Guantanamo: Secrecy Rules Gag Lawyers About Other US-UK Government War Crimes

POWs report American military personnel were taking photographs of POWs, in alleged violation of the Geneva Conventions. The information strengthens a DoD connection with rendition currently adjudicated as a war crime in Italy.

It appears British Courts and Judicial Officers have illegally refused to fully assert their legal obligations under the Geneva Conventions. We judge British and American courts unreasonably support war crimes evidence suppression. UK Ambassador Craig Murray substantially discloses details of the US-UK intelligence sharing relationship. Presumably, the United States and UK intelligence services have exchanged information gleaned from the POW abuse.

Source of Quotes below:

British Judge Sets Hearing On Evidence for Detainee (NYT; June 6, 2008; Raymond Bonner)

A. There is rendition photographic evidence:

”[There are] photographs that he said an American soldier took of Mr. Mohamed's injuries, during a flight from Morocco to Cuba.”

B. There appears to be other evidence in DoD Guantanamo files about CIA abuse

”[M]ore robust evidence of mistreatment of C.I.A. prisoners could emerge in the future."

C. There appear to be illegal gag orders related to war crimes:

The NYT reports secrecy rules prevent Guantanamo lawyers from discussing details of photographs taken of POWs taken from Morocco to Guantanamo.

”Under the strict secrecy rules imposed by the Pentagon on lawyers representing Guantanamo detainees, Mr. Stafford Smith said he could not go into any more detail”

Questions:

A. What happened to the FBI war crimes files gleaned from POW abuse at Guantanamo?

B. When did the President order the FBI to destroy these war crimes files?

The issue is whether the British judge is suppressing information to protect intelligence relationships, or whether the real objective is to hide evidence of war crimes. The real objective of the gag order appears to be to hide the evidence of war crimes the UK and US intelligence services have shared with their respective civilian legal counsel, policy advisors, and leadership.

The Germans during WWII convinced other nation’s courts to assent to Nazi aggression. It appears the UK courts have assented to American propaganda and legal non-sense. The British Judge appears to be acting as if they were a US judge, under the control of the American President. For the purposes of this discussion, because of the connection between the US and UK, we treat the British Judge as if he were working for the American government; and the goal of the evidence suppression is to preserve UK-US state interests.

Dubious Privilege Claims

Privilege is a claim that only shields a government from intrusion. Privilege is an assertion the government has the exclusive power to do something. This is something related to sovereignty. A government does have the power to coin money. No one may interfere with this inherent state power.

This President and reckless GOP have absurdly argued they have the “inherent” power to ignore the laws of war. They do not. A Presidential assertion of privilege does not make it so. This is merely an assertion.

An attorney-client privilege is not absolute. There are exceptions. One of them is the crime-fraud exception. When an attorney’s legal memoranda is substantially related to unlawful activity, and the client relies on memoranda to further illegal activity, the attorney can client cannot reasonably expect that communication will be shielded. The question turns on whether legal counsel connected with the President, White House counsel, and White House advisors were or were not instrumental in providing false information to the public; and that the attorneys were, in effect, no longer acting as independent legal advisors, but active participants in other alleged illegal activity.

Nuremberg shows that attorneys, not directly engaging in war crimes, can be adjudicated with war crimes. In this case, the question turns on whether the legal counsel knew or should have known that their memoranda would or would not be used for illegal activity; or whether they misled the court to thwart enforcement of the laws of war.

It is illegal for the courts to ignore evidence of crimes and fraud. The court cannot shield legal memoranda connected with unlawful activity, fraud, and crime. Once the crime-fraud exception is invoked, the court can be persuaded to ignore the claim of attorney-client privilege.

In this case, the claim of privilege fails. This is known or should be known to currently assigned staff counsel, civilian advisors, and others implementing illegal information warfare against American civilians.

Even if there was no evidence of illegal activity, the privilege claim is not something anyone can invoke. For example, an advisor to the President cannot lawful invoke privilege. Only the head of state may assert that claim in court. Rove, Miers, and Bolten are not heads of state; may not claim privilege; but must appear personally to invoke any 5th Amendment right to not incriminate themselves. Rove, Miers, and Bolten have a problem. The DoD emails and McClellan’s book substantially link then with the President on propaganda. The US Attorney firing emails also show Miers, Rove, and Bolten were involved.

