Constant's pations

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

Sunday, March 04, 2007

Rendition Ruling Creates New Problems for President

The 4th circuit concluded the (illegally) "classified" rendition program could not be litigated.

Small problem: The ruling is evidence that there must have been reporting by the President to Congress related to this activity, fatally disclosed to exist, but not credibly denied.

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Rendition As An Intelligence Gathering Activity

Let's play Gonzalez' game and pretend that the US is engaged in intelligence gathering. Another problem: This would link rendition with a supposed criminal investigation, NDI would have sent a memo to Gonzalez related to the intelligence activities and supposed criminal investigation of terrorists. Ref

This may seen benign, but the problem for the court is that it cannot argue that the information s classified, when it is disclosed that there had to be a memo. Without a memo, the burden falls to DNI and the Attorney General: Why didn't they do their job in coordinating the information related to this supposed criminal investigation?

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The courts' other problem is that it aid the procedures could not be disclosed. Again, that has no merit, in that the procedures implications Tenet with the rendition are publicly stated. Ref The problem is CIA director has the responsibility to coordinate the activity with the foreign intelligence agencies, raising the problem for the EU to confront. Either

A. Tenet did coordinate with the intelligence agencies, raising the prospect of communications and admissible data; or

B. Tenet did not, as he should have done.

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Claims that the "only" way to prove the claims in re Rendition was with classified information is incorrect.

Non-classified databases show the times that the data was transferred; and what information after a given prisoner was abused, how the NSA changed their flight plans for the satellites. It is not a secret that these flight plans exist; or that the interrogation data from rendition is hanged through the US intelligence community.

Here is the specific list of personnel, the names of the databases, and who received the information gleaned from the rendition-related interrogations. Ref

The issue isn't that the program is classified; but that the opposite: The legal requirements related to the manage of that program are not classified; and would have generated reporting messages only related to the status of the prisoner, and the decisions to release or not release.

None of this information has to be disclosed. The plaintiff knows this. Rather, it is the problem of the government to explain:

___ A. Despite legal requirement to do this, why are there no records;

___ B. Who issued the order to destroy the evidence linked with a legal reporting requirement?

___ C. Using the redacted data, when was it first known that the data gleaned from rendition was sent to the correct agencies in law enforcement as provided under statute? Ref

The problem the government has is that it cannot claim "nothing was done" or "this didn't happen" while claiming the opposite, "We did all we cold to remedy the problems of 9-11: The combination problem." Either

A. The Government did follow the statute and provided the information, which is evidence of the illegal activity, use of information as prohibited; or

B. Despite the claims of 9-11 that nothing was done and the supposed remedies, US personnel were not using all options to timely provide information related to alleged terror-related activities of the (illegal) rendition program.

Either way, they're stuck with a problem they want to pretend is classified but then pretend that that "bonafide" activity didn't meet any of the reporting requirements as called for in the open statutes.

The government is not cooperating because the required reports, stupidly which should exist when linked with a "legal" activity, are also missing: The activity was not lawful; and the procedures followed were not consistent with all legal requirements. That is all we need to know; and nothing classified has to be used.

The problem for the government isn't that it's classified; but that they don’t have the information they should have if the activity were bonafide.

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Implications Of Court Ruling

The court, by refusing to litigate the matter, has implicitly asserted there is memorandum, justifications, and other things confirming this activity.

However, the Court, by refusing to find the activity was illegal, but substantially confirming it was true, created a problem for the President: It left unchallenged conduct that is war crimes. Whether an individual can or cannot litigate the issue is secondary to the primary problem for the US Government: Whether the required notifications, of that illegal activity and war rimes, was proper.

Notice closely the statutes which, when the court refuses to act, go back to the Congress and President. Once the court, in effect, "legalizes" the activity, it puts the burden on Congress to, as it relates to that activity, to explain where the memos are related to appropriations, Presidential determinations, and other things relate to this activity. The problem is that there is no answer: Had Congress been told, as required, of the illegal activity, that would have been a problem; however, by refusing to notify Congress of the activity, as required, the President violated the US Code.

The only way to avoid discovery on this subsequent crime is to, as has been done with Rendition, illegally classify the evidence of that ill legal activity; and claim privilege for something that -- despite disclosure in the 4th Circuit -- cannot be claimed to be privileged.

