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

Friday, November 10, 2006

Rumsfeld War Crimes Apologists

Marjorie Cohn raised some interesting points. (h/t) The responses are revealing. We dissect the responses to alleged war crimes charges in the lawsuit against Rumsfeld and Gonzalez, and believe they are linked to the RNC.

Ref Also named are Bybee, Yoo, Addington, Haynes and others in documents filed with the German war crimes prosecutor.

You were warned that, despite defeat, the NeoCons would launch an effort to return to power based on non-sense. It has started. The Honeymoon is over, and the DNC should withdraw the promise not to impeach.

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GOP Coalitition: Finding new leadership
Lawfully Removing the President from Office : Holding the GOP leadership accountable for their betrayal [ Details about GOP Coalition ]

What You Can Do:

(A) Assist War Crimes Prosecutors Defeat DoD-DoJ Staff Counsel Defense Media Strategy

Forward your responses to the defenses (blow the fold) to the Italian and German war crimes prosecutors. [DoD-DoJ Tactics; NeoCon Propaganda ]

(B) Accelerate The GOP Timelines, Prepare For 2008

Work with your friends to get the current Republican committee Chairmen in Nov 2006 to sign subpoenas for war crimes investigations Details.

(C) Support State Prosecutions of President

Encourage your friends to contact your state attorney generals, remind them of the war crimes charges in Germany, and encourage the State Attorney Generals to lawfully prosecute a sitting president.

(D) Promote "Disaffected-GOP Presidential Impeachment-Removal Coalition"

Encourage the disaffected GOP membership to lawfully hold the President accountable for election losses;

Encourage defeated GOP Members of Congress to form a coalition, calling for Bush to be lawfully removed from office; and sign subpoenas related to their current Nov2006 committee oversight responsibilities Chafee: EPA.

(E) Present DNC Leadership with New Constitution If They Refuse To Impeach

Request the DNC reconsider its decision not to impeach the President Discussion.

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The 5100.77 Laws of War program is a SecDef a requirement, not something that can be explained away with legal arguments. As with Hamdan, requirements are to be enforced, not explained away by defective DoJ Staff counsel who have an interest in blocking lawful DoJ OPR investigations; or insulating their President from accountability.

The comments after Cohn's remarks are revealing: The excuses the DOJ Staff counsel are preparing to defend the Americans. The arguments are as frivolous as the excuses related to the FISA-NSA violations. Same flawed logic, same flawed legal reasoning. Addington must be nearby.


Based on the convoluted arguments, speed of response, and topics related to Presidential crimes, we judge the source of the comments are most likely linked to, associated with, if not from the following personnel who have previously posted on Jurist: Person1 and Person2, and Person 3.

The arguments below are consistent with similar excuses, apologies, and flawed legal arguments previously published in the open media; and previously linked with personnel who have an interested in a war crimes defense; and cannot credibly be viewed as disinterested in the legal outcomes.

We judge these postings on Jurist are most likely test arguments to evaluate the responses, and are not related to the actual defense which DoJ Staff will ultimately use. A quick review of the arguments indicates, as with FISA, the arguments are frivolous. The only way the SecDef will credibly defend himself is if he invents greater levels of non-sense.

The arguments below are plagued with logic errors, factual omissions, and rely on NeoCon propaganda. Expect the same at The Hague.

Let's assume for the sake of argument that the comments are from attorneys, connected with the DOJ Staff counsel.

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Changing the Issue

One approach is to change the focus of the discussion from issues of criminal law, to issues of individual rights. The argument is meaningless.

A favorite strategy of oppressive regimes is the criminalization of dissent.

This approach is no different than used in the illegal military commissions bill.

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Another approach is to pretend that something was lawful; and that new rules would criminalize what was protected.

This often begins with an attempt to criminalize the policies of the predecessor regime.

Presidents do not have the power to pardon for international war crimes. An issue can only be set aside if there is a proper grant of a pardon, not simply an appeal to, "We have other things to consider":

Magna Charta: 62. And all the will, hatreds, and bitterness that have arisen between us and our men, clergy and lay, from the date of the quarrel, we have completely remitted and pardoned to everyone.Ref

This argument also incorrectly argued that the Geneva Conventions are being retroactively changed; while it fails to consider the law, as required in the Magna Charta:

45. We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well.Ref

We realize the DoJ Staff counsel promise to the US Constitution is meaningless:
63. . . . An oath, moreover, has been taken, as well on our part as on the art of the barons, that all these conditions aforesaid shall be kept in good faith and without evil intent.Ref

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Here is a likely false assertion of opposition, meaningless as an argument, but designed to give an appearance of opposition.

I am no admirer of Bush administration policies and I opposed the war in Iraq from the beginning.

Irrelevant, and a meaningless appeal to sympathy.

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Invoking the NeoCon terms:

At the same time, I recognize the problem posed by an extremist ideology that seeks the destruction of modern civilization.

Notice the word, "extremist" this could mean anything from the RNC radicals who have been outed; to those who dare to assert the rule of law; or those who dare to raise questions about the competence of DOJ Staff counsel who opined memoranda permitting illegal abuse.

