RESTRAINT AND DISCRETION ======================== 2007.12.27 (PEGC) Yesterday the government filed a reply to a motion in Abdullah: "Petitioners invite this court to exercise its inherent powers concerning the destruction of certain tapes that petitioners claim might have had something to do with petitioners, and that therefore might have been covered by this Court's July 18, 2005 Order. In light of the various pending inquiries by the Executive Branch and Congress into the destruction of the tapes, Petitioners have failed to demonstrate that the Court should take the extraordinary step of opening a judicial inquiry, particularly where the Supreme Court has admonished that such inherent powers "must be exercised with restraint and discretion." Roadway Express v. Piper, 447 U.S. 752, 764 (1980)." Abdullah v. Bush, No. 05-cv-00023 (RWR), RESPONDENT'S OPPOSITION TO MOTION TO COMPEL COMPLIANCE WITH THE COURT'S PRESERVATION ORDER OF JULY 18, 2005, dkt. 79 (2007.12.26), available at: http://www.pegc.us/archive/Abdullah_v_Bush/gov_opp_20071226.pdf As with so many of the government's other arguments in the detainee cases, the law they cite stands for a conclusion nearly the opposite of what they want to claim... "Roadway also contends that the District Court's ruling was a proper exercise of the court's inherent powers. * * * The inherent powers of federal courts are those which "are necessary to the exercise of all others." United States v. Hudson, 7 Cranch 32, 11 U. S. 34 (1812). The most prominent of these is the contempt sanction, 'which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court....' "Cooke v. United States, 267 U. S. 517, 539 (1925); see 4 W. Blackstone, Commentaries *282-*285. Because inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion." Roadway Express v. Piper, 447 U.S. 752, 764 (1980). -------------------------------------------------------------------------------- Notes Cooke v. United States, 267 U.S. 517, 539 (1925), and Ex parte Terry, 128 U.S. 289 (1888), deal with the power of courts to punish contempt. 4 W. Blackstone, Commentaries *282-*285, "summary proceedings * * * punishing contempts by attachment", available at: http://www.yale.edu/lawweb/avalon/blackstone/bk4ch20.htm -------------------------------------------------------------------------------- Hudson concerned the prosecution of libel under a common law theory: "The only question which this case presents is whether the circuit courts of the United States can exercise a common law jurisdiction in criminal cases. We state it thus broadly because a decision on a case of libel will apply to every case in which jurisdiction is not vested in those courts by statute." U.S. v. Hudson and Goodwin, 11 U.S. 32 (7 Cranch), 32 (1812)." "It is not necessary to inquire whether the general government, in any and what extent, possesses the power of conferring on its courts a jurisdiction in cases similar to the present; it is enough that such jurisdiction has not been conferred by any legislative act if it does not result to those courts as a consequence of their creation." Id. at 33. "If it may communicate certain implied powers to the general government, it would not follow that the courts of that government are vested with jurisdiction over any particular act done by an individual in supposed violation of the peace and dignity of the sovereign power. The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence. "Certain implied powers must necessarily result to our Courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers. To fine for contempt -- imprison for contumacy -- inforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute; but all exercise of criminal jurisdiction in common law cases we are of opinion is not within their implied powers." Id. at 34. So the courts must act with restraint and discretion in the absence of a statute conferring jurisdiction, yet here the government is arguing that they must act with discretion in cases where there is prima facie evidence of crimes and statutory jurisdiction is abundant. In regard to the CIA tapes we have simple assault p. 18 USC 113, etc, as I've previously discussed, while 18 USC § 1512 (Tampering with a witness, victim, or an informant) states: "Whoever uses physical force or the threat of physical force against any person, or attempts to do so, with intent to-- "(A) influence, delay, or prevent the testimony of any person in an official proceeding; "(B) cause or induce any person to-- "(i) withhold testimony, or withhold a record, document, or other object, from an official proceeding; "(ii) alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in an official proceeding; "(iii) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or "(iv) be absent from an official proceeding to which that person has been summoned by legal process; or "(C) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense * * * "shall be punished as provided in paragraph (3)." Further, 18 USC § 3041 (Power of courts and magistrates) states: "For any offense against the United States, the offender may, by any justice or judge of the United States, or by any United States magistrate judge, or by any chancellor, judge of a supreme or superior court, chief or first judge of the common pleas, mayor of a city, justice of the peace, or other magistrate, of any state where the offender may be found, and at the expense of the United States, be arrested and imprisoned or released as provided in chapter 207 of this title, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. Copies of the process shall be returned as speedily as may be into the office of the clerk of such court, together with the recognizances of the witnesses for their appearances to testify in the case. "A United States judge or magistrate judge shall proceed under this section according to rules promulgated by the Supreme Court of the United States. Any state judge or magistrate acting hereunder may proceed according to the usual mode of procedure of his state but his acts and orders shall have no effect beyond determining, pursuant to the provisions of section 3142 of this title, whether to detain or conditionally release the prisoner prior to trial or to discharge him from arrest." Note that the language used here: "hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense" (18 USC § 1512) And here: "For any offense against the United States, the offender may, by any justice or judge of the United States, or by any United States magistrate judge[...]" (18 USC § 3041) Exhibits the clear intent of Congress that crimes can and should be reported to judges, and that judges have the authority to pursue the arrest of anyone who commits an offense. The evidence of the last six years shows that the CIA has been torturing people, that DOJ acted as an accomplice by supplying a fraudulent legal cover for the crimes, and that the tapes were destroyed to obstruct justice and tamper with witnesses. The MCA amended 18 USC 2441(c)(3)(war crimes under Geneva Common Article 3) and 28 USC 2241 (habeas), but it did not repeal all of Title 18. After six years of wanton lies and war crimes, how much restraint and discretion do they deserve from a court of law? Regards, Charly * * * PROJECT TO ENFORCE THE GENEVA CONVENTIONS (PEGC) http://www.pegc.us Charles B. Gittings Jr. Fort Bragg, California cbgittingsyahoo.com +1-707-964-2151