July 31, 2008

Some Legal Counsel Appear To Have Prematurely Decided To Take Geneva-Nuremberg-Alstoetter Off the Table

Someone left a very thought provoking comment which prompts a special discussion. Before we directly discuss the comment, let's outline some assumptions which others may or may not agree.

The American people deserve to see the American government held to the
legal standards imposed at Nuremberg. Then we will know whether people
are serious about "never forgetting" something.
The following is presented not as a statement of policy or law, but as a starting point for this discussion about the comment. Others are most likely approaching these issues from different assumptions and premises.

Simplistically, the laws of war are part of the Geneva Conventions, and enforceable through the oath of office as the Supreme Law through the US treaty obligation. Let's talk about the Constitution, oath of office, and Federalist Papers which support this assertion.

Let's review some important parts of the Constitution under the "plain meaning rule," and merely discuss what a casual observer might say about Geneva, the duty of elected officials to enforce the laws of war, and how the oath of office minds local officials to enforce the same.

Let's start with the oath of office requirement in the US Constitution, and put aside the specific language of the oath of office. Article VI, (arguably) shows the Supreme Law includes treaty obligations, the laws of the US:
Article VI: "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;"
Others may have the view the oath of office does not include, as the Supreme Law, the Geneva Conventions. We view this position as illegal and outside what Nuremberg established.

Let's quickly discuss our reasoning. Here's the rest of the Constitutional language showing the oath of office binds the elected officials:
"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"

Implicit within that promise -- to be "bound by oath" to support "this" Constitution -- is the the clause of the Supreme Law. The Constitution is the collective document which includes the language of the Constitution itself, the laws made under the Constitution, and the Supreme Law attached through the oath to that Constitution.

Others in DOJ may have the view that the oath does not expressly include all treaties; and that the President, by his determination, can decide that the oath of office does not relate to a treaty because the Preident can "determine" a treaty is not applicable. This is a legal position for the DOJ and US Attorneys to argue explicitly, not for us to speculate about as a reason to explain away an effort to fully enforce Geneva against the US Attorneys.

We do not support this view that treaty obligations are discretionary items; nor do we view Members of Congress as having discretion whether to take action because of the oath of office requirement.

Let's consider the oath office for Members of Congress, which is slightly different than that for the President, judicial officers, and US Attorneys. 5 USC 3331
5 USC 3331: "An individual, except the President, elected or appointed to an office
of honor or profit in the civil service or uniformed services, shall
take the following oath: '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.' This section does not affect other oaths
required by law."
Above, we've established the Constitutional oath of office requirement in Article VI includes the oath to the Supreme Law, not just the Constitution itself. It is an error to pretend the Constitutional language only includes the Constitution, but does not include either the US laws or the treaty obligations.

Here's the interesting problem: If you review the case law for the terms. there's nothing that obviously jumps out:
(1) "Treaty" and

(2) "shall be bound by oath or affirmation, to support this Constitution"
This suggests that it's untested whether the oath of office does or does not include treaty obligations. We view that conclusion as absurd, but expect the DOJ to fully argue this point, regardless the Nuremberg precedents.

Federalist 44 sheds light on what "Supreme" means: It distinguishes the Constitution of the Federal Government from the State government. Federalist 44 shows us the Framers intended for the State officials to be bound to the Federal Constitution, and have the duty to enforce the US Constitution within the State:
Fed44: "The members and officers of the State governments, on the contrary,
will have an essential agency in giving effect to the federal
This cannot mean that the State officials, upon seeing the US government ignoring the US Constitution, are obliged to also ignore the Supreme Law. Judge Vaughn Walker stated as such in one of his FISA-related orders:
Walker wrote that while states are barred from “meddling” with federal government activities “this rule does not, however, oblige special treatment"
This suggests the Framers intended for the oath of office to include the treaty obligations under the Supreme Law, and not as a discretionary, optional, or urnelated to their legal duties.