The RNC is also well known for using "extremist" as a label to stifle public discussion, narrow options, and imply those who fail to oppose a false problem are the problem.

Magna Charta: 39. No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.Ref

The law, not the arbitrary abuse or decision of jailers, is the basis to properly manage the accused. They are innocent until proven guilty. Any other standard would inappropriately subject any citizen to like abuse. Perhaps the President would prefer similar treatment before The Hague.

Even during wartime, there are appropriate standards. Yet, this reckless DoJ and DoD staff counsel, because it refused to withdraw from the illegal rebellion against the Constitution, rather than bringing peace to Afghanistan, blindly support an illegal war in Iraq.

The first error was the abuse of power, compounded by the refusal to lawfully bring peace to Afghanistan, thereby compounding the original errors, and making unreasonable excuses to not lawfully treat prisoners of war:

Manga Charta: 51. As soon as peace is restored, we will banish from the kingdom all foreign born knights, crossbowmen, serjeants, and mercenary soldiers who have come with horses and arms to the kingdom's hurt.Ref

Had the original campaign in Afghanistan been properly managed -- which it was not as evidenced by the war crimes, and toadie Joint Staff assent to illegal warfare and abuse -- there would be no ongoing warfare. Rather Afghanistan would be at peace, and the citizenry in full support of the restored order. Americans brought chaos, did not resolve the dispute, but used their incompetence as a pretext to continue abusing prisoners who might have otherwise returned to a land of peace, not ruin and continued instability.

Indeed, despite clear references in the Magna Charta to issues of combat and treatment of prisoners, the toadies in the Republican Party would have us believe the law only applies during peacetime. Our Constitution was built on the foundation of the Magna Charta, it did not start anew, only in peace, but both war and serenity.

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The broad prosecutor's approach to explaining away government malfeasance: Throw everything into the, "It was just a party"-argument.

Much of the “torture” described by Professor Cohn is little more traumatic than the hazing I suffered as a freshman at a Catholic high school in the 1970s.

Yet, the videos, indictments, convictions, and Teguba Report fail to capture the 3,000 deaths in the Afghan box cars, and the reports of US troops placing weapons by Iraqi civilians to make them appear to be insurgents.

Recall the Magna Charta:
38. No bailiff for the future shall, upon his own unsupported complaint, put anyone to his "law", without credible witnesses brought for this purposes.Ref

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One approach of apologists is to change the focus of the debate from the crime, and throw a smokescreen. Geneva bans abuse. How the US does or does not define torture is meaningless.

I do not regard intensive, prolonged questioning of captured terrorists as torture;

The argument above incorrectly presumes that the non-charged, innocent civilian prisoners were terrorists. This has yet to be proven.

It remains a matter for SecDef to explain why, despite not charging anyone, how anyone on the DOJ Staff or working for alleged defendants of war crimes can credibly call someone a "terrorist" when there's been no trial.

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This comment asks us to move from the original absurd definition -- over whether something is or is not abuse, and includes the irrelevant definition of torture -- and asks us to compromise on the false definition.

nor do I think that sanctioning it compromises the values of a libertarian society;

Notice the argument is similar to how Gonzalez framed the FISA-argument: "We were doing this to save lives," despite ignoring the legal requirements of the FISA statutes; and failing to explain his failure to comply with Title 28 reporting requirements.

Whether the US is or is not a "libertarian" society is meaningless: We have a Geneva Convention obligation to prevent abuse. How torture is or is not defined has nothing to do with whether Geneva is violated; nor does a speculative assertion of "libertarian" have anything to do with criminal law. This is merely a smokescreen, what the NeoCons well enjoy throwing.

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Notice this excuse:

it is an attempt to save lives.

This argument starts from the false premise of the ticking time bomb scenario. Visit this link to show the faulty assumptions with the DOJ Staff have used to twist their legal memoranda into defacto approvals for war crimes.

"Necessity is the plea for every infringement of human freedom: it is the argument of tyrants; it is the creed of slaves" -- Wm. Pitt the Younger 1783 h/t Ref

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Without answering this question, the likely DoJ Staff apologists implicitly argue that lawful methods were not possible, and fails to answer:

What is the alternative?

The alternative was to follow the law. Whether SecDef did or did not violate the law is a matter for The Hague to review, not for the DOJ apologists to assert outside court, or block and investigation.

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Another approach is to argue, as the RNC has done, that America cannot afford to focus on facts, or reality, but must focus on new things:

Professor Cohn directs her moral wrath at the use of force against those who indiscriminately abduct and decapitate non-combatants. I think there are targets much more worthy of our attention.

The above argument relies on the, "Hay, we've got such a mess, that we should focus on other people." Yet, despite this argument, the US hasn't focus on new people: We have more than 400 prisoners in GTMO, but no action, failing to meet the standard of the Great Charter:

40. To no one will we sell, to no one will we refuse or delay, right or justice.Ref

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When alleged criminals are in real trouble, and have no credible defense, they will attack the prosecutors implying the problem is with the person. This is an unreasonable position to start an argument, never proven with any substantive case law citations or authority:

Professor Cohn apparently either ignores international law as regards the making of war or is simply unaware of it.

