The comments below are designed to review the emails and information provided to TPMM on the issues of the US Atty decision in Los Angeles to disband the ethics unit.

Other comments on this subject have been posted here

DoJ appears to have missed the lesson: When you're in a hole stop digging. However, the public reactions from former/current DOJ Officials isn't putting this issue to rest, but raising more issues warranting review by TPMM. Perhaps hey want bigger shovels. TPMM is ready to give them those shovels. Here is a comment related to "M"s email sent to TPMM.

The problem with this former US Atty's statement is that he's not discussing the problem/issue/concern: Allegations that the disbandment was for an improper purpose. Rather, they're discussing whether the public spin about that disbandment is or isn't reasonable. They're missing the point.

The former US Atty appears more interested in ensuring that the questions about the disbandment end; or "make the case" that the disbandment was reasonable. They appear to be arguing out of ignorance, and without a real insight into the real motivations for the spin about the disbandment and the disbandment decision.

TPMM readers have an interest in questioning the disbandment and the spin. As with the US Atty firings, there may be something going on. It is absurd for someone, not still with DoJ, to implicitly argue, "Move along, nothing to see here."

The other problem is the nature of the Former DOJ employees comments. Either [1] they are discussing internal deliberations with DOJ Employees, raising DOJ OPR issues and improper relationships between current DOJ employees and private counsel; or [2] they're not.

What's curious is the DOJ Employee has openly admitted, agreed to have disclosed, their former connection with DOJ. They appear to not view their information/discussions as sensitive. They're not revealing new information; merely making the case that the spin appears reasonable.

We're not asking them to disclose classified information; not share information they, now, have recieved, despite their apparent "lack" of official connection with DOJ employees. Rather, when someone no longer assigned to DOJ appears interested in justifying the disbandment decision, but isn't giving us something specific, there's an issue.

The DOJ Staff in DC may have another objective in disbanding this unit. We don't know for sure. This former DOJ Staff employee/prosecutor/Asst US Atty may or may not know about those reasons. we have no information from their e-mail; nor have they commented on these possible partisan/DC-level factors driving the disbandment.

Overall, the former DOJ employee assigned to LA has not provided us with reasonable basis or sufficient assurances to avoid this issue. Rather, out of apparent ignorance of the real reasons for the disbandment (whatever they are), they would ask that we believe the spin. Our job isn't to find an excuse to end the inquiry, but to explore whether the reasons for the disbandment are or are not reasonable. Given this former DOJ Staff's comments, it's more likely:

- There is something else driving the disbandment decision;
- DOJ hasn't credibly taken action to address the issues supposedly driving the disbandment;
- Other options, including transferring "more competent counsel" into this disbanded unit appear to have not been considered.
- There are other factors, other than those stated in the spin, driving the disbandment.

Questions:
- Which issues do GOP-DC personnel have concerns with
- Were the LA prosecutors getting slow rolled; and did DC use that "lack of progress" (linked with the GOP stonewalling) as an excuse to change the subject from the GOP stonewalling to the "prosecutors' lack of progress"
- What other reasons were discussed in DC, at other meetings, that were the real reasons by the disbandment
- Why is this former DOJ/US prosecutor, while in private practice, commenting on issues they no longer have a direct connection? That's a credibility issue: They're using their DOJ connection to ask others to "be happy" with the public assertions, which may or may not be linked with the real factors/issues behind disbandment decision.
- Has the former DoJ official disclosed anything warranting questions about their breaches of any duties of confidentiality? If not, then they're admitting they're not telling us anything new; and game on for the TPMM actions/discussion as was done with the US Atty firings.

It was the rationalization of inaction and "everything is fine" that appears to have been behind the decision of the US Attys not to prosecute US government officials in the Oval office for alleged war crimes. Everything is fine if you keep your head buried in the sand, refuse to resign, and assent to alleged illegal orders not to enforce the laws of war.

Is DOJ OPR and the DC Bar looking at these explanations:
- Have current/former legal counsel assigned to DOJ as prosecutors improperly refused to provide information to the DOJ OPR over alleged malfeasance by their peers in DoJ?
- Have legal counsel in DOJ refused to fully comply with their oath of office?
- Do DOJ staff have a higher loyalty to "loyalty to the President" than the Geneva Conventions or the US Constitution?
- Which Specific DOJ Staff counsel has DoJ OPR put under review for a referral to the DC Bar for alleged reckless attorney misconduct in defiance of the clearly promulgated DC Standards of Atty conduct?

The former/currently assigned DOJ Staff counsel would have us believe, "Because of inaction and secrecy, there's no information." Yet, DOJ OPR is reported to have found the opposite and is the reported basis for the referrals to the DC Atty Disciplinary board.

TPMM readers,

This comment warrants follow-up with additional questions.

And this original email deserves a closer look, especially in light of the apparent logic disconnects.

There is an alleged improper segregation of issues. The allegation is that alleged FISA violations were used to commit abuses against US citizens and POWs: Illegally captured, false, and unreliable information was used to "justify" war crimes. This misses the point of the JAGs, who are outside the Us Atty's office, which DOJ OLC appears to have ignored, and this appears to be a dubious assertion:

And as far as FISA and NSL abuses, the USAOs are the voice of reason in the administration on this front.

Get real! "Voice of reason" gives us how many FISA violations; and how many times has the FISA-connected illegal information been used to commit abuses against US citizens and POWs?

If there was a "voice of reason" then that voice appears to have been overshadowed by OVP and WH legal counsel. The issue isn't a "voice' of reason; but action, outside DOJ and WH, in court:

- Where were the US Atty prosecutions against WH and DOJ OLC staff counsel?

- when there were issues of POW abuse, why weren't the US Atty's leading prosecutions of the US legal counsel arguing for alleged war crimes, POW abuse, FISA violations, and secrecy of rendition/war crimes?

DOn't care about the internal deliberations. Care about one thing: Once those alleged war crimes against POWs, and FISA violations were known by the US Attys, and DOJ refused to support prosecutions, why didn't the US Attys prosecute DoJ Staff for refusing to enforce the laws of war?

There is no excuse for inaction under the laws of war. Rather, the claim that they are a "voice" of reason without action through prosecutions implicitly admits the US prosecutors failed to fully enforce the laws of war, but gave up.

Why, who got in their way, and how were they threatened if they dared enforce Geneva against their peers in the legal community by direct prosecution of former and current WH counsel for alleged complicit with illegal Geneva violations, frivolous legal arguments, POW abuse?

Your arguments do not appear to address the wider issue: Why weren't the precedents of Nuremberg -- that civilian policy makers legal counsel, not just combat veterans -- could be prosecuted for war crimes. You appear to be making excuses to shield legal counsel, and change the subject.

- What information do you have about "arguments" DoJ Staff gave to not enforce the laws of war?

- what memoranda did you read related to rendition/

- What role do outside counsel have with targeting the public discussion of these alleged war crimes?

- What connection do you have with former DOJ or WH counsel on issues of rendition, POW abuse?

- Have you ever read the US Atty Manual sections on DOJ OPR referrals; and do you know about the DOJ OPR reviews of DOJ Staff counsel?

- What information did the LA prosecutors' office have about misconduct by DOJ Staff counsel, prosecutors, or others in the GOP in blocking DOJ Actions to enforce the laws of war?

- Was the "lack of progress" in the La office linked more with GOP stonewalling of those prosecutions?

- Why weren't the "better" attorneys (outside the disbanded unit) brought into the unit to ensure that the unit continued as a viable entity targeting ethics issues?

- Why so many explanations, excuses, and rationalizations to accept the DOJ explanation; and not explore the real reasons DoJ and GOP had to disband the unit?

Your answers are backfiring. You need to come up with something that sounds coherent. This isn't adding up. This is your argument, and there are holes in it. A sign of a major problem with your argument, apparent excuses. Game on for wider TPMM exploration of this. The DOJ's indirect responses through formerly assigned personnel appear to be backfiring, and making more problems for DOJ and the White House on issues of FISA violations, rendition, war crimes, and breaches of Geneva.

