Constant's pations

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

Thursday, December 14, 2006

Impeachment and Balance of Power

He may look great, but someone isn't minding the store.

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Impeachment and Congressional Power Balance

Congress still has power, regardless which party controls Congress. Congress should outline a plan to check judicial and presidential abuse of power and illegal conduct. We discuss the implications of a possible shift in Senate control n the contet of impeachment, Military Commissions Bill, and US military alliances with Syria and Iraq. As with WWII, the US should focus on defeating common threats, not in creating new enemies.

This note outlines a number of recommendations Members of Congressa and the Congressional leadership could take to swiftly prevail over AlQueda around the globe; end combat operations within a matter of months, not generations; reassert the rule of law.

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The Senator remains in intensive care, and it is unclear whether he will recover. Some Senators have, despite being unable to vote, retained their Senate seats.

Some have suggested it is “ghoulish” to contemplate what might reasonably happen if the Senate control shifted from the DNC to the GOP. However, for the rest of humanity that has to make decisions about the likely direction of the United States government, it’s reasonable consider whether the US remains a viable place to do business, plan a future, or find alternatives elsewhere.

DNC control of the Senate is not certain, and injects more unpredictability into the stability of the Constitutional protections. This note explores the prospects of Senator Lieberman leaving the DNC caucus; and if the South Dakota governor were to replace the Senator with a GOP replacement.

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DNC Agenda and Impeachment

One segment of the DNC has celebrated the DNC control of both House of Congress because it permits the DNC to implement their political agenda. Putting aside whether the President might veto the DNC agenda, some activist have argued that the DNC agenda could only be enacted in a narrow window, and there was no time to review the “distraction of impeachment.”

If the Senate shifts from DNC to GOP control, the argument against impeachment – that there were higher priorities – is no longer valid. The DNC can no longer assert it has any power to assert their agenda; rather, they’re in a losing position unless the use the leverage of the House appropriations to discipline the Senate and the President.

If the DNC loses control of the Senate, there is no basis to suggest that the DNC agenda can trump anything. Rather, the reverse will be true: Once the House has the power to investigate, and the GOP Senators continue to stonewall, one way for the DNC to differentiate itself for the 2008 elections will be to speedily conduct investigations, and outshine the GOP. One goal might be to accelerate the reviews, and show the GOP in the Senate, by contrast, is unwilling to effectively govern. If the divergence between the House and Senate investigations into the Executive Branch conduct is sufficient, and the House can show its conclusions are reasonable, the voters may conclude that the GOP in the Senate – and implicitly the White House – are not serious about governing.

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The other factor related to impeachment is the issue of the House check on the Executive and Judicial branches. Of concern is the illegal military commissions bill which the court refused to strike down, and recognized the illegal assertion of Judicial power by Congress is retroactively changing if prisoners can or cannot have their legal issues heard. The legal issues hinge on whether prisoners, regardless their location, are or are not entitled to Geneva Conventions; and whether the US government can argue it is in compliance with the Geneva conventions while denying to prisoners rights afforded to all detainees. Despite the court recognizing that Congress has not found there had been either an invasion or an insurrection – required to strip a prisoner of Habeas corpus -- the court incorrectly concluded that the prisoners could retroactively be denied rights which were protected under Geneva.

The US Construction is a requirement, and all judicial officers swear an oath to uphold not only the Supreme Law, but all treaties. A case can be made that, as the German Justices during WWII illegally enforced unlawful law, so too has the District Court illegally enforced the Military Commissions Act.

The legal issues may seem dire – all three branches of the US government have violated the Geneva Conventions, not enforced them, and have refused to assert the Conventions as required. If the DNC Controlled House is going to assert the rule of law, one option remains for the House to impeach a sitting judge who fails to strike down as illegal an unconstitutional act.

The court in Hamdan affirmed that Geneva is applicable to all prisoners regardless their status; the recent Robertson decision contradicts this ruling, and sides with the Congress. The Robertson Court concluded that the Military Commissions Act might one day be struck down as unconstitutional, but declined in error. The Court effectively ignored the US Constitution, Geneva, and the Hamdan precedent, and sided with Congress, arguing that Congress intended to deny the prisoner of the right to Habeas.

However, the court failed to review the Geneva Conventions, and the requirement that prisoners are afforded the full protections. On appeal, it remains to be seen whether the Hamdan precedent trumps the Robertson decision, and the case is remanded to recognize the Geneva Convention obligation to secure all rights.

It is unclear whether the appellate court or Supreme Court will find the MCA unconstitutional, as it should.

* * *

The House has the sole power of impeachment. Regardless whether someone may or may not be convicted, the House has the power to charge any federal officer with a crime. Nuremburg precedents guide all courts in reminding all justices that their decisions cannot lawfully enforce illegal law; nor may they condone violations of Geneva, as was illegally done in Nazi Germany.