Once the 4th Circuit refused to hear the case, this sent a clear message: The activity occurred; Congress should have been notified; and Members of Congress ether knew about rendition and did nothing, or they were not told as required.

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Here are the issues the President and Congress find themselves: Openly admitted activity; no details before the open court; but a legal requirement for the President to have disclosed the activity to Congress. Either

A. Congress knew, and did nothing to stop illegal warfare; or

B. Congress did not know, and the President did not comply with the reporting requirements in the US code.

Issues The Court Failed To Address

___ Ref When did the President determine that war crimes with rendition was an "important" national security purpose; and where is a copy of this finding in a memo to Congress; when did the President authorize war crimes for this "important" national security interest?


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___ Ref 413b(b)3: When was Congress notified, as required in writing, of the planned war crimes, Geneva violations, and activity which would violate the US Statute, Constitution, war crimes statutes, and Geneva Conventions?

Discussion : Nobody needs to see classified data. All that is required for the court en camera to review the document: Was there or was there not a document sent on a date outlining something that is (illegally) classified.

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___ Ref 413b(a)5 Why is the President approving covert rendition activities that violate the US Constitution, Geneva Conventions, and US Statutes prohibiting war crimes?

Discussion : The President is in a trap. If, as we are to believe based on the DOJ Staff memos in re Rendition, the activity was permissible, and the details cannot be disclosed, then the President is in a trap: Either

A. If the activity is permissible, he must have documented the activity would violate the US Constitution against war crimes; or

B. He failed to notify Congress as required; or

C. The legal requirement was ignored, but he's inconsistently arguing that the program as not subject to legal oversight.

The President cannot, on one hand, claim protections related to statutes; but ignore other statutes which require reports of that action. Where there is no report where there should be, adverse inferences may be made: The report was not filed; the activity is not reported as required; the activity is not lawful; and/or there is a violation which is not cured by keeping the activity classified.

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___ Ref Section 414(a): When did Congress appropriate funds for illegal war crimes-rendition activity?

Discussion : The problem is for the President and Congress. If Congress was notified, as was required, of the activity, then Congress should have taken that notification and used it to make a decision to appropriate funds.

We need only rely on the witness statements to know that there should have been a Presidential reporting requirement to Congress; and the Congress either has the report, or it does not. Either

A. There is a letter and there were appropriations for Rendition, supporting war crimes; or

B. There was no letter, as required, and the President failed to inform Congress as required;

C. The letter does exist, but has been illegally classified to hide whether the legal requirements have or have not been satisfied.

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___ Ref See Section 302, 304 [S.3237.RS]: Congress needs to explain why, if the courts conclude the activity is classified, why Congress is approving war crimes; or, if the activity is not lawful and Congress is not complicity with war crimes, where are the reviews; and what were the reasons for the CIA director not providing details to the committee, or reasons why there was no disclosure, of this activity as required in Section 304?

Discussion : This makes the problem worse for the President. In Section 203 and 304, there is specific language showing Members of Congress were aware of things. The language is added for a reason. Either

A> There was a notification and Congress knew, but did nothing;

B. Congress was told, but appropriate funds for illegal warfare;

C. Despite realizing that they had not bee notified, the Members of Congress did no reviews where Geneva requires them to end illegal warfare

D. The CIA director would have provided a report to Congress, and this memoranda, linked with illegal activity, cannot be protected, but is evidence; or

E. The required CIA memoranda does not exist or has been destroyed; raising questions about why we should be believe this activity was legal, but the program was not complying with all legal requirements as they related to the conduct of cover activities

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Just because something is covert it does not mean that the activity can be illegal. The covert activities have to comply with reporting requirements; and the lack of report, or missing data, or a failure to show how data was used or not used after an instigation sheds light on the process and reasonableness of whether the activity was or was not lawfully classified.

Covert options have to meet legal reporting requirements. The intent is to ensure that covert programs do not take on a life of their own. There is also a requirement that when they DNI does not provide information, DNI has to explain why.

___ Where is the report explaining why Congresswasn't told the full details on Rendition

Recall, New Mexico's Rep. Wilson, eager to review public corruption, claims she had not been told something, but hasn't demonstrated that she’s followed upon the logical next step: Going into the CIA statutes and asking for an explanation in writing: Why didn't the DNI provide her with an explanation why she didn't get the information she should have gotten.

There's no excuse. The GOP is digging itself further into a hole.