This misses the point: The US Attys, and Asst US Attys, can bypass the DoJ OLC and White House, and contact DOJ OPR if they've been thwarted from enforcing the laws of war.

the USAOs can make sure these things are done right in the cases they prosecute, and can refuse to prosecute cases where these things were not done right. And they have.

"Can make sure" is different than ensuring. We have no evidence any of the Asst US Attys have attempted to, nor brought prosecutions against DOJ Staff, WH Counsel, or other legal counsel for alleged war crimes.

It is a secondary issue whether they have or haven't refused to enforce the law; or their "reasons" for their refusal to enforce the laws of war, the warrant requirements, or other standards in FISA.

- Which DoJ staff were the targets of the US Atty/Asst US Atty prosecutions for alleged complicity with the telecoms on FISA violations?

- How many prosecutions did Asst US Atty/US Atty attempt, but were thwarted by WH Counsel, DOJ Staff, DOJ OLC, OVP, or DOJ AG?

- Which specific alleged illegal activity by WH counsle on issues of war crimes, FISA violations, NSLs, prisoner abuse were the US attys/Asst US Attys expressly/implicitly barred from prosecuting?

We have two options at the Federal level to enforce the laws of war. DoJ Staff has seen impeachment is "off" the table. Why weren't prosecutions used to enforce the laws of war against the President; why didn't Asst US Attys empanel grand juries to review the President's alleged memoranda endorsing war crimes; and why haven't the US Attys expressly resigned on the narrow issue of alleged GOP-WH obstruction of their efforts to enforce the laws of war, FISA requirements, warrant requirements?

- Where is the grand jury indictment against the President, OVP legal counsel, DOJ OLC legal counsel and other US Attys for their alleged complicity with war crimes, FISA violations?

- When did the US Attys agree not to enforce the oath of office, standards of conduct in re duty to enforce the Geneva conventions against Members of Congress in re malfeasance?

- When did DOJ AG become aware of the US Atty memoranda and workflows related to the grand jury reviewing these alleged war crimes, frivolous legal arguments, and Asst US Atty complicity with violations of the laws of war, warrant requirements, and FISA standards?

The US Attys, when they refuse to act on issues of Geneva, raise the prospect of larger alleged malfeasance by more DOJ Staff on issues of war crimes, FISA violations, and POW abuse in rendition. Without resignations, the Asst US Attys could be prosecuted for alleged complicit with, and failure to remove themselves, from alleged war crimes, FISA violations, and grave breaches of Geneva.

This was a foreseeable outcome, especially given the "voice of reason" that should have well informed legal counsel, civilian counsel, and outside counsel of the alleged war crimes implications: Even outside civilian counsel could later be implicated in war crimes and subjected to a war crimes tribunal.

- When did the DOJ OLC inform US Attys and Asst US Attys that their silence on these alleged war crimes, FISA violations, and other breaches of Geneva would be rewarded with greater DOJ OLC efforts before a war crimes tribunal?

It was foreseeable, as documented in the Military Commissions act, that legal counsel returning to private practice could be the subject of a war crimes tribunal. The MCA expressly included language granting all US persons as defendants before international tribunals legal defense funds.

- Which outside legal counsel have a vested interest in making these legal issues go away, spread non-sense to justify denial, and hide an alleged agreement by the DOJ OLC and Asst US Attys to remain silent about the alleged malfeasance, unlawful conduct, and Geneva violations in exchange for DOJ OLC-GOP efforts to thwart war crimes investigators at the international level?

- Where are the post deliberative discussions between US Attys, Asst US Attys, DOJ OLC, and outside legal counsel on the issues of rendition, prisoner abuse, Geneva violations?

- Is someone suggesting that those govt/private legal counsel allegedly complicit with these war crimes can enjoy the claim of "state secrets"; yet, we have no evidence the Holocaust was a "state secret": Why the special immunity for alleged US legal counsel complicity with war crimes?

- Which now-civilian legal counsel, formerly assigned to DOJ, have an interest in agreeing with the spin that there is "nothing to be seen" here; and end a review of the alleged link between [a] US Atty firings; [b] disbandment of an ethics unit; and [c] issues of grave breaches of Geneva, FISA violations, and warrant requirement violations?

Personal view: It is absurd for the public to have to know the laws of war better than legal counsel to evaluate whether formerly assigned legal counsel comments on those issues warrant increased civilian oversight; or would raise questions of alleged malpractice by now-civilian counsel formerly assigned to DoJ. Convoluted arguments suggest that staff counsel were not enjoying robust analysis, and there was an assent to non-sense which legal counsel had a duty to challenge, especially on issues of the oath of office, US Constitution, Geneva, and the warrant requirement.

For any counsel to suggest, "POWs don't have Constitutional rights" as an excuse not to enforce the laws of war against the DOJ Staff misses the point. DoJ Staff took an oth to the US Constitution; that oath includes a promise to enforce all treaty obligations. The duties of DOJ Staff counsel and US Attys is not one that reuqires them to protect POWs narrowly as a Constitutional right, but as a legal obligation on the US as a detaining power. Inaction cannot be justified. Geneva has two prongs: One is a shield to the POWs, unrelated to the US Constitution; the second is the leash on the US government, and the requirement for US Attys to take up a >o?legal spear and put it to the throat of those endorsing, not preventing, or refusing to stop violations of the laws of war, FISA, or the warrant requirements.

- Which US Attys and Asst US Attys knew, or should have known of these Geneva obligations on legal counsel, but have no enforced the laws of war through prosecutions against DOJ Staff, other US Attys, outside legal counsel?

- Which Asst US Attys, rather than enforce the laws of war, resigned, hoping to hide in private practice, and hope nobody would find them to drag them before a war crimes tribunal for alleged malfeasance in refusing to enforce the laws of war against their peers in the legal community?

- Which grand juries were not supported to enforce the laws of war against Asst US Attys?

- Which grand jury indictments against US Attys did the DOJ AG or others in US Attys office reject for improper reasons?

- How many currently and formerly assigned DOJ, OVP, WH, CIA, DOD, or other legal counsel could be implicated in these alleged war crimes, FISA violations, and other rendition related efforts?

We're hearing too much non-sense, too early, not to challenge the wider allegations; nor enough good reasons to have confidence that the US Attys and Asst US Attys did fully do their job. The burden of proof is on them to make the case that they should not be subjected to TPMM review, investigation, and referrals to DOJ OPR and DC Attys disciplinary board for alleged complicity with FISA violations, war crimes, and other grave breaches of Geneva. Up until now, we're hearing non-sense. That is not impressive either as a formerly assigned DOJ counsel/prosecutor, or someone asserting they are in private practice. The public has a reasonable expectation that the legal counsel would resolve this issue, not make excuses to do nothing, bury this, or pretend nothing is going on. It is arguably reckless when the public has to know the legal issues better than "the best" within the WH, DoJ, and US Attys Office. This is not adding up. The problem is for the legal counsel to explain their alleged malfeasance on issues of war crimes, FISA violations, and grave breaches of Geneva.

We need to see something along the lines of prosecutions, not just "pushing back"

And we pushed back when agencies wanted do do something that was close to the line.From

Pushing back means more than objecting, but in using prosecutions and grand juries to indict. This does not appear to have happened. The reaasons for that alleged inaction and malfeasance are secondary, but could be related to the US Atty disbanding the ethics unit: They may have been getting close to something GOP, WH, and DOJ leadership didn't want touched: ALleged grave breaches of Geneva implicating legal counsel, and subjecting them disbarment if prosecuted.

As a US Atty or Asst US Atty, your oath isn't to agree to illegal activity; it's to prosecute your civilian and legal leadership when they violate the law, or ask you to not take action when you should on issue of Geneva, FISA, or warrant violations.

- Did you not enforce all provisions of Geneva?

- Which war crimes did you not prosecute against the WH, DoJ OLC staff?

- Which DOJ OLC policies did you use as evidence to prosecute DOJ OLC legal counsel for alleged frivolous legal memoranda in support of war crimes?

