Dear Friends, Another 16 hour day, and I've barely glanced at all those briefs, trying to deal with this, that, the other thing, and still get out that last update. But I just couldn't go to bed with out taking a quick look at the brief the OMC military defense lawyers filed, and lo and behold . . . We now have a second citation of 18 USC 2441, and not just a passing mention this time. We're getting warmer now. See: http://www.nimj.org/documents/gtm.amicus.100.pdf That's the "Brief of the Military Attorneys Assigned to the Defense in the Office of Military Commissions as Amicus Curiae in Support of Neither Party" (OMC Def. Br.). So -- OMC Def. Br. at 24: Congress Has Divested the President From the Ability to Define Crimes of War. Quirin recognized that a court must in- [[25]] quire "whether it is within the constitutional powers of the national government to place petitioners upon trial before a military commission for the offenses with which they are charged," 317 U.S., at 29. The first part of such an inquiry is "whether any of the acts charged is an offense against the law of war cognizable before a military tribunal, and if so whether the Constitution prohibits the trial." Id. With respect to what constitutes a violation of the law of war, "Congress ha[s] the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts." Id. at 30. In Quirin, Congress chose not to define such offenses, and this led the Court to approve the common-law path of the tribunal. Id. In the War Crimes Act of 1996, however, Congress chose to define those very offenses. See 18 U.S.C. 2441; H.R. Rep. No. 104-698. Congress later amended 2441 by passing the Expanded War Crimes Act of 1997. As a result of these Acts, a "war crime" means "any conduct" that, inter alia, is a "grave breach" of the 1949 Geneva Conventions, any "violation of common Article 3" of the same convention, as well as violations of certain other treaties. Thus, Congress has "crystallize[ed] in permanent form [[26]] and in minute detail every offense against the law of war." It is likely that a future court will be required to address the precise question asked in Quirin (that the specific charges are not cognizable before military tribunals). At no point in the crystallization of these offenses did Congress try to divest the courts of habeas jurisdiction to hear such claims. The 1997 amendment intentionally broadened the statute to encompass all acts recognized by both the United States and international law as war crimes. See H.R. Rep. No. 105-204 at 3; 143 Cong. Rec. H5865-68, 66 (July 28, 1997) (statement of Rep. Jones). Its expanded form "include[s] violations of any convention signed by the United States." Id. at H5866 (statement of Rep. Lofgren). The amendment "rectif[ied] the existing discrepancies between our Nation’s intolerance for war crimes and our inability to prosecute all war criminals." Id. at H5866-67 (statement of Rep. Jones). The expansiveness of the coverage prompted concern that jurisdiction would broaden automatically when the United States joined another law of war convention. Id at H5867 (statement of Rep. Conyers). The General Counsel of the Department of Defense promulgated a list of offenses for commissions. Instruction No. 2, 68 Fed. Reg. 39381 (2003). That list differs substantially from Congress’ enumeration in § 2441. Truly excellent, but it still doesn't reach the real merits here. In point of fact, the Bush administration has been committing grave breaches of the Geneva Conventions by policy since Camp X-Ray opened for business, and the proposed "military commissions" are in and of themselves grave breaches. We've seen no substantial evidence of the detainees committing any war crimes at all, but the evidence of the Bush administration's war crimes is beyond any doubt merely on the strength of their own public statements and news accounts going back two years! And it gets even better. OMC Def. Br. at 27 (footnotes omitted): The adoption of the Uniform Code of Military Justice. The UCMJ took effect on May 31, 1951, nearly one year after the June 5, 1950 Eisentrager decision. See 10 U.S.C. 801-940 (1952 ed. Supp. V). The Code is the result of painstaking study and reflects an effort to reform the system from top to bottom. Burns v. Wilson, 346U.S. 137, 141 (1953) (plurality op.). With this complete revision of the Articles of War came the expansion of Article 2, in 10 U.S.C. 802(12), which identifies additional persons who are subject to the Code: Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Canal Zone, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands. Paragraph 12 thus represents a clear break from Yamashita, where this Court stated that "neither Article 25 nor Article 38 is applicable" because "Article 2 of the Articles of War enumerates ‘the persons * * * subject to these articles.’" 327 U.S., at 19; see also id. at 20 (stating that Article 2 does not cover Yamashita). Unlike the old Article 2, which only covered "members of our own Army and of the personnel accompanying the Army," id. the new ¶12 extends jurisdiction to "persons within" leased areas without limitation. [[28]] The Government now finds itself in the very situation that some feared when the UCMJ was drafted. Under ¶12, all of the detainees currently being held at Guantanamo are subject to the Code, for the Naval Base is leased by the United States and under the control of Secretary Rumsfeld. Therefore, any detainee taken to a military tribunal would necessarily be entitled to the protections provided for in the UCMJ, including potential review by civilian courts. While the UCMJ applies to persons at Guantanamo, the practical consequences will be limited because much of it does not govern detentions. The UCMJ will provide, however, some procedural guarantees to those prosecuted before commissions. See 10 U.S.C. 810 (speedy trial); 10 U.S.C. 837 (unlawfully influencing tribunal); and 10 U.S.C. 855 (cruel and unusual punishment). Also excellent, but they're mistaken in that last paragraph, because the UCMJ does govern detentions in one sense -- the same as 18 USC 2441 does: 10 U.S.C. 897 - Art. 97. Unlawful detention Any person subject to this chapter who, except as provided by law, apprehends, arrests, or confines any person shall be punished as a court-martial may direct. It's definitely getting there. I don't suppose anyone would like to file an amicus brief on my behalf would they?? I actually broke my promise to quit wasting my time trying to find anyone who would represent me recently and asked someone to do just that, but they were too busy and had the standard CW blind spot re standing. I'm almost starting to think that everyone is afraid in the back of their heads that they'll actually declare martial law and cancel the elections if anybody mentions the matter. Personally, I don't think they'd dare -- but if I'm wrong about that, I'd rather find out sooner than later. These people are a social cancer folks, and they need to be treated as such. I could write the brief myself of course, but gee whiz, I think I'd go crazy just trying to get all the copies made and filed and served -- and I doubt the court would be willing to recognize me anyway. But I still have a few other ideas I can pursue. I've been going back and forth about it for over a year. Now everyone's got cert, the decks are cleared, and I'm running out of time. I don't stress it a lot, but I've been very up front from the beginning that this effort was first and foremost a volunteer criminal investigation. I swore a personal oath that I would do my best to uphold the laws in this case and that is exactly what I intend to do. I have never had any illusions about anything, I just know it needs doing. Fascism is simply not a good idea, and if you compromise with it or wink at it, you will surely regret it in the end. So it's time for me to report my findings to the authorities, and file some complaints of judicial misconduct against some crooked judges in the 4th and DC Circuits. If anyone wants to try and talk me out of it, I'm certainly willing to listen, and if you can show me where I'm mistaken, you'll have my sincere thanks too. If anyone would like to represent me pro bono, by all means get in touch ASAP -- but spare me the lecture on standing, OK? That's really a no brainer folks: my standing is no problem at all: I'm just trying to get the government to do it's duty and enforce the law. It's the Bush administration that has a problem with standing here: what standing does a criminal have to enter a US Court of Law for the purpose of committing further crimes? They've put themselves hopelessly out on a limb in their sneering arrogance. All we have to do now is saw it off. Much as I do support the efforts being made, they had their chance to wise up long ago and the arrogant jerks just went right on lying and playing games. These people are criminals, they are running a criminal conspiracy from the White House, and they belong in prison for their crimes. Regards, Charly * * * Charles Gittings Oakland, California cbgittings@sbcglobal.net +1-510-923-1688