Constant's pations

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

Friday, January 19, 2007

Oversight of Presidential Direct Appointments

The President appears to have hidden specific US Attorneys from Congressional confrontation because he wants to prevent Congress from asking questions about illegal activity which the appointees cannot legally classify.

[ Ref Public forced to challenge illegal activity; Congress useless.]

Privilege cannot be asserted for illegal usurpation of power; nor can counsel aware of illegal conduct assert that the information has been lawfully classified. Illegal activity under ORCON cannot be lawfully classified.

Without Senate oversight of the Presidential appointments of US Attorneys, there is not basis to have confidence the assigned personnel have fully complied with their Geneva obligations as promulgated in the Military Commissions Manual, or that DoJ OPR has been given adequate access to the legal issues surrounding these counsel.

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The Senate should challenge the US Attorneys who have been unconstitutionally directly appointed, and inquire into the range of legal issues confronting this President inter alia illegal warfare, Geneva violations, prisoner abuse, unlawful FISA violations, or other violations of the Constitution.

Before US Attorneys are assigned, Congress should know whether they have, by their conduct or silence, fully asserted their oath to the US Constitution; or whether they should be disbarred for not having fully asserted their Article 82 requirement in Geneva to fully enforce, as an Executive Staff counsel, their Geneva obligations.

Failing to directly challenge the US Attorneys leaves open the question whether the US Attorneys assigned have breached Geneva and not fully complied with the Military Commission Manual requirements prohibiting any retaliation against prisoner defense counsel; or other conduct which DoJ OPR should be fully aware.

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Gonzalez argued that he could not reveal the names of the US Attorneys who have been illegally appointed without the required Congressional review, as required in Article II Section 2.

Congress has no power to delegate to the President changes to the Constitution; or permit the President to do what the Constitution expressly requires the Senate and President to jointly do: Nominate and appoint US Attorneys. It is an open question how many others positions, other than the US Attorneys in DoJ, the President has filled without meeting the Constitutional requirement.

This note focuses on these issues:

1. Appointing a US Attorney is not, contrary to Gonzalez' assertions, a private matter; but a public act. On the record confirmations are required. As with the FEMA director's misstatements on his legal background, for purposes of impeachment, previous statements would admissible in future reviews of US government conduct. There is no basis for Gonzalez to deny the Senate of names and information the President would have to supply to meet the Constitutional ov4ersight requirements in the Constitution.

2. US Attorneys are a public position. There is no basis for Gonzalez to argue that this is a personal matter. Refusing to provide the names suggests the President and Gonzalez want to hide the names of DoJ and White House Staff counsel who know of illegal activity, and want to prevent their names from being added to subpoena lists.

3. The President appears to have appointed US Attorneys from the White House and DoJ Staff because he wants to prevent them from being asked questions about illegal activity in re: Rendition, FISA violations, Geneva violations, prisoner abuse, and illegal war. DoJ and White House staff, aware of this activity but who have not reported the misconduct to DoJ OPR should not be considered for US Attorney positions.

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Oversight Questions

These are some questions that I would hope are explored:

___ Which Executive attorneys are being appointed to US Attorney positions;

___ To what extent are these appointments of DoJ, White House, DoD, or other executive branch attorneys a reward for silence on illegal activity?

___ Does the President have any plans to assign directly, without Constitutionally required reviews, JAG officers to the Military Commissions; what will be done to ensure these JAG officers have valid law licenses, unlike one White House counsel who escaped this review?

___ What personnel conduct, attorney discipline rules, or other attorney compliance information should DoJ OPR have been able to access prior to these attorneys being assigned?

___ Does the direct appointment of US Attorneys, and the end run around the Senate and DoJ OPR discussion of these counsel, effectively do what the President did with the DoJ OPR on the NSA issue: Keep the required outside oversight out of the loop; insulate DoJ and White House staff counsel from review; and appoint to positions of important law enforcement personnel who have violated the law or not aggressively enforced the Constitution, Geneva, or other laws of war?

___ Knowing the list of personnel, positions, and departments associated with this transfer of Staff counsel to the US Attorney positions, which questions would the Senate have asked; and which questions have the appointees been able to avoid having directly asked on issues related to rendition, NSA, FISA, Geneva, DoJ OPR, attorney failures to report peer misconduct, or other things which would amount to violations of the Military Commissions Manual?

___ What would the DoJ OPR have said on the DoJ/White House staff assigned to the US Attorney positions?