Comments (29)

whocares wrote on January 23, 2008 11:17 AM:

Who cares? What are they going to do if he says it isn't? That's right, not a damn thing.

Congress is dead. The republicrats who run it are just as guilty as the republican whores.

Louis wrote on January 23, 2008 11:36 AM:

Question #3: What will the legal consequences be for those who approved, authorized, or conducted torture?

Bupalos wrote on January 23, 2008 11:39 AM:

Why don't we ask this of our own frontrunner nominee? It seems to me she has taken exactly Mukasey's line, that she won't know whether waterboarding is torture or not until she is president.

Don't complain about us "backing down" on this when our own nominee tows the exact same line. It's democratic voters themselves that are guilty of not caring about this issue.

Dennis wrote on January 23, 2008 11:51 AM:

Mukasey will dodge again, wait and see.

No doubt in my mind that there was an understanding that he, too, will protect the Bush administration from its war crimes and all other illegalities committed by the administration.

So much for "equal justice before the law."

You don't have to be a blind conservative not to see it, just an ignorant one to deny it.

Richard L. Adlof wrote on January 23, 2008 11:56 AM:

Bupalos,

Hillary Clinton is a Republican. Just cuz she ain't smart enough to register for under the (R) does not mean that she is a Democrat.

Respectfully,
RLA

M M wrote on January 23, 2008 12:02 PM:

Paul, Mukasey's answer will be that he hasn't completely analyzed the issue which is what he said in a WSJ interview that was published today. Throw in an update to your post with a reference to that interview.

East-West wrote on January 23, 2008 12:31 PM:

Waste of time.

The Dems still think they're in the minority. There will be some wringing of hands and a little tut-tutting and Mukasey will go back under his rock.

Does anybody remember when Dems had testosterone?

Shoreline wrote on January 23, 2008 12:48 PM:

Today, in an interview with the Wall Street Journal, Mukasey said he has “been read into the program” but suggested that he still hasn’t come to a firm conclusion:

Yes, I’ve been read into the program, but that’s part of a process. I said I would look at the program. Look at the letters. And give my answers. I haven’t yet figured out precisely when and precisely how. I understand that the time is coming.

embarrassed wrote on January 23, 2008 1:09 PM:

Well, since the US Government no longer functions as a legal body, I guess it's time to invite in the Europeans to enforce international law inside the US. They have much more experience with this type of thing, they also don't believe in the death penalty.

I am sure the first thing will be Darth, Chimpy, Rice, and Rummy for direct war crimes. Then they can work their way down to the SCOTUS for aiding crimes against humanity by declaring torture and murder to be a "state secret". It looks like all the legal precedents were made in trying Darth's role models; the SS. I would be interested in seeing if they can get our pedophile pill popper "Tokyo Rose" Limbaugh and Faux Spews, they got one of the original Roses after WWII!

Peloski and Reid are so hapless that they'll get away with a year or two. It's hard to totally blame the incompetent.

CParis wrote on January 23, 2008 1:50 PM:

This is like noticing a big water stain on the ceiling of a house, but waiting until you've bought it to call up the former owners and ask "so what's with the puddle of water in my living room?"

Anonymous wrote on January 23, 2008 2:29 PM:

The debate over whether waterboarding is or isn't "torture" is a meaningless sideshow: Geneva prohbits all _abuse_. Even the Nazi POW camps, after the war, were found to not have committed Geneva violations gainst allied air crews. (This says nothing about the Holocaust, or concentration camps where the Jews were exterminated.) The US Congress would have us believe the US is unable to meet a standard the Nazis showed to US air crews.

It's unfornate the United States government would like to spend time going through the theatrics over whether information, definitions, or other "views" are or are not relevant. These are not legislative issues, but matters of criminal law.

Geneva is a treaty; the US Concgress doesn't need to "codify" or "approve" laws which permit enforcement, or further define this legal obligation. To do so, or argue that Congress "failed to define" something is a deliberate distraction from the clearly stated Geneva requirement: No abuse. Members of Congress have an oath to the Conventions through the US Constitution; whether the US Constitution does or doesn't grant rights to POWs is meaningless drivel -- Geneva imposes _obligations_ on the US as a detaining power: Do not abuse POWs; if abused, other nations may abuse captured US persons.

I would prefer the US Congress stay out of this, and refer the evidence to both the US Atty's office and ICC:

- Has there been violations of the Geneva Conventions?

- Has evidence of those violations been destroyed?

Rick wrote on January 23, 2008 2:38 PM:

Answers:
1. What do you mean by waterboarding? Like what was on the CIA videotapes? Sorry, I didn't get to see those, so I can't answer your question.
2. Other techniques (if you mean by that techniques other than torture - and we don't torture) do comply with the law.

No follow up, no truth,
no accountability.

allsburg wrote on January 23, 2008 3:08 PM:

Anonymous,

Though I'd like to agree with you, unfortunately the U.S. Attorney lacks jurisdiction to pursue violations of a non-codified treaty, and the ICC has no jurisdiction (yet). Since neither the U.S. nor Iraq was a signatory to the ICC, the only way for it to assert jurisdiction over these war crimes is if the U.N. Security Council refers the matter to the ICC. Of course, the U.S. has veto power over the Security Council, so the only way to present the matter to the ICC is with US permission. It may happen, but certainly not until the democrats are in power, and probably not until ten or fifteen years have passed.

