*** DRAFT - Preliminary Analysis *** ============================================ COMPLAINT OF MISCONDUCT IN HAMDI v. RUMSFELD ============================================ PREPARED BY: Charles B Gittings Jr pro se 770 Kingston Ave #304 Oakland, CA 94611 510-547-3408 PROJECT TO ENFORCE THE GENEVA CONVENTIONS http://63.206.217.42/geneva_project/ VENUE: UNITED STATES COURT OF APPEALS FOR THE 4TH CIRCUIT Lewis F. Powell, Jr. United States Courthouse Annex 1100 East Main Street, Suite 501 Richmond, Virginia 23219-3517 Patricia S. Connor, Clerk (804) 916-2700 SUBJECTS OF COMPLAINT: USCA 4th Cir. panel in HAMDI v. RUMSFELD, No. 02-7338: William W. WILKINS, Chief Judge William B. TRAXLER, Jr., Circuit Judge J. Harvie WILKINSON III, Circuit Judge Wilkinson was Chief Judge on decision. Wilkins is current Chief Judge. CASE: US COURT OF APPEALS FOR THE 4TH CIRCUIT No. 02-7338 HAMDI v. RUMSFELD, decided 8 January 2003. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (CA-02-439-2) JURISDICTION Jurisdiction is in the US Court of Appeals for the 4th Circuit pursuant to 28 USC 372(c)(1), on a complaint of misconduct prejudicial to the effective and expeditious administration of the business of the court. Said misconduct joins proximate violations of 18 USC 2441 and other statutes, and subordinates the court to the interests of a criminal conspiracy in violation of the laws of the United States. ================================================================================ ## PREFACE: This is a preliminary analysis. We all know how complex the issues are here. The complaint must show judicial misconduct or incompetence, not jurisprudential error. In this case, the two go hand in hand to a large degree, and in this first cut I've tried to keep the distinction in mind, but not let it slow me down. From my perspective, I want to communicate my view of BOTH the misconduct and the errors. If you think I'm mistaken or missing something I'd very much like to hear where and why. What matters is getting it right for the sake of the prisoners and the law. We know where these cases will be decided, and my assumption is that we're all looking at a 4-5 split against us going in, along the lines in Bush v. Gore. Justices Thomas and Scalia are presumably beyond reach. The Chief Justice is a scholar by repute, so we may have some chances, but convincing him will require a solid brief. Kennedy and O'Conner are both law and order judges, right? 18 USC 2441 is the law. The whole point of my case to put them in a position where they have to vote my way or violate the law and that fact is on the record. The bottom line is that if they rule against any of us, by my reading of 18 USC 2441 and Hague Art. 23, they join the conspirators in violating 18 USC 2441, at which point it will be up to Congress to impeach them for it. That was the scenario until last week, and that will be the scenario if Hot Foot fails; and in 2004, we get to elect a new congress, god help us. I figure any public understanding of the government's malfeasance in regard to Geneva and the prisoners that we can inject into that process will be a good thing. When I first came across 18 USC 2441 over a year ago, I wrote to an acquaintance, "I think I've found the key, and now I need to find the lock." The case I've been working on is an attempt to find it somewhere on the front door, but reading 28 USC 372 last weekend made me realize that the key will fit the lock in the back door too: I can present my whole brief in this complaint, because all of the clients in the habeas cases are victims in it, and the misconduct complained of joins all the other elements to form a single conspiracy of epic dimensions. Once ANY United States judge reads it, they have a clear and positive duty to enforce 18 USC 2441, plus an additional duty to ensure respect for the Geneva Conventions, as required by law. If they don't live up to those duties, they join the conspiracy themselves. That's the Christmas theory anyway. If it's right, this might be a little more like boiling them in oil than giving them a hot foot. - CBG 3/24/2003 ## CIRCUIT RULES Rules of the Judicial Council of the Fourth Circuit Governing Complaints of Judicial Misconduct and Disability: http://www.ca4.uscourts.gov/pdf/judcmplaintproc.pdf Notice of Amendments to Judicial Complaint Rules: http://www.ca4.uscourts.gov/pdf/noticeofamendments.pdf ## SUMMARY OF MISCONDUCT 1) The panel judges failed to perform their duty to respect and to ensure respect for the Geneva Conventions in all circumstances as required by Geneva Convention Common Art. 1. 