Constant's pations

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

Wednesday, February 21, 2007

Navy Cdr. J.D. Gordon Making Inappropriate Legal Assertions

It is not appropriate for the Department of Defense to gleefully celebrate additional Geneva Convention violations which Hamdan said must end.

Ref: GOP wants to avoid "rusing" to judgement on RNC Staff allegedly sending funds to terrorists; but GOrdon wants to accuse non-charged prisoners of illegal activity without a trial.

It is illegal and a violation of Separation of Powers for Congress to have passed legislation affecting ongoing litigation.
[By] expressly directing legislation at pending litigation, Congress has arguably attempted to determine the outcome of this litigation [274 F. Supp. 2d 20, 195 F. Supp. 2d 140] Ref
When Congress illegally attempts to affect the outcome litigation, as is the case here with the MCA-DTA, it appears the Congress is not concerned with justice, but in hiding evidence that Congress should have reviewed long ago related to war crimes. Senator McCain's recent comments -- that the maladministration of DoD has been long known, but nothing was done in Congress -- support this adverse inference.

Then the question becomes in re 5 USC 3331, how long have members of Congress known about this illegal activity and Geneva violations, but they have not asserted all legal options to compel review of these alleged war crimes per Title 28 and Title 50, as referenced here.

Congress has a demonstrated interest in not allowing the court to review these legal matters: Liability could be attached to Members of Congress for their failure to prevent this illegal activity. Nuremberg and the Tokyo war Crimes tribunals did conclude civilian policy makers who had the power to prevent war crimes, as Members of Congress are, were complicit with the war crimes. Civilian government leaders have been legally executed for their failure to prevent war crimes.

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Navy Cmdr. Gordon,

I am concerned about your 20 Feb 2007 comments regarding the denial of habeas. You are governed by the 5100.77 Laws of War program and UCMJ. These standards of conduct require uniformed military personnel to report to their commanders evidence of illegal war crimes. Failure to report evidence of war crimes, or involvement in illegal activity, can be the basis for serious charges, not limited to Article 134 conduct unbecoming an officer.

Please refrain from using the word "terrorist" when discussing the status of prisoners of war. Until they are given the chance to challenge their status in court, the prisoners of war at Guantanamo should not be accused of criminal activity in the open media.

It is a stretch, despite denying the prisoners of war the right to challenge their detention, for you or anyone in the Administration to accuse anyone of a crime. You have no evidence that the people you have accused of a crime; rather, the opposite is more likely: There is no evidence, and the President and Department of Justice do not want the evidence that there is no evidence admitted to any court as this would be a basis to conclude you and others may be complicit with illegal war crimes.

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It is also inappropriate to use the word "unlawful enemy combatants" to describe people who have had no chance to present evidence that they are neither an enemy, a combatant, nor is their status unlawful. The burden is on the government to prove, not for the Department of Defense to assume.

Again, you are using words which, without court review, do not inspire confidence in the Department of Defense or your office. Please refrain from using the media to wage a legal defense for the President's war crimes; and please do not make legal conclusions of law when the prisoners of war had not had the chance to challenge their status, nor present evidence. It is illegal to classify evidence of unlawful treatement of prisoners.

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It is inappropriate for your and your office to issue statements that you or anyone hope to see "justice" when the opposite is happening: The prisoners are not being given a chance to rebut the allegations; and their are not being given a chance to fairly enjoy rights afforded to all prisoners of war under the Geneva Conventions.

The military commissions act is not just. It is illegal. It unlawfully and retroactively denies prisoners the right to challenge their detention. The supreme court in Rasul in 2004 stated the writ existed; Congress has no power retroactively to deny the writ. Whether the Congress may prospectively deny the writ is a secondary and irrelevant issue as it relates to this case.

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It is not appropriate for the Department of Defense to celebrate illegal court decisions which violate the Geneva Conventions; or publicly accuse prisoners of crimes when the prisoners have not been given the chance to challenge their detention.

US military personnel in a similar situation should be able to challenge their detentions. However, the issue is not only what the US government may or may not do to others. The issue is broader. The laws of war permit foreign fighters to commit like abuses against another nation when there are breaches of the Geneva Conventions.

The DoD celebration is troubling. Foreign fighters may lawfully impose like abuse on any and all Americans. On basis of charge alone, they may legally accuse anyone, even a civilian -- regardless their activity -- of being an unlawful enemy combatant; and lawfully, in retaliation of the US DoD violations in Guantanamo, deny accused American civilians any chance to challenge their detention status. This is impermissible and is an imminent threat to our safety and security.

It is not acceptable for American civilians to be subject to lawful retaliation because their government refused to fully comply with the laws of war. DoD needs to be very clear about the number of American civilians it is willing to sacrifice to foreign fighters.