Anonymous wrote on January 23, 2008 6:57 PM:

allsburg wrote on January 23, 2008 3:08 PM

"Lacks jurisdiction to pursue violations" . . . Baloney: The oath of office is to enforce the Constitution and _all_ treaties. The issue is through the oath, 5 USC 3331. If the US will not enforce Geneva through the oath, the US is, in effect, asserting it will not be bound by Geneva, unless it chooses. That's hardly a standard that would satisfy Nuremberg.

If the US Attys will _not_ enforce the Constittutional _requirement_ to honor all treaty obligations as _Supreme Law_, then they too are in alleged breach of their oath; and, as with the Justice Trial at Nuremberg, could be similarly prosecuted for failing to fully enforce Geneva.

Show me caselaw that specifically _bars_ US Attys from doing what their oath of office _requires_: Fully enforcing all Supreme law, which includes Treaty Obligations. That is not Constitutional. It doesn't exist.

Whether you want to enforce or not enforce a "codified treaty" or "non-codified treaty" is meaningless drivel: You're, in effect, deleting the Constitutional requirement that says Treaties are the Supreme Law, regardless the Congressional codification.

Tell me the oath of office to the Constitution doesn't really mean including Geneva, and I'll show you a meaningless oath of office. Framers intended for the oath to enforce the Supreme Law, regardless the agreement or disagreement of the Congress with that oath.

Tired of excuses this Congress is giving to treat the laws of war as if they were not binding.

As to the second issue of "ICC": Baloney. The JAGs well stated that the ICC _could_ have jurisdiction; and the MCA _did_ raise the prospect of providing funding if US persons _were_ brought before international tribunals. Or are you asking the world to believe that despite the ICC having "no" role:

A. The JAGs got it wrong, and their concerns about the ICC prosecuting civilians was meaningless;

B. The COngress spent time passing legislation in the MCA that would provide funding for something that would "never" occur?

The oath of office, JAGs statement, and MCA language contradict your assertion that the ICC and laws of war are not enforceable, especially when Congress "disagrees". The time for that drivel should have been discussed before the Members of Congress took their oath, not after the JAGs in 2001 raised these real concerns with the ICC.

You're arguing for the illusion of Geneva, without any legal power behind US action to fully enforce all obligations. That, in effect, is a failure to enforce Geneva, a subsequent war crimes.

The Justice Trial was about just this: Refusal of the detaining power to enforce Geneva. Using your "logic," you'd argue that the Nazis, because they disagreed, would not be held accuontable for Geneva violations. That's circular: Geneva only has meaning if it is enforced. You would have the opposite.

Find a way to enforce it, otherwise no other nation is bound by it when it comes to combat operations against the United States. _That_ is the reason for enforcing it: Unless the US will fully ensure Geneva is enforced, other nations -- on accusation alone -- charge _any_ American with being an unlawful combatant. YOu're arguing to do nothing about GEneva violations. Brilliant, the US government is no longer constrained by Geneva; no other nation should be bound either. Thank you for the non-sense "Justifying" barbarity during combat, the very conduct Geneva is trying to prevent not make excuses for, as you would have done.

Justice Trials wrote on January 23, 2008 7:15 PM:

allsburg wrote on January 23, 2008 3:08 PM

Allsburg,

The "Justice Trials" links does exactly the opposite of what you are saying: Nuremberg precedents establish that legal advisors, prosecutors, and judges _can_ be prosecuted for failing to do what this Congress and US Attys have refused to do: Fully enforce Geneva.

Check this quote: "Under any civilized judicial system he could have been impeached and removed from office or convicted of malfeasance in office on account of the scheming malevolence with which he administered injustice."

You're arguing that the US Atty's -- to "honor their oath" -- would be best to do nothing, unless Congress agrees to repeat what is clear: All abuse is not permitted. The issue isn't, "Congress doesn't need to restate that" or "Until Congress repeats that, it cannot be enforced"; Congress _refuses_ to enforce that requirement, and would have us believe the opposite: That Geneva is only relevant on issues of Torture. Baloney, Geneva is broadly defining _all abuse_ as illegal; whether it is or is not torture is irrelevant.

Nothing is preventing the US Atty's from prosecuting Members of Congress and/or the President for malfeasance.

There is no law or rule that bars the US Attys from prosecuting a sitting President.

The only issue is whether, after confiction, the President is or isn't removed. Only the Congress, upon conviction of an impeachment trial, would have any say on removal. But lack of action on an impeachment does not bind the US Attys to do nothing. Rather, a sitting President can be prosecuted utside Impeachment, outside COngress.

Your arguments fail, and you fail to explain why the JAGs did mention the ICC before the working groups on POW treatment.

If GEneva "didn't matter," then why would the President move the prisoners from Eastern Europe; and why would the SUpreme Court compel the POWs to be treated as if they were POWs under Geneva. Your assertions would ask that Geneva has no force; but then why would the Supreme Court "ruling" mean anything. In your universe, the US Supreme Court's assertion that the prisoners at Guantanamo had to be treated according to Geneva would be "unenforceable".

How do you explain the US Supreme COurt doing exactly the opposite of what you are suggesting: That Geneva is a requirement; and that the POWs must be treated humanely. In your universe, there is "no" enforcement mechanism or teeth behind GEneva. How do you explain anyone llistening to the US SUpreme COurt on any issues related to GEneva if the US attys was _barred_ from enforcing those very requirements the US Supreme COurt said were applicable?

More absurdly, if the GEneva "cannot be enforced", how do you explain the CIA tape destruction: If tehre was evidence of war crimes on the tape, in your universe, "Nobody could do anything about it, because Congress hasn't written a rule about it."