A case can be made that the Robertson Court did just that, ignored Nuremburg, and illegally enforced an unconstitutional act of Congress which the court had the power to, and should have, reasonably found illegal. The Judicial Cannons and Judicial Oath guide the courts to act impartially to protect the Constitution. A case could be made Judge Roberts has not fully asserted his oath, and has failed to enforce the Geneva Conventions, as required, and illegally denied a prisoner of rights commonly available to all prisoners in the US justice system.

Hamdan concluded that Geneva Conventions apply, and that all prisoners, regardless their location, are entitled to the full Geneva Protections which include access to trials and procedures which are commonly available to all US citizens. This is a Geneva requirement. Once Judge Robertson ignored that requirement, and effectively denied Habeas on a legal matter, he has contradicted himself:

1. Robertson argued that the Congress intended to do something, while recognizing Congress did not follow the Constitution when it enacted the Military Commissions Act. Congress, contrary to what the Constitution requires, did not find that there had been an invasion or rebellion as the basis to deny Habeas.
2. Robertson concluded that the Military Commissions Act could be struck down as unconstitutional, without accepting that he as a judge could exercise that power.
3. Robertson recognized Hamdan’s precedent for the purposes of his review of the legal matter, but did not accept the conclusion that the Geneva Conventions – and the attached protections of Habeas – were included with Hamdan.
4. Robertson looked at Habeas as a right that a defendant must prove they are entitled to have, but missed the real purpose of Habeas – it is a power of the court to assert to force the Executive to explain their action.
5. Robertson recognized that Congress retroactively did something, without challenging that illegal act. Congress is denied the power of ex post facto -- retroactively doing anything, especially on ongoing legal matters. Yet, Robertson asserted the Congress intended to do something, without explaining how an illegal Congressional intent – denying prisoners the full Geneva Convention protections absent a declared invasion or insurrection – could be enforced, or was not struck down as illegal.

The problems with the Robertson ruling are compounded by the start contrast between what Geneva requires – full access to all legal rights – and what Congress illegally did – retroactively changed the legal requirements and standards on pending litigation. The issue is more than simply a legal issue with prisoners under the Geneva Conventions, but whether Congress has the power to retroactively make any rule which denies anyone of any right, regardless their location.

Hamdan sent a clear message. Robertson appears to have ignored the Hamdan court on the issue of whether Geneva does or does not apply; and whether the rights afforded to all prisoners are or are not fully enforced, regardless their status or physical detention location.

The Constitution is more than a recognition of rights – it is a legal requirement for the court to affirm, enforce, and protect. The court has the responsibility to strike down illegal laws, especially when Congress illegally passes something that is unconstitutional, or intendeds to accomplish something that is contrary to the Geneva Conventions.

Congress has effectively stated, in contravention to the Supreme Court, that the Geneva Conventions 2001-2006 are not applicable; however, the Hamdan ruling concludes the opposite: Prisoners are entitled to the full protections.

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Congress, impeachment and the balance of power

As stated, all three branches of government have ignored the Geneva Conventions. If the Congressional power were to shift, the only check on the power during the 110th Congress is the House appropriations and impeachment.

The case could be made that Judge Roberts, because he allegedly enforced illegal law, could be impeached by the House. Unless the House is willing to keep all impeachment options on the table, and lawfully challenge the ruling, the US government has effectively argued that it will illegally recognize retroactive acts of Congress which illegally abrogate Geneva.

Unless the House does impeach judicial officers who enforce illegal law, the House could be argued to be complicit with the original illegal activity; and having not fully asserted its powers as it should to protect the Constitution, enforce Geneva, and ensure there are no Geneva violations.

As long as the DNC argues that it must play nice with the GOP, it is likely the DNC leadership in the House will attempt another compromise: Hoping to not challenge the judiciary, in exchange for a meaningless assurance from the GOP that the House DNC will not be sanctioned during the 2008 election. This is a fools argument. The GOP has passed illegal, unconstitutional acts; the House cannot credibly argue that complicity with that illegal activity will help the DNC chances in 2008. Rather, the question is whether the House le4eadership can make the case, as they did in the 2006 election, that changes are needed, and the rule of law must be asserted.

Regardless the status of the South Dakota Senator, or the power balance in the Senate, the House Judiciary Committee should plan to impeach judicial officers who enforce illegal acts of Congress; and fail to enforce the Geneva Convention requirements that Habeas only be denied when Congress has intended, and explicitly declared an invasion or rebellion, which the Congress has not done as required.

