The NYT article suggests a CIA backlash if Geneva is enforced against CIA agents. To thwart enforcement of Geneva against CIA agents, does the CIA implicitly threaten a coup or other adverse actions?

We need to remove the option of US personnel to make similar threats. The US leadership should be confronted with: Enforce Geneva, or face the prospect of a new constitutional delegation of power to compel compliance with Geneva.

We discuss the flaws with the excuses the US government is giving to not enforce Geneva; and outline recommendations to mitigate a chance of a CIA-led coup to thwart enforcement of Geneva against CIA agents.

Comment: Some suggest the CIA was doing things "on our" behalf. But who's looked at what the CIA's done to American citizens on behalf of "the state"?  We don't have that answer because the public and government are arguing over we should or should not review the CIA. "Trust us" government doesn't work. Checks and balances. Framers. King George. 1776.

Arguments Against Cursory CIA Oversight re Geneva

The NYT reported on President-elect Obama's reluctance to open sweeping investigations into alleged CIA POW abuses. 

This note dives into the flawed arguments supporting this waffling.

The NYT article outlines some arguments for pretending CIA abuses will self-correct.

Smokescreen of "Looking Forward" 

"Looking forward" misses the point of Constitutional law and Presidential archives. We rely on history and written documents to apply the lessons to improve legitimate government. Without written law, the President-elect cannot explain what he was teaching in his Constitutional Law class; nor make the case that understanding the history of the Constitution has any relevance, when it does.

The President-elect is in error when he suggests that he will "not" authorize law enforcement to conduct a broad inquiry. The same absurd assertion was behind Bush's "decision" to "not allow" a review of the FISA violations. That restriction was, in part, behind some of the fallout related to the US Attorney firings.

President Elect Must Memorialize His Decision To "Not Authorize" Geneva Investigations 

The President-elect must, in writing, publicly disclose his "decision" to not look at Geneva violations, sign that document, and accept that that decision is subject to judicial review, as was done at the Nuremberg Justice Trial. A decision to not enforce the Geneva Conventions, or not investigate war crimes is a legal question judicial officers can review; and the President-elect should not be surprised. There is no statute of limitations for war crimes. 

A "case by case" review is only possible when we have a decision to broadly examine the abuses; then make a decision whether to bring charges against individual actors. Until the President-elect agrees in writing to not block any inquiry, the public should assume the President-elect has no objection to a declination decision: A prosecutorial decision, absent a serious inquiry, to not prosecute anyone for war crimes. That declination decision could be entered into evidence against prosecutors for their alleged malfeasance re Geneva violations.

Abuses Occurred Before Legal Cover Issued In Writing 

The excuses for inaction rely, in part, on the faulty premise that there was "authorization" for this abuse. This is an assertion which has not been supported by any evidence. Rather, it appears the opposite is true: That the legal "authorization" came only after the CIA abuses were disclosed. We need to know whether the CIA reasonably relied on these supposed memos; or whether they were retroactively created after the original abuses. 

The timing between the original abuses and the subsequent "approvals" is important. We cannot make a decision on whether to "gloss over" something that some would have us believe is a "non issue" when we have no evidence that the issue is understood. If, as it appears, the legal assurances were issued after the original abuses, then we need to understand what prompted the original orders; why the delay in getting approvals; and what event prompted the legal documentation after the original abuses.

The answers to these questions lie, in part, in the NSC decision memoranda. Even if they've been destroyed, someone in physical space had to physically craft them, and use that documentation to start a review process. That process can be subject to external review.

Relationship Between CIA Abuses and NSA Domestic Surveillance 

There is another reason why we cannot quickly close the door on what did or didn't happen under the CIA abuses. We need to find out what else the CIA is doing domestically, especially given Yoo's assertion that the US government does not need a warrant to target American citizens.

We have yet to understand

1. how (valid or invalid) information gleaned from the POW abuses was thrust into the NSA-telecom surveillance protocols;
2. how the American public was surveilled using information gleaned from POW abuses; and
3. how false information from interrogations was used without warrants to target American citizens?

