2004.04.28 - PEGC Update ==================== 1) SWIFT v. RUMSFELD USDC for the Western District of Washington 2:04cv00777 Swift v. Rumsfeld et al [Respondents'] NOTICE OF MOTION AND MOTION FOR ORDER HOLDING PETITION IN ABEYANCE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF http://pegc.no-ip.info/archive/Swift_v_Rumsfeld/govt_motion_20040423.pdf The usual... There are also three exhibits, nothing new: A - Rasul / Al Odah, Government's Brief for Respondents B - Gherebi, Order for Stay C - Padilla, Government's Brief for Petitioners 2) SUPREME COURT ISSUES [4] I previously mentioned the government's claim the courts are ill-equipped to make military judgments, and expressed my opinion that any random federal judge was certain to be both better educated (a no doubter) and smarter (a near lock) than Curious George Bush. So let's consider the flip side: how well equipped is the military to consider matters of law? Now that's an interesting question, because as I noted yesterday, it's a fundamental breach of military duty to obey an unlawful order, and carrying out an order and judging how lawful it is are two very different propositions. The precedents in military law say there's a strong presumption that an order is lawful and you disobey it at your peril. On the other hand, you issue orders at your peril too, and a commander who issues an illegal order can get into big trouble fast if it causes something to go seriously wrong and gets noticed. Now this is all bread and butter for the JAG Corps, it's what they do, and by and large they do it very well. There are critics who disparage "military justice" as an oxymoron, but not me: I'm acquainted with too many ex-JAGs (and even a few active duty) to be in much doubt about the quality and professionalism of military lawyers. On the other hand, the prosecutors in the Yee and Al Halabi cases, not to mention the OMC prosecutors, do give me some pause. But all in all, I have to say: from where I sit, the JAG corps (in all four branches of service) looks first rate overall. These people are pros. Now you'd think that when the Bush administration needed to figure out how to handle things with POWs and such after 9/11, the JAGs would be the ones to get the assignment -- but oh no, the Bush administration slapped together a little gang of civilian advisors under White House control and cooked up the abomination of the 11/13/2001 "military order" -- and they've been shoving it down the military's throat ever since. It's pretty obvious that the military is for the most part "just following orders" and "leaving it to the lawyers" -- not that that's any excuse or defense for committing war crimes or crimes against humanity -- and that the average soldier (including officers) are not lawyers. It's also obvious that some of the legal issues here are fairly complex, and that those complexities have been multiplied greatly by the administrations tireless efforts to bury the truth under a mountain of BS and clouds of smoke. Add it all up and this is just the sort of situation that checks and balances are supposed to deal with. The military is mission oriented, and while I know there are critics in the JAG corps, they've been very quiet. The bottom line is that the military is being used by the administration to commit crimes. The federal judiciary is supposed to enforce our laws and render impartial justice, and if they're "ill-equipped" to do that, we're in bigger trouble than I think we are. As for specific issues, let me look at the BRIEF AMICUS CURIAE OF LAW PROFESSORS [et al] IN SUPPORT OF RESPONDENTS [merits] in Rasul v. Bush / Al Odah v. United States, by Rivkin (Counsel of Record), Casey & Wedgwood, et al. ("Rivkin"). I trust that Rivkin, Casey, and Wedgwood need no introduction as they are among the most prominent apologists for the administration's unlawful policies. So let's look at some quotes: >> "Neither an activist reading of international law, nor political criticism of the President’s wartime strategy, warrants the suggested overthrow of the bright line rule [3] that limits the statutory remedy of habeas corpus to matters affecting American citizens and matters occurring on American sovereign territory." Rivkin at 2. ** Comment: There is no such "bright line rule." As noted in my amicus brief, 18 USC 2441 (war crimes) makes it a federal offense for a US citizen or service member to commit a war crime anywhere in the world, and that includes grave breaches of Geneva (which include depriving prisoners of due process specified in Geneva) and Hague IV Annex art. 23, which states in part: "In addition to the prohibitions provided by special Conventions, it is especially forbidden . . . [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party." * And I'm sorry, but I've been really bogged down the last couple of days, and I need to get this out, so I'm stopping there for now. Time to listen to oral arguments... 3) DOJ SPECIAL INVESTIGATION #2 DOJ has designated a special counsel to investigate the Senate computer files scandal similar to the CIA leak investigation... Boston Globe -- April 27, 2004 US TO PROBE TAKING OF COMPUTER FILES By Charlie Savage, Globe Staff http://www.boston.com/dailyglobe2/118/nation/US_to_probe_taking_of_computer_files+.shtml Newsday: April 27, 2004 PROBE ON COMPUTER FILES BEGINS By Tom Brune, Washington Bureau http://www.newsday.com/news/nationworld/nation/ny-usjust273774724apr27,0,48453.story 4) SADDAM'S ATTORNEY CBS News -- April 25, 2004 THE DEVIL'S ADVOCATE 60 Minutes http://www.cbsnews.com/stories/2004/04/22/60minutes/main613266.shtml Regards, Charly * * * Charles Gittings Oakland, California cbgittings@sbcglobal.net +1-510-923-1688 PROJECT TO ENFORCE THE GENEVA CONVENTIONS (PEGC) http://PEGC.no-ip.info PEGC Update http://PEGC.no-ip.info/PEGC_Update.html