2) The panel judges committed a grave breach of GPW Art. 5 by denying petitioner Hamdi a hearing on his status as a POW in violation of 18 USC 2441. 3) The panel judges committed an act prohibited in HR Art. 23 by denying petitioner Hamdi rights and actions due by law in violation of 18 USC 2441. 4) The panel judges were in dereliction of their duty by extending judicial "deference" to acts which are prohibited by law and exempt from executive privilege, in contradiction to the assertion of their opinion that no such violation was found. 5) The panel judges, either by neglect or by criminal intent, failed to perform their duty to prosecute offenses under Geneva and US law which should have been known to them. 6) Habeas exists precisely to afford prisoners relief from unlawful detention, and the panel judges are responsible for the impartial and efficient administration of justice by oath and their fundamental duties of office. Since Hamdi's current detention is plainly unlawful under 18 USC 2441 a clear presumption of prejudice or criminal conspiracy exists. 7) Ahead of their deliberations, the panel judges carried certain duties particular to their office and the specific statutes bearing on this case. The fundamental duty in a habeas case is to make a sufficient review of the applicable laws to determine what the interests of justice are in order to determine that the process afforded to the prisoners is lawful and conforms to the law. 8) Process is determined by the constitution and the law, and is limited by the rights (if any) of the prisoners. In their published opinion, the panel judges themselves observe: "As we have emphasized throughout these appeals, we cannot set aside executive decisions to detain enemy combatants "without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted." Quirin, 317 U.S. at 25." (Hamdi v. Rumsfeld, 38) 9) Process in this case violates 18 USC 2441. 10) Panel judges state in regard to GPW being "self-executing" or not: "Certainly there is no explicit provision for enforcement by any form of private petition. And what discussion there is of enforcement focuses entirely on the vindication by diplomatic means of treaty rights inhering in sovereign nations." Yet the right to report a crime to proper authority cannot be rightly denied; and in a review of habeas, the judges have to determine that regular due process has been maintained in order to meet the positive duty to ensure respect for the Geneva Conventions. 11) Since Geneva Common Art. 1 requires all parties to respect and ensure respect for the conventions, and GPW 129 requires that all parties enforce penalties for violations, the question of prisoner standing is moot. 12) See also United States v. Noriega, 808 F.Supp. 791, and Commentary III Geneva Conventions, Pictet, Gen. Ed., ICRC, Geneva (Commentary-GPW hereafter). Note especially: "In the case of Geneva III, however, it is inconsistent with both the language and spirit of the treaty and with our professed support of its purpose to find that the rights established therein cannot be enforced by the individual POW in a court of law. After all, the ultimate goal of Geneva III is to ensure humane treatment of POWs-- not to create some amorphous, unenforceable code of honor among the signatory nations. "It must not be forgotten that the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests."" (Commentary-GPW, 23). 13) It was necessary for the panel judges to examine the US code to determine what bearing the domestic laws had on the process afforded to the prisoners. This they manifestly did not do, for they make no mention of 18 USC 2441, which on even the most superficial reading is a statute which touches on the question of what the Geneva Conventions do, and makes it punishable under US law to commit certain violations in exactly the circumstances of this case. 14) Had the panel taken notice of 18 USC 2441, they would have had to mention it, because no deference can extend to a direct violation of law. Obvious violations exist in this case, and the government's attorneys are fully complicit in them. 15) The panel was therefore either negligent or willfully prejudiced, since the statute forbids parties to "declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party", and that is exactly what the panel judges did in their decision. The government's 2/7 "Fact Sheet" and DoD Military Commission Order #1 proves their own guilt, and the fact of their guilt proves the guilt of the panel judges to a certainty. 