Without oversight, it cannot be argued that the abuses have ended. Rather, the Patriot Act created new options for the Executive to deploy the CIA domestically. To suggest "the law" will constrain the CIA misses the point: The "law" did not constrain the CIA re POWs.

Public Can Discuss New Constitution 

The American public is not required to cooperate with this arrogant abuse of power; nor with the existing, flawed, and reckless Constitutional system which has turned a blind eye to these abuses. If the US government will not cooperate with a lawful inquiry into these alleged Geneva violations, then the US public is not required to turn a blind eye to a discussion on options to reform the Constitution.

Speculative Threats of CIA Backlash 

One flawed argument - albeit an implicit threat - are suggestions that the CIA, if confronted over these abuses, might retaliate; or that there might be some sort of backlash. That might be interesting to see. It might give the public more evidence to increase public support for decertifying the CIA, defund agency operations, and putting agents under new oversight. If that proves unpersuasive, there's nothing stopping the US public putting pressure on the Members of Congress to turn the CIA agents and their civilian handlers over to the ICC.

The argument incorrectly assumes that the CIA has a negotiating position. They do not. Rather, the real backlash which the US government and CIA agents should be concerned with is the backlash from the American public by way of imposing a New Constitution on the US Government. When the CIA, Congress, and Executive argue for inaction, they are sending a green light to the American public: We require Constitution reforms before we will do what our oath already requires: Fully enforcing the Geneva Conventions with investigations, fact finding, and criminal prosecutions. 

The currently assigned CIA agents and contractors should disclose what form they hope to impose this "back lashing": Have they planned a coup? Short of leading a rebellion against the US government and American people, the CIA agents are powerless to credibly "backlash" against anyone attempting to conduct fact finding.

It is an illusion that there are "vague" rules about what to do about POW abuse, or other mistreatment. The public needs to know which real or imagined "holes" in the statutes existed; and whether statutory reform alone will ensure civilized conduct. Barbaric US agent conduct is likely behind greater anti-US hostility. Sweeping these abuses under the rug will further fan the flames of anti-Americanism, and undermine more domestic American support for the US government. The Ford Administration archives show these factors are relevant to the national leadership when making policy decisions.

Former WH Counsel Knows There's An Issue To Be Confronted 

The other flawed argument from former White House counsel is that action taken against the CIA would be some sort of "vengeance." That assertion incorrectly implies that the burden of justifying action falls on those attempting to impose oversight. This is a smokescreen.

Mentioning "vengeance" leaves the distinct impression that there is something - still not confronted - that might warrant some consequences. The prospect that there is something that would warrant vengeance doesn't mean worry about the backlash over the consequences; but to find out what would possibly make the former WH counsel throw up the smokescreen. 

The former White House counsel is shifting attention from what the CIA agents did or didn't do; and pretending that the explaining falls on those who want to do the fact finding.

Speaker Must Submit Her Decision In Writing, Signed 

The Speaker must sign her decision to not fully lead a war crimes inquiry into these CIA abuses. That decision memoranda can be entered into evidence against Pelosi for her alleged complicity with policies which fail to fully enforce the Geneva conventions.

Speaker Pelosi has some explaining to do. She premised her "taking impeachment off the table" on the (false) assertion that the country could not afford the time or energy to review the issues; and that the goal should be on expanding Democratic control into the White House and both chamber of the Congress. A paltry $3M in the Conyers bill to conduct an "investigation" is hardly a serious effort. 

As with the FISA violations, the State Attorney Generals do have the power to collect evidence to enforce Geneva against US government officials. Whether the Members of Congress wish to cooperate, obstruct, or do nothing is becoming less relevant to resolving these matters, and more interesting for prosecutors. 

Speculative, Excuse: CIA Agents Will Be Looking Over Their Shoulders 

The President-elect incorrectly suggests that if there was action against the CIA agents that they would be looking over their shoulders. Better late than never. The time to raise this concern was before the orders were given to extract information using all means; nor this late in the game after the POW abuses were discovered and subject to a war crimes investigation.