There's nothing been done. Mary's point was it appears your inaction on this hasn't solved the issue; but you're showing up after the fact to justify the inaction/non-prosecutions against those legal counsel who have endorsed, not stopped, and refused to enforce the laws of war.

The issue isn't whether Mary is or isn't making her point; but whether former Asst US Attys can or cannot explain to a war crimes tribunal their alleged malfeasance on issues of war crimes, frivolous legal policies, and other breaches of Geneva. Mary has no obligation to "get" anything; the war crimes tribunal needs to hear something credible. Arguably, if this is your defense, you're missing the point: Alleged malfeasance by US Attys on issues of war crimes, frivolous legal arguments, and other alleged complicity by legal peers in DOJ OLC, WH Counsel, OVP, and outside legal counsel on issues of rendition, POW abuse, and unlawful use of false, inadmissible information when abusing prisoners of war during unlawful interrogations.

It appears you fail to see the issue: Alleged war crimes which US Attys should have presented to a grand jury for review. We have no evidence that US Attys or Asst US Attys have cleared the way for any grand jury review of alleged war crimes by DOJ Staff, OLC, WH counsel, outside counsel, or US Attys on issues of war crimes, frivolous legal arguments, or alleged malfeasance on issues of Geneva.

The US Attys, and formerly assigned Asst US Attys could be prosecuted for complicit with alleged war crimes; or in not fully asserting their oath to enforce the laws of war. There is no statute of limitations for war crimes. You need to do something more to justify inaction by a war crimes tribunal. Germany and Italy may have been dissuaded, but this review is far from ended, but only starting.

Reconsider the US Atty's email and public comments in light of the relevant standards; and notice what they're not commenting on, or how they're phrasing their response. This is surprising:

In a sense, my protest against the administration's practices was to do prosecutions in the right way, to show that we could build good cases without resort to the kind of extreme tactics applied in Gitmo and elsewhere. From

- Which prosecutions did this asserted former Asst US Atty know were the "wrong" way?

- Did they have a legal obligation under Geneva to remedy this beyond a protest?

- What evidence of this "wrong" activity under Geneva did they have a duty to provide to tribunals?

The asserted/self-reported former US prosecutor would ask that we believe a "protest" short of a direct prosecution of the President was sufficient. We disagree. The laws of war impose on legal counsel the duty to enforce the laws of war. Nuremberg prosecuted counsel which did not meet the standard.

For the moment, put aside the legal requirements, we have the self-evident result: DoJ Staff counsel, US Attys, and Asst US Attys have not prosecuted a sitting President, civilians, or others in policy making decision related these abuses under Geneva. What the asserted "former" Asst US Atty would have us believe is that they fulfilled their legal obligations by making a "protest," but they do not mention grand juries, war crimes tribunals, or direct indictments.

Under the laws of war, the issue becomes the legal standard applicable to the Asst US Atty. Curiously, the same rules which some in DC ignore, are not applicable in CA. California operates under a different set of standards which DoJ Staff counsel may or may not be meeting. The question turns on not what they did, but whether they did or didn't fully meet the legal expectations on counsel under the Geneva Conventions. One cannot argue that the US Attys standards enforced through tthe CA or DC Attorney disciplinary boards does or does not comment on Geneva. That's irrelevant. The question is whether legal counsel, in position of high trust and access to sensitive information, did or did not fully enforce Geneva; or resign when they knew, or should have known they were associated with illegal activity and war crimes.

These are the rules a US Atty in California would be subject. However, note on this list, CA is not listed, and the DC rules are different. Mandatory withdrawal requirements do not relate to client decisions to engage in war crimes. Even if the US government started illegal warfare, CA state rules do not require a withdrawal. Mandatory requirements at B are not the same as permissive in C. Note also the "mandatory" withdrawal standard only applies to arguments made in litigation, not arguments made on the internet. The attorney could make frivolous legal arguments "unconnected" with litigation and have "no requirement" to withdraw.

"Fully" doing one's duty does not prevent formely assigned legal counsel from muddying the waters, and dissuading public discussion about alleged US legal counsel complicity with that unlawful activity; or their refusal to enforce the lwas of war; or discuss the connection legal counsel, through inaction and malfeasance, may have with alleged illegal prisoner abuse, rendition, and misconduct toward POWs. "Protesting" something is different than using that evidence to enforce the laws of war.

- Did legal counsel fully meet their legal obligations;

- Did the "protest" meet the intent of Geneva and precedents of Nuremberg

- Has the US Atty met their legal requirements under their oath of office

- Have the former US Attys, with their oath to enforce the US Constitution and all Geneva requirements, met or not met that oath of office requirement; or would they have us believe this is a "best effort" and they have "no duty" to remove themselves from alleged war crimes planning and policy making?

This rule:

A lawyer in the US Attys office in CA is not the same as an attorney in DOJ OLC in DC. Silently assenting to war crimes isn't covered here, this only prohibits the "advise" of that illegal activity:

A member shall not advise the violation of any law, rule, or ruling of a tribunal unless the member believes in good faith that such law, rule, or ruling is invalid.

- Is the assertion that the laws of war is "invalid" or inapplicable something that is good faith argument? Arguably no.

"Good faith" testing does not require removal:

A member may take appropriate steps in good faith to test the validity of any law, rule, or ruling of a tribunal.

Here are the DC Bar rules, which do not necessarily match the CA standards applicable to the LA office-based US Attys.

[ snipurl.com/228e1 ]

If DoJ, WH, or GOP wants something selectively buried, they could find a jurisdiction which will not sanction those legal counsel for that inaction. It's a way of sidestepping legal requirements.

The problem in LA could be the opposite: Legal counsel may have been confronted with evidence they, even under the CA rules, were unable to ignore; but they may have been getting stonewalled by the GOP, other legal counsel, other US government entitities, or policy makers inside DOJ. We don't know.

Let's refocus on something about legal counsel being attached to underlying crimes. When/if legal counsel are making frivolous legal arguments to defend/justify/explain illegal activity, and the primary actor is engaged in illegal activity, then legal counsel could be attached to that original unlawful act of the client/government.

The question is whether the legal counsel, in memoranda, have made frivolous legal arguments to justify inaction on war crimes. That could be a subsequent war crime. Legal counsel, US Attys, or DOJ Staff could be prosecuted.

Note here, the rules for DC are here; but there is no comparative rule for California. This could be a way to keep some US Attys in the dark; or, despite knowlege of Geneva violations, give the US Attys in CA an "out" to justify their inaction. However, the question turns on whether Geneva imposed a higher standard, and it was unreasonable for legal counsel in CA at the US Attys office to do nothing on issues of alleged war crimes, illegal activity, or violations of the laws of war.

The problem is when the former Asst US Atty expressly states their knowledge of abuses at trial, and asserts these were not meeting the legal requirements, but then does not point to something specific to say they took action. Again, the way they may have interpreted the rules, and what the rules mean are subjects for a war crimes tribunal to adjudicate. Legal counsel may have convinced themselves, rightly or wrongly, that they had no legal duty to act, when, in fact, they may have a requirement to remove themselves. Again, we don't know, but the issue deserves attention:

- Did legal counsel correctly act when they were aware of alleged breaches of Geneva?

- Did legal counsel in the US Attys office in LA know about this?

- Is this person commenting at TPMM still assigned to DOJ-related legal issues?

- Was this former Asst US Atty assigned to the LA office; or were they merely assigned to DOJ in another capacity?

- Why does someone apparently with the LA US Attys Office have a position on Geneva, when the LA office was supposedly working on fraud?

- Did LA-based legal counsel have evidence of violations of Geneva in re trial procedures afforded to the laws of war; did they timely act under the standards to correct this problem; or did they recklessly assent to Geneva violations without complying with possibly-enforced requirements not to make frivolous legal arguments to justify inaction in re the alleged war crimes [failure to afford POW Geneva-recognized rights at trial]?

