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Tuesday, February 27, 2007

DoJ Staff Counsel Fatally Discloses War Crimes Deliberations To Third Parties, Waiving Atty-Client Privilege

More Legal Problems For Alleged War Criminals On DoJ Staff

DoJ Staff counsel have fatally disclosed to third-parties outside the attorney-client protection the specific legal problems this President has in defending against war crimes.

Defendants at a war crimes tribunal have the burden of showing their reliance on those orders was reasonable. The DoJ Staff knows there are reasonable doubts about the legality of orders.

Evidence that the DoJ Staff counsel knows of these reasonable doubts fatally undermines all future defenses by DoJ Staff counsel that they were reasonably acting. Discussing a legal issue related to weak legal defense, then disclosing that information, waives any reasonable expectation that the information will remain private; or that the original defense against war crimes is justified or reasonable.

The DOJ Staff counsel has fatally undermined the illusion that they are reasonably acting. The deliberation information, which is no longer protected, shows there is concern and uncertainty where defendants are required to show the opposite: Reasonable reliance

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The DOJ Staff counsel is responsible for defending US government officials for war crimes. There are known war crimes indictments against DoJ and Executive Branch Staff Counsel. The workload is expanding to include current and former DoJ Staff -- alleged second-level war crimes defendants.

To support these deliberations and legal defenses, DoJ Staff have increased their coordination with outside contract counsel. They made a error. While preparing with outside counsel, DoJ Staff counsel fatally disclosed – in a on-secure forum and area – communications that they should have known were to third parties, outside the attorney-client privilege.

DoJ Staff cannot protect something they have voluntarily disclosed: Their legal deliberations, concern, and consternation that they are targets of the war crimes prosecutors for their failure to fully assert their oath. These disclosures form the basis for subsequent inquiry, discovery, and expansive war crimes discovery against the DoJ Staff.

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Problem 1: DoJ Staff Concerns With Legal Defenses

The DoJ Staff is concerned the war crimes defenses for the President are falling apart. The new worry is the DoJ Staff has been implicated in their failure to fully assert their Geneva obligations as required under Article 82.

The problem DoJ Staff counsel have is that they have openly disclosed to third parties the specific legal arguments they are unable to credibly defend. Once this information was disclosed to third parties, they cannot claim attorney-client privilege.

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Problem 2: Failure to demonstrate, despite efforts to remedy, full compliance with Geneva Requirements

DoJ Staff counsel have a bad habit of pretending one solution resolve a matter. Despite Supreme Court rebuke, the US government has not fully responded to all Geneva requirements.

The DoJ staff counsel is worried. Their legal defenses against war crimes are falling apart before their eyes. Despite attempting to create a sham response to the Hamdan case, the President cannot account all the prisoners.

Surely, if there was "no problem," the US government would be willing to fully enforce Geneva, and let the world see that the prisoners are treated humanely. Not this government.

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Problem 3: Ongoing Deliberations on Issues Requiring, as a Defense, No Ambiguity

Attorneys have a fiduciary duty to competently exercise their legal training. One of the jobs of counsel is to be mindful of all legal arguments presented, and consider all legal arguments which may be adversarial to their client. The job of counsel is to vigorously defend their client.

It goes both ways. We the People can review the legal arguments which DoJ Staff counsel are worried about.

Problem 4: Samples of Disclosed DoJ Staff Deliberations, No Longer Protected by Attorney-Client Privilege

Here are two samples of what is causing some concern inside the DoJ Staff counsel’s office. These legal arguments are the focus of some discussions with outside counsel.

The Problem: Not all prisoners have been accounted for. All this "concern" inside DoJ Staff counsels' office with what they did or didn't do afterHamdan; and the prisoners have not been accounted for.

Presidential War Crimes-Challenges Considered

1. The fatal problem with Hamdan.

2. Ref: These legal challenges to the President in re Keith.

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The revelations on the prisoner transfer problem compounds the US compliance withHamdan. the US, despite Hamdan and the Eastern European detention centers, did not ensure all Geneva Convention protections were uniformly applied.

We have to reconsider the reasons why the President moved the prisoners, but (1) Not all prisoners have been removed; and (2) The new treatment conditions at Guantanamo did not address the full Hamdan issues supposedly prompting their transfer.