Utter non-sense, Allsburg. You're making excuses to assent to war crimes; and perpetuate the myth that Geneva violations cannot be adjudicated in the US Legal system. Brilliant, that was the problem which _was_ adjudicated at Nuremberg as a _subsequent_ war crime. Using your "logic," you'd ask that we ignore Nuremberg.

Putting aside Congressional inaction, are you suggesting that US Attys cannot _ever_ enforce _Nuremberg_ precedents? If so, you're arguing for the same trash which the Nazi judges were _prosecuted_ for. In my personal opinion - and this may or may not be widely held -- your "thinking" is disgusting and brings discredit upon the United States, the legal profession, and the precedents of Nuremberg. This is not accusing you of any corruption, incompetence, or inability to perform any legal services.

_JAGs_ before military tribunals _can_ enforce Geneva: They do it all the time. JAGs could be brought into the nexus to prosecute US Attys for alleged frivolous legal arguments to endorse, sanction, not stop, and condone Geneva violations which Nuremberg _clearly established_ were leg\al obligations of lawyers and the courts to adjudicate, not turn a blind eye.

Let's review the _entire_ "precedent" you say exists, and see where you apparently have been missing the clue on the oath of office, 5 USC 3331, Geneva, and the Justice Trials. Your argument would have us believe that GEneva is not enforceable; but, if that were true, you cannot explain why, after the US Supreme Court invoked Geneva, the US moved prisoners from Eastern Europe; or why there is concern about what did or didn't happen on the CIA tapes. Again, in your universe, that wouldn't be enforceable, nothing could be done, and there was not threat of sanctions. Yet, the US government reaction defies your assertion: There must have been _some_ concern with _some_ legal consequences and prosecution, otherwise why the movement of the prisoners? If the US Atty "cannot" do anything, you fail to explain the concerns behind the mad rush after the US SUpreme Court contradicted your assertions.

Rives, Taft Memos wrote on January 23, 2008 7:26 PM:

Allsburg,

You also fail to explain the Rives and Taft Memos, linked at the above TPMM comment thread. These memos linked above at the TPMM comments, well discuss the _real_ concerns that the ICC would have jurisdication, contrary to your assertions. These were concerns the JAGs well raised to the DoJ OLC and DoD leadership in the late months of 2001 on issues of prisoner treatment relative to Geneva. JAGs well stated there was a risk that _civilians_ could be prosecuted before the ICC.

- Are you saying that the JAGs got it "wrong"?

- Is it your contention that the "risk of ICC" involvement was _never_ a concern?

- How do you explain what magic shield would prevent US personnel from being rendered to appear before the ICC?

- Are you saying that _no nation_ would take action under GEneva -- as permitted through reciprocity and retaliation -- to similarly enforce GEneva against the US using rendition-like method?

You're asking the public to believe the JAGs concerns with _civilian prosecution_ of war crimes be thrown out the window; and pretend that "nothing could be done". That types of "thinking" is apparently what's gotten the US Congress into trouble: Geneva is enforceable against policy makers who refuse to enforce it. The US system _divides_ policymaking/responsibility between the Executive and Legislative branches. Just as Nuremberg stated that there is some conduct that is so clearly wrong, it is possible to make rules after the fact to punish it; similarly, it is clearly wrong for US leaders to pretend Geneva is a "US principle," while asserting nothing can be done to enforce it. That is alleged malfeasance in re the oath of office, something which Nuremberg _does_ address as evidence of a non-civilized society.

Geneva confers rights on non-combatants. Without remedies, the requirements on the US as a detaining power -- regardless the status of the prisoners -- is meaningless. That defies the express language of the Constitution: That the obligations be binding as the Supreme Law; not ignored under any frivolous legal argument.

Again, not suggesting that you're making frivolous legal arguments; but as you well know, if legal counsel _has_ asserted "there are not forums for consequences", then that could be asserted to be a frivolous legal argument, and attach counsel to the alleged underlying war crime.

If, as you assert, Geneva cannot be enforced against the US in any judicial forum, the only option for other nations is to use the last forum available: The forum of battlefield with open combat which may or may not respect Geneva rights against US persons. Congratulations, you're implicitly arguing for combat to resolve these Geneva issues. Save your "defenses" for someone else. You're apparently missing the big issue with Geneva: It's an obligation; without forms to enforce it, no other nation need to consider itself bound by it.

Anonymous wrote on January 23, 2008 7:45 PM:

allsburg wrote on January 23, 2008 3:08 PM

Allsburg

US Constitution, VI:

Treaties are part of the oath of office:

A. Treaties are part of the Supreme Law

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;

B. Judges Have Legal Obligation to Enforce Supreme Law, including Geneva which is a atreaty

"and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

C. The oath is to the US COnstitution, which includes -- as Supreme Law -- the legal requirement to enforce Geneva. This requirement is on that binds _all_ public officials, including US Attys, Membes of Congress.

"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

28 § 544: United States attorney, assistant United States attorney, and attorney appointed under section 543 of this title, before taking office, shall take an oath to execute faithfully his duties.

The issue isn't that the US Atty's will _prosecute_ this; it's whether they will _defend_ before the ICC the alleged war crimes of the US. ["(2) prosecute or defend, for the Government, all civil actions, suits or proceedings in which the United States is concerned;" 28 § 547] MCA included language which would provide for _full_ legal defenses of all US persons before _all_ international tribunals. Are you arguing that this language was frivolous; and would never happen; and there was no reason to include it in the MCA?