We need to be very specific:

- Is this asserted former Asst US Atty still assigned to the same jurisdiction they were assigned while in DOJ; or have they moved to another state or jurisdiction with different attorney standards of conduct?

- Which specific trial abuses, allegedly in breach of Geneva, is this asserted Asst US Atty alleging/asserting they "knew" about?

- Which actions, under which jurisdiction, are they saying they took?

- Did the actions they took under that jurisdiction [CA, DC, or another state] fully meet their legal obligations?

- Did they make no frivolous legal arguments to justify inaction, assent, or silence about any alleged breaches of Geneva?

- Did they fully do what they were required to do under the laws of war and/or the appliable attorney standards of conduct?

In light of some of information above about CA and DC ethics, let's revisit this:
'

I recently left the U.S. Attorney's Office in Los Angeles for private practice, and I've followed the recent events in the office closely and talked to several folks who were at the meeting in question. From

Saying people "at the meeting" means this person is in receipt of internal deliberations after the disbandment decision.

A. The information has allegedly been disclosed, breaching the shields of atty-client privilege;

B. The information relates to post-decisional deliberations, not protected by privilege of the President or his legal counsel. [This assumes DoJ OLC briefed the President on this planned disbandment, especially given the known DOJ-WH-political/legal/public affairs coordination we saw with the US Atty firings. Once this issue hit the LA Times, DoJ counsel most likely coordinated with the WH public affairs, WH legal cuonsel, and WH-GOP level on this issue.]

This is a replay of the US Atty firing discovery which we saw with Congress and the DoJ Staff emails:

- Where is the FOIA related to these documents?

- When will WH counsel, as with the US Atty firings, be subpoenaed?

- Where are the email retention plans of the DOJ OCL-WH legal counsel communications on the LA Times story?

- Where are the calendars of the US Atty in LA; and how does the likely telecom after the LA Times story broke square with the calendars we saw at DOJ level in re US Atty firings?

- When did the DoJ liaision to the WH coordinate with DoJ AG, DoJ OLC, WH public affairs, WH legal, and WH political arms after the LA Times story on this disbandment?

Congress: Apply the lessons of DoJ, WH, GOP in re email retention:

- What is the plan of the court to strike the claim of attorney-client privilege now that DOJ Staff have allegedly breached that duty and disclosed the information to personnel not legally entitled to review this information?

- Leaks from DoJ/US Atty staff, but no DOJ OPR investigation to blug that leak or identify who of the 17 is disclosing this information?

- Is there any plan of DOJ to prosecute US Attys in LA for disclosing this information? If not, then the DOJ has a problem: It's not sending a message its concerned about this standard, suggesting that it wants this information revealed.

- If this "former" DoJ Atty can get this information, why the concern of the LA US Atty to have disclosures; why not allow everyone to see everything? But we have the opposite: Alleged threats of there were revelations.

We have to formerly assigned DoJ staff in a paradox:

M says the leaks disclosed internal deliberations:

There have been leaks of internal meetings in the past, and while a U.S. Attorney should be able to have a meeting about an internal matter without it appearing on the front page the next day, O'Brien may have gone overboard in trying to head that off.

M says they talked to people at the meeting:

talked to several folks who were at the meeting in question.

It appears M knows about alleged violations of DoJ procedures barring disclosure of internal deliberations.

- Is the formerly assigned US Atty in receipt of classified information?

- Have they improperly transmitted this information to others in the media?

- Why are they admitting to receiving information that they knew, or should have known, was subject to embargo?

- As with Spitzer, should we believe a prosecutor's comments about ethics, standards, and integrity when we find out that Spitzer violated the standards he should have known applied?

- Should we question M's assertions because of this paradox: He gives us information they know or should know could be subject to DOJ OPR review?

Saying stats are "undisputed" doesn't address whether the "bad stats" were or were not the real reason for disbandment, which the WH, DoJ Staff, DOJ AG, and GOP would have concurred. This invites more questions. Counsel is in error for pretending something is "undisputed": That's irrelevant. The issue is why are they using non-sense arguments to justify the "right" decision.

Remember Iraq WMD lessons:

- Right decisions have good reasons.

- Bad decisions have silly reasons.

What was the real decision; and who really made it:

So as a matter of substance, the decision was probably the right one.

- Were there other, real reasons behind this?

- Who really made the decision?

- Why is DoJ still attempting to explain the "right" decision, but the best they can offer are arguments which raise more questions and do not resolve the issue?

- Is there more to the story?

There must be, because the stated reasons are too convoluted. This is like the DoJ defense of FISA violations: Every story they issued, made their defense weaker.

DoJ is asking for more questions given this convoluted story. The "best" DoJ can offer us is non-sense, as the WH did with the US Atty firings, FISA violations, and Iraq WMD. Convoluted non-sense means staffers in DOJ are still trying to sell something which someone else told them to do.

We have a formerly assigned US Atty in LA asserting they were aware of alleged Geneva breaches in how POWs were tried in Geneva.

- When did the WH order this crew in LA to face retaliation for poking their nose into GOP, WH, or DOJ AG legal concerns on issues of rendition, bribery, war crimes, FISA violations, or other things alleged to be connected with the Oval Office?

- When did DoJ, WH, and/or GOP legal counsel issue to the LA US Atty direction that this disbandment discussion be a "close hold"?

Why not keep the unit, not disband it, and move the attorneys into the ethics area. Note the qualification: "Those cases":

Putting frauds folks on these corruption cases is the best thing that could happen for those cases.

- What would be best for justice; or other cases in the future; or "other" pending cases the President doesn't want investigated in re war crimes?

- Why is it "best" to get rid of a unit, as opposed to bringing in the "better" attorneys from outside the unit, retain the unit, and salvage that unit's core competencies?

- What have we lost by disbanding this unit: Focus on areas which the White House doesn't want focused?

- Why are some (apparently) convinced that the unit should be disbanded, especially when the reasons for that disbandment appear convoluted, and linked with decisions outside the US Attys office?

This smacks as DoJ convincing US Atty to do nothing against the President or GOP as a "good career move." Your oath isn't to the President or GOP but to the Constitution.

What areas, unrelated to frauds, required the focus of the ethics/public corruption unit:

The cases tend to be bigger in frauds, the attorneys on the other side tend to be better, and there are better opportunities after you leave the office for those who've been in frauds.

Watergate prosecutors got quite some post-employjment opportunities.

- Some US Atty been convinced that "not prosecuting the President" is a bad career move?

- Which public corruption case will get less attention now that the US Attys are focused on frauds?

Looks like someone is chasing stats as a pretext to avoid chasing the President with a war crimes indictment. Either impeach or prosecute the President. DoJ refuses to do the latter; and they do not support the former. Not reading much to justify support for current or formerly assigned US Atty/DoJ staff counsel comments.

The two emails smack of DoJ-coordinated spin.

One issue to explore are the prosecutor standards of conduct. Note none of the rules require prosecutions, only impose duties to prevent abuses during prosecution:

refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

3.6 is here for the DC Rules.

- To what extent has the US Atty in Los Angeles bypassed this rule, and, in effect, painted the current legal counsel in the US Attys office with a broad brush to discredit them publicly?

Here is one legal standard for the US Atty oath of office: 28 USC 544.

Each United States attorney, assistant United States attorney, and attorney appointed under section 543 of this title, before taking office, shall take an oath to execute faithfully his duties.

Who is arguing that "faithfully executing" ones duties means do nothing about war crimes evidence, POW abuse, Geneva violations, FISA violations, rendition, or evidence from DoD personnel related to war crimes?

One of the issues on war crimes and US Attys revolves around US laws. Some might suggest that Nuremberg is different, or something outside the US Atty responsibilites. Some might argue that the Geneva conventions are not something the US takes an interest.

However, they are wrong. Look at this case : and look at the parties of the litigation:

United States of America v. Alstötter

This shows us that the United States, which the US Attys represent, would have to consider this case and others from Nuremberg.