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All three branches of the US government have violated the Geneva Conventions: The Executive in failing to follow them when detaining prisoners; the Congress in passing illegal legislation which asserts judicial power and denies prisoners the Geneva Convention protection that they be afforded all legal protections; and by the Judicial Branch in failing to strike down Acts of Congress which are (a) unlawful abrogation of Geneva using (b) retroactive bills which (c) assert judicial power.

Regardless the power balance in Congress, unless the appellate courts reverse the Robertson Decision, the House remains the last check on whether the Judicial Branch is forced to awaken to the Nuremburg precedents which prosecuted Sitting Justices for failing to fully enforce the Geneva Conventions, and protect all rights for prisoners commonly available in the judicial system.

If the power balance does shift, the President will have more power to appoint other justices to the Supreme Court who share the President’s perverse view of the Geneva Conventions. Should that happen, and the House refuses to impeach the justices or the President, the only check on the US violations of Geneva remains with the international war crimes prosecutor.

Hamdan struck down the illegal Executive actions, prompting the US government to transfer prisoners from illegal detention in Europe to GTMO. DoJ is making an inconsistent argument if, as it did before the Roberts court, the Geneva Conventions do not apply to prisoners located in Cuba. The issue is not whether the prisoners are entitled to protection, but whether the US Congress can deny US courts jurisdiction on people under the Care of the US court. Hamdan stated that the US judicial system applies regardless their location, prompting the US government to move prisoners. Courts cannot be denied jurisdiction using an illegal act of Congress; and Congress has no power to deny prisoners the full Geneva Conventions by (a) retroactively passing a bill related to (b) not fully enforcing Geneva which (c) illegally denies prisoners of Habeas (d) without the Constitutionally-required finding that there had been an insurrection or rebellion.

The most reasonable correct decision would do the following:

___ Accept the precedent of Hamdan as the Supreme Law

___ Accept that Haman recognized the applicability of Geneva, regardless prisoner status or location

___ Accept that Geneva compels the detaining power to provide a prisoner with all rights afforded to all prisoners, including the Writ of Habeas Corpus

___ Conclude that the Congress illegally denied habeas without the Constitutionally required finding that there had been an invasion or rebellion

___ Conclude that Congress did not have a lawful intention when it (a) retroactively and unconstitutionally changed the law on prisoners; and (b) illegally denied the Geneva Conventions protections; and (c) illegally asserted Judicial Power when passing an act related to ongoing litigation

___ Conclude the Military Commissions Act is unconstitutional, and illegally immunizes abusers for illegal conduct 2001-2006; and illegally denies the Geneva Convention-requirements for prisoners the Supreme Court said were fully entitled to all Geneva Conventions

___ Conclude that any other ruling would unreasonably ask the Courts to (a) enforce an illegal act of Congress which is not enforceable; (b) illegally affirm an unconstitutional act which defies the Geneva Convention protections, in contravention to the Judicial Cannons and Court Officer oath of office; and (c) ignore the Supreme Court precedent affirming that the Geneva Conventions apply to all prisoners under US care, regardless their location

___ Reject all DoJ Staff Counsel argument which suggest what may or may not have happened in England prior to the passé of the Geneva Conventions has any bearing on whether the US government can ignore the Geneva Conventions, and deprive the Courts of Judicial powers to issue the writ of Habeas on matters the Supreme Court said fall under the jurisdiction of US courts

___ Reject all DoJ Staff counsel arguments which suggest Congress has any authority to pass any ex post facto law affecting ongoing litigation;

___ Reject any effort by Congress to assert Judicial power when the Legislature illegally passes laws specifically targeting a narrow class of persons with the hopes of affecting ongoing litigation

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DNC Control of Senate

If the GOP reclaims control of the Senate, they’ll be able to continue the NeoCon agenda of appointing reckless Judicial Officers who have shown contempt for US international legal obligations under Geneva. If the House is not willing to use the impeachment power to challenge the illegal judicial decisions, the US government is communicating to the German War Crimes prosecutor that the US is not interested in fully complying with the laws of war.

Geneva and Reciprocity

All US government officials could be prosecuted if they fail to fully enforce and protect the US Geneva obligations. The oath of office attaches an obligation to fully enforce all treaty obligations and Geneva protections. It is a violation of the Geneva Conventions, oath of office, judicial cannons, and US Statute (1) to not fully enforce Geneva; or (2) for judicial officers to refuse to strike down as unconstitutional any act of Congress which deprives any prisoner of all Geneva protections.

The laws of ware are structured to ensure compliance by giving the opposing combatant the discretion to make similar violations as the United States. The aim is to compel detaining powers to comply with the Conventions with the credible, legal threat that similarly detained US personnel could be abused, unless the Geneva Conventions are fully protected.