16) Therefore, 18 USC 2441 applied in this case; the judges had a duty to enforce it in this case; and their decision violated it in this case, because the statute considers only the act, not the intent. 17) The claim here is fraud, negligence, or incompetence -- not error. 18) See Commentary on Hamdi v. Rumsfeld by Charles Gittings (revised 2003.03.23): http://63.206.217.42/geneva_project/archive/Letters/ commentary_hamdi_4th_usca_20030108.doc ## GENEVA IS SELF EXECUTING AND FULLY BINDING ON THE UNITED STATES. 1) The panel judges state: "the Geneva Convention is not self-executing"; Hamdi v. Rumsfeld, 29. 2) And continue, "Certainly there is no explicit provision for enforcement by any form of private petition", Id. 3) Contra GPW Art. 1, which states plainly that all parties to Geneva "undertake to respect and to ensure respect for [ Geneva ] in all circumstances". 4) Contra GPW Art. 129, which states: "The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article." "Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case." 5) See Commentary III Geneva Convention; Pictet, ed.; ICRC, Geneva, 1960. 6) See United States v. Noriega, 808 F.Supp. 791. 7) Since a criminal law requires the prosecution of specific offenses, and can only be enforced if the offense is made known to an authority with jurisdiction over the crime, the right of a victim to call for assistance cannot under any circumstance be denied. 8) And note that calling on the authorities for assistence or relief when one is the victim of a crime is exactly a "form of private petition". ## THE STATUS OF GUANTANAMO BAY IS MOOT IN THIS COMPLAINT. 1) Geneva Common Art. 1 states: "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances"; 2) The circumstance of being detained in Guantanamo Bay is within the meaning of "all circumstances". 3) Geneva Common Art. 3 states: "To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons"; 4) Guantanamo Bay is a place within the meaning of "any place whatsoever". 5) 18 USC 2441(a) states: "Whoever, whether inside or outside the United States, commits a war crime", 6) Guantanamo Bay is a location "outside the United States". 7) The United States has both the duty and jurisdiction to enforce US laws at Naval Base Guantanamo Bay. ## GENEVA AND OTHER TREATIES FORECLOSE QUIRIN AND EISENTRAGER. 1) The Geneva Conventions are intended to protect all persons in time of war. Wounded and Sick are protected by GWS and GWS Sea, POWs are protected by GPW, and all others are protected by GC. 2) Geneva 1949 was ratified by the US in 1956. 3) At the time of Quirin (1942) and Eisentrager (1950) there was only GPW 1929 for POWs, and Hague ?? for wounded and sick, and Hague IV for certain types of persons in certain circumstances. No treaty covering other persons comprehensively then existed. 4) "Illegal Belligerent" was simply descriptive language to describe a particular set of circumstances outside the meaning of GPW 1929 and other treaties in effect at the time including Hague 1907. 5) Hague 1907 remains in effect today and is "complimentary" to Geneva 1949 per GPW Art. 135 and GC Art. 154. One might arguably hold that Quirin retains some validity with respect to Hague IV, but it has none with respect to Geneva 1949 or 18 USC 2441. 6) The UDHR was enacted 1948. From our perspective today in the light of subsequent events, treaties, laws, and the pronouncements of the US government, the UDHR has acquired compelling moral force. If there is a common law today then it would be found in the UDHR. ## CRIMINAL AND CIVIL REMEDIES BOTH EXIST IN THIS CASE. 1) The universality of laws and rights is guaranteed by the US Constitution, the UN Charter, and the ICCPR. 2) Citizens rights and aliens rights can be distinguished in the civil law to the extent that those rights pertain to the prerogatives of citizenship, but the basic protections of due process are guaranteed to all persons in all circumstances. (Geneva Common Art. 3). 3) In the Geneva conventions, rights are reciprocal: all parties are required to afford enemy prisoners due process, which must not be less favorable than the process due their own forces under the laws and regulations in effect at the commencement of hostilities. Common Art. 3, 1.