et's consider this language from the Nuremberg case, expreslly stating that there is a linkage between prosecution-impeachment decisions; and the civilized status of society. Inaction on both would suggest a failed state:
US v. Alstötter: "Under any civilized judicial system he could have been impeached and removed from office or convicted of malfeasance"
Notice the title of the case, and the prosecution is the United States, decided 1948:
The Nuremberg Trials: The Justice Trial
United States of America v. Alstötter et al. ("The Justice Case") 3 T.W.C. 1 (1948), 6 L.R.T.W.C. 1 (1948), 14 Ann. Dig. 278 (1948)
This suggests the United States, as the prosecuting power, has established a link with Nuremberg; and that all oaths and comments about the Supreme Law must attach to the United States actions at Nuremberg. Conversely, this could not mean that the United States statutes which ignore Geneva requirements are inadequate, and fall short of the Geneva-Nuremberg-Alstötter requirements.

If these requirements are not met, arguably the American leadership could be subjected to subsequent charges for failing to fully enforce Geneva; not investigating violations of Geneva; and not fully codifying, as required, all war crimes requirements appliable to the United Staates.

Whether the enemy is or isn't a signatory to Geneva is irrelevant. The legal obligations attach to the United States, as a leash, as a signatory power; wehther the US recognizes a combatant-prisoner-enemy does or does not have a shield is secondary, and urelated to the legal requirements attached to the leadership.

There should have been an oversight mechanism, auditing, and timely reviews to Congress on whether US combat operations were or were not fully complying with Geneva. This was not prospectively done, but appears to have only occurred because of disclosures about video tapes and POW mistreatment. Without prospective or retroactive oversight of all Geneva-Nuremberg issues, Members of Congress have a problem, especially in removing impeachment from the table.

Part II: Considering the Comment

Here is the comment which warrants this special attention, and multiple links above:

Lux Umbra Dei (not well supported) "can I recommend for you the Balkinization site (where I hale from)? These issues are talked of there at length."

"I think you should reflect on the advisability of using Nuremberg, Alstoetter, or GC3 or for that matter any CIL for the bringing to trial of the main actors."

"There are formidable legal barriers that pretty much nullify any of those approaches."

After careful review, we're not convinced about anything in the comment. We discuss the reasons for not narrowing the legal analysis to only US statutes; and why, in our view, other factors have not been adequately nullified.
Regardless the US position on the ICC, DOJ OLC memos well state the risk of prosecutions against US persons in victim's courts.

If there are gaps in the legislation, those need to be fixed, but that is not a bar to enforcing Geneva.
Let's break the comment down and examine the issues raised. First, this comment is very vague, and doesn't adequately address anything specific, nor does it point to specific comment threads or content on the recommended site:
Lux Umbra Dei (vague): "can I recommend for you the Balkinization site (where I hale from)? These issues are talked of there at length."
The vague comment prompts the following response:
You may be correct that the site referenced discusses the issues, but that's not an argument. Specifically, the comment "should reflect on the advisability" implies that someone else -- unknown -- has raised these issues, and has a reasonable argument, discussion, or comment. That may exist, but the "advisability" of doing or not doing something isn't linked with a specific discussion, comment, or argument. It may be there, but it would have been preferable to construct the argument with specifics, than vaguely point to a site withut providing specifics.
The next part of the comment says [added]:
Lux Umbra Dei (no basis): "I think you should reflect on the advisability of using Nuremberg, Alstoetter, or GC3 or for that matter any CIL for the bringing to trial [any ] of the main actors."
The basis for this assertion is unclear. The above information about the oath of office, Supreme Law, and Federalist 44, suggests there are some compelling reasons to attach Geneva, as part of the Supreme law, to the legal requirements attached to members of Congress and their oath of office. This implicates the US Statute; and is the bridge between the US Statute and the larger war crimes enforcement requirements springing from the Justice Trial: Prosecuting Judges and lawyers who refuse to enforce the laws of war.