However, the potential risk of reciprocity is not isolated to US Combat forces. Not all prisoners at GTMO are connected to combat operations; some are civilians who were falsely accused of taking up arms. The US government made an error: It has illegally asserted that civilian noncombatants, who have been captured and detained, are unlawful combatants. The US is holding civilians, but has implicitly accused them of being unlawfu8l combatants using unreliable, secret evidence which the defendants are not given the right to challenge. Civilians remain in detention in GTMO. They are not unlawful combatants; they are civilians who have been illegally denied access to the judicial system to challenge their detention.

The issue of reciprocity applies. Foreign fighters may conclude, in the absence of US government enforcement of Geneva, that they may lawfully – as is permitted under Geneva under the principle of reciprocity and reprisals – similarly capture anyone, as the US has done in Pakistan, who may or may not have engaged in any combat; and implicitly assert they are guilty of war crimes, deny them a right to trial, and commit the same abuses against prisoners which the US has done: Reject all efforts of US government officials to compel fair treatment or access to any legal process for people who are actually civilians, but have been accused of being unlawful combatants.

Contrary to what some in Congress may believe, lawful reprisals – in the form of what the US government has done – would not be restricted to combatants. Just as the US has captured civilians and held them indefinitely without prospect of challenging their detention, other nations may similarly accuse any US civilian of being an enemy combatant, and hold them indefinitely. Geneva prohibits reciprocity against civilians; but foreign governments, as the US has done, may legally assert that the captured Americans were not civilians, but unlawful enemy combatants.

The issue is not only whether the US government could accuse US civilians of being enemy combatants and deny them access to trials; but whether foreign fighters may similarly accuse US government officials and civilians of being unlawful combatants and deny them, as the US has done, any access to the judicial system to challenge their indefinite detention. This outcome is foreseeable, not unrealistic, and intended as a consequence of Geneva: The power of opposing forces to commit like violations of Geneva as a check on the original abuses. The intent is to create a consequence for illegal activity and ensure that detaining powers enforce the Geneva Conventions, not ignore them as all three Branches of the US government have done with respect to habeas and prisoners under US care.

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If the control of the Senate shifts to the GOP, this will put a another nail in the coffin of the US Constitution. The President will have the power to make irresponsible judicial appointments.

The GOP controlled Senate will be able to block all DNC agendas. The House leadership will have to decide whether they want to assert an agenda, which the GOP-controlled Senate will not support, or whether they want to assert the rule of law through impeachment.

Once the DNC loses control of the Senate, the DNC cannot credibly argue that it is putting its agenda before the impeachment. It will no longer have the power to assert any agenda.

Until the DNC loses control of the Senate with the death of the Senator of South Dakota, there may be some incentive for the DNC Senate to rush legislation and hearings. Recall the events of Sept 2001: There were arbitrary deadlines and the Patriot Act was rushed.

___ Will the DNC, fearing imminent loss of control of the Senate, also rush legislation and hearings?

No one in the DNC activist trenches can argue that they have an agenda which must trump the House impeachment effort. Once the Senate power shifts to the GOP, the DNC cannot credibly argue that impeachment is a distraction: There’ no longer any DNC agenda for impeachment to be a distraction from. Rather, the opposite will be true: The only agenda the DNC will be able to credibly assert is the number one agenda item of the oath of office: Protecting the US Constitution, asserting the rule of law, and showing the world the US is serious about enforcing the Geneva Conventions.

If the House refuses to impeach, does not challenge judicial decisions with impeachment, and fails to investigate the issues related to Presidential misconduct, they fail to send a signal to any voter before the 2008 elections that the DNC is seriously doing its job.

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The GOP is likely to claim, should the GOP regain control of the Senate, that the DNC in the House is obstructing the NeoCon agenda. There is no compelling argument that the 2006 election was a mandate for change when the House DNC leaders refuse to change the agenda, and focus on the Constitutional violations and assert the impeachment power.

Delay shows, like Richard Pearle, that the GOP does not view their loss related to anything that cannot be explained away. The NeoCons have not gone away. The RNC has asserted all standards and principles in the Constitution as their basis for action, while they do the opposite: Actively ignore the Constitution, and defy the rule of law. The GOP leadership hopes to incorporate the DNC agenda – as it relates to accountability – with the illusion of accountability, not with real accountability. The GOP is more interested in power, not in the rule of law.

Once the GOP induces the DNC to embrace bipartisanship – the same as the DNC agreeing to fight with both hands tied behind its back – the RNC-NeoCons have no reason to reciprocate, especially when they’ve taken control of the Senate, and have convinced the House DNC that impeachment against anyone will be detrimental to the DNC 2008 political interests.

The GOP views the possible death of the South Dakota Senator as a sign from God that the RNC was intended to control the Judicial Appointments, and reclaim the moral high ground on which laws of war can be ignored, not enforced, or defied.