- If the US Attys, or DOJ OLC will not defend the US or US persons before the ICC -- as the JAGs said was a foreseeable risk -- who do you propose provide this defense?

-------------------------

Mental Reservations: If someone thinks, "Well, Geneva is a treaty, but it cannot be enforced, so let's do nothing": That sounds like a clear case of having a mental reservation about the laws of war; and the duty of Members of Congress to fully enforce the US treaty obligations.

The oath clearly requires reming all mental reservations; not retaining them as a defense to justify inaction. The oath is to there to bind action; not the opposite, justify malfeasance:

5 USC 3331: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

- Are those who say, "We will not enforce Geneva" not a domestic enemy of the Constitution that requires Treaty obligations to be enforced as the Supreme Law?

- How can agreeing to alleged abuse of POWs be considered "consistent" with an oath of office?

- How can remaining silent, and continuing funding for things which are, or should be known, to violate Geneva -- and permit abuse of POWs -- be considered lawful, reasonable, or consistent with ones oath?

These are things for the grand jury to decide; and the ICC and war crimes prosecutors alone have the power to decide whether Members of Congress did or did not fully assert their oath; had mental reservations; or did turn a blind eye to alleged war crimes. You're asking us to believe he non-sense, "If we all agree to do nothing about war crimes, nothing will happen." That didn't work at Nuremberg as a defense; it was, as an assertion, a statement _contrary to interests_ which was further evidence of the state of mind to violate the laws of war.

Anonymous wrote on January 23, 2008 7:51 PM:

allsburg wrote on January 23, 2008 3:08 PM

Allsburg,

If "nothing can be done" about these alleged war crimes: Who cares if there isn't anything on the CIA tapes: The evidence of Geneva violations will "not" be enforced. Thus, any request for that evidence -- under your theory -- would be "frivolous" as we "all know" nothing will happen.

Yet, the court contradicted your assertion, and is permitting discovery on the CIA tapes. How do you explain the precedent of "nothing will happen"; but the opposite reality -- the court is permitting evidence collection.

There's a DoJ investigation into that tape destruction. "Who would care if there was a destroyed tape related to a violation of a court order to preserve evidence?" In your universe that court order to "preserve evidence" is meaningless in that war crimes would "never" be prosecuted. You calling the court wasting time by issuing orders asking for evidence retention for no foreseeable purpose?

That is absurd. The JAGs well asserted that there was a Foreseeable risks of ICC involvement/oversight/review. IT cannot be seriously argued there was "no foreseeable" risk that the legal issues could not be brought before the ICC: The JAGs foresaw it. It's in writing. Its in the POW working group memos. Many times.

Anonymous wrote on January 23, 2008 8:01 PM:

allsburg wrote on January 23, 2008 3:08 PM

Your assertion is non-sense, but the opposite is true: Where there is _no explicit treaty_, Geneva standards _are_ enforceable as if there were a treaty, as both a civil and/or criminal case.

Anonymous wrote on January 23, 2008 8:05 PM:

allsburg wrote on January 23, 2008 3:08 PM

Allsburg,

As further evidence of an apparent non-sense assertion -- that US attorneys "cannot" enforce Geneva -- it was argued the opposite: That the US Atty _could_ enforce the laws of war/Geneva against terrorists.

Anonymous wrote on January 23, 2008 8:27 PM:

allsburg wrote on January 23, 2008 3:08 PM

Before 9-11, there were certain laws which did not exist. Yet, after 9-11, there were new laws passed related to terrorism. Yet, you would ask us to believe that only laws which the US Congress has passed are enforceable; and that until the Geneva conventions are codified, the US may not enforce them; and the US Atty has no role.

- HOw do you explain the US Atty enforcement of the laws of war against terrorists?

- Before 9-11, these legal requirements/standards had not been codified. Yet, Congress did "approve" laws which codified illegal activity: NSLs, prisoner abuse, waterboarding. Is it your contention that the laws of war when they are codified to _permit_ war crimes, are acceptable?

There are ways to enforce the laws of war. The issue is whether the legal community would like to use all methods to defend the Constitution and the US treaty obligations as Supreme Law; or whether they would like to roll over, make excuses, and pretend Geneva cannot be enforced against some, but retroactively rewritten to justify abuse of prisoners.

If the US Congress says it is "OK" to retroactively rewrite rules to permit abuse, and not enforce the laws of war against the US government officials or agents, other nations may do the same under the principle of reciprocity and retaliation: Retroactively pass new rules banning what is lawful and permitted under Geneva; or immunizing themselves against conduct which does violate GEneva "because they didn't agree to pass a rule that would bind themselves to enforce or respect that treaty obligation.

It's the duty of the leadership to ensure the policies are enforced. That Congress may be silent on a Treaty obligation does not remove the President from being held accountable for _refusing_ to establish policies that ensure Geneva is fully enforced.

The problem is this President has not ensured _his policies_ fully implemented Geneva. If the US Atty will not act to enforce Geneva, the Congress is bound by oath to use legislative tools to do what the President reuses to do: Be bound by Geneva. "Refusing to pass rules" isn't a defense; it's evidence of a failure of leadership to exercise command and control. That is a condition required to prove US forces are _unlawful combatants_, in that they are not bound by rules or commanders which do, as required, fully implement the laws of war.