There's no excuse for any of the US Attys/Asst US Attys to ignore the Nuremberg precedents, nor refuse to take action to enforce the laws of war, unless they were prevented from doing their job or ordered not to enforce the laws of war. Which is exactly the point of TPM in re the US Atty firings.

The former US Attys assigned to LA who are commenging on these issues aren't resolving the problem. They're doing the opposite. They've expressly mentioned Geneva-related issues on the POW treatment at Guantanamo. This shows us they know the Geneva Convention requirements that apply to the United States as a detaining power; and that they know the US has legal obligations under Geneva to ensure the POWs are given access to reasonable procedures which are consistent with Geneva.

The former US Atty commenting on Geneva hasn't made the case that they've done all they could; nor that they took the information they gleaned from the media to examine the issues through an investigation or prosecution effort. It remains to be seen whether the alleged malfeasance in refusing to prosecute for alleged war crimes is a subsequent offense; and whether other US Attys subsequently refused to prosecute for these violations of the US Code, in violation of their duties outlined under Section 547.

Alleged Fatal Assertion Contrary to Interests

The following is alleged war crimes evidence of interest to war crimes prosecutors and Members of Congress.

One quote deserves some rigorous follow-up. This comment attempts to deconstruct a key quote related to Geneva. The purpose of this deconstruction is to give TPMM readers a reasonable basis to ask follow-up questions to former and current US prosecutors on the disbandment decision.

Curiously, one former prosecutor who commented on the LA US Atty decision to disband the ethics unit made a curious comment. The implications are stunning and warrant serious consideration. The author of this quote asserts that they are a former US prosecutor, working in the department of Justice. If true, they had the power to prosecute cases on behalf of the United States, and did work for Senate Confirmed US Attorneys. They have a valid law license, remain in private practice and are presumably in good standing before the California State Bar.

The following quote deserves some special attention, as it raises many issues which could form the basis to impeach this former US Atty as a witness:

"In a sense, my protest against the administration's practices was to do prosecutions in the right way, to show that we could build good cases without resort to the kind of extreme tactics applied in Gitmo and elsewhere."From

Implications of Former US Prosecutor Comments Related to Geneva At Guantanamo

The former prosecutor asks that we believe they were aware of abuses at Guantanamo. The question is whether they knew of these abuses at Guantanamo while a former US prosecutor and did nothing to enforce the laws of war; or whether they learned about the abuses after they left the US Attorney's office, but would have us believe they knew of, and attempted to apply, this information while prosecuting cases. The analysis below will show the statement could prove fatal: The statement appears to put them in a bind, substantially undermining reasonable confidence in what they are saying and what they did.

For this analysis, we assume it's less relevant whether "Extreme tactics" means POW abuse; or coercive prosecutions: Both or either would raise issues of Geneva violations against POWs.

Former Prosecutor Trapped

The analysis below will use a detailed system of charts. These are intended to highlight to possible set of assumptions linked with the above quote. We are not asserting that either set of assumptions are more or less valid than the other; only to show that regardless which assumptions we're asked to believe, there's a lower basis to have confidence in the former US Attorney's comments.

Overview

Two issues to keep in mind during this analysis relate to immunity and impeachment. We discuss these issues before going into a detailed analysis of the quotes. These issues, after the assumptions are analyzed form the basis for the concluding questions for the former US Attorney.

Issue 1: Former Prosecutor Assertions Weaken Immunity Claims

Commenting on Guantanamo abuses, and raising concerns about trial abuses indicates the former prosecutor is aware of what is right and wrong. This weakens their defense that they were not aware of the activity; or they didn't know the standard; and undermines a strong assertion they were acting within their official duties. Rather, it raises questions that, despite this knowledge, they did not fully do what they should, in alleged breach of their oath of office promise to enforce the Geneva Conventions and US Treaty Obligations [Article VI].

The quote shows they were aware of Geneva abuses and violations; knew prosecutor responsibilties; and that they are attempting to differentiate themselves from those committing the abuse. The problem for the former US Attorney is that this differentiation-effort is meaningless. By arguing they were aware of abuses, but failing to make the case that they did attempt to prosecute US officials for those Geneva violations, they've allegedly committed a breach of Geneva: Despite knowing of abuse, prosecution standards of Geneva, and what was possible under US procedures, they haven't made the case that they did what they should. Bluntly, although they may wish to suggest they attempted in other prosecutions to apply the lessons of Guantanamo abuses, they've not made teh case that they used this information to subsequently prosecute those who committed the violations at Guantanamo.

Issue 2: Witness Impeachment: Alleged Frivolous Arguments Could Attach Former US Atty to Underlying War Crimes

It could be argued that this effort to differentiate themselves is using a frivolous argument, and that they are not different from the primary actors: Despite abuses at Guantanamo, they do not appear to have enforced Geneva against those who committed those abuses. Whether they did or didn't attempt to apply these lessons in other cases is irrelevant; the abuses at Guantanamo appear to have not been enforced by this former US Attorney.

Assumption Set A

For this set of assumptions, we'll presume the Former US Atty had contemporaneous knowledge of the Guantanamo abuses; learned of these abuses while in the US Attorney's office; and while still in office attempted to ensure the prosecutions did not repeat the abuses of Guantanamo.

We can chart the Guantanamo abuses against the prosecutor efforts. This chart shows the Guantanamo abuses occurred first, then the prosecutor efforts overlapped with those abuses.

Here is a chart of these assumptions, time from left to right:

Chart 1: Assumption Set A

GTMO
Abuse ......--------------

Prosecutor
Efforts ................-------------

Note: Prosecutor efforts start well after Guantanamo abuses, assuming abuses occurred first; then then former US prosecutor attempted to act on that information.

Legend:

........... Space holder
----- Activities

(A) GTMO Abuse: Abuses the US was committing at Guantanamo
(B) Prosecutor Efforts: Actions this former US Atty took

Assumption Set A asks us to believe the following
1. Information was transmitted from Guantanamo to the former US Attorney on prisoner abuses
2. The former US Attorney learned of these abuses while a US Attorney; and attempted, while still a US Attorney, to apply these lessons to the ongoing prosecutions they were working.

Assumption Set B

There's another way of looking at the prosecutor's quote above. Suppose, for the sake of argument, they claim that they cannot be held responsible for inaction against US officials because they supposedly didn't know of the abuses at Guantanamo while a US prosecutor, but only learned of those abuses after leaving the US Attorney's office. This may be the case. The problem with this defense, is it raises questions about the original quote and the former US Atty's motivation for commenting.

We can chart this second set of assumptions, where the knowledge of those abuses occurs well after the former US prosecutor ended their prosecutions as a DoJ employee.

Let's chart these assumptions, where time is on the horizontal axis, from left to right:

Chart 2: Assumption Set B

GTMO
Abuses ....----------

Prosecutions ........-------

Knowledge
of abuses ...........................--------

Note: Knowledge of the abuses in assumption set B occurs well after the former US prosecutor could prosecute; and the GTMO abuses have no relationship with how the US Atty would or wouldn't prosecute their cases.

Legend:

.......Space holder
----Activities
(A) GTMO abuses: Alleged POW trial procedure violations of Geneva
(B) Prosecutions: Former US Atty prosecutions on behalf of US government in other courts, unrelated to GEneva
(C) Knowledge of abuses: Former US prosecutor awareness of the Guantanamo abuses

Assumption Set B asks us to believe the following:
1. Knowledge of the GTMO abuses occurred after the former US Atty left DoJ/USAO
2. Knowledge of the Guantanamo abuses had no impact on former US attorney conduct while assigned to DoJ.

Assumption set B would ask that we accept their defense of "they didn't know," but make an absurd conclusion about the original quote: Despite their assertion that they attempted to incorporate their understanding of the abuses, they could not have used this information as they didn't know. Rather, if this defense is true, then their quote today is designed to mislead, and suggest they were doing the right thing, despite having no information.