The GOP plans to use the lawful response of foreign fighters – that of lawful retaliation for Geneva abuses – as the pretext to commit more abuses on the pretext of a wider war against spreading abuse. However, notice the momentum: It is based on absurdity. The NeoCon argument asserts that AlQueda plans to establish a fascist-Islamic empire stitching from South Asia, across Central Asia, into Northern Africa. If the NeoCon’s argument were true – that there is a potential threat by AlQueda taking control of the entire region – the NeoCons cannot explain why they are not doing what was done during WWII: The US leadership putting aside the differences with former political foes, and joining to fight a common enemy: AlQueda. The US in WWII put down the differences it had with Russia, and agreed to combine resources to fight the Germans. The NeoCons should be compelled to explain, if they view AlQueda as being a threat, why the NeoCons are not willing to do what was done during WWII, and agree with Iran and Syria to put aside political differences and focus on the common enemy: AlQueda.

The same flawed reasoning used to ignore the Geneva Conventions – and fail to see that foreign fighters may lawfully captured asserted-combatants (who are civilian leaders – is the same flawed NeoCon thinking that would prefer Syria and Iran as an enemy rather than an ally in the goal to attack and defeat AlQueda.

The most reasonable conclusion is that the NeoCons are less interested in military victory, and more interested in creating new enemies to justify the generational war. AlQueda could be defeated if the US enacted a draft, fully deployed 10-fold troops into Afghanistan, and worked with Syria and Iran to defeat the common enemy. The NeoCons refuse to focus on a solution, but on the excuse for combat and confrontation. This is hardly impressive.

* * *

Putting aside the ever-present GOP NeoCon absurdity as the core of their decisions of State, the RNC goal will be to cast all DNC actions on the Constitution as obstruction, partisan, and a threat to the safety to the US. This is the same broken record which the voters supposedly rejected in the November 2006 elections; but the possible GOP recapture of the Senate would recast the November 2006 election in a new light.

The goal of the GOP is to induce the House not to exe5rcise powers of impeachment. Once impeachment proceedings start, regardless the Senate convention, Presidential pardons do not have effect. The GOP plans to argue the House’s exercise of impeachment will be a backlash against the Constitution, and is an illegal assertion of DNC power to disrupt the President’s powers as Commander in Chief. Notice what is missing: Evidence, facts, investigation, and a public comment on the evidence; and no mention of whether the voters may choose to lawfully retaliate against the GOP for obstructing the needed review of the illegal activity.

Again, all three branches of the US government have defied Geneva, and all could lawfully be targeted by foreign fighters under the principle of reciprocity. Nothing the DNC has done has inspired these violations; yet, the aim of the GOP, should there be increased attacks, as is expected, will be to blame the DNC for the results, regardless.

The NeoCons have not left, have not been defeated, and plan on winning the White House in 2008. The House has the power to reveal the judicial abuse of power and show the courts are not doing what they should be doing.

The GOP also hopes to create in the mind of the DNC the misperception that moving too quickly on investigations will be seen as rash or imprudent. The opposite is true: The House should move quickly to show the House is moving more aggressively than the Senate, and willing to do what the GOP Senate refuses: Find facts, bring about change, and chart a more responsible future. The GOP hopes to create the impression that speedy House investigations are a partisan ploy designed to move without regard to the rule of law, illegally constrain the President, and defy Constitutional precedent. This is the same nonsense the Robertson Court accepted when it denied Prisoners their Geneva Convention protections of Habeas. Notice the smokescreen, shell game, and diversion: Rather than focus on Geneva, the GOP hopes to show that the Constitution is not applicable.

* * *

Impeachment of Judge Robertson is a check on Presidential abuse and illegal judicial decisions. Going forward, We the People can

1. Continue forwarding information to the war crimes prosecutors related to judicial illegal activity;
2. Make it \clear to all judges that they may be impeached if they fail to Enforce the Geneva Conventions and US Constitution
3. Send a clear signal that the US House must fully enforce the Nuremburg Precedents of the Justice Trials, and keep the option of Judicial Impeachments on the table while the possibly-GOP-controlled Senate debates the President’s Judicial appointments
4. Make it clear to the US House that their job is to outshine the GOP-controlled Senate investigations in quality, timing, and responsibility

Investigations should be discussed openly in terms of the following issues;

A. The ability to surmount GOP obstacles
B. Quality investigations have been started across the board in the House
C. Demonstrate the GOP Senators are blocking oversight
D. Make it very oblivious the GOP senate is not serious about oversight, reality, or making informed decisions

The House should impeach for the following reasons:

- Defies the Senate and President
- Checks Judicial illegal rulings that enforce unconstitutional Acts of Congress; reminds Judges the House can impose the discipline of the Nuremburg Precedents and conduct a trial of Justices
- Force the GOP Senators to commit during the Senate Trials whether they are going to openly support the rule of law, or ignore evidence of illegal activity, unlawful decisions, unconstitutional conduct, and war crimes.
- Firmly link prospective Presidential pardons with impeachment, and effectively deny the President the option of waving a pardon before any Executive Official on the impeachable issues
- Check and gather evidence, and disclose problems, giving We the People a better idea of the scope of the problem, and make informed choices well before 2008 which Presidential candidate is best suited to address these problems, and work with Congress to implement the needed reforms to prevent the 2001-2007 abuses from recurring

The message going into 2007 should be that the 2008 Presidential election is far from certain, and there are many legal issues to confront. The DNC agenda, although it may spring from the November 2006 election, cannot be presented as something that will trump oath of office obligations. Once the DNC membership asserts (incorrectly) that the DNC agenda should trump impeachment, the DNC members are communicating that the DNC leadership should not focus on anything other than the agenda, even if there is a crisis which might warrant ignoring the agenda, or impeaching officials as the needed check on abusive power. It makes little sense to argue for or against the importance of the DNC agenda in 2007 and ignore impeachment, when impeachment may be the required mechanism to protect the Constitution, as would be needed to move forward to the 2008 Presidential election, and the agenda for robust Presidential cooperating with needed modernizations of the US government.

The House should not decline impeachment on the basis of what may or may not happen in 2008. Rather, the fight it today for the rule of law. The DNC cannot argue for possible future (speculative) gains that may be linked with inaction, while the NeoCons assert the idea of the Constitution, yet they openly continuing their illegal defiance of the Supreme Law.

Going into 2008, let the voters decide whether the GO Senators are being unreasonable in not convicting the President or judicial officers. The Senate has no power to trump the House on the power solely delegated to the House: Impeachment. The Senate only has the power to review evidence, not induce the House to refuse to charge anyone with a crime on the prospect that there will be no conviction. Rather, this argument should be turned on its head and presented to the voters: Without hearing any evidence, the Senate has prejudged the conviction and does not want to make an informed decision based on evidence. That can hardly inspire voter confidence that the Senators are supportive of the Constitution or the voters call for change based on reality.

* * *

Reconsider the issue of Senate control. Implicit in the DNC argument against impeachment was the false assertion that the Senate might fail to convict, therefore the DNC would focus on its agenda and not impeach. If the DNC loses control of the Senate, the DNC cannot credibly argue that the DNC has any power to assert any agenda, and implicitly no power to argue that impeachment is trumped by something which cannot be asserted.

The DNC implicit argument against impeachment was that because the DNC controlled the Senate, the DNC could implement its agenda. With a possible loss of the Senate, the DNC no longer has confidence that it can assert the agenda. Rather, there is no excuse not to pursue impeachment, especially if the fact finding in the House would show the GOP Senators are stonewalling Senate reviews.

These decisions and scheduling decisions cannot be made after the Senator from South Dakota’s status is certain. Rather, the 2007 budget has overlapped with the 2008 Spring Budget reviews; while overlapping with the hoped for February Committee investigations. If the GOP takes control of the Senate, the scheduling problems no the budget will likely push the hearings off the table, and the House will be charged with not fully cooperating with the “pressing” budget issues which the GOP created by failing to act no the financial issues in 2006.

* * *

Gang of 14

If the Senate control shifts from the DNC to the GOP, the Gang of 14 will take an important position.

As the House proceeds with investigations, and advances faster than the Senate, it is likely that voters support for the DNC will increase and result in:

- More support for filibusters
- Backlash against the GOP if they exercise the nuclear option, and remove the Filibuster from the Senate rules

The question will be whether there will be an effort to protect with an Act of Congress, or make constitutional, the filibuster.

___ Would the DNC be wiling to give up Senate discretion on Senate rules while they still control the Senate, and work with the House to change the Statute, and give up power of self-regulation, permitting the President and House to have input to the Filibuster?

___ How could this statutory change, legalizing filibuster under Title 2, be attached to something the President, if he were to reject, would severely undermine the GOP interests?

Again, the key is for the DNC leadership to decide, early in 2007, while it still controls the Senate, whether it wants to pre-empt the GOP efforts to block filibusters should the GOP regain control of the Senate.

An alternative might be to reconsider the Committee Assignment rules, and enact legislation that formalizes Committee Assignments on the basis of time, not absolute control by one party. If one party has 60% of the seats, they would be chair on the committees for 60% of the time; the alternative is to allow, as is the case with Lieberman and the Senator from South Dakota, thin margins to sway the chairmanship with little warning. Again, the question will be whether the DNC is willing to give up the power to absolutely control the Senate Chairs, especially when the President’s judicial appointments could be timed to match GOP control.

