Constant's pations

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

Wednesday, February 21, 2007

DoJ Staff Counsel Implicity Admit President Committed War Crimes

Alleged War Crimes By District Court of Appeals: Court Ruling Inconsistent With Geneva Conventions, Supreme Court

Ref Legal analysis, summary of case.

Ref HRW letter asking for accounting of missing prisoners. Ref: Prisoner detals: Transfer from CIA after Hamdan

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Ref Amusingly, the DOJ Staff counsel have created another war crimes problem for the President: They've made inconsistent legal arguments to defend the President against war crimes.

Rule 1: Moving prisoners from Eastern Europe to a facility that does not, by DoJ Assertions and fatal admission, comply with all Geneva requirements, means the prisoner transfer from Eastern Europe still does not fully meet all United States' Geneva obligations as a detaining power. The President in 2007 remains in violation of the Geneva requirements affirmed by the Supreme Court in Hamdan.

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What You Can Do:

A. Contact CCR with your views on the material presented below;

B. Forward your evidence to the German War Crimes prosecutor for adjudication; and

C. Review the dissent at 25 of 59.

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Rule 2: It is illegal and a violation of Separation of Powers for Congress to have passed legislation affecting ongoing litigation. Ref

Important from Dissent [Emphasis added]:
DTA does not apply retroactively, and so it does not disturb this court’s jurisdiction over the instant appeals, which were already pending when the DTA became law. [ 34 of 59 ] . . . Supreme Court in Rasul held that the writ existed in 2004 [ N5 36 of 59 ]
Congress has no power to take away retroactively with DTA or MCA in 2006 something the Supreme Court said existed in 2004.

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Ref: Think back to the retired judges who spoke out about the MCA last year in Sept 2006. . . then contast that with the JAGs who backtracked. Ref

___ Which of the retired judges, seeing things as they are, would support a modernized system of governance?

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DOJ Staff Counsel Have Created Another War Crimes Problem For the President

If we take the Court's conclusion at its face -- that the US does not exercise sovereignty over the Island, and US law does not apply -- then the Department of Justice has implicitly argued in memorandum to the President that the "solution" to the Eastern European detention issue was to move the Prisoners while it still was violating Geneva at Guantanamo. DoJ has fatally and inconsistently admitted, despite the prisoner transfer, the United States has failed to ensure all Geneva protections are provided and all Geneva requirements are enforced.

Here is the war crimes prosecutor's trap for the President -- Either the government:

A. Has illegally denied prisoners the right to challenge the detention at Guantanamo, as protected under the Geneva Conventions, and is a war crime; or

B. The transfer of prisoners from Eastern Europe to Guantanamo in re Hamdan, still does not meet the Geneva requirement, and is a war crime.

The prisoner movement form Eastern Europe afterHamdan does not, by the DOJ legal assertion, solve the Geneva issues prompting their original transfer: Violation of the laws of war. Moving the prisoners from Eastern Europe after Hamdan to GTMO which, by DoJ assertion does not comply with Geneva, means the US is still not applying all Geneva requirements as it relates to the original prisoners held in Eastern Europe. Transferring the prisoners was a fatal admission that the prisoners were being abused; this court ruling affirms that the new location for the prisoners once held in Eastern Europe has no remedied the Geneva violations prompting their original transfer from Eastern Europe to Guantanamo.

War Crimes Prosecutor Discovery

White House and DoJ Staff counsel had a duty to full enforce the Geneva Conventions.

DoJ Staff counsel knew or should have known these Geneva requirements would not be met at the new facility, making the prisoner transfer from Eastern Europe a ruse, inexplicable, and not a solution to the DoJ Staff counsel concern in the wake of Hamdan that there had been violations of Genva.

___ White House/DoJ Memorandum showing Staff counsel were aware of Geneva requirements, as evidenced by their legal review and analysis of Hamdan

___ White House/DoJ Memorandum memorializing the known Geneva requirements which were not being met in Eastern Europe

___ White House/DOJ Memorandum asserting the solution to a known requirement in Geneva was to move the prisoners to Guantanamo, where the prisoners would supposedly meet the known reuirements.

___ White House/DoJ Memorandum illegally asserting Geneva does not apply in Guantanamo and that prisoners cannot be afforded all Geneva protections

___ White House/DoJ Memorandum and Staff counsel supervisors wrestling with the issues: What to do when the war crimes prosecutor asks about

A. The original prisoner transfers, basis for movement, and concern;

B. How staff counsel concluded there would be a solution to Eastern Europe by moving prisoners to Guantanamo;

C. The decision by Staff counsel not to fully enforce the Geneva Conventions at the new location, despite Hamdan; and

D. How Staff counsel explained or rationalized their decision to continue with Geneva violations which supposedly prompted the original transfer from Eastern Europe.

War Crimes Conclusions

1. Counsel were aware of Geneva requirements, prompting concerns about treatment in Eastern Europe.

2. DoJ Staff counsel and White House counsel were aware of Hamdan implication for meeting the Geneva requirements.

3. White House counsel and DOJ Staff counsel knew, or should have known, that the legal arguments denying all Geneva protections at Guantanamo were not lawful; and wholly inconsistent with the basis for moving prisoners from Eastern Europe.