Analysis

We've briefly outlined the problematic quote, and two assumption sets (A, B) linked with that quote. Either the former US prosecutor knew of the abuses at Guantanamo, and failed to prosecute US officials as allegedly required under Geneva; or they are making a misleading statement, and did not learn of these abuses until later, but they are asking us to believe they took this "later learned" information somehow applied it to previous cases. The latter defies reason; the former subjects the former US Attorney to questions in re Geneva:

- Did the former prosecutor correctly act when they had a duty to act; Did they correctly "not prosecute" Us officials for alleged Geneva breaches in trial procedure; or were they blocked from enforcing the law and not permitted to prosecute?

- What is the explanation for not prosecutions of US government officials and policy makers who were allegedly breaching Geneva with trial procedures did that did not comply with the laws of war?

- Did the former US prosecutor really know of abuses at Guantanamo which did apply to enemy prosecutions before they departed DoJ? [Assumption Set A]

- Was the asserted knowledge of the Guantanamo trial procedure abuses only possible after the former US Attorney departed DOJ, but they are misleading the public and asking us to believe they applied this "later gained information" prospectively to previous cases they prosecuted while in DoJ? If so, this would raise attorney ethics issues of alleged misleading statements on legal issues]

- Has the former US Attorney's statement been correctly classified as an alleged fatal assertion, contrary to interests, as the basis for an impeachment review of their former US attorney's documented, admissible, out of court statement; to what extent has this statement undermined their already weak credibility on TPMM?

- Did the investigators and prosecutors outside Guantanamo get guidance and direction about what happened at Guantanamo; but were told to not enforce these trial procedure breaches of Geneva?

When someone makes a convoluted statement, especially a former US prosecutor, we have to examine whether that statement is intended to mislead; or pretend that they did all they could; or distract attention from something they knew was wrong, but failed to take action.

- To what extent were these alleged orders to do nothing unreasonable which the former US Attorneys should have known were not lawful; and would invalidate their claims to immunity for malfeasance in re Geneva enforcement before a war crimes trial?

Opinions and Beliefs

Based on information and belief, we conclude with the following opinions and beliefs. These are not statements of fact or law and may not be widely held, but deserve further discussion on TPMM:

1. The former US Attorney has made a fatal assertion contrary to interests, and could be used to impeach them as a witness;

2. The US Attorney knew of abuses at Guantanamo, that these abuses were short of the standards expected of legal counsel;

3. The former US Attorney has implicitly admitted they were aware of legal standards which have been breached, but are attempting to distract attention from their failure to enforce those violations, to whether they applied "the lessons" to cases they were prosecuting. This appears to be a deliberate distraction from alleged malfeasance, inaction, or other factors which contributed to inaction against US personnel committing alleged breaches against POWs.

4. Either the former US prosecutor is misleading the public about what they did and did not learn of the abuses until later; or they failed to take this information and prosecute these subsequent cases or failed to direct investigators to investigate alleged war crimes; or they're not talking about the other issues behind the decision of the US government not to enforce the laws of war through subsequent prosecutions. We view the former US Atty's comments with suspicion in that they're not focusing on the issues of disagreement, make no showing they full attempted to enforce the Conventions through prosecutions, but appear designed to distract attention from inaction on Guantanamo abuses, and ask that we give them special favor for attempting to apply these lessons to different prosecutions, unrelated to the reported alleged war crimes at Guantanamo.

5. We believe the former US Atty is misleading TPMM; not discussing the internal DOJ agreements to allegedly not fully enforce the laws of war; and distract attention from their knowledge that the Geneva Conventions were not fully enforced, as they should have been.

6. We believe the former US prosecutors' statement about Guantanamo abuses could be used to impeach that prosecutor as a witness; weaken if not destroy their claim to qualified or absolute immunity; and could be entered as a fatal assertion contrary to interests as an exception to the hearsay rule.

It is puzzling why a former US prosecutor would indirectly give a reason to raise these issues, or open this many barn doors when they were not required to comment. One possibility is that they genuinely know there is a war crimes issue; and something was not done that should have been. Indeed, claiming that they attempted to do the right thing, while showing no evidence of prosecutions against US officials for war crimes, is a meaningless assertion. Whether this is intended to mislead or distract attention is a matter for a war crimes tribunal to adjudicate. Our view is the statement is not precise and requires additional commentary.

We remain concerned that the original quote has not apparently formed the basis for a broad review of the POW working group meetings. Taken as a fatal assertion with adverse inferences, the former US Atty's comments show he knew of the Geneva violations and abuses; knew prosecutor responsibility; and he is attempting to create an unreasonable case that they were somehow doing the right thing. Based on what little the former US Attorney has said, it appears this misleading statement is designed to form a weak defense to charges they did not fully do what they should have done; and distract attention from their alleged agreement to comply with unlawful DoJ direction to not prosecute US officials for unlawful trial procedures at Guantanamo.

We've shown that it's most likely that a former US prosecutor, who worked for a Senate confirmed Presidential appointee most likely continues to practice law despite evidence they are either making misleading statements, knew they did not fully meet their legal obligations under GEneva, or were impermissibly ordered to not enforce the laws of war.

These issues raise questions about the former US attorneys credibility as a commenter or witness, and their reasons in 2008 for speaking on the US Atty actions in Los Angeles. Regardless the reasons, we are not given confidence that the reasons for the US Atty disbandment of the LA ethics office should be believed. It appears the former US Attorney has a personal interest that is not consistent with those on TPMM.

It's the job of TPMM to explore to what extent these statements by currently practicing members of the state bar are challenged; and to what extent their claims of immunity or qualified immunity should be rejected on the basis of these statements. ARguably, for anyone after the fact to attempt to distract attention from key issues, and distract attention from alleged inaction on war crimes suggests they well knew right from wrong and are not reasonably arguing they should be entitled to a claim of immunity or qualified immunity during a war crimes trial.

We make no assertion this attorney is lying, unfit to practice law, nor that they are not qualified to represent clients before any court; nor do we comment on their professional qualifications, competence, or their suitability to represent clients. This is merely a public comment based on a statement of someone asserting they are licensed to practice law and did learn of prisoner abuse issues in connection with the Department of Justice. Whether they have or have not violated the laws of war, issued misleading statements, or fatally admitted to things warranting a war crimes tribunal to impeach them as a witness or deny them immunity is beyond this comment and only issues a competent tribunal can adjudicate.

However, given that it is widely reported DOJ OPR is reviewing attorney standards; that legal counsel have sought outside counsel; and that the MCA does grant funds to US officials before war crimes tribunal, we coincide the former US Attys statement is designed more to bolster their apparent weak legal position than to provide informed commentary about the US Attys' disbandment of the ethics office in Los Angeles.

Congressional

In light of the above, DOJ OPR needs to discuss with DOJ IG and House/Senate Judiciary the status of the attorney referrals to the state and DC disiplinary boards; and status of prosecution efforts against current and formerly assigned staff counsel on issues of Geneva violations, unlawful trial procedures, and alleged breaches of the oath of office in not enforcing the laws of war agaist US government officials through prosecutions.

Inaction by DoJ OPR, or likely ongoing efforts of the President and DOJ AG to refuse to enforce the laws of war, forms the basis for the House to start immediately an impeachment investigation against currently and formerly assigned US prosecutors in re alleged (a) violations of the laws of war; and (b) refusal to enforce Geneva against prosecutors for alleged violations of POW guarantees under the Geneva Conventions. Without impeachment or prosecutions, DoJ staff counsel cannot claim they are part of a civilized system of justice as Nuremberg precedents require.

Repost: HTML Correction

Alleged Fatal Assertion Contrary to Interests

The following is alleged war crimes evidence of interest to war crimes prosecutors and Members of Congress.

One quote deserves some rigorous follow-up. This comment attempts to deconstruct a key quote related to Geneva. The purpose of this deconstruction is to give TPMM readers a reasonable basis to ask follow-up questions to former and current US prosecutors on the disbandment decision.

Curiously, one former prosecutor who commented on the LA US Atty decision to disband the ethics unit made a curious comment. The implications are stunning and warrant serious consideration. The author of this quote asserts that they are a former US prosecutor, working in the department of Justice. If true, they had the power to prosecute cases on behalf of the United States, and did work for Senate Confirmed US Attorneys. They have a valid law license, remain in private practice and are presumably in good standing before the California State Bar.