Congratulations, you've well stated the problem: US forces, acting under the war powers act, have conduct combat operations _outside Geneva_; and have _not_ conducted heir affairs under commanders who are lawfully conducting themselves per the laws of war. You've implicitly made a strong case that _all_ US forces acting under the AUMF have _not_ been lawful combatants; and could be treated the same way the US treated others similarly designated.

Translation: The US said, without a trial, prisoners at Guantanamo could be abused, in contravention to GEneva; other nations may similarly, on accusation alone, detain any American on the charge of "unlawful combatant" regardless the merits of the evidence, or absurdity of the allegations. How many days did the students in Iran keep the Embassy personnel? 444 days. It can happen again; and they would have a legal basis to commit like abuses against "AMerican unlawful combatants."

This is a failure of the President to take responsibility, as _Commander_ in chief, to ensure his troops, as required by Geneva, were adequately led by personnel who agreed to be bound by Geneva; and his failure to implement policies the Executive branch that effectively ensured all combatants we effectively trained to fully comply with Geneva.

The US Attorney may, without notice, prosecute a sitting President for breaches of Geneva. If the US Attys refuse to act, they too could be adjudicated with war crimes. The State AGs have the same power to charge US Attys with violating the States' rights to a Republican Form of Government: Through the US ATty's alleged breach of their oath of office, they have impermissibly left the Geneva requirements unenforced against the US President.

Indeed, Congress may choose inaction; but their silence does not mean that prosecutors are barred from prosecuting a sitting President.

The President and Congress may not _lawfully_ use another nation's lawful "reciprocal violation of the laws of war, in response to the US's illegal warfare" to lawfully retaliate against another nation for the first retaliation/reciprocal action. That would ask we reward Japan in WWII with "you were justified in retaliating against the US for their response to you after Pearl Harbor." No, the Japanese illegally first waged illegal warfare; and they do not have a legal defense when they say, "We took lawful action at Pearl Harbor because the US retaliated against US in the Pacific." The US was permitted to take military action to respond to Japan's aggression before and after Pearl Harbor. So too would other nations, in your universe, be permitted under the laws of war to retaliate against the US for the failure of the Congress, Courts, and President to collectively enforce GEneva through either impeachment or prosecution.

This is not a legislative hole. THis is a failure of the President to ensure combat operations were lawful; that policies were fully promulgated; and the COngress failing to fully enforce the laws of war through either an impeachment, or a referral to the US Attys in re alleged breaches of Geneva. If Congress will not direct the US Attys, the State AGs may act; and if the legal community will not respect Geneva, the US population is not bound to follow the legal community to unlawful warfare or war crimes. They've entered that nexus on their own. Meanwhile, We the People can establish another oversight system, as is presently being discussed.

Anonymous wrote on January 23, 2008 8:45 PM:

The issue of "jurisdiction" isn't narrowly prosecutorial one, but one for the _judicial_ branch to decide. The US Atty may _decline_ to prosecute; Issues of "jurisdiction" are for the _court_ to adjudicate.

Show me something that the US Attys are _barred_ from:
- Enforcing the laws of war;
- Enforcing Geneva;
- Taking action on the laws of war;
- Enforcing prohibitions against abuse, as promulgated in Geneva;
- Enforcing Nuremberg;
- Enforcing the precedents of Nuremberg or the Justice trial
- Being exposed to legal consequences for refusing to enforce the laws of war

This prohibition doesn't exist. Such a law would impermissibly let the legal system collapse, and let the laws of war decay. That defies reason. No prosecutor could respect any law that says, "You cannot enforce the laws of war". That contradicts the oath binding Members of Congress to enforce Geneva, which the US Attys are bound to enforce. Congressional silence doesn't mean the Conventions are gone: They are the Supreme Law, on the same level as the US Constitution. Rather, Congressional silence and inaction could be adjudicated as a subsequent crime, especially if individual Members of Congress are found to have blocked efforts to enforce the laws of war, as appears to be the case in re "taking impeachment off the table."

Arguably, as established at the Justice Trial, US Attys who decline to prosecute for grave breaches of Geneva, could be subsequently prosecuted for failing to enforce the laws of war; and in failing to enforce the precedents of the Justice Trials at Nuremberg. The US Attys need to enforce the laws of war; otherwise, they are not fully asserting their oath. Time for them to bring these cases to the US Courts, and let the US Courts refuse to act -- and allegedly commit a subsequent breach of Geneva.

It has not been adjudicated that US Attys are barred from enforcing Geneva; nor has it been adjudicated that Members of Congress are individually immune to suit for alleged war crimes for their apparent effort to block enforcement of the laws of war. Untested is not the same as impossible. Again, if the COurts refuse to act, that inaction could be adjudicated as a subsequent war crime. There is no statute of limitations to adjudicate war crimes, even against the US Supreme Court, US Attys, or Members of Congress. Inaction is not a defense, it is evidence of malfeasance.

bodiddley wrote on January 23, 2008 10:11 PM:

i'm missing something. something really big. why are these people asking this guy if waterboarding is torture? I mean, waterboarding is torture. Everybody knows it. what's next? will they ask Mukasy if friday is the day after thursday?

Rick wrote on January 23, 2008 10:17 PM:

A very nice legal analysis. Too bad the Bushies don't give a rat's ass about legal niceties. Neither do most of "we, the people." So, are Durbin and Co. going to make Mukasey and his minions answer the questions truthfully and completely or not? That is all that should matter to all of us. Any problems or hesitations...waterboard the MFs.

Anonymous wrote on January 24, 2008 2:46 PM:

There are several other issues, which fatally destroy the assertions of, "ICC does not have jurisdiction" or "US Atty's cannot enforce Geneva unless the Congress codifies Geneva."

