Constant's pations

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

Wednesday, February 21, 2007

Budget Authority To Enforce Great Writ

Eliminating Funding For DoD Facilities Denying Great Writ

One solution is to cancel all funding for DoD facilities which attempt to enforce provisions denying the writ.

Ref: Shut down funding for illegal abuse still occurring. Threat of consequences fails when Congress passes illusory immunity clauses; these aren't enforceable.

What You Can Do: Please ask the Speaker to consider zeroing-out all funding for the MCA enforcement.

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There's been some talk of solutions to respond to the court of appeals ruling which affirmed the unconstitutional Military Commissions Act, and denied the writ.

Some solutions call for restoring the writ with new legislation. However, given the prospects of a Presidential veto, the House might be best if it, for now, accepted the courts decision, but cancelled all funding for any US government to enforce the law. This would legislatively send the message: We no longer support the illegal decision; and will not wait for the Supreme Court to agree or disagree.

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Unitary Legislature and Legislative Orders

The Speaker has the Constitutional authority with this budgetary withhold to oversee the President; and she may constitutionally compel him to revoke the MCA; or he shall receive no funding to support its enforcement.

It's one thing to attempt to pass legislation to reverse what the court refused to strike down. The Senate debate on Iraq shows us the GOP is not willing to end its illegal rebellion.

Rather than focus energy pretending Congress might undo what it had no power to undo, it would be appropriate to ask the Speaker to not provide any funds to any US activity which attempted to deny the writ.

A solution is for the US House to cancel all funding for Guantanamo. The Senate would have no power to block this bill; rather the opposite is true: The GOP, Senate, and President have no power to make the House spend money for any US facility which might deny the writ.

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I would hope that the Congress continue to debate the Senator Leahy bill asking that the writ be restored. Philosophically, I view this bill as moving in the right direction and I support it; however, I am troubled that the issue of whether the writ can or cannot be restored is debatable -- when it is not -- when Congress illegally denied the writ. One approach is to remove the issue from the table by agreeing -- because the original bill was not constitutional -- that there is no basis to debate what was never originally done. Rather, the approach is to debate the refusal to allocate funds for what is illegal.

Congress has the power to pass laws; and the power to not provide funding for bad laws the Courts fail to strike down. The House has the power to compel the President to not apply any funds nor use any Executive Order to enforce what is not legal. When the House alone outside the GOP Senate refuses to provide funding, the President may not legally add funds through Executive Order.

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Test the Senate on the Record

When you read the following about the Sentors, keep the Don't wait for 08 in mind -- Senators may be prosecuted if they fail to enforce the Geneva Conventions; illegally deny protections to prisoners; or they unlawfully assent to illegal immunity for violations of Geneva.

I would prefer an attempt at the debate, testing to see if the GOP Senators, as they did with Iraq, refuse to debate the issue:

___ Whether the writ should or should not be restored -- it was never legally denied;

___ Whether the funding for the Military Commissions Act should or should not be approved -- it should not.

___ Is the Senate willing to go on the record where it stands on the writ

___ Does the GOP Senate understand that the support for the GOP in the Senate is falling,and there are three weeks in January 2009 when, if there were enough GOP Senate losses, the President and Vice President could be lawfully impeached and removed from office, denying the President and President any prospect of a pardon?

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House May Block Funding

As backup, I would hope the House seriously entertain the notion of refusing to provide any funding for any US government detention facility that might, as Guantanamo has done, attempt to deny the writ or enforce the MCA.

Bluntly, the House should consider not funding any DoJ or DoD operation, facility, or any other thing that is associated with putting anything related to the MCA into effect.

The Senate has no power to compel the House to apply funds; and the GOP, and President have no power to compel the House to do what the House says should not be funded.

The Military Commissions Act illegally denied the prisoners of war their full Geneva protections. It is arguably illegal for the House to provide any funding to putting into effect that law.