The following quote deserves some special attention, as it raises many issues which could form the basis to impeach this former US Atty as a witness:

"In a sense, my protest against the administration's practices was to do prosecutions in the right way, to show that we could build good cases without resort to the kind of extreme tactics applied in Gitmo and elsewhere."From

Implications of Former US Prosecutor Comments Related to Geneva At Guantanamo

The former prosecutor asks that we believe they were aware of abuses at Guantanamo. The question is whether they knew of these abuses at Guantanamo while a former US prosecutor and did nothing to enforce the laws of war; or whether they learned about the abuses after they left the US Attorney's office, but would have us believe they knew of, and attempted to apply, this information while prosecuting cases. The analysis below will show the statement could prove fatal: The statement appears to put them in a bind, substantially undermining reasonable confidence in what they are saying and what they did.

For this analysis, we assume it's less relevant whether "Extreme tactics" means POW abuse; or coercive prosecutions: Both or either would raise issues of Geneva violations against POWs.

Former Prosecutor Trapped

The analysis below will use a detailed system of charts. These are intended to highlight to possible set of assumptions linked with the above quote. We are not asserting that either set of assumptions are more or less valid than the other; only to show that regardless which assumptions we're asked to believe, there's a lower basis to have confidence in the former US Attorney's comments.

Overview

Two issues to keep in mind during this analysis relate to immunity and impeachment. We discuss these issues before going into a detailed analysis of the quotes. These issues, after the assumptions are analyzed form the basis for the concluding questions for the former US Attorney.

Issue 1: Former Prosecutor Assertions Weaken Immunity Claims

Commenting on Guantanamo abuses, and raising concerns about trial abuses indicates the former prosecutor is aware of what is right and wrong. This weakens their defense that they were not aware of the activity; or they didn't know the standard; and undermines a strong assertion they were acting within their official duties. Rather, it raises questions that, despite this knowledge, they did not fully do what they should, in alleged breach of their oath of office promise to enforce the Geneva Conventions and US Treaty Obligations [Article VI].

The quote shows they were aware of Geneva abuses and violations; knew prosecutor responsibilties; and that they are attempting to differentiate themselves from those committing the abuse. The problem for the former US Attorney is that this differentiation-effort is meaningless. By arguing they were aware of abuses, but failing to make the case that they did attempt to prosecute US officials for those Geneva violations, they've allegedly committed a breach of Geneva: Despite knowing of abuse, prosecution standards of Geneva, and what was possible under US procedures, they haven't made the case that they did what they should. Bluntly, although they may wish to suggest they attempted in other prosecutions to apply the lessons of Guantanamo abuses, they've not made teh case that they used this information to subsequently prosecute those who committed the violations at Guantanamo.

Issue 2: Witness Impeachment: Alleged Frivolous Arguments Could Attach Former US Atty to Underlying War Crimes

It could be argued that this effort to differentiate themselves is using a frivolous argument, and that they are not different from the primary actors: Despite abuses at Guantanamo, they do not appear to have enforced Geneva against those who committed those abuses. Whether they did or didn't attempt to apply these lessons in other cases is irrelevant; the abuses at Guantanamo appear to have not been enforced by this former US Attorney.

Assumption Set A

For this set of assumptions, we'll presume the Former US Atty had contemporaneous knowledge of the Guantanamo abuses; learned of these abuses while in the US Attorney's office; and while still in office attempted to ensure the prosecutions did not repeat the abuses of Guantanamo.

We can chart the Guantanamo abuses against the prosecutor efforts. This chart shows the Guantanamo abuses occurred first, then the prosecutor efforts overlapped with those abuses.

Here is a chart of these assumptions, time from left to right:

Chart 1: Assumption Set A

GTMO
Abuse ......--------------

Prosecutor
Efforts ................-------------

Note: Prosecutor efforts start well after Guantanamo abuses, assuming abuses occurred first; then then former US prosecutor attempted to act on that information.

Legend:

........... Space holder
----- Activities

(A) GTMO Abuse: Abuses the US was committing at Guantanamo
(B) Prosecutor Efforts: Actions this former US Atty took

Assumption Set A asks us to believe the following
1. Information was transmitted from Guantanamo to the former US Attorney on prisoner abuses
2. The former US Attorney learned of these abuses while a US Attorney; and attempted, while still a US Attorney, to apply these lessons to the ongoing prosecutions they were working.

Assumption Set B

There's another way of looking at the prosecutor's quote above. Suppose, for the sake of argument, they claim that they cannot be held responsible for inaction against US officials because they supposedly didn't know of the abuses at Guantanamo while a US prosecutor, but only learned of those abuses after leaving the US Attorney's office. This may be the case. The problem with this defense, is it raises questions about the original quote and the former US Atty's motivation for commenting.

We can chart this second set of assumptions, where the knowledge of those abuses occurs well after the former US prosecutor ended their prosecutions as a DoJ employee.

Let's chart these assumptions, where time is on the horizontal axis, from left to right:

Chart 2: Assumption Set B

GTMO
Abuses ....----------

Prosecutions ........-------

Knowledge
of abuses ...........................--------

Note: Knowledge of the abuses in assumption set B occurs well after the former US prosecutor could prosecute; and the GTMO abuses have no relationship with how the US Atty would or wouldn't prosecute their cases.

Legend:

.......Space holder
----Activities
(A) GTMO abuses: Alleged POW trial procedure violations of Geneva
(B) Prosecutions: Former US Atty prosecutions on behalf of US government in other courts, unrelated to GEneva
(C) Knowledge of abuses: Former US prosecutor awareness of the Guantanamo abuses

Assumption Set B asks us to believe the following:
1. Knowledge of the GTMO abuses occurred after the former US Atty left DoJ/USAO
2. Knowledge of the Guantanamo abuses had no impact on former US attorney conduct while assigned to DoJ.

Assumption set B would ask that we accept their defense of "they didn't know," but make an absurd conclusion about the original quote: Despite their assertion that they attempted to incorporate their understanding of the abuses, they could not have used this information as they didn't know. Rather, if this defense is true, then their quote today is designed to mislead, and suggest they were doing the right thing, despite having no information.

Analysis

We've briefly outlined the problematic quote, and two assumption sets (A, B) linked with that quote. Either the former US prosecutor knew of the abuses at Guantanamo, and failed to prosecute US officials as allegedly required under Geneva; or they are making a misleading statement, and did not learn of these abuses until later, but they are asking us to believe they took this "later learned" information somehow applied it to previous cases. The latter defies reason; the former subjects the former US Attorney to questions in re Geneva:

- Did the former prosecutor correctly act when they had a duty to act; Did they correctly "not prosecute" Us officials for alleged Geneva breaches in trial procedure; or were they blocked from enforcing the law and not permitted to prosecute?

- What is the explanation for not prosecutions of US government officials and policy makers who were allegedly breaching Geneva with trial procedures did that did not comply with the laws of war?

- Did the former US prosecutor really know of abuses at Guantanamo which did apply to enemy prosecutions before they departed DoJ? [Assumption Set A]

- Was the asserted knowledge of the Guantanamo trial procedure abuses only possible after the former US Attorney departed DOJ, but they are misleading the public and asking us to believe they applied this "later gained information" prospectively to previous cases they prosecuted while in DoJ? If so, this would raise attorney ethics issues of alleged misleading statements on legal issues]

- Has the former US Attorney's statement been correctly classified as an alleged fatal assertion, contrary to interests, as the basis for an impeachment review of their former US attorney's documented, admissible, out of court statement; to what extent has this statement undermined their already weak credibility on TPMM?

- Did the investigators and prosecutors outside Guantanamo get guidance and direction about what happened at Guantanamo; but were told to not enforce these trial procedure breaches of Geneva?

When someone makes a convoluted statement, especially a former US prosecutor, we have to examine whether that statement is intended to mislead; or pretend that they did all they could; or distract attention from something they knew was wrong, but failed to take action.