CIA agents have shown a reckless disregard for Geneva. It cannot be argued, after ignoring Geneva, that the CIA agents will take this investigation seriously. Rather, the real problem isn't with the CIA agents, but what the CIA agents might do to help prosecute White House counsel and US government senior policy makers. Prosecutors start at the bottom and work their way up. White House counsel doesn't care about the CIA agents. They hope to keep the CIA agents out of court to avoid implicating the White House counsel. The White House counsel's comments on this subject are not neutral, but biased toward self-interests: Thwarting Geneva enforcement against legal counsel. 

Absurd Double Standard: Fact Finding is not OK, but Irrational Abuse Is OK 

This is an absurd premise, and deserves no serious expansion. We need an independent review, without White House counsel input. The smokescreen is deflecting attention from the defects in oversight and the White House counsel malfeasance re Geneva.

Myth: The Actions Were Lawful, and CIA Will Not Cooperate With Their Destruction 

It cannot be seriously argued that the CIA actions were lawful: The conduct has not been subject to judicial review. Moreover, the intent of detaining the POWs overseas was not to keep secret legal activity, but to hide from judicial review questionable activity. This is not an error, but a calculation to circumvent Geneva. The public rightfully questions what other abuses against American citizens is occurring.

The CIA suggests the activity was lawful. If so, then there should have been no reason to destroy any video evidence, especially after the DOJ OLC said the detentions could be subject to foreign prosecution. We do not give targets of an investigation a vote on whether the investigation will or will not start. Nuremberg establishes that CIA agents, White House legal counsel, and policy makers can be subject to war crimes investigations. 

Speculative: Prospect of "Diminished" Intelligence Quality 

Some in government have suggested the CIA agents, if held to account for war crimes, would retaliate by not providing valuable intelligence. This misses the point of judicial review: If the agents' conduct is unfairly prosecuted, the Executive has the power to issue a Presidential pardon. That pardon could be subject to judicial review re Geneva: Did the President, in granting a pardon for international war crimes, send a signal that Geneva would not be enforced?

If CIA agents want to withhold intelligence analysis because of fact finding, that slowdown can be subject to a duty determination, oath of office review, or allegations of malfeasance. The CIA cannot argue that they are taking this action to "save the country" when they are not serving the country, but themselves. 

Congress Refuses To Use Budget Authority To Impose Geneva Compliance

Congress has other explaining to do. It has the power of the purse. Geneva requires enforcement. Congress needs to explain why it continues rubber stamping funds for questionable, if not illegal activity. Until Congress reviews the activity, the US government cannot credibly ask Americans to believe that the activity was lawful. 

If the CIA refuses to cooperate with the inquiry, Congress needs to withhold funds for the agency. We need to discuss other entities - outside the CIA control - that will achieve agency missions, but respond to Congressional direction on budgets.

Risks Must Be Managed, Especially Against American Citizens 

Some suggest, if there is an inquiry with prosecutions, the CIA agents will be less likely to "take risks" That's an irrelevant, disjointed argument.

Risks are not an excuse for a free for all, but a catalyst for management. Risks must be managed, not explained away as difficult or obstacles to legal compliance. 

The original power was asserted on the premise that if there were any abuses, there would be later action to remedy this abuse. However, a decision after the fact to do nothing means there is no retroactive nor prospective Geneva enforcement. That is not permissible. 

CIA agents when interacting with US citizens are (supposedly) required to meet higher legal standards We don't' know what activity CIA agents have been taking against US citizens in the Continental US. We need to look at which Church Committee recommendations - related to intelligence personnel abuse of power - are recurring; and which reforms cannot be left to legislation but require Constitutional reform.

Dual Track: Congress and President Must Assert Power To Enforce Geneva 

Congress cannot wait to move until after the President has made a decision to declassify documents.  Congress is an independent branch, and cannot credibly ask the public to believe that it will wait for the Executive to declassify documents. Rather, Congress needs to explain why it has not independently planned credible, separate investigations.