To be consistent with Geneva it is appropriate for the House to eliminate all funding for any US government action, program, or entity that may attempt to put the MCA into effect.

It should be the position of the House that any funds applies to the MCA for purposes of denying any rights is illegal; and the US House shall through Legislative Order refuse to support through any appropriation any violations of Geneva.

Please let the Speaker know you support zeroing all funding lines in the budgets associated with implementing the Military Commissions Act; and direct that all funds not appropriated or expended under the DoD and DOJ shall be returned to the Treasury; and that there shall be a cease work order issued until the House decides to add funds.

It is the decision of the Speaker whether she chooses to support or not support funding for things which are arguably war crimes and violations of the oath of office. The President and GOP Senators have no power to make the Speaker do something she alone has the power to do or not do.

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1. The Military Commissions Act is unconstitutional.

2. The President and GOP Senate have no power to compel the Speaker or the House to provide funding for things that are illegal.

3. The Court impermissibly enforced an Act which Congress appears to have specifically written to affect ongoing litigation. This is an illegal usurpation of judicial power and contradicts precedent banning this practice. [ Legal Authority ]

4. Congress has no power to retroactively change whether the writ did or did not exist. Members of Congress who refuse to enforce Geneva, or prevent violations may be prosecuted. Ref A sitting President and Vice President may be prosecuted outside Congress. [ Discussion, caselaw ]

5. The Supreme Court in Rasul and Hamdan affirmed the Geneva requirements for Prisoners at Guantanamo. The Congress has no power to retroactively abrogate or undo what was the law of the land as applied to these case: The Geneva Conventions.

6. The Congress has no power to to retroactively say that the writ is no longer applicable. Something never legally denied should not be subject to conditional debates, but certain results: Refusal to provide funding for what is illegal violation of the Geneva Conventions. A Congressional success or failure to change the MC should not be the condition precedent to decide whether the writ has or has not been restored. It was never legally denied and should be struck down by the courts. Given the court has affirmed the MCA, the House may constitutionally refuse to fund any Exeucive Branch operation which attempts to enforce what is not lawful. The House may give any reason to not fully fund the MCA requirements.

7. The immunities the Congress conferred with the MCA to US government personnel retroactively are also illegal. Congress has no power to say the opposite: That, despite no right for prisoners to challenge their detention, the US government is retroactively immune to prosecution for all activity the prisoners might challenge. This inconsistency is noted, unreasonable, and subject of concern to foreign fighters. It sends the wrong message that the Congress is not serious about holding all people accountable for their criminal activity. The insult to injury enrages foreign fighters, especially when they view the Geneva Conventions as supporting their lawful retaliatory attacks on US government personnel and contractors.

8. Congress is arguing over the definition of torture -- which is meaningless -- given that Geneva prohibits abuse. This is different and important to understand the Government distraction from the Geneva requirements. [Ref: Diagram explaining in plain English. ]

9. I do not support debating whether the writ should or should not be restored in that such a discussion impermissibly permit the President to veto any legislation, and continue to enforce what is illegal. The President should not be given the opportunity to provide any input to whether the Congressional decision to restore the writ is or is not allowed.

10. However, by way of testing how the Congress reacts, I do support raising the issue: If the Congress will not pass legislation restoring the writ; and the GOP Senate or the President blocks the writs restoration, we are left with little alternative but for the House to zero-out all funds for the MCA enforcement.

11. This will be a test to see whether the House is willing to deny funds for things that would be immediately rejected; and how long the House is willing to let this issue wind its way through the courts.

12. It should not take this long to protect the Constitution. A mess this big should not take this long to unwind. A simple solution would be to deny the funds.

13. We leave it for another day to review if the President has attempted to illegally through Executive Order compel the enforcement of the Military Commissions Act; and whether Congress, despite its hoped-for refusal to appropriate funds for the MCA whether it was, as with the Iran-Contra affair willing to confront the President for his possible decision to spend money for things the House did not approve.