Unlawful Suppression of War Crimes Evidence

Foreign powers should be concerned with the court’s decision to gag legal counsel at Guantanamo. There is a question whether some evidence has been suppressed showing the United States is illegally trying civilian POWs before military tribunals.

The laws of war require detaining powers – the United States – to ensure all POWs are afforded the same judicial privileges and protections afforded to similarly situated personnel. In this case, the analogy is the judicial protections and rules of procedure afforded to American military personnel before a court under the UCMJ.

Thwarting Oversight, Geneva Enforcement: Bungling US Government Behind Secrecy

We’ve seen what secrecy did to the Senate intelligence Committee on issues of FISA and propaganda: They bungled. The court is likely to not get the needed feedback: What other evidence exists. What information is being gagged that the public, other courts and other lawyers should know about: This is material Information For Voters

CIA Tape Destruction Nexus

The gag order appears to indirectly relate to the ongoing investigation into CIA destruction of POW interrogation videos. It is our view the CIA tape destruction and President’s claims about that illegally destroyed evidence are connected with the misplaced court decision to suppress other evidence of Presidential war crimes.

The court is not well advised to believe that details of this evidence should be suppressed; rather, the details should be disclosed and compared with the other lines of evidence connected with the CIA tape destruction.

Subsequent War Crimes: Photographing POWs

The court claims the lawyers may not discuss these details.

The objective of the gag order appears less to do with protecting privileged information, but to suppress public discussion of the war crimes implications: Not only were POWs photographed in violation of Geneva; but the photographs were not turned over with the video tapes when the courts were reviewing FOIA requests indirectly connected with the CIA videos.

Information Warfare: Inducting Opposing Branch to Advocate For President

The President wins by inducting the court to believe – wrongly – that the interests of justice are served by the gag order. The President’s larger objective is to thwart the public, legal community, and media from understanding the scope of the POW abuses, the other lines of evidence which exist, and the previous failures of the President and others to fully cooperate with evidence discovery in response to FOIAs.

“Court secrecy” is another way of saying, “Hiding evidence the public should know about the President.” This President and prosecutors are not concerned about judicial power, secrecy, or privileges: They’ve openly ignored the judicial branch’s role on issues of FISA; tampered with prosecutions; and have accessed non-public information to tamper with juries, court officers, and lawyers. Rather than reform themselves, they’ve crafted media messages to justify the abuse of the judicial branch.

Inconsistent Presidential Positions On Judicial Independence

It’s absurd for anyone to believe the US government is concerned about the integrity of the judicial system. Rove is alleged in an affidavit to have worked with the DoJ public integrity unit to tamper with prosecutions.

A case can be made that the court has approved secrecy rules not to protect the judicial branch or the court proceedings, but to suppress information the public should get access. As with the Phase II report, the White House is likely inducing the other branch of government to assert a claim or conclusion that appears to contradict the President, or preserve a branch-prerogative, but really serves the President.

Civilians Alleged Illegally Tried Before Military Tribunals

We’ll put aside for the moment whether the POW civilians are or are not illegally being tried before military commissions, and that the prisoners have not connection with any illegal combat and can only be tried before civilian courts. It is our view some of the evidence the court wants to suppress relates to the core question of whether the military court has any jurisdiction to adjudicate the alleged crimes committed by the civilian prisoners, In our view, it does not, and Addington’s arguments are flawed.

FOIA: Discovery Into DoD Emails on POW Photographs, Rendition

The public and foreign powers need to hear more about:

A. Suppression of War Crimes Evidence With Illegal Secrecy Rules and Gag Orders

The public learned the President attempted to gag the public from discussing NSLs to thwart the court, lawyers, and public from understanding how the NSLs were being abused.

We need to know what is going on at Guantanamo. The public needs to know the terms and conditions; how will these secrecy rules restrict the public from getting information about US government illegal activity that would trump the claims of privilege under the crime-fraud exception

B. Presidential Defiance of Separation of Powers, Attacks On Judiciary

The Nazis did corrupt the independence of the judicial system. This President and Congress have assented to the same abuses. There are illegal FISA violations, and unlawful Legislative-Executive agreements to bypass the FISA court.