(d): "(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples" GPW Art. 102: "A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed." GPW Art. 129: "The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article." "Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts." GPW Art. 130: Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention. GPW Art. 131: No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article. GPW Art. 142: "Each of the High Contracting Parties shall be at liberty to denounce the present Convention." "The denunciation shall be notified in writing to the Swiss Federal Council, which shall transmit it to the Governments of all the High Contracting Parties." "The denunciation shall take effect one year after the notification thereof has been made to the Swiss Federal Council. However, a denunciation of which notification has been made at a time when the denouncing Power is involved in a conflict shall not take effect until peace has been concluded, and until after operations connected with the release and repatriation of the persons protected by the present Convention have been terminated." 4) The criminal and civil laws both function to protect all persons. 5) The civil laws protect persons by providing them rights of action for civil remedies in courts. 6) The criminal laws protect persons by prohibiting specific acts, imposing penalties for those acts, and by assigning the government the duty to enforce those penalties impartially against anyone who commits such acts. 7) Geneva 1949 functions in both respects with regard to all protected persons. 8) The sole purpose of the Geneva Conventions is to ameliorate suffering in armed conflicts by protecting persons. 9) The Geneva Conventions are specifically intended to govern the conduct of governments and military forces in times of armed conflict. 10) ICCPR and ICAT also apply here. 11) The President "shall take care that the laws be faithfully executed". Const. Art. II, Sec. 3, 1. 12) The laws being: "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"; Const. Art. VI, 2. 13) The laws are "the supreme law of the land", Id.; and judges are "bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding", Id. 14) No party may absolve itself of responsibility for a violation of the Geneva Conventions; GPW Art. 131. 15) The position of an individual as head of state "shall not be considered as freeing them from responsibility or mitigating punishment", IMT, Art. 7. 16) "The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment", IMT, Art. 8. ## 4TH CIRCUIT PANEL MISCONDUCT IN HAMDI. 1) An act prohibited by law is misconduct. 2) Dereliction or negligence of a duty required by law is misconduct. 3) The United States is obligated to "respect and to ensure respect for" the Geneva Conventions "in all circumstances", Geneva Common Art. 1. 4) To meet that obligation clearly requires a full understanding of the Geneva Conventions, because it is impossible to ensure anything which is unknown. 5) That obligation also requires an examination of the facts and merits, because that is the only way to ensure that the conventions have been given due respect. 6) The panel states "there is no explicit provision for enforcement by any form of private petition" in Geneva, Hamdi v. Rumsfeld, 29. 7) For that assertion to be true, the panel would have had to read the whole treaty and the laws pertaining to it, including 18 USC 2441, regardless of what was or wasn't briefed; and they would have also had to satisfy themselves that those laws had been faithfully observed. 8) This they manifestly did not do. 9) Geneva Common Art. 1 requires that all parties "undertake to respect and to ensure respect for the present Convention in all circumstances". 10) Geneva Common Art. 3 forbids the "passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples". 11) 18 USC 2441(c)(1) makes it a war crime to commit any grave breach of the Geneva. 12) GPW Art. 130 includes "wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention" as a grave breach. 13) 18 USC 2441(c)(2) incorporates HR Art. 23, which states: "(I)t is especially forbidden... To declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party." 14) GPW Art. 5 requires a staus determination in cases of doubt as to the status of a prisoner of war. This has been denied by the administration behind an obviously false reading in the 2/7/2002 "Fact Sheet"; and it has been denied by the court behind a studied indiference to the actual provisions of the laws in "deference" to the pretences of the government's fraudulent claims. 