1. Other Nations

Regardless ICC pending jurisdiction, _other nations_, outside the US, and beyond the reach of the US Attys _can_ enforce the laws of war.

2. ICC

ICC jurisdiction is not pending, it is ongoing. ICC continues to receive evidence of American war crimes. To date, they've deferred prosecution because the US courts have primary jurisdiction. The ICC wants to give the US courts first chance. If, in the view of the iCC -- regardless US actions at the Security Council -- the US refuses to enforce the laws of war, as would be expected of a civilized nation, _then_ the ICC may expand its review, collect more evidence, and broaden its ongoing inquiry. As of now, the ICC has no official prosecution action, it's merely accepting evidence. There are many lines of evidence which the ICC has openly shared: This relates to reports the public and other world citizens have provided.

3. Media

It's not narrowly an issue for the US government to be held accountable for alleged war crimes. The media in Rwanda was found complicit for having incited illegal activity.

The US media appears to have somewhat escaped legal consequences. Again, they are not necessarily in the clear. This is not to say that they are or are not inciting war crimes; only that the issue of responsibility does not rest solely with the US government officials and civilian contractors.

4. War Crimes vs. Crimes Against Humanity

Crimes against Humanity are a pervasive, ongoing pattern of larger violations of the laws of war including torture, human rights abuse, mass killings and genocide. This does not mean that "only" cries against humanity are serious. Rather, it means the opposite: Until individual war crimes are collectively part of a larger pattern of national misconduct, those war crimes are narrowly defined as that: War crimes, not crimes against humanity.

With the US, it remains to be understood whether a pattern of abuses across many prisoners -- small in number relative to the Holocaust, but still allegedly numbering in the thousands, if not tends of thousands -- would or would not constitute a national policy of war crimes or "crimes against humanity."

The record of the Nazis in _indiviual_ countries -- taken as a group -- formed the concern with "crimes against humanity". It remains to be seen whether the US government did or did not have a national policy of crimes against civilians in Iraq that is more than a policy of war crimes, and a broader policy endorsing "crimes against humanity."

It is possible, as was done at Nuremberg, that there be a new class of war crimes that attach to _legislative_ bodies when:

- The legislature shares policy making powers;
- The legislature has an oath that includes Geneva as part of the Supreme law;
- There is evidence the legislature knew of, but failed to enforce the laws of war by blocking both investigations, impeachment, and prosecutions of the executive leadership;
- The legislative officials were informed of, knew, and should have had the legal background to seek assistance, as opposed to deferring to policies which supported war crimes;
- There were lines of evidence and reports of war crimes which the legislature refused to investigate, actively blocked investigations, and attempted to dissuade public discussion of holding Members of Congress available for that alleged malfeasance.

Geneva bars all abuse. Whether something is or isn't torture is an interesting discussion, but hardly warrants serious consideration. A "definition of torture" argument asks that we ignore Geneva's ban on all abuse, and ask that "some abuse, less than torture" is permissible, despite Geneva clearly prohibiting all of it.

The problem with the US lawyers is that they've attempted to use the "gap between US laws and Geneva" -- which is irrelevant -- as an excuse to "legalize" some abuse, which violates Geneva, on the false assertion, "Unless the US Congress prohibits it, this type of prisoner treatment is lawful." That defies the oath which compels, as the Supreme law, for the US government officials to enforce the Constitution _and_ all treaties as the _Supreme_ law. Suggesting "some kinds of abuse is permissible" says the Conventions are not supreme, but the excuses of lawyers supplant the Constitutional oath requiring assent to Geneva. That is contrary to written law and the essence of illegitimate government: "Legitimacy" by definition is an assent to _written_ law.

GOING FORWARD

The President chose to use force. Congress authorized _lawful_ use of force: They did not declare war, nor did they authorize -- by passing the AUMF -- illegal use of force.

However, reports of late suggest the contrary: That the Members of Congress, above and beyond the AUMF, did -- in secret -- agree to "other actions" which allegedly violated Geneva. What these actions were, what the Members of Congress knew, and to what extent the Members of Congress _share_ responsibility _with_ the President for the alleged war crimes is not a legislative or Executive issue to debate: It is a matter for the judicial system to _adjudicate_:

- Did the Members of Congress, in effect, by refusing to shut off funding for _known_ activity which violated Geneva, by their inaction, engage in malfeasance;

- To what extent does this alleged "malfeasance in re the laws of war" attach Members of Congress _individaully_ to those alleged war crimes.

Recall, when legal counsel makes frivolous legal arguments to justify supporting illegal activity, that illegal activity attaches -- through the frivolous legal argument -- to the legal counsel. Similarly, it remains to be adjudicated to what extent a similar legislative doctrine would also bind Members of Congress to "not make frivolous legislative excuses for inaction", and similarly bind Members of Congress to the original illegal conduct. It is worrisome that the Members of Congress were voted into office on the promise of change with the retort, "Wait until we get subpoena power, and we control the committees." Indeed, they do have subpoena power, and control the committees, but the investigations into breaches of Geneva -- within the US Congress -- have been largely non-existent.