We the People are not pawns. We the Peole are not required to come to the defense of a Government that supports war crimes, especially when their reckless conduct puts our liberties at risk. It remains to be understood to what extent the reckless statements by Navy Cdr. Gordon may inspire foreign fighters to take up arms and lawfully impose like abuses on American civilians.

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The denial of Habeas at Guantanamo raises questions about the treatment of prisoners in Eastern Europe. We were led to believe transferring prisoners from Eastern Europe to Guantanamo would address the Geneva issues in Hamdan. Your statements suggest the Hamdan concerns prompting the prisoner transfer -- breaches of Geneva -- still exist in Guantanamo, as evidenced by the illegal denial of rights which Rasul recognizes.

One problem I would like your office to explain is why, despite the so-called "problem" of housing prisoners in Eastern Europe, is the status of the prisoners "solved" by moving them to Guantanamo where the Department of Defense is not affording them full Geneva protections which Hamdan affirmed.

The idea of moving the prisoners from Eastern Europe was to bring their treatment and detention into compliance with Geneva, as Hamdan required. However, if you and the Department of Defense are celebrating the fact that the prisoners, despite not having full Geneva protections, are being treated better, that is a problem.

It is reasonable to expect, in light of the prisoner transfer from Eastern Europe, for there to have been an improvement. Your public statements suggest the opposite: That the Guantanamo facility, despite Hamdan and the basis for moving them From Eastern Europe, has reverted back to violating Geneva.

This is not acceptable.

If, as we are led to believe, the prisoners are not entitled to Geneva Convention protections, why did the US government bother moving the prisoners from Eastern Europe after Hamdan? The movement was supposed to address the known violations in Eastern Europe. If, as we are asked to believe, prisoners cannot challenge their detention, the US government cannot explain why it rushed to move prisoners between two jurisdiction where the prisoners were supposedly not entitled to any legal protection.

It does not make sense for the DoD and CIA to have move prisoners to a new location unless there was a reasonable basis to conclude:

1. The abuse in Eastern Europe was illegal;

2. Hamdan and the Supreme Court precedent of Rasul were relevant;

3. The US knew that Geneva Violations had been committed;

4. The decision to move the prisoners from Eastern Europe to Cuba was though to have been a solution;

5. There is no consistency between having moved the prisoners from Eastern Europe to a second location that is supposedly beyond the court review.

6. The US government appears to believe that the illegal activity is not protected; and that the laws of war were violated;

7. There is no basis to conclude that Justice is being done when the laws of war which were ignored in Eastern Europe are now getting ignored in Guantanamo and the District of Columbia.

8. All details related to these issues are incorporated by reference here

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I am concerned that there is a pattern of conduct which needs Congressional oversight as it relates to US government press personnel issuing statements of law. It is troubling that the legal accusations are not substantiated.

In your analysis and response, please discuss the following issues, which related to the following material incorporated by reference here:

___ Who in the White House counsel's office is issuing guidance direcing US government public affairs personnel to make conclusions of law about personnel;

___ What review, if any, does the DC bar plan to make of the recurring pattern of non-licensed attorneys making legal conclusions about the status of US government employee actions, or prisoners;

___ Is there a reason why public affairs personnel, apparently not trained on the law, are making conclusions about the status of defendants;

___ Why are US government-connected personnel apparently using the open media to discuss the legal status of others, but they would have us believe that there was "no time" to review these matters long ago when the war crimes could have been contained;

___ Is it the position of the White House that public affairs personnel working for the RNC and Executive Branch are tools to wage a media campaign to defend the Preident in the media, rather than let Congress and teh Senate adjudicate war crimes and impeachable offenses;

___ If the President is doing nothing wrong, why not let the DNC embarrass itself and let the world see in the well of the Senate: There is no evidence to prosecute the President for war crimes?

It does not appear that the White House is secure in its legal defenses, but would rather prevent defendants from challenging their detentions. If there is evidence, let's see it; however, if there is no evidence, the question falls back to the President and Department of Defense: What was the asis for the original detentions; why did it take this long; and what will be done to ensure,despite the 5100.77 Program, these breaches of Geneva are timely reported, not let to linger for years.

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My concern is that it should not take this many "attempts" by the US government to do the wrong thing, to be compelled to get it right.

There is hardly a credible basis to justify confidence that the US government, in this so-called war on terror and fight for liberty, is meeting that goal when it denies rights to people who have never been charged.

it may be true that the people detained have violated the law. But to suggest that Americans should accept the mistreatment of some is a black eye on your office, the Department of Defense, and the so-called "goals" of this war.

I might have agreed that the post 9-11 world warranted action. Yet, despite the known setbacks in Afghanistan, the President reuses to respond. My concern is that the abuse of power is not linked with 9-11; the illegal NSA monitoring started prior to Sept 2001.