Independent review of the Libby evidence suggests the Vice President has a private intelligence group which the Administration hoped to protect in Eastern Europe. The Vice President has been indirectly linked with AlQueda funding; and prisoner abuse at the hands of his private intelligence group.

It remains unclear how much money Cheney and others expected to gain in stock gains as the illegal warfare was expanded. The US government awarded no-bid contracts to Cheney's allies to implement illegal war crimes.

The list of war crimes Cheney and his allies are linked is long: Prisoner abuse; transfer of unauthorized data for purposes of engaging illegal warfare; and placement of fabricated data inside prisoner interrogation files to "justify" expanding the US government illegal war crimes.

Put that aside. The new problem is the revelation despite Hamdan and the continued Geneva violations at Guantanamo, not all the prisoners have been accounted for as required by Geneva. Even when the United States attempts to partially comply with Geneva but hopes to hide the evidence of other illegal activity, the US open response remains subject to legal reviews.

The failure to account, regardless whether the prisoners are or not connected with any legal or illegal activity, forms the basis for a new round of inquiry.

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Timing Issues

War Crimes defendants must show, as a defense, that the orders they were following appeared to be lawful; there was no basis to question the lawfulness of the orders. Internal DoJ Staff deliberations belie this defense; and the US government officials reasonably relied on assurances that the orders were lawful.

The DOJ Staff counsel conduct, disclosures of their deliberations outside the attorney-client privilege, shows the opposite: There was uncertainty where there should have been no doubt or question; and there was not appropriate action as required.

Flawed Defense1: Unconvincing confusion DoJ is feigning confusion as to the legality of the President's orders over matters internal deliberations specifically conclude: The defenses were problematic, and the basis for the orders was not, contrary to assertions, legal authority.

Flawed Defense2: Unconvincing reliance The error is for the DOJ Staff, after disclosure of that fatal deliberation, to pretend that the evidence was not available to war crimes prosecutors, when their own discussions who they were not certain the defense was solid; and that there were multiple legal arguments which destroyed a reasonable reliance on these defenses.

Flawed Defense3: Unconvincing timelines DoJ Staff counsel cannot argue they didn't have time to report, but they do have the time to (a) deliberate a known legal problem for DOJ OPR; and (b) discuss the legal problems confronting the DOJ Staff; and (c) disclose those deliberations to third parties; but then claim (d) the disclose is protected; or that the DoJ Staff did not understand the legal issue; or that they were confused; or that they were not aware of the illegalities.

Flawed Defense4: Unconvincing legal ambiguity Geneva imposes a duty on attorneys. Legal counsel who have the time to review legal issues cannot argue they were not making informed decisions. No one on the DoJ Staff can argue that they were following lawful orders, when their internal deliberations show there was no adequate defense for these orders; and these deliberations were continuing and spreading outside the DoJ Staff into the public domain. This is hardly something any attorney can credibly claim is protected. It's more likely the DOJ Staff knowing of the illegal activity were aware that the legal defenses against were not complete; and that they were not in a reasonable position to show that the orders they were issuing, reviewing, or defending were lawful.

Flawed Defense5: Unconvincing compliance: Despite openly challenging US government officials for questioning illegal orders, DoJ Staff counsel are, or should be in tacit agreement:

1. There is no solid defense for this President's alleged war crimes;

2. A reasonable person not trained in the law knows the legal justification is not lawful, but there are reasonable doubts about the validity of the defenses;

3. There is no legal justification for the DoJ staff to openly attack peers for questioning these legal arguments, while they privately disclose to third parties their concerns the President's legal arguments and authority for his orders is not lawful;

4. The DOJ Staff counsel have openly disclosed to third parties outside the attorney-client privilege the questions and concerns forming the basis for a reasonable conclusion that the orders were not lawful and cannot be legally followed.

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The fatal disclosures relate not only to substantive legal arguments; but the timing of the discussions relative to DoJ Staff counsel reporting timeline requirements; and subsequent inconsistent legal defenses.

DoJ Staff counsel were originally part of the US government defense team, but have mutated into war crimes defendants. DoJ Staff counsel cannot credibly argue they are “independent defense counsel” when they, as staff counsel, know or should know, the legal arguments they are still debating, but have allowed to be openly discussed, show outside court, that that certainty required for these legal arguments is not there as it should be to form a legal defense.