- To what extent were these alleged orders to do nothing unreasonable which the former US Attorneys should have known were not lawful; and would invalidate their claims to immunity for malfeasance in re Geneva enforcement before a war crimes trial?

Opinions and Beliefs

Based on information and belief, we conclude with the following opinions and beliefs. These are not statements of fact or law and may not be widely held, but deserve further discussion on TPMM:

1. The former US Attorney has made a fatal assertion contrary to interests, and could be used to impeach them as a witness;

2. The US Attorney knew of abuses at Guantanamo, that these abuses were short of the standards expected of legal counsel;

3. The former US Attorney has implicitly admitted they were aware of legal standards which have been breached, but are attempting to distract attention from their failure to enforce those violations, to whether they applied "the lessons" to cases they were prosecuting. This appears to be a deliberate distraction from alleged malfeasance, inaction, or other factors which contributed to inaction against US personnel committing alleged breaches against POWs.

4. Either the former US prosecutor is misleading the public about what they did and did not learn of the abuses until later; or they failed to take this information and prosecute these subsequent cases or failed to direct investigators to investigate alleged war crimes; or they're not talking about the other issues behind the decision of the US government not to enforce the laws of war through subsequent prosecutions. We view the former US Atty's comments with suspicion in that they're not focusing on the issues of disagreement, make no showing they full attempted to enforce the Conventions through prosecutions, but appear designed to distract attention from inaction on Guantanamo abuses, and ask that we give them special favor for attempting to apply these lessons to different prosecutions, unrelated to the reported alleged war crimes at Guantanamo.

5. We believe the former US Atty is misleading TPMM; not discussing the internal DOJ agreements to allegedly not fully enforce the laws of war; and distract attention from their knowledge that the Geneva Conventions were not fully enforced, as they should have been.

6. We believe the former US prosecutors' statement about Guantanamo abuses could be used to impeach that prosecutor as a witness; weaken if not destroy their claim to qualified or absolute immunity; and could be entered as a fatal assertion contrary to interests as an exception to the hearsay rule.

It is puzzling why a former US prosecutor would indirectly give a reason to raise these issues, or open this many barn doors when they were not required to comment. One possibility is that they genuinely know there is a war crimes issue; and something was not done that should have been. Indeed, claiming that they attempted to do the right thing, while showing no evidence of prosecutions against US officials for war crimes, is a meaningless assertion. Whether this is intended to mislead or distract attention is a matter for a war crimes tribunal to adjudicate. Our view is the statement is not precise and requires additional commentary.

We remain concerned that the original quote has not apparently formed the basis for a broad review of the POW working group meetings. Taken as a fatal assertion with adverse inferences, the former US Atty's comments show he knew of the Geneva violations and abuses; knew prosecutor responsibility; and he is attempting to create an unreasonable case that they were somehow doing the right thing. Based on what little the former US Attorney has said, it appears this misleading statement is designed to form a weak defense to charges they did not fully do what they should have done; and distract attention from their alleged agreement to comply with unlawful DoJ direction to not prosecute US officials for unlawful trial procedures at Guantanamo.

We've shown that it's most likely that a former US prosecutor, who worked for a Senate confirmed Presidential appointee most likely continues to practice law despite evidence they are either making misleading statements, knew they did not fully meet their legal obligations under GEneva, or were impermissibly ordered to not enforce the laws of war.

These issues raise questions about the former US attorneys credibility as a commenter or witness, and their reasons in 2008 for speaking on the US Atty actions in Los Angeles. Regardless the reasons, we are not given confidence that the reasons for the US Atty disbandment of the LA ethics office should be believed. It appears the former US Attorney has a personal interest that is not consistent with those on TPMM.

It's the job of TPMM to explore to what extent these statements by currently practicing members of the state bar are challenged; and to what extent their claims of immunity or qualified immunity should be rejected on the basis of these statements. ARguably, for anyone after the fact to attempt to distract attention from key issues, and distract attention from alleged inaction on war crimes suggests they well knew right from wrong and are not reasonably arguing they should be entitled to a claim of immunity or qualified immunity during a war crimes trial.

We make no assertion this attorney is lying, unfit to practice law, nor that they are not qualified to represent clients before any court; nor do we comment on their professional qualifications, competence, or their suitability to represent clients. This is merely a public comment based on a statement of someone asserting they are licensed to practice law and did learn of prisoner abuse issues in connection with the Department of Justice. Whether they have or have not violated the laws of war, issued misleading statements, or fatally admitted to things warranting a war crimes tribunal to impeach them as a witness or deny them immunity is beyond this comment and only issues a competent tribunal can adjudicate.

However, given that it is widely reported DOJ OPR is reviewing attorney standards; that legal counsel have sought outside counsel; and that the MCA does grant funds to US officials before war crimes tribunal, we coincide the former US Attys statement is designed more to bolster their apparent weak legal position than to provide informed commentary about the US Attys' disbandment of the ethics office in Los Angeles.

Congressional

In light of the above, DOJ OPR needs to discuss with DOJ IG and House/Senate Judiciary the status of the attorney referrals to the state and DC disiplinary boards; and status of prosecution efforts against current and formerly assigned staff counsel on issues of Geneva violations, unlawful trial procedures, and alleged breaches of the oath of office in not enforcing the laws of war agaist US government officials through prosecutions.

Inaction by DoJ OPR, or likely ongoing efforts of the President and DOJ AG to refuse to enforce the laws of war, forms the basis for the House to start immediately an impeachment investigation against currently and formerly assigned US prosecutors in re alleged (a) violations of the laws of war; and (b) refusal to enforce Geneva against prosecutors for alleged violations of POW guarantees under the Geneva Conventions. Without impeachment or prosecutions, DoJ staff counsel cannot claim they are part of a civilized system of justice as Nuremberg precedents require.

Josh,

The problem I have is right now. Someone is posting on all my blogs the same content/spam. If you go through my blog, and look at the last comments, you'll see the same person. Could someone give me some suggestions?

Profanity

Thank you for your discussion on posting policy. My question is this: If someone is posting profanity in multiple places, would it be a violation by us, the user, if were were to consolidate that abusive language into one post like this for purposes of a summary report.

Yes, I am having a problem with someone who has posted here, and my highlighting is below. Would my highlighting of their language result in sanctions against me?

Spamming Policy

To others reading this, but may not have much to do, I'm asking for some assistance with a special visitor to my blog. Any assistance from others would be appreciated.

I would like to continue providing links to point others to what is going on with this particular poster, but do not want to be accused of spamming. If someone would like to assist me, or is interested, feel free to post a comment at my blog on TPMM. The spamming on my blog is disruptive. I've attempted to take the long comments out of the main TPMM thread, and provide links to longer comments, rather than posting. If this is not going to work, then perhaps someone else has some suggestions on how I can provide content, not spam, but still provide input.

Request For Assistance from TPMM Readers

Please feel free to share your suggestions with me at my blog. Rather than sending e-mail, can someone suggest how I might provide to other bloggers more information and examples?

As a user I'm wondering:

- How do I ask for help;
- How much consolidation of posts do you need;
- How many infractions are required;
- How many days one must endure this;
- If someone is posting multiple comments, but those comments defy reason, is it "spam" to respond to each comment; or how do I engage them, even when they're posting on my blog and accusing me, on my blog, of spamming my own blog? (Yes, this is happening to me right now).

If people are not happy with my content or writing style that is one thing; but to repeat the same, unhelpful, profane language for days on end is pointless. Is this what I'm being asked to put up with until I do what; and what information do others need from me that I can publicly post (given the limitations on links) so that others can see the same information?

Please help. Thank you.

I would like to know how I can auto-block someone from my blog. They appear to have a problem with my content; so I fail to understand why they bother visiting to say what "should be" self evident.

Look at this, I take the time to provide case law citations, and I get this kind of non-sense. Even when I provide legal citations, I get told that it's garbage. That's not my problem, they should take it up with the court.