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It may be true that there are some "vicious terrorist operatives" somewhere in the world. The problem is that the time to present this evidence is stretching beyond what is reasonable, and it appears more likely that the aim of the government is to hide the fact that there is no evidence of their illegal activity.

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I do not support your assertion that you are "continuing to work with Congress" on issues. At best, the Administration is misleading the Congress; at worst your office and the Congress are complicit with grave breaches of Geneva. This is not acceptable.

I would like for your office to respond to reasonable questions abut the Title 28 and Title 50 exception reports. Those are outlined here.

I would also as that you and your office decide whether you want to be taken seriously. When you issue statements related to the status of prisoners who have not been given a chance to challenge their detention, this does not inspire confidence in the nobility of your cause; rather, it sends a signal that your cause is one in name only, not matched by actions a detaining power is required to meet under the Geneva Conventions.

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As a Navy Commander, you have the responsibility to lead military personnel. As you know under the laws of war the 5100.77 program defines when the laws of war are or are not applicable. The Supreme Court in Hamdan and Rausul has stated that the laws of war are applicable.

Your accusations -- that someone is or isn't a terrorist -- raises questions in the mind of some whether you are being impartial toward the prisoners of war.

Please share with the public your training on the 5100.77.

___ When was the last time you had a refresher course;

___ How is your legal training on the laws of war squaring with your public statements;

I do not want to see the legal issues and accusations to be litigated in the media. The correct forum, which the President refuses to assent, are the courts.

It is beyond me how the Department of Defense, in light of the 5100.77 program can be "pleased" with a result which undermines the Geneva Conventions; and fails to ensure the prisoners of war are treated as any other person might be. These are requirements of the Geneva Conventions.

I ask also that you review the dissenting opinion at page 26 of 59 and discuss with the public:

___ What is the basis to be "pleased" with a result that retroactively affirms something which Congress has no power to do?

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I would also encourage you to review the Justice Trial which outlines the basis for prosecuting Nazi Judges for their illegal enforcement of unlawful statutes. US courts which, as is the case with this litigation, enforce illegal law, or refuse to strike down laws which are violations of the laws of war, can be adjudicated for war crimes.

Please discuss:

___ Why is your office in the Department of Defense "pleased" that the US courts are repeating the errors of the Nazi judges and affirming laws which are violations of the laws of war?

___ When was the last time you had a chance to review the legal issues related to personnel who were in a position to advise policy makers, but refused to end their illegal conduct?

___ Is it your position that as a DOD public affairs person that you are not in a position to advise anyone?

If you claim that you cannot advise anyone, there is little reason that anyone would anyone in the public or media discuss any issue with you. It would be more fruitful if We the People and media were to talk directly to the people you are supposedly working for, nor for someone who admits that they cannot influence policy.

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In sum, I would hoe that you appreciate the gravity of the issues America faces. Indeed, there may be people in Guantanamo who have committed crimes.

The way forward is to respect the Rule of Law. When judges make decisions that support war crimes, or illegally condone unlawful acts of Congress that is hardly anything to be pleased with. Rather, the glee to which DoD supposedly has over this injustice inspires foreign fighters to conclude: Despite the legal standards, Americans are not willing to meet their legal obligations.

NATO, before it bombed Yugoslavia, concluded the Yugoslavian government was no meeting its legal obligations. I would hope that if you have legal obligations under the 5100.77 laws of war program that you fully meet them.

Your public statements indicate that you are not: It appears you are assenting to illegal war crimes; and that you are not fully reviewing the legal issues you should. Also, when you make public statements about the supposed guilt of a prisoner who has not had a chance to challenge that evidence, you appear to be making judicial statements designed to influence Members of Congress in the Senate who have the responsibility to prosecute the President for war crimes during a trial phase.

You may not be a member of the Attorney bar, but you do have a responsibility to ensure that the Department of Defense is not seen as having pre-judged the prisoners as guilty; or send any signal that the legal proceedings are sham kangaroo trials.

* * *

The way forward is to realize the legal issues involved. Members of Congress appear to have retroactively done something they are not allowed to do for one goal: To suppress information about legal issues they, as Members of Congress, should have reviewed.

The answer is not to, as the Congress has done: Suppress the courts and committees from challenging the Administrations illegal war crimes; but to do the opposite -- Get straight answers from your peers in the Department of Defense:

___ Why are they assenting to illegal warfare;

___ How do they justify their actions in light of 5100.77;

___ What is the DoD plan to use combat forces against American civilians who oppose the American DoD abuse of prisoners;

___ Share what information you have with the Speaker as it relates to planning you are aware related to use of American combat forces to detain American civilians.

At this link, are the things I would ask that you make available in your report to the Speaker and Department of Justice Inspector General. You have until Close of Business 23 Feb 2007 to provide your answers in writing.

After that date, you can reasonably expect foreign fighters to conclude that the US government is not serious about its legal obligations.

Thank you for considering my remarks.