___ Does the DNC want to give up some powers of the Chambers to self-regulate?

__ Does the DNC want to take pre-emptive measures, while it controls the Senate and House in 2007, to prevent the GOP, should it regain control of the Senate in 2007, from taking total control of the Chairs

___ Is the Congress willing to enact through statute changes to the House and Senate rules which would protect as a legal right of all Senators the power to filibuster, without fear that the Senate could unilaterally change this rule?

__ Is the DNC controlled Congress willing to work with the President to enacted changes in the Constitution to protect the Filibuster and forever remove the threat that a majority party will prevent the minority from delaying unpopular acts or appointments?

No nominee has a “right” to any appointment; nor does the President have the power to compel anyone to defer to his choice. The Senate has the power to block anything the President does through the appointment advise-consent clause.

* * *

IT remains to be seen whether Lieberman, if the GOP retakes control of the Senate, decides to change parties so that he can have a chairmanship. The irony would be after Lieberman commits to caucus with the DNC to get the DHS Chairmanship, Lieberman switches parties to retain control of a Chair he would lose by aligning with the DNC.

South Dakotans may wish to rally state voters for the DNC.

___ Will the SD voters make it clear to the Governor that he will not be elected in 2008 as a Senator if he places an RNC party member in the possibly-vacated DNC Senate Seat?

The governor may defy precedent if he faces the prospect of a backlash in 2008. For anyone to argue “this is not a possible consideration” would contradict themselves on why the 2008 election prospects are only of concern to the DNC as an excuse for inaction on impeachment. Either

1. The 2008 election outcome is a risk, and might dissuade the SD Governor from replacing the DNC vacancy with an RNC Party Member; or
2. The 2008 election is not a risk, and should be of no concern to the DNC on issues of impeachment.

* * *


Let’s consider the Robertson Court decision on the Military Commissions Act, in the context of impeachment and GOP Possible control of the Senate.

Hamdan recognized the applicability of Geneva, regardless prisoner detention status, or their location. Robertson incorrectly ignored the President’s movement of prisoners from Europe to GTMO as evidence of Executive action at odds with asserted legal arguments. If the Senate is controlled by the GOP, we should expect Executive actions to remain inconsistent with DOJ Staff counsel arguments; and for the court to defer to the legal argument, without challenging the unlawful or contradictory evidence. The issue for the house will be to examine how wide this divergence will be before they accept they can no longer assert “their agenda” and must entertain the impeachment option related to judicial officer. If the House is not willing to impeach, the GOP has every intention of advocating inaction on judicial misconduct, and supporting judicial nominees who talk about the law, but ignore the executive violations.

If the House refuses to challenge this divergence, foreign fighters are likely to conclude that the rule of law is meaningless, combat operations remain the only check on US power, and any assertion of the oath of office is meaningless. The GOP is most likely to point to the foreseeable increase in foreign fighter attacks as evidence that the DNC’s impeachment plan is backfiring, and that the GOP is better suited for the White House.

They way forward is to lay the foundation clearly in the minds of the voters and US public that the impeachment is a legal check on abusive power; and the Congress has no power to revoke Geneva protections that all US Citizens are entitled. Should the GOP plans be implemented, the US public should be reminded that, under the principle of reciprocity, even US citizens may be illegally detained by any nation and charged in secret with being an unlawful combatant, without any prospect of a trial. If US citizens want to enjoy these legal protections, the same protects need to be provided to all prisoners. The Choice cannot be seen as either enforcing Geneva or winning; rather, winning means enforcing Geneva, and working to lawfully cooperate with others who have a common foe: This may include working with Iran and Syria to quickly end combat operations, as opposed to letting this conflict drag on indefinitely. The GOP should be looked at as asking the public to make a false choice: Between choosing to oppose Iran, or supporting terrorism. As with WWII< compromises can be made, and should be considered, as opposed to asserting a principle which has no basis in fact, evidence, or prudence.

If the GOP controls the Senate, the US government is more likely to be seen as illegitimate. The wave of refugees from Iraq will increase, and US firms and corporations will have a more difficult time attracting talent that otherwise abandons America for more stable legal environments. If the GOP is perceived that it supports illegal activity, and retroactive changes to the law to protect the GOP from accountability, the most talented are less likely to support SecDef calls for citizen participation on nation building, as he was challenged during his confirmation hearings.