Arguably, when a voting public is induced to support one party on the promise of change, and a mandate of effective oversight _on the issues of the laws of war_, but that newly elected party _refuses_ to either investigate, enforce the laws of war through contempt citations, or impeach, then it remains to be adjudicated to what extent the _legislative members_ individually are complicit through alleged malfeasance to the subsequent _ongoing_ alleged war crimes. More troubling is the assertion that the policy of "state secrets" -- regardless their attachment to Geneva -- is the shield to prevent inquiry, stop oversight, or prevent fact finding. This would ask that if the Holocaust were classified as a state secret, it too would be not reviewable.

There are some things that are wrong, and regardless the "gaps" in the law, people should know they need to act, refuse to act, or to remove themselves. Arguably, the Members of Congress -- by refusing to impeach -- have refused to investigate where they should; and have not fully asserted their oath. That the oath is rarely enforce does not mean that the oath does not exist; nor does that legal standard within 5 USC 3331 remain unenforceable. It is an ongoing requirement. Perhaps the US Attys will have to be called to explain or defend themselves:

- Why, despite the alleged war crimes, did you not move quickly to enforce the oath of office, 5 USC 3331 against Members of Congress;

- To what extent were US Attys complicit with the war crimes because they did not investigate, nor did they prosecute -- as should be reasonably expected -- alleged complicity by Members of Congress in blocking investigations.

It is also a concern when the US Congressional leadership is reported to have known about waterboarding, rendition, and FISA violations; but the question of whether or not illegally captured information was used to "justify" war crimes against US citizens or other non-combatants seems also "off the table."

There is a problem in the US government and society when it is viewed as "necessary policy" to put the Constitution second, behind illegal government action that defies the Framers' intent: It abuses power, and violates rights, not just of prisoners of war, but also non-combatants overseas, and in the United States. The American public voted for change in 2006. We the People have not been given change, nor credible enforcement of Geneva. We've allegedly had a complicit Congress that is more convinced "enforcing the law is bad for politics" than in doing what the oath requires: The Constitution, as the Supreme Law, includes as Supreme Law the Geneva Conventions; and the Members of Congress have a legal duty to fully enforce the Supreme Law which the Constitution, by oath, requires.

This national leadership may argue that it was shocked on 9-11 and had not time to constrain itself. Indeed, it's been almost 7 seven years, and that argument of "we were shocked, and haven't been able to think straight" has been the excuse this Congress _and_ President have been giving as the basis for combat orders and combat funding. Yet, to be fully recognized as a _lawful_ combatant under Geneva, combat forces must be subject to a system of _legal_ _oversight and control_, not, as we have in the US, a system of recklessness that defers to the incompetent.

If the Congress has "no time" -- seven years after 9-11 -- to assert power through Article 1 Section 8 to ensure the Constitution and Supreme Law of Geneva is fully enforced, then we the People have the reasonable basis to conclude: We no longer have time to take seriously this system of governance; may immediately move to _expand_ the rights and powers we have reserved for ourselves; and shall continue an open discussion of a new system of governance that _will_ at all times assent to the rule of law, and not be _just_ by oath, but be bound by something _more_ timely in its intrusion, force to compel assent and assertion of one's duty as a Member of Congress. That system can be devised, implemented, and thrust upon this US government lawfully through a solemn ceremony. The issue is whether the Congress, President, or Courts would like to show we the People they are serious about their oath; or whether they would prefer something better than more clearly reminds them of their duties which the Framers thought "the best and brightest in a Republic" would self-evidently know they must do, otherwise jeopardizing their access to power or risk other punishment.

Despite the oath, the US government officials have not treated Geneva as the Supreme law, but at an inconvenience. We the People need not be inconvenienced by this prattle, nor by the distraction of the incompetent. It is not a credible agreement to agree to be bound to secrecy on issues one cannot consult with legal counsel: That is not an enforceable agreement any Member of Congress can be bound to respect -- It compels secrecy on issues which may be illegal and violate the Supreme Law without, as expected, a fully informed decision. That is not governance, but toady actions by the weak masquerading as public pawns: Not conduct the Framers intended under a republic, but what they risked their lives to destroy: Tyranny, and the assent to that tyranny through rubber stamping stupidity; yet the US absurdly exports this injustice as "justice". No, it is folly and arguably criminal conduct defying basic human rights and Geneva.

On the table are the alleged war crimes. We the People have the authority to broadly interpret Geneva however we choose, especially when the US Government and Congress are on onside side of the law; and We the People and the Constitution are on the other side, the right side: With the rule of law. Geneva is designed to constrain combat forces, and compel governments to constrain their abuse during combat. This government appears to have difficulty understanding that. Perhaps the public needs to through a system of more effective oversight more clearly define for the incompetent what their jobs are; what We the People require; and what the system of governance shall do, even in secret. Power has been abused. The question is whether We the People will exercise oversight, or whether outside powers must provide that leadership. Sovereignty is not an assertion of a shield to oversight; but it is a requirement and duty for a nation to justify its independent decision making. But decision making, when it is illegal, cannot be rewarded with shields, it must be pierced through adjudication. If that is not permitted, then the national government is neither sovereign nor legitimate: We the People remain _The Soverign_, and it is our responsibility to lead when so much has gone so terribly wrong, despite what the Framers well promulgated. We need to discuss solutions, and listen less to the excuses of the incompetents wandering the halls of the District of Columbia. They have long overstayed their welcome: Arguably, many of them belong in the small confines of prison, not left to pretend they are of anything important. They have turned our private homes into their playgrounds; it is time to turn the District of Columbia into a forum for war crimes adjudication: Targeting, where appropriate, US Members of Congress and members of the DC Atty Bar, not just Executive Branch leadership and officers.