The lessons from the securities regulations highlight the enforcement shell game: Lawyers, hoping to convince clients who lost money, will point to the government as another weapon to punish the wrong doers; and the government will point to civil litigation as a backup for a failed government prosecution. In the end, the damaged shareholder is left holding the bag.

 Conclusion 

Unconvincing Geneva Compliance 

The United States government is making excuses not to fully enforce Geneva against CIA agents and contractors. The CIA agent's actions - that of hiding evidence, or conducting secret interrogations - is not consistent with a contradictory assertion that they though they were doing the right thing. Their actions suggest deception and knowledge their activity was questionable.

 Retroactive Memoranda After Abuses Unexpectedly Disclosed 

The record better supports the conclusion the legal authorizations were written retroactively after the illegal abuses were detected. Rather, going forward from 2001, DOJ OLC concluded the opposite: That there could be litigation and prosecution in foreign courts. The risk of prosecution was known. A remedy to these abuses isn't to close the door half-way, but to ensure the US does not attempt to outsource our criminal justice system.

 Poor Records Archiving Increases Prospect of Recurrence 

FDR started the national archives so free people could learn from history and improve governance. Our path forward must be based on fixing what happened, and openly discussing the needed reforms.

 Conclusory Findings Absent Needed Investigation 

The US government is signaling, in the wake of the FISA and Geneva violations, that legislative reforms are either not needed or insufficient. Then we must discuss constitutional reforms. The President elect appears to be taking the same approach as the previous Administration: That of not opening all doors to needed executive inquiry into the CIA's alleged Geneva violations.

 Unconvincing President Elect Assurances 

The President elect has not adequately argued that the US government will credibly on a "case by case" basis do anything. We need to first start with a broad review, and understand how the individual actors fit into the larger nexus. "Case by case" requires an inquiry to develop a case. Once the case is developed, then we decide whether or not to prosecute; or forward that information to other authorities for adjudication, impeachment, or other disciplinary action.

 Inappropriate Threats of CIA-Sponsored Anti-US Government Instability 

It is not appropriate for CIA agents and their legal counsel-lobbyists to leave the impression that they plan to conduct a coup, or take adverse action against US government officials or the public for efforts to conduct oversight, gather facts, and enforce the laws of war.

The US government is relying on speculative fears about what the CIA 'might do" to induce others not to press for facts. Without facts, the basis for the CIA's "speculative action" is equally dubious, and subject to additional judicial review. 

Former WH Counsel Show Lack of Remorse 

Nuremberg reminds us that policy makers, legal counsel, and primary actors are liable for war crimes. The United States had the moral high ground at Nuremberg. The question is whether the United States would like to have the same standards voluntarily imposed on the US; or whether foreign powers are required to use military force against the US to enforce Geneva against Members of Congress, US government officials, contractors, and US government agents.

Former White House counsel statements on CIA abuse cannot be taken as objective. Former White House counsel have represented DOJ Staff who are subject to subsequent prosecution for misleading statements. It remains unclear why these formerly assigned White house counsel have not removed themselves from the representation. 

Reckless US Government Oversight 

The United States government is still making excuses not to fully enforce Geneva against CIA agents. The records does not support the CIA's contention that the agents reasonably acted; or that they had adequate legal cover. Rather, it appears the CIA agents and White House legal counsel were acting on Presidential direction to gather information, regardless the Geneva Conventions; and that this decision was made without regard to Geneva. Moreover, it was only when the abuses were known that it appears the White House counsel and CIA personnel jointly created an artificial timeline of backdating records and memoranda.

Inadequate Geneva Enforcement Despite Lesson of Nuremberg 

Nuremberg was a US-organized legal action against the Nazi defendants. There is no excuse why these legal lessons were not perpetually institutionalized within the prevailing power's legal compliance programs after WWII.

Gong forward from 2001, the way the CIA and White House were organizing the POW abuse, it appears they did not expect detection; well know the legal risks; and did not adequate preserve all evidence related to foreseeable litigation. Indeed, choosing to host the POWs at Guantanamo and then in Eastern Europe does not send a message the US was concerned about legal standards, but developing methods to hide evidence from the courts related to known abuses.