The courts cannot be rewarded for asserting that Congress intended to do something, when that intention is unconstitutional. When the public sees that Congress has put itself above the law, this will increase public perception that the US is less legitimate. The proper focus is to put the attention on the President with impeachment, not permit Congress to take the blame for inaction. Congress needs to take specific steps to demonstrate it is serious about the rule of law:

___ Holding judicial officers accountable for illegal opinions through impeachment

___ Enacting legislation that will preserve filibuster

___ Assign chairmanships on the basis of %-time, reducing the instability that comes with no-notice power shifts based on one Senator changing parties

___ Showing the voters that some in the House are willing to conduct investigations, and forward information to the Inspector Generals and US Attorney for action, and prosecution

___ Showing that impeachment proceedings will trump the Presidential pardon, and that DoJ Staff need to consider their risk of disbarment

___ Evidence suppression is not acceptable by any US government official in hiding an illegal rebellion or insurrection against the US Constitution

___ Congress retains the option to lawfully assert power through impeachment, and will only assert an intention when it is lawful, consistent with the rule of law, and Geneva Conventions

___ Congress is aware of the principle of reciprocity and the affect that US government refusal to enforce Geneva has on foreign fighter resolve to lawfully target US interests, leadership, and alleged unlawful combatant (civilian) personnel worldwide

___ Congress recognizes the important of timely ending the conflict with AlQueda with a victory, will apply the lessons of WWII, and work to form and expand an alliance with Syria, Iraq, Libya, Egypt, and Morocco to end any chance that AlQueda is able to expand

___ Congress recognizes the importance of timely resolving the combat operations in Afghanistan, and is committed to a military draft that will swiftly ensure NATO victory over the region, and enact legislation that will ensure a Marshall-like Plan for Europe is fully implemented to restore Afghanistan to the path of development and assistance for religious tolerance, education, orphans, housing development, and sustainable economic growth, thereby mitigating the incentive of Afghans to support the Taliban.

___ Congress recognizes that all prisoners under US care are entitled to all Geneva protections, and that the Military Commissions Bill is not a lawful denial of Habeas, especially without a finding of insurrection or rebellion.

___ Congress advises all US citizens that the goal of the conflict is to protect Americans, end combat operations, and timely destroy AlQueda, which includes developing normal relations with Syria and Iran as we join forces to defeat and destroy common threats.

___ Congress recognizes that some prisoners under US Care are innocent civilians, and is timely working with legal counsel to ensure those who are civilians are appropriately compensated, and allowed to renew their lives where they will be accepted.

___ Congress is committed to a full accounting of what abuses occurred 2001-2006, and publicly send appropriate representatives before world bodies to discuss an appropriate resolution, settlement, and end of animosity between the United States and world community; and do so in a manner that is mindful of the lessons of Versailles which inspired some in Germany to use the adverse settlement as a means to acquire power; and that these settlements are intended to remove from the NeoCon agenda any pretext that the US has agreed to unfair terms or the basis for the NeoCons that the resolution is the basis for the NeoCons to continue their abuse of power in subsequent elections.

___ Congress accepts that it cannot exercise powers not delegated; cannot lawfully retroactively change rules related to ongoing litigation; and reserves the right to impeach Judicial Officers who enforce Unconstitutional acts of congress, or deny anyone the full protections they are entitled under the Geneva Conventions.

___ Congress accepts that it did not lawfully deny any prisoner of war habeas; and the intention was to illegally do something Congress has no power to do; Congress did not intend to violate the Constitution or Geneva Conventions; and Congress expects the Courts to find unconstitutional any act of Congress that illegally denies Habeas where there was no express Congressional finding of rebellion or insurrection.

___ Congress accepts that litigation related to forcing Congress, the President, and Judicial Branch is expensive, time consuming, and aggrieved parties may file for attorney costs in an effort to encourage counsel to take cases that are complicated, time consuming, unpopular, and require confronting the open defiance by three powerful branches, joined in an illegal rebellion against the Geneva conventions, rule of law, and Constitution.

___ Congress remains committed to forwarding all evidence of war crimes related activity, including unlawful acts of congress and illegal judicial decisions, to the US Attorney, State Attorney General, State Attorney Disciplinary Boards, and war crimes prosecutors for resolutions.

___ Congress will work with the President and Supreme Court to develop a Military Commissions Bill that is Constitutional, fully consistent with Geneva and Hamdan, and mitigates the chances that foreign fighters will perceive the US approach to prisoners is unreasonable, or inspire them to engage in reciprocal violations of Geneva.

___ Congress will develop an approach with the President to timely challenge US government officials who refuse to enforce Geneva; and the Congress retains the right to impeach the President if he refuses to cooperate with the Congress to ensure the Geneva Conventions are fully respected, enforced, and adjudicated.

___ Congress is committed to developing a stable Committee Chairmanship system that does not fluctuate easily on the basis of small changes in power; and is working to enact legislation and Constitutional reforms that will protect the Filibuster from future threats by powers which hope to dissuade oversight, enforcement, or protection of the US Constitution.