4. Staff counsel working for thepResident knew, or should have known, the Geneva violations in Hamdan would not be solved by moving the prisoners from Eastern Europe to Guantanamo.

5. Staff counsel, despite Article 82 requirements in Geneva to fully assert their oath and enforce Geneva, failed to prevent abuse in Eastern Europe; and permitted transfer of prisoners to Guantanamo from Eastern Europe while knowing that the Geneva violations wold continue.

6. Staff counsel working for the President, Department of Defense, DoJ, and outside counsel knew, or should have known, the treatment of prisoners at Guantanamo would not meet the Geneva requirements affirmed in Hamdan.

7. Staff counsel knew or should have known that the continued violations were grave breaches of Geneva; but they have not adequately provided their evidence to the DOJ OPR,war crimes prosecutors, US Attorney, or Members of congress to review evidence of ongoing war crimes in Guantanamo against prisoners of war.

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If Cuba, as the court suggests, has sovereignty over and controls Guantanamo -- which is does not, the United States laws control US personnel assigned at GTMO -- the Court cannot explain why moving prisoners from Eastern Europe to Guantanamo would "solve" issues raised by Hamdan. If true, then the President's prisoner transfer -- apparently only to "solve" the problems raised by Hamdan -- has still not been solved; and the Government remains in violation of Geneva and the Supreme Court in re Hamdan: Failing to enforce all Geneva requirements.

The government has yet to explain how, in the wake of Hamdan, the US response of moving prisoners to Cuba would have met the Hamdan requirement; but it argues the opposite in that the prisoners are still outside the jurisdiction of the United States. The burden is on the government to explain why the transfer of prisoners from Eastern Europe to Guantanamo has met the requirements of Hamdan or the Geneva Conventions. They have not.

Regardless the conclusion, foreign fighters may view the District Courts ruling as being a war crime; and if left to stand, may further embolden Foreign fighters to commit like abuses against similarly situated Americans. The laws of war, when there has been a violation of Geneva, permit the opposing side to retaliate and engage in reciprocal violations. Where the United States hage illegally, imperssibly permitted Geneva violations against prisoners of war, foreign fighters are permitted to impose like violations against non-charged DOJ Staff counsel, judges, and the US government officials who have, in the minds of foreign fighters, allowed grave breaches of Geneva to stand.

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Discussion Ref

The District Court of Appeals ruled prisoners of war do not have a right to challenge their detention. In the words of Supreme Court Justice Roberts, "The court got it wrong." The error is for the United States government to compel free people to endure these outrages for this many years. Responsible government would timely resolve this issue, not let the war crimes go into their sixth year.

The United States inferior courts have not adequately reviewed Supreme Court precedent on Geneva, and ignored the Geneva requirements. The District Court of Appeals, in failing to recognize Habeas, has not adequately Incorporated the Supreme Courts Hamdan conclusions. Hamdan and Hamdi struck down the government efforts to deny prisoners the right to challenge their detention.

One remedy, outside the court, is for the House to zero-out all funds for the Guantanamo Bay facility, and force prisoners to be held where the United States does exercise unchallenged sovereignty: The Continental United States. 3020 funding can be earmarked to DoD to construct a new facility stateside; or the prisoners can be shipped to an inactive detention facility in the United States.

Frivolous Legal Argument To Defend President Against War Crimes

The government's position signals they are concerned with war crimes charges against US government personnel. The government's inconsistent legal arguments sends a message the government is afraid that the detentions, when challenged, will show the prisoners have not engaged in illegal conduct; have been subject to abuse; and the evidence of this illegal abuse would be readmitted to any court for purpose of adjudicating war crimes against the President, DoJ Staff, and other legal counsel complicit with alleged war crimes.

Judicial Officer War Crimes

Judges can, when they enforce illegal statutes, be tried for war crimes. At the Justice Trial, the Nuremberg Prosecutors showed that Nazi judges failed to strike down, but enforced illegal law. The US Military Commissions Act has illegally created procedures which do not Comply with Geneva. The United States Judicial System has impermissibly permitted Judges to endorse unconstitutional statutes which violate the Geneva Conventions.

These are serious issues of Geneva violations. The US District Court of Appeals is allegedly complicit in violations of the laws of war. All Judges may be legally questioned, detained, and lawfully adjudicated for purposes of war crimes. It remains to be understood whether the Judges involved with these alleged war crimes are lawfully executed by a War Crimes Tribunal.

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Military Commissions Act Incompatible With Geneva

Per Hamdan, it is incorrect for the District Court to refer to the prisoners as detainees. They are, for purposes of the Geneva conventions, prisoners of war. Their status is not regulated by the United States Constitution but by the Treaty which all judicial offices swore an oath to uphold: The Geneva Conventions.