Arguably, because the US Republic separtes power, the duty to enforce the laws of war is jointly shared by the judges, executive officers, and Members of Congress. Just as Nuremberg retroactively explained standards -- new laws -- which people "should" have known they should have complied, so too should we in 2008 discuss the inherent standards of Geneva Members of Congress should have known would attach to them if they refused to investigate, impeach, or call for investigations.

Assuming these cases are prosecuted in US courts, let's consider who would have the responsibility to prosecute these cases againt American officials: DOJ-connected US Attorneys. This is the inherent problem connected with this comment:
Lux Umbra Dei (vague, inexplicable): "There are formidable legal barriers that pretty much nullify any of those approaches"

We're asked to believe that there are "formidable" barriers that "nullify" "any" of these approaches. That doesn't make sense.
1. We've got nothing specific to justify believing that there is anything specific that would or would "nullify" anything;

2. The people who are (apparently) arguing for inaction are there very people who would have the responsibility to prosecute the cases: GOP-connected US Attorneys;

3. We have nothing to show us why the factors -- Geneva, CAT, CIL, Geneva Conventions Article III (GC3), Nuremberg, Alstoetter -- have or haven't been addressed;

4. There's no basis to argue that these factors would or would not be nullified. Who says and why?
These sounds like sweeping assertions the DOJ Staff might have made about FISA violations. Let's consider why:

First, Alstoetter is merely the name of the defendant, but the United States as the prosecutor means the United States established through Nuremberg prosecutions the connection between Nuremberg defendants, judicial officer legal requirements to enforce the laws of war, and the oath of office.

Second, the Justice Trial attached to legal counsel and judges penalties for refusing to enforce the laws of war. The US Constitution expressly attached to judicial officers an oath of office linking them to 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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. 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."

Based on the above, the response to this:
Lux Umbra Dei "can I recommend for you the Balkinization site (where I hale from)? These issues are talked of there at length. I think you should reflect on the advisability of using Nuremberg, Alstoetter, or GC3 or for that matter any CIL for the bringing to trial of the main actors. There are formidable legal barriers that pretty much nullify any of those approaches. Start with american statutory law and end there also."

A. It's not obvious what you're talking about.

B. There's no reasonable basis to ignore Alstoetter, Nuremberg, or GC3 because the United States enforced the laws of war.
This comment is a problem:
Lux Umbra Dei (narrow): "Start with american statutory law and end there also."
This may be the problem: That the US Statute, despite Geneva and Nuremberg, is too narrow. That is irrelevant. The treaty obligation attached through the oath was known and should have been known as the guiding standard. The US prevailed in this argument against the Nazis. Who is asking for an exception?

That assertion needs to be argued, not asserted as an unchallengeable premise for these reasons, among others:
A. The problem is that American statutory law, in the DOJ view, only defines illegal treatment outside the Geneva Conventions. Yet, Geneva bars all abuse. The Convention Against Torture only punishes people for serious abuses, as opposed to "all abuses".

The DOJ OLC memos were explicit in "authorizing" some abuses, which Geneva otherwise expressly prohibits in all cases, regardless the level of abuse.

US laws do not adequately punish for some abuses. Arguing over

(1) whether CAT applies or does not apply is misidirection/a red herring from

(2) whether or not US military and CIA personnel knew or should have known Geneva and Nuremberg expressly prohibit all abuse.

. There's no basis to say that US prosecutions at Nuremberg are not precedent. Whether Congress has or hasn't updated the statutes is a separate issue. Arguably, teh failure of the Congress to ensure the US Codes fully enforced Geneva could be construed as a subsequent war crime. Congress, in refusing to fully codify Geneva, isn't a defense, but subsequent evidence of wider US government malfeasance.

C. Even if we reject any assertion that Congress is complicit, all DoD officials are trained on the laws of war and Geneva. That DOJ OLC "legalized" some abuse isn't a credible defense. It appears teh DOJ OLC 'legalization" of some abuse is a retroactive, not prospective, opinion.
If DOJ Staff Attorneys and US Attorneys, responsible for prosecuting these cases against Members of Congress, are "not interested" in using Geneva, and "only" want to stick with US Statutes, that is something they need to fully explain, not assert with the presumption it will not be challenged. At the heart of our dispute with the US government approach to war crimes is the failure of the US government prospecitvely going forward from 2001 to adequately ensure Geneva was fully incorporated. The DOJ OLC memos appear more like retroactive afterthoughts to legalizae by using sophistry about CAT as a deliberate smokescreen from whether Geneva does or doesn't apply.