The fact that the DoJ Staff are discussing these issues, and known problems with the President's war crimes defenses means on a specific date the DOJ Staff counsel knew the orders were not lawful; but they were openly pretending that there was no concern; and they revealed this information related to their disagreement and concerns of the legal problems to outside parties before bringing their concerns to proper authorities as required under Geneva.

The date that the attorneys did what they should have done was after the known legal problems were disclosed to non-DOJ OPR personnel not connected with the proper reporting requirements. The DOJ Staff cannot argue they were confused about an issue they openly discussed, were concerned about; but failed to report as required. The issue isn’t that they were confused or not confused; but that they knew, or should have known, the legal defenses were frivolous, that there were reasonable doubts about the legality of the orders; but despite these doubts showing the war crimes defenses were not valid, the attorneys had not timely reported their evidence of

(1) illegal activity;

(2) knowledge that the illegal activity was not justified;

(3) Knowledge that the legal defenses were not valid;

(4) The conclusion that the invalid legal defense clearly communicated the original orders were not lawful, and that they could not have been reasonably relied upon or accepted;

(5) Despite Attorneys had a duty not to implement and enforce illegally orders, they knew failed to withstand legal challenges, but were discussing issues which were not provided to the DOJ OPR; and

(6) Their failure to report the known illegal conduct despite having the time to disclose to third parties shows they were reckless in not fully asserting their Article 82 obligations; and they failed to end what they knew or should have known were illegal orders lacking any credible legal defense.

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DoJ Staff Defenses Fail On All Counts

It is a problem when DoJ Staff counsel, with a duty to remove themselves from war crimes planning, openly discussed problems with legal arguments that they publicly said were sold; but they did not take reasonable measure to ensure the content, timing, and nature of these doubts was adequately protected to maintain attorney-client confidentiality.

These issues of war crimes discuss are part of the public debate, cannot be restricted, and there is no legal basis for any DoJ Staff counsel to pretend that these discussions, concerns, and uncertainty does not raise reasonable questions about the original defenses; but whether Staff counsel, upon learning of these material weaknesses in the defenses, were or were not credibly doing their job when they openly asserted the legal arguments were solid, which they knew they were not; while they privately expected to rely on a claim of privilege which they knew, or should have known could no longer be claimed.

Not only was it known the DoJ Staff counsel had a problem; but it was known that it was discussed that the legal arguments, lacking a legal foundation, meant the original orders were not lawful.

There is no credible case to be made that the DoJ Staff were reasonable in concluding the President’s orders were "lawful" when their internal deliberations belie this assertion; and they did have the time to review and disclose these legal issues, contradicting their claim that they were confused, not aware, did not have time, or had no basis to question these orders.

DoJ Staff course of conduct is not defendable, but shows:

1. They did not have a reasonable basis to conclude these orders were lawful;

2. They privately had doubts about the legality of the orders, but refused to remove themselves from the illegal activity;

3. They attempted to hide evidence that they had fatally disclosed;

4. They did not timely act as required;

5. Despite their failure to act, they continued to assert they were "well positioned" in their "belief" that the orders were lawful:

6. It was known or should have been known that this legal argument, when it was disclosed as it has been, would fatally undermine any claim that the DOJ Staff was confused, did not have time, or reasonably believed the orders were lawful.

7. The DOJ Staff counsel supervisors have allegedly engaged in recklessness:

[a] Pretending that there was confusion and doubt about a legal matter they well knew was certain: The orders were not lawful; and there was no legal defense for the orders;

[b] Failing to ensure discussions related to these known, flawed, and disclosed legal matters were reported to the DOJ OPR as required under Geneva and the Attorney Standards of Conduct in DOJ;

[c] Pretending that internal deliberations were protected, when they knew, or should have known those deliberations were not connected with lawful activity; the deliberations had been disclosed to third parties;

[d] The supervisors had a requirement to act, ensure a timely response, but chose the opposite: To pretend that the confusion and doubt came later when they knew that the doubt preceded the disclosure of this attorney inaction.

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___ How do we explain the "rush" to transfer prisoners to supposedly "comply" with Hamdan; but there were continuing violations continue at the new location; and there are new prisoners which have not been accounted for as required?

___ When did it occur to the DoJ Staff counsel that they needed to fully implement Geneva, regardless the illegality of the Military Commissions Act?

___ Does DoJ Staff counsel not have a plausible explanation why, despite the known concerns with these legal issues, there is no record of having communicated these concerns with DOJ OPR?