HOW THIS CAN BE DONE

1. State AG efforts

The State Attorney Generals have the duty to enforce the Constitution against all domestic enemies. Arguably, when the US Attys, Members of Congress, and Executive Branch personnel agree to _not_ enforce Geneva, and silently do nothing about war crimes, that would easily satisfy the "domestic enemy" criteria. Contact your state AGs and remind them of their oath; and that you expect the Constitution as the Supreme Law to be enforced, including all Treaty Obligations. If your State leadership attempts to thwart enforcement of the Constitution against domestic enemies, then they too could be held accountable.

2. State Grand Juries

Congress is not the only forum to review war crimes evidence. The States do have the power, and may through petition, to require a grand jury to review evidence of war crimes. That the US government, federal courts, or legal officials have refused to assert their _mandatory_ oath to the Supreme law does not obligate American citizens to assent to that recklesness. Rather, it is incumbent upon We the People to recognize this leadership failure within the legal community and US Federal Government, and compel grand jury review of these domestic enemies.

3. Arrest Warrants

We the People also have the power to have issued, and served, arrest warrants upon the President, Vice President, and others. They do not enjoy absolute immunity. They have qualified immunity. There is no law that says they cannot be held accountable for alleged war crimes. They cannot agree -- between the three branches -- to do nothing, and expect We the People not to defend the Constitution against _these_ alleged domestic enemies.

4. Prosecuting a Sitting President, VP, Members of Congress

There is no law that bars the US Attys or State Attorney Generals from enforcing the law -- now -- against a sitting President, VP, or Member of Congress. They can be indicted and prosecuted. Even if the President were sent to prison, he would still be called "President," but his _duties_ would transfer to the VP while he is not able to do his job. Removing someone from office is different than punishing them _while_ they are in office. There is no law that says Congressional assent to war crimes immunizes either the President, VP, or Members of Congress from war crimes adjudication _while in office_. Arguing, "Let's do this later" doesn't address the problem: The problem exists, and we cannot wait.

5. Removing Pelosi As Speaker [Google, "Remove Pelosi"]

Arguably, and decision or guidance by the Speaker to not enforce Geneva -- now, while she is Speaker -- is a reasonable basis for the public to demand a House debate on her Speakership; and for the House to declare her Speakership position _vacant_. The House as a body does not have a line of success: A vacant Speakers' position is filled by a House vote, which would include those who defied the Speaker on the Kucinich resolution. It's time to force the House to confront this issue: Either they can vote to declare the position vacant; or that _decision not to find new leadership_ is further evidence of them not using all lawful options to make way for fact finding in re alleged war crimes. That decision to do nothing is not immunized, but is _evidence_ of subsequent war crimes. Refusing to use _all_ lawful options is evidence of a "mental reservation," in contravention to 5 USC 3331.

6. House Rule 603

Continue with the efforts at your local and state level to have passed in your state legislature proclamations calling on the House to investigate and impeach the VP and President. Future tribunals may rightly ask whether We the People did all we could at our level; and whether we attempted to give fair notice to Congress of what we expected. Vermont's Senate has passed one proclamation. More than half the states have openly discussed these proclamations. There is no excuse not to _discuss_ these proclamations; and get clear answers why your state leadership will not defend _this_ Constitution against _these_ alleged domestic enemies.

7. Disbarment Investigations

Continue collecting your alleged war crimes evidence; and continue discussing with the State Attorney Disciplinary Board the evidence you have of alleged Executive Branch and Congressional staff counsel misconduct. The misconduct may include malfeasance, frivolous legal arguments, or advise to not fully assert ones oath or defend the US Constitution. The legal community is an alleged domestic enemy, until they visibly lead the needed legal defense of _this_ Constitution.

These are serious issues. And We the People have the power and leadership ability to see this trough. There is no crisis. It is a breakdown of US government. But We the People are ready to solve this problem. We've given the US government it's chance. It's time for We the People to lead. We can. Good luck. The rule of law is on our side in the defense of this Constitution against these domestic enemies. The rule of law shall prevail.

Anonymous wrote on January 24, 2008 2:51 PM:

IMPORTANT CLARIFICATION

When you read, "Targeting, where appropriate, US Members of Congress and members of the DC Atty Bar, not just Executive Branch leadership and officers."

To be clear: This "targeting" means targeting them for investigation, review before tribunals, and oversight under the law. This is not advocating anything else.

Al in Austex wrote on January 24, 2008 7:24 PM:

Alsburg,
There is a reason that all the CIA personel that got near this obviously illegal torture that the administration ordered them to undertake- that reason is that it is illegal and all the men & women at langley needed to somehow indemnify themselves from the coming prosecutions.
And the JAGS will all testify at the ICC hearings - the JAGS are first & foremost uniformed military officers that know waterboarding is illegal torture .
Finally at the appropriate time & place my bet is that the CIA will turn loose of the remaining 'torture tapes" . And the memo from the OVP that ordered & AUTHORIZED THE TORTURE , will be released.
Yessir aLSBURG , the Intel Community will put that legal insurance policy to very good use- keep your eye out for Bob Bennet filings...
Then we can all say in unison "Book'em Dano ! "

Anonymous wrote on January 25, 2008 12:28 PM:

Al in Austex wrote on January 24, 2008 7:24 PM

CIA have already turned: They're working with the Europeans/EC/EU to provide evidence on rendition activity to Eastern Europe.

cjop wrote on January 30, 2008 8:48 AM:

"Dems Hold Hearing" is like Rudy and 9/11. That dog don't hunt.