Indeed, their refusal to enforce the laws of war, and not go beyond US Statutes, and failure to fully enforce Geneva-Nuremberg-Alstoetter as required as an attorney requirement under Geneva, could be construed as a subsequent offense, enforceable through the Justice Trial precedent.

In our view, DoJ Staff and US Attorneys are not adequately embracing, as required, the broader legal requirements beyond US Statute in Geneva and the Nuremberg precedents.

Perhaps the above discussion points have been raised on the referenced site. They may be, but there not obvious; nor is it the reader's job to put together the argument of those who are arguing against enforcing Geneva and Nuremberg precedents.

Conversely, if this view is public, then an argument could be made that the DOJ Staff and US Attorneys -- who might prosecute these war crimes cases against Members of Congress in US Courts -- are making public statements about internal deliberations on litigation strategy. If that is the case, then we need to consider whether that internal deliberation has been compromised; and whether Members of Congress are going to get an adequate defense.

Whether the United States does or does not prosecute Members of Congress is, in our view, a separate question than whether Members of Congress are responsible, through the oath of office to the US treaty obligations of the Supreme Law, for enforcing the laws of war.

Please provide specific discussion points from the recommended site when discussing these issues. If they are talked at length, then others might review them in light of the above. If someone has the view that it is or is "not" advisable to use Nuremberg, Alstoetter, or GC3, please discuss:

1. Why are we ignoring the fact that the United States prosecuted the case at Nuremberg;

2. How can we pretend that we can only stay with US Statutes, and ignore Geneva

3. Why are we proposing to exclude from prosecution any charges that are outside the US Statute

4. What is the basis, despite Nuremberg and the US role in prosecuting those cases, for excluding Geneva, Nuremberg, or international law from the prosecution decision.

5. Is there not an inherent conflict in saying there are "formidable" barriers, when those making that argument might be connected with DOJ, and have an interest in inaction?

6. What is the basis to say that the the non-US Statute issues -- Nuremberg, Geneva, CIL, Alstoetter -- should be excluded; and/or that prosecutions against US government officials should only be confined to US Statute?
In our view, the DOJ Staff should not be given a green light to argue, "We don't want to prosecute outside US Statutes," when they have a legal duty to enforce Geneva, Nuremberg, and the precedents connected with the United States war crimes litigation after WWII. This says nothing of the Tokyo War Crimes trials against the Japanese Cabinet.

The possibilty that there might be barriers is the reason to celebrate: We'll have a case in hand to say, "This is what the United States is or is not willing to do despite Geneva." That case -- or inaction -- would be the basis to review the US Prosecutors actions in light of the Justice Trial. The decision to not prosecute is, within Geneva-Nuremberg-Alstoetter, is reviewable as a subsequent violation under the laws of war. DOJ OLC and the President view each standard as discretionary. That is not a credible defense or premise, but evidence of recklessness.

It appears to be circular and premature to narrowly argue that Geneva-Nuremberg-Alstoetter should be removed as legal benchmarks. Rather, as with impeachment, the decision to remove that legal standard could be construed as a subsequent offense. In the case of impeachment, it is arguably a violation of the oath of office to remove impeachment as an option when the Framers in Federalist 77 expreslly said impeachment would be "at all times" an option.

Similarly, we cannot -- now, before an investigation or prosecution -- credibly argue or believe that Geneva-Nuremberg-Alstoetter should be removed out of a speculative fear; or that there might be "formidable" barriers. That is an argument the DOJ Staff and US Attorneys need to make, not others blindly accept as a possibility. If that's their position, then we need to use that decision as a basis for a subsequent charge against them under the Justice Trial precedent.

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