Failure To Meet International Legal Obligations 

The CIA rendition of foreign nationals to third countries shows the US government, White House counsel, CIA agents, and Members of Congress knew or should have known that the planned treatment did not meet the minimum requirements of international law. Rather, when the US government took custody of personnel, the US government officials did not take the minimum steps to safeguard those detainees, but sent them to places where they knew or should have known they would be subject to abusive treatment.

Unclear Scope of CIA Domestic Actions Against US Citizens 

Before we can make an informed decision to agree or not agree with the scope of the inquiry, we have to ask whether there is any plan to find out what the CIA agents have been doing against American citizens; and whether the CIA and White House counsel object to reviews because this would reveal actions taken before the "authorizing" memos were written

Recommendations 

The CIA IG should review the source of these statements and determine the scope of the planned activity within the CIA contacting community to support a coup against the United States government. 

We need to find out: 

- Which contractors ignored Geneva and loan covenants when they cooperated with the US government's POW abuse

- The plans of state attorney disciplinary boards to disbar legal counsel complicit with Geneva violations, or thwarting enforcement of the laws of war after combat operations have ended

- The relationship between FISA immunity and planned immunity for CIA contractors

- Which CIA activity occurred before the authorizing memos were written

- Why the CIA was destroying evidence over matters DOJ OLC said were reasonably linked with foreseeable litigation

- Whether the CIA IG has the resources to detect whether CIA agents are or are not planning a coup against the US government as "payback" or a "backlash" for efforts to enforce the laws of war against CIA agents during wartime

- Where are the NSC decision memoranda related to the POW abuses

- The relationship between the CIA abuses and information used to conduct NSA surveillance against American citizens

- The scope of other CIA domestic activity against Americans

- The role the CIA plays in harassing American citizens from fully asserting their constitutional rights; how the CIA engages in domestic surveillance to target Americans seeking grater oversight of the CIA

- Reasons why CIA "opposition to oversight" is taken seriously given the prospects of malfeasance, defunding, decertification, and Constitutional reforms

- Whether CIA agents are or are not serious about leading a coup against the US government if any war crimes investigation is planned against CIA agents 

The President elect and Speaker must 

- Sign their finding and determination that they will or will not support enforcement of Geneva

- Certify that they know the funding they are authorizing is related to US government activity they have not fully investigated under the laws of war

- Explain why, absent a full investigation, funds are still being provided to agencies which are not cooperating with legal compliance reviews re Geneva

The US public should openly discuss

- When US government officials refuse to enforce the laws of war, the role State legislators and attorney generals should have in enforcing against US government personnel the laws of war

- Methods to ensure Geneva compliance when all three branches of the US government refuse to timely enforce, investigate, prosecute, or preserve the laws of war;

- New oversight mechanism when Members of Congress, legal counsel, and Executive branch personnel refuse to fully meet their legal obligations

- Methods to deny funding to agencies which refuse to meet their legal obligations

- Discuss changes to the Constitutional framework to ensure, even during times of war, the national leadership cannot make agreements in secret to violate the Supreme Law, Constitution, statute or international treaty obligation

- Method to deny defendants a "vote" on whether they will or will not be subject to criminal investigation, prosecution, or other adverse action under the laws of war, Geneva Conventions, FISA, or other statutes

- Alternatives to relying on an intelligence community that openly threatens to go on strike, not provide intelligence services, and not fully meet their legal obligations under the oath of office and US Constitution as "payback" for efforts to hold CIA agents accountable for Geneva violations during wartime

- The scope of possible illegal activity CIA agents have planned as "payback" for attempting to enforce the laws of war against CIA agents during wartime

- Why the precedents of Nuremberg are insufficient to guide White House counsel, senior US policy makers in Congress, and elected officials in the Executive branch from fully meeting their legal obligations and oath of office requirements under the laws of war

- Sanctions against Members of Congress who, despite evidence of war crimes, continue provide funding for agencies' illegal activities

- Examine the validity of reasons Members of Congress are giving - to do nothing but wait until the President agrees that he will still do nothing