___ Why is the DoJ Staff counsel privately discussing something with third parries outside the DoJ Staff, and waiving attorney-client privilege; but then arguing that it cannot disclose this information to proper authorities inside DoJ OPR or Congress?

___ How does the DOJ Staff explain its inaction when it is known, outside the Attorney-Client privilege, that there were known concerns with these legal challenges on a specific date; but there is no record after the fatal disclosure that the DOJ Staff timely reported their concerns to DoJ OPR?

___ How does the DOJ OPR explain the glaring contrast and problem: [1] The DOJ Staff is known to have had a discussion on legal challenges on a specific data; [2] The DOJ Staff had a duty to report their concerns to the DOJ OPR; [3] The known legal discussions attached to allegations that the DOJ Staff counsel, not just the primary defendants, were complicity in failing to prevent war crimes; but [4] Claims before the court that the deliberations are protected, classified, and not reviewable?

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___ How does the DOJ Staff contrast (1) the Article 82 Geneva requirements to end illegal warfare; with (2) The known conversations, deliberations, and other legal concerns which have been disclosed to parties outside the attorney-client privilege; with (3) The apparent frivolous claim that these deliberations are protected; with (4) The known problem in claiming attorney-client privilege for matters that are [a] disclosed to third parties and [b] not related to lawful activity; with (5) The known date these deliberations were disclosed, waiving the attorney-client privilege; with (6) The failure of any DoJ Staff counsel to credibly present evidence that they have timely provided the required report to the DOJ OPR before the information was disclosed to third parties?

___ Even if the DoJ Staff were to report the information to DOJ OPR now, how can the DoJ Staff credibly argue they "timely" reported any information, when, in truth, despite disclosure of that concern and internal deliberation, there was no timely report?

___ How can the DOJ Staff counsel involved with these deliberations of known, disclosed, and not protected DoJ Staff memoranda is protected despite their disclosure; yet the DoJ OPR has no record of a report?

___ Who does the DOJ Staff really think it is fooling when even the most foolish of bloggers can figure out: [a] The DoJ OPR has not been informed, as required, of attorney concerns with peer illegal conduct; [b] the DoJ Staff counsel has deliberated an issue raising questions of doubt about legal authority and defenses for war crimes; but then reverses itself to suggest it had not time, did not understand, or as not aware of the legal issue related to their alleged (b1) failure to timely report; (b2) Failure to provide DoJ OPR with a report; but [c] Has time to internally discuss (c1) a legal argument they would have us believe they had no idea was an issue; and (c2) The knowledge that the legal argument was occurring despite open denials that the DoJ Staff counsel was aware of the legal concern?

___ Does the Congress plan to review this evidence? Yes, the DNC Controls the House, and the GOP and Staff counsel are powerless to make the House do or not do anything.

___ When the DOJ Staff counsel refuse to respond to these war crimes inquiries, how likely is it the US Judiciary Committees might conclude that the DoJ Staff counsel has violated Article 82 of the Geneva Conventions in remaining silent, and not reporting as required, to the DOJ OPR evidence of peer complicity and failure to prevent grave breaches of Geneva?

___ Will the Judiciary Committee revisit the supposed "response" of the administration to Hamdan, and ask if this prisoner transfer was a "solution," [1] why did the US government not openly show that all prisoners were being treated lawfully; [2] why are some prisoners still being hidden despite Hamdan affirming Geneva; and [3] Why the "hurry" in responding to Hamdan, but subsequent revelations the US government was still not meeting the requirements of Geneva.

___ Which judicial offers may come under Congressional and war crimes prosecutor scrutiny for having refused to strike down laws which illegally permit violations of the Geneva conventions?


There is a legal basis to challenge the DoJ Staff counsel for their alleged complicity with, and failure to prevent war crimes: Article 82 of the Geneva conventions; and the problems in re Keith.

The convoluted arguments come at a bad time for the Vice President. Patrick Fitzgerald stated their is a dark cloud over the White House and Vice President.

The dark cloud is hovering over the DoJ Staff counsel.

What You Can Do

Tell your friends in the legal community working on the Congressional Committees, Judiciary Staff, and the war crimes liaison: There are specific legal arguments which the DOJ Staff is known to have reviewed, they are worried, and their internal deliberations have been disclosed to outside, third-parties waiving the attorney-client privilege.