Geneva requires that all prisoners of war be treated to the same conditions, standards, and procedures afforded to similarly situated personnel. United States military personnel under the UCMJ are afforded the right to challenge their detention. It is impermissible for the United States, a signatory of Geneva, to afford the right of habeas to some, but deny it to others when the United States Congress has not made a finding that there has been an insurrection or invasion. The court order in no way lawfully sanctions, approves, or allows something the Congress never lawfully did: Violate the Geneva Conventions.

Prisoner of War Detentions Attach Geneva Requirements Worldwide

The government admits these prisoners of war -- regardless their guilt or innocence -- were not captured in the Untied States, but overseas. If as we are led to believe the United States does not exericse jurisdiction over the prisoners of war in Cuba, how does the United States Government explain jurisdiction over prisoners when they were original captured in Afghanistan or Pakistan? This defies reason. Once the United States physically controls someone, that prisoner of war is subject to US government control; and all Geneva protections must be provided. Congress has no power to amend Geneva, nor selectively abrogate portions of Geneva.

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1. Worldwide: Geneva protections apply to prisoners of war; Geneva requirements apply to the detaining power, court officials and US government personnel.

The issue is less of the prisoners than how United States personnel in those facilities will or will not treat the prisoners. Once the United States spends money to construct a military facility and houses US troops in those facilities, the United States laws apply to the conduct of the troops and the procedures. Geneva is not only a protection on the prisoners as a shield; but it is a leash on the conduct of US military personnel who are conducting the trials.

The court may not deny Geneva exists as a legal protection; but then assert that the United Stats legal system, UCMJ, and other standards of conduct regulate how the court officers shall conduct their business. If this is the case -- which it is not -- anytime the United States Military personnel cross a border they would not be subject to US law; and personnel would not be bound to secrecy requirements. This is absurd. The law exists to regulate conduct of the detaining power. Court officials, legal counsel, and US government officials are as bound to the Geneva convention requirements as the prisoners are entitled to the Geneva convention protections.

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2. The Constitution provides that US jurisdiction and laws shall apply where there are US facilities.

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;

It is absurd to suggest that the US does not exericse sovereignty over the prisoners: They are under control of the United States, not Cuba. The facilities holding the prisoners are not Cuban, but American; and the personnel holding the prisoners are not Cuban military, but American. The Government has well exceeded the legal standard for the US to claim it controls the prisoners.

If the US government's position -- that the US does not exercise sovereignty over Cuba -- the US cannot claim that the Military Commission Act Applies.

The court is incorrect, and inexplicably would asd that the prisoners can be detained by the United States; but argues the opposite that the prisoners of war are not able to challenge their dentition because the prisoner are not controlled by the United States. Such a conclusion on its face defies reason, and is impermissibly absurd and an affront to common sense. The court has impermissibly left the impression that absurdity, not reason, guides the court.

This materially undermines confidence in the United States judicial system, rule of law; and impermissibly sends a message to foreign fighters that the system they wage war against on the battlefield is unjust. Americans should not be confused why foreign fighters wage war against America: The legal system appears to be, and is in practice, unjust.

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3. Habeas has not been lawfully denied.

The Congress has not, contrary to the Constitutional requirement, made a finding that there has been an invasion or rebellion warranting the denial of Habeas. At best, this was retroactively done.

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4. The court could have, but failed to, strike down illegal law.

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5. Some, if not all, of the Prisoners are not involved with the charged crimes.

It is circular to argue that prisoners who have been denied the right to a trial, are guilty; or that those who are unable to challenge their detention have been lawfully treated. Once prisoners -- regardless their status, guilt, or innocence -- are denied the right to challenge their detention, the US has failed to meet the minimal standards under the Geneva Conventions: Ensure all prisoners are afforded the same legal protections afforded to like personnel.

The government has admitted, and not denied, that there might be problems with the evidence, and that some of the prisoners were not engaged in any criminal activity. Foreign fighters know this. Refusing to let any of the prisoners of war challenge their detention, especially the many who might be detained despite their non-connection with combat, sends a signal that the United States need only detain someone worldwide and they will never be able to challenge that illegal detention, or broad application of US law outside US jurisdiction. Under this scenario, the US government could illegally wage aggressive war, expand its military control, assert that US forces may detain anyone, yet deny any and all prisoners of war the chance to challenge the US conduct. Under this theory of combat, as long as the United States can expand illegal warfare not any country, the prisoners captured will have no prospect of being freed.

Combatant commanders in the United States well know that when foreign fighters believe they are facing a foe who will, in effect, make them slaves, they would rather fight and risk the prospect of death, than be denied their liberty. The US actions abroad on the battlefield and the refusal of the courts to permit illegal detentions hardly sends a signal the United States is interested in freedom, but empire though illegal, aggressive warfare.

Americans should not be confused by Osama Bin Ladin has growing support; or why the Taliban, despite B2 bombing, is on the rebound: They view their struggle as just in opposing American illegal American war of aggression. It is only more fuel to the fire when there are reconstruction failures in Afghanistan and Iraq; or that US troops have committed war crimes against Afghans, Iraqis, Germans, and Pakistanis.

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The remainder of this content may or may not include technical details and discussion of the other problems with this ruling.