15) That their claims are fraudulent can be shown by FM 27-10, The ICRC Geneva Commentaries, and the records of the IMT, etc. 16) QED: the decision of the court violates 18 USC 2441. ## NOTES ON ISSUES GOING FORWARD ON APPEAL. Some larger areas where I think respondents position is vulnerable. A) DEFERENCE I think you can attack the principle itself, because I think it is exactly a euphemism for simple prejudice, and that prejudice is fundamentally incompatible with a judges sworn duty to render impartial justice. I draw a distinction elsewhere between civil and criminal law, and I want to show that the one bestows a right while the other imposes a duty, so as to demonstrate that the two together are both required in order to maintain the balance of interests demanded by justice. Now if we can do that I believe that we must have an irresistible case on the law, so I've been thinking for some time now that someone should document every recorded instance of such deference and make a systematic analysis, but my problem is I already have more tasks going than I want. But I think the result would be a very ugly picture, and could be used to attack the government's position with great force. I also think we can distinguish limits on deference here. Beyond that, Geneva and the other treaties are binding, and they have precedence because they post date both Quirin and Eisentrager and were adopted by Presidential authority and Senate ratification by the exercise of basic Constitutional authority to legislate the supreme law of the land. A law expresses the will of the people, not the Congress or President who are merely the agents of that will. No act of the Congress or power of the President exists that will diminish the Geneva Conventions: they are binding for the duration of the present conflict. Would the Government claim that Dred Scott gives them precedent to practice chattel slavery? The authority of the President as head of state to adopt a contractual obligation by treaty which binds his authority as C-i-C is obvious, and such is the case with the conventions here. B) SOVEREIGNTY Same deal here, except you need an examination going back to Grotius at least. But the gist of it is made plain enough merely by asking: "What is sovereignty?" Because sovereignty is, in its essence, control; and military control is inherently a manifestation of fundamental sovereignty. Or to put it another way, the real sovereignty of the Cuban homeland has been seized by the virtual sovereignty of American possession, which subordinates the rights of Cuba to the might of the United States, and excludes the interests of Cuba out of hand. They capitalize here on a stupid theory that pertains to a civil right of action on the writ of habeas, but they've ignored their positive duties under the Geneva Conventions, and they've flaunted violations of 18 USC 2441 under a false color of authority. And now the two appeals court panels have staked themselves to the notion that the prisoners have no right of review on the merits absent a violation of US law in a case where the facts before them establish that there is such a violation right under their noses unnoticed and unremarked. C) GUANTANAMO BAY A treaty has the nature of a contract: see Hamilton, Federalist Nos. 75 & 80. I'm not an attorney, I know enough about contracts to think somebody with a good understanding of the principles of contract law could rip their position into small pieces. Eisentrager: US in Germany -- control council -- joint and reasonably amicable relations. Guantanamo Bay: US in Cuba -- barbed wire fences, a minefield, and an unwanted token payment laden with contempt for Cuban interests -- polarized hostility. The traditional nautical territorial limit of three miles is based on the traditional range of a cannon shot; and sovereignty can be seen as the projection of force to control territory, whether the force employed be legal or military in nature. At Guantanamo Bay, the two go hand in hand. By what rational definition of the term "sovereignty" would they evaluate this case? And what could possibly warrant respect in an irrational definition? The US military has the same positive obligation under the conventions that the courts do to respect and to ensure respect for the Geneva Conventions (Common Art.1). That duty does not leave them on Cuban soil, and the Court has jurisdiction under 18 USC 2441 to enforce the statute anywhere within or without US territory, as well as a positive duty to search for violations and to prosecute them when found. Why would such an obligation be subject to any question of sovereignty? Where we can exercise our power, we can fulfill our obligations. The President and the military are bound to obey the laws of the United States, and to faithfully perform their duties under those laws. The Geneva Conventions are no exception. # # #