The US government inconsistently respects court rules. One day, the rules are enforced to thwart oversight; on another day, the President ignores the independence of the judiciary. The public needs more information to understand why American lawyers representing POWs are bound to follow court rules; but the US government on the Wecht trial gets away with ignoring court rules, and does not respect the court order to seal the names of the sated jurors, but uses FBI agents to intimidate jury members

C. Unreasonable Attack on Public Oversight of the Judiciary on War Crimes

The Nuremberg trials show us how the Nazis consolidated power. They attacked the institutions that would have thwarted enforcement of the laws of war. One method was to suppress evidence of illegal prisoner abuse in concentration camps. Nuremberg shows us that the courts can be manipulated to bend to partisan, political agendas of the executive.

The American and British courts appear to be complicit with suppressing other evidence of Presidential abuses. The public needs to know more what information the court says lawyers may discuss. The court cannot tell the lawyers they are “not allowed” to discuss what they “are allowed” to discuss. Using the principles of deducting reasoning, this will give the public some insight into the details of what the court does not want the lawyers to discuss.

D. Lack of Evidence Justifying Civilian Trials Before Military Tribunals

McClellan in his book, “What Happened” disclosed his conversations with Addington on war crimes issues. McClellan reveals he and Addington discussed why military commissions should be used instead of civilian courts to prosecute civilian prisoners.

The public needs to know the other lines of evidence missing from the prisoner files. This information appears to substantially show there is no legal basis for the military commissions to prosecute civilians. The evidence in the still-secret files appears to support the contention these prisoners have no connection with illegal combat; nor are they combatants. They remain protected civilians and should not be tried before any military commissions.

A gag order serves the President’s agenda. The gag order prevents lawyers from discussing evidence which may be related to the US government’s objective in denying the public of information showing the POW case files are empty. The empty case files would show there is no connection between the civilian prisoner, combat operations, or legal consequences for that prisoner under the Conventions.

The court appears to hope to suppress public knowledge that there has been no valuable intelligence gleaned; nor is there any evidence linking the civilians to any combat. Arguably, the civilians at Guantanamo are being illegally tried through a military commission. It would be important for the President to induce the court to suppress this information. This would shield the President from subsequent war crimes charges.

E. Scope of DoD, Contracted Legal Counsel Involvement in Rendition

The rendition program has been largely presented as a CIA-run operation. The new information in the suppressed DoD files supports the contention that the DoD was well connected with this activity; and this illegal kidnapping is not a bonafide state secret. Rather, it is a war crime allegedly committed by US military personnel who knew or should have known the POW treatment did not meet the Geneva requirements.

The public needs to understand why US troops were engaged in alleged kidnapping in Morocco; and review information the French have about US actions in their former colony, Morocco.

F. White House Repeating Same Inconsistent Excuses Behind CIA Tape Destruction, Evidence Suppression

The GOP cannot explain why these photographs, which they incorrectly believed could be taken, are not available for war crimes prosecutors. They (wrongly) thought well of their actions to celebrate the activity with photographs. The issue isn’t that there’s a privacy issue, but the GOP realizes they’ve been caught connected with illegal rendition. The DoD emails show the propaganda efforts to justify this POW abuse connect directly with current and formerly assigned White House counsel directly connected with the President, his key advisors, and senior White House lawyers.

The public needs more information about why POWs were being photographed in violation of the Geneva Conventions. American military personnel in photographing POWs have subjected US troops and combat forces to like violations of Geneva under the principle of reciprocity. The GOP likely ordered the photographs because they wanted to document, as the Nazis did, of their glorious progress. Suddenly, the GOP doesn’t want the world to know about their successes.

G. Addington’s Failure to Adequately Justify to McClellan Why Civilians, with no connection with any combat operations, Are Being Prosecuted Before Military Tribunals

The public needs more information about how this gag order relates to CIA tape destruction, empty POW files, and abuse of civilians. The civilians had no time to organize themselves, gather military uniforms with military insignia, or work under a commander. Civilians who have no time to apply ranks to their non-existent uniforms cannot be called “unlawful combatants,” but civilians still protected by the Geneva Conventions.

The public needs to know why the US-UK governments are incorrectly prosecuting non-charged civilians through a military tribunal, when they should be prosecuted through civilian trials. McClellan discloses he and Addington discussed the legal arguments for and against prosecuting the POWs through either civilian courts or military tribunals.