Constant's pations

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

Thursday, December 07, 2006

Rumsfeld Defense Failure

Lawyers representing Rumsfeld have incorrectly asserted the detainees did not have clearly established rights, and that Rumsfeld has qualified immunity.

US government officials, through their 5 USC 3331 oath to the US Constitution, have a duty to enforce the Geneva Conventions which recognize clearly established prisoner rights while in detention.

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Prisoners have clearly established rights in the Geneva Conventions: The right to be free from abuse. Hamdan affirmed the Geneva conventions applied; by removing Prisoners from Eastern Europe to Guantanamo, the Secretary of Defense knew, or should have known, that the prisoners were being moved because Geneva applied.

Supremacy Clause: Geneva Convention As A Clearly Established Right

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;

. . . all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution
[ Article VI ]

___ Rumsfeld, in taking his 5 USC 3331 oath, swore to ensure the Geneva Conventions were fully enforced. [Check]

___ Rumsfeld knew, or should have known the laws of war. [Check]

___ Rumsfeld was in a position to impalement, seek assistance, and report to Congress issues related to the 5100.77 Laws of war Program. Ref. Rumsfeld chose not to fully implement the 5100.77 Laws of War Program that he was required to enforce. [Check]

Qualified Immunity Defense Fails

Qualified immunity-defense fails when the rights are clearly established; and the defendant is allegedly in a position to have ensured those rights are protected, and not violated. There is a case to be made that the defendants can prove Rumsfeld knew the laws of war; was allegedly reckless in not enforcing them; and was instrumental in denying the prisoners their clearly established Geneva Convention rights as prisoners.

Rumsfeld was in a position to know, or should have known of the original abuses; and the decision not to timely remedy the illegal conditions. For example, Vice President’ Cheney’s counsel Addington, after disclosures of the abuses, allegedly admitted that prisoner treatment would not be changed arguing treatment change would be an admission of earlier misconduct.

This series of charts shows the debate over "torture definitions" is meaningless.

Qualified Immunity Checklist

___ Clearly established right: Geneva Conventions [Check]

___ 5 USC 3331 obligation of defendant to ensure treaty obligation was fully enforced, as required under the US Constitution [Check]

___ Conduct which violated Clearly established right [Check]

___ Conduct which defendant should have known was wrong [Check]

___ Defendant in position to know clearly established rights [Check]

___ Duty of defendant to enforce 5100.77 laws of war program [Check]

___ Alleged failure of defendant to protect clearly established rights part of the Geneva Conventions and promulgated as a duty in the 5100.77 program [check]

___ Evidence of Rumsfeld hand written comments in memoranda indicating Rumsfeld clearly knew of, requested, and approved treatment of prisoners that hew knew, or should have known were contrary to the Geneva Conventions prohibiting abuse of any kind against prisoners [Check]

___ Evidence Rumsfeld an others, incorrectly believing that Geneva Conventions could be ignored if prisoners were moved to hidden detention centers [Check]

___ Evidence Rumsfeld and others, because they knew the treatment was illegal, hoped to have evidence suppressed that could implicate the President for war crimes, Geneva Violations, and impeachable offenses [Check]

___ Evidence defendant Rumsfeld and legal counsel did not adjust procedures and prisoner treatment because the change would be an admission of the original illegal treatment [ Check ]

___ Evidence counsel and other legal representatives aware of legal problem [Check]

___ Alleged use of secrecy to hide evidence of illegal activity [Check]

___ Alleged classification in violation of Executive Orders to hide evidence which cannot lawfully be classified [Check]

___ Alleged availability of videos showing that abuse had occurred [Check]

___ Alleged coordination between DoD, DoJ, and Members of Congress to illegally assert judicial powers by stating conduct was lawful [Check]

___ Alleged illegal conspiracy to retroactively change the law to prevent enforcement of Geneva Conventions [Check]

___ Precedent for lawfully executing civilian leaders for war crimes [Check]

___ Precedent for establishing clearly established rights for prisoners, and their entitlement to Geneva Protections [Check]

___ Documentation showing defendant allegedly knew of the Geneva Conventions; should have known of the restrictions against abuse; and could not reasonably rely on new definitions of torture as an excuse to permit illegal abuse [Check]


Asserting only one legal defense is not a good sign. Rumsfeld may be rich and the President may have given him a medal, but this doesn't prevent him from being lawfully executed for war crimes.

No credible reason why the case cannot proceed to trial, and allow civil litigation to proceed against Rumsfeld. He's rich, and the civilian plaintiffs stand to reap large rewards. Rumsfeld's only immunity to paying damages is if he declares bankruptcy. Then comes the German War Crimes Prosecutor with world wide jurisdiction to seize assets.

__ Evidence that even the most stupid of bloggers in the blogosphere can figure this out [check]

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[ Copy of the filing on the way ]

Ref Rummy's Lawyers have a problem: Their only defense has been discredited.

Ref Other defenses which are unlikely to prevail for other alleged defendants in the expanding litigation against the GOP and US government officials.