider the problems with the letter:

(1) Alleged Failure to Share Investigation Plan

Current rules do not specify interim reports. Ref Ref

It would be helpful if the House publicly provided an overall investigation plan to include the planned updates, and the format the final report will take. The Committee failed to mention in what form it plans to make public the summary report that should be available one week before the election.

It is of little concern that the investigate may not be complete. The House Committee has the obligation to ensure the voters have the most current information related to the effectiveness or ineffectiveness of the House Management. [Details here ]

(2) Alleged Ineffective Independent Communication

The letter implicitly states that the House Committee investigating the matter does not have the means to identify the Pages unless the potentially offending Member of Congress cooperates. A more appropriate way to handle this investigation is for the investigating Committee to independently, directly contact the pages, not rely on Members of Congress to cooperate or not cooperate.

(3) Alleged Failure To Mitigate Chances of Bribery

Once the Member of Congress does or does not provide information, the Committee has announced no method to verify whether the information is or is not true. Suppose the Member of Congress knows that one of the targets of the abuse will remain quiet, and they have paid bribes to silence that page; the Member of Congress could remain quiet and the page and their family say nothing.

Again, a more appropriate way to handle this investigation is for the investigating Committee to independently, directly contact the pages, not rely on Members of Congress to cooperate or not cooperate.

(4) Alleged Failure to Demonstrate Competent Investigation or Auditing

The structure and procedures outlined in the letter indicates and suggests the Committee has low to diminished capacity to understand an audit, how to develop an audit engagement plan, or how to effectively conduct a non-criminal investigation in parallel with the ongoing DoJ Investigation.

If there are planned hires or staffing changes to address these issues, it would be helpful to outline the hiring plan, and date personnel will be in place to start their work. Ref The status of personnel hiring should be included in the interim report issued one week before the election.

(5) Alleged Failure to Consult Internal Control Experts

It would be appropriate if the House Committee invite as witnesses to a public hearing public auditing experts who are expertise in fraud examinations, and who are qualified on matter related to internal controls, audit scope, and the AICPA internal control statement on accounting standards 70 and 99 (SAS 70, SAS 99).

If there are internal control experts assigned to the investigation team, it would be useful to identify their experience in the auditing community. This will assist outside investigators assess whether the experience on your investigation team is or is not sufficient to adequately identify the internal control problems within the House Management.

(6) Alleged Failure to discuss how the disclosures will be investigated

Once information is disclosed, the Committee makes no public comment how the information may or may not be used for subsequent investigations. It would be helpful if the Committee were to outline its public concerns, and other similar patterns of conduct related to the House management problems.

For example, if there are problems with oversight, investigations, follow-up, and reviews, it would be appropriate to generalize these problem areas into other broader lines of inquiry. Whether this Committee ultimately looks at these issues is irrelevant. The objective should be to communicate to the public that the review is not narrowly focused on a single issue, but the implications of the pattern of conduct.

The wider issues related to the same alleged failed House leadership oversight, could relate to matters of war crimes in areas related to rendition, FISA violations, war crimes, and illegal abuse under Geneva.

(7) Alleged Failure to Use and Disclose Investigation, Auditing Check Sheet Templates

The Committee on Standards of Official Conduct has various internal control check sheets. Part of the public oversight of this process requires the public to have access to the check sheets and summary reports to ensure that the state procedures the Committee on Standards of Official Conduct has promulgated are being used; and that the public may sample to stated-procedures and test to see whether the Committee on Standards of Official Conduct is, as it reports, using the internal control lists as required.

It would be appropriate to identify the per cent-complete along each of the functional areas and checklists so that outside auditors may assess whether the manpower assigned, progress to date, and reported results are or are not consistent.

(8) Alleged Failure to Include Risk Mitigation Plan

Each of the previous investigations has a summary report. Once the reports are filed, procedures are updated.

Please include a summary of what methods the Committee will use to ensure that the lessons learned from previous investigations have or have not been appropriately incorporated into your investigation procedures.

Your letter fails to state how the information will be publicly provided; and what specific problems with prior investigations will or will not change your procedures.

__ How will the Committee mitigate the chances that investigators engage in witness abuse Ref: E. Alleged Mistreatment of Witness

__ How will the Committee handle new information related to patterns of House management abuse, or deliberate inaction in matters related to Geneva, FISA violations, or other inaction on allegations of illegal warfare in Iraq?

__ What is the plan of the House Committee to publish information related to patterns of conduct that related to alleged House Management malfeasance as they related to alleged inaction on matters of war crimes?

__ Does the House Investigation plan to work, at the outset, with War Crimes prosecutors in Germany to exchange information on common House Management business practice which may be related to the decision to not review alleged page abuse and alleged Geneva violations?

(9) Alleged Failure To Communicate Information to War Crimes Tribunal

The House rules require information be provided only to State and Federal Authorities. There is no mention of how alleged House management flaws, which may be linked with failures to investigate war crimes, will or will not be provided to international war crimes prosecutors. Ref

Please discuss what plan the Committee has to review patterns of conduct related to House Management failure to review general issues, and how these findings of fact will be made available to non state and non-federal authorities.

__ Is there any plan by the Committee to block investigations by German prosecutors into alleged House Management refusal to review alleged violations of Geneva?

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Original Letter

October 6, 2006


Re: Investigation of Allegations Related to Improper Conduct Involving Members and Current or Former House Pages

Dear Colleague:

As you may know, an Investigative Subcommittee of the Committee on Standards of Official Conduct (the "Committee") has been empanelled to conduct an inquiry regarding any conduct of House Members, officers and staff related to information concerning improper conduct involving Members and current and former House Pages. We are contacting you now in our capacities as Chairman and Ranking Minority Member of that Investigative Subcommittee.

The purpose of this letter is to notify all Members that it is the expectation of the Investigative Subcommittee that any Members with information related to the matter under investigation will bring such information to the attention of the Investigative Subcommittee. Such information should include, but not be limited to, any information related in any way to communications or interactions between former Representative Mark Foley and any current or former participants in the House Page Program.

In this regard, you should inquire of staff under your supervision as to relevant information in their possession.

In order to assist the Investigative Subcommittee with its inquiry, we also request that you contact current and former House Pages sponsored by your office for the purpose of learning whether any of those individuals had any inappropriate communications or interactions with former Representative Foley or any other Member of the House. You should advise all Pages contacted that any information gained pursuant to your inquiry will be shared with the Investigative Subcommittee, and will be maintained by the Investigative Subcommittee in a confidential manner consistent with House and Committee rules.

We appreciate your cooperation in this matter. If you have any questions, or if you have information to provide to the Investigative Subcommittee, please contact Committee Chief Counsel William V. O'Reilly at (202) XXX-7103.


Doc Hastings Howard L. Berman