Personal attacks do not win points before The Hague. Indeed, the apologists use the existence of the law as their pretext to find a means to violate it; then pretend the law cannot be enforced. Their error was to believe their propaganda, never anticipating checks and balances would work.

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Rather than start from the legal documents this President uses, like the FISA-NSA issues, and the Iraq war-Oil arguments, DoJ Staff apologies introduce a new, equally flawed argument:

International law has held for centuries that violating the terms of a cease fire agreement is good and sufficient cause to recommence hostilities.

Even if true, this argument of "recommencing hostilities" was never raised; nor does it have anything to do with prisoner abuses after 9-11, and before 2003.

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As with the President's speech in Georgia and Arkansas, this comment attempts to rewrite history:

After the first Gulf War, Iraq entered into a cease fire agreement that required, among other things, that Iraq destroy their stockpiles of long range missiles, disclose and destroy their stockpiles of chemical weapons.

Contrary to the above, the Iraqis did accurately report the WMD status, as reported by Scott Ritter. Indeed, there were no WMDs found after the invasion. Why were troops not sent to the "obvious" WMD sites? The US knew they weren't there.

Even if there were WMDs, there was no imminent threat, as required for lawful war under the Geneva Conventions. Recall the Downing Street Memo: Facts were fixed to justify war, not respond to a credible threat.

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This assertion is not supported. Note there is no report matching this claim, nor was this mentioned in the wake of the war as a credible defense:

During the air war in 2003, Iraq fired a number of Al-Abbas, Al-Hussein, and Scud missiles at Kuwait, proving that they had NOT destroyed those missiles, in accordance with the terms of the cease fire.

DoJ will have to make a compelling case that the firings, if they occurred in 2003, were linked with banned weapons; and that the use of those weapons justified the use of force.

Maybe if Senator Robert's WMD report supported this, it might be credible. However, because this appear to be fabricated, this tends to undermine the motivation of the author. Prosecutors may file for adverse judgments when there is false information provided to muddy the waters.

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This is not supported:

Coalition forces have captured over 17 tons of chemical weapons and over 200 tons of precursor chemicals, proving beyond doubt that Iraq had violated the terms of the cease fire on THAT point as well.

US forces captured material that was reported, as required. There was nothing new. The claims are not evidence of an imminent threat, as Geneva requires.

The sweeping assertion of "proving beyond doubt" is similar to the DOJ Staff counsel comments in the releases in re FISA, abuse, and other frivolous defenses.

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Notice the word, "settled" as well -- this is a normal DoJ Staff counsel assertion on matters that are not settled. Addington well used this approach in the highly flawed Iran-Contra report which has been discredited:
Coersive [stet] interrogation has been settled in courts as well.

Geneva forbids all abuse: Explanation Chart on DoJ Staff counsel smokescreen.

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This argument undermines the legal foundation for GTMO prisoners, raising the prospect the real reason for not prosecuting GTMO prisoners is lack of evidence, and possibly foreign fighters could use the evidence as a legal defense to avoid US prosecution.

After World War 2, charges were brought for techniques like sleep deprivation used by the Nazis on Allied Prisoners of War, all those charged for such actions were acquitted of all charges.

Indeed, when defendants were found to have done something -- as the Uboat commanders did, engage in illegal targeting of shipping -- the Uboat Commanders' defense succeeded because the allies engaged in the same.

Similarly, should any defendant at GTMO be able to show the DoJ Staff-inspired documents were linked with similar abuses, the Defendants at GTMO cannot be lawfully convicted.

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"Pretty please" -- why do lawyers use irrelevant vernacular?

The Geneva Convention does not require that you ask pretty please for information, then bring milk and cookies.

The Geneva conventions only require that all abuse be banned. The US failed to meet its Geneva obligations, as SecDef was required fewer than 5100.77.

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All abuse is forbidden.

Methods beyond just asking are allowed.

That something is "non-torture" is meaningless: Chart for incompetent DoJ Staff counsel.

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This is an irrelevant defense as to whether Rumsfeld did or did not meet his 5100.77 obligations:

I note that there was no outrage from Professor Cohn or any more of her ilk over the mistreatment of US prisoners during either the first Gulf War or during the 2003 invasion.

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Combat operations in Iraq ended, and what may or may not have happened to US military personnel did not legalize similar violations of Geneva:

Female prisoners were raped and beaten, male prisoners were beaten and abused, at least one American flyer was even executed.

This is an irrelevant argument as to whether Rumsfeld did or did not effectively enforce 5100.77; or whether the DOJ Staff counsel working with DoD did or did not fail to prevent war crimes.

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This argument fails to justify why Rumsfeld should or should not be convicted of war crimes; or having failed to prevent war crimes:

If you hate Bush, that's fine, but trying to cloak it in "law" is simply a travesty.

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There is no recognized "inevitability doctrine" in the laws of war, only an imminent threat, which did not exist in Iraq:

I think the US was justified in entering Iraq (it was destined to happen at some point).