Overlay the Geneva, FISA Timelines

The ACLU requested through the FOIA process, US government documents relate to POW abuse and FISA violations. This may take some time for the US government to fully respond to this request. How do we know if we have the information to oversee the US government response?

The Senate Judiciary issued a report, and Senator Leahy sponsored a bill on disclosure of DOJ OLC memos.

In the interim, there is something we can do: Discuss the public information, and prepare for what information should exist.  Indeed, it may appear it is unclear how we will know whether the US government responses are adequate.

Goal

We need to develop a method to know whether the US government responses to this FOIA request are adequate; and develop an independent method to speculate about the content of the still secret, but known memos re POW abuse, Geneva violations and FISA.

There is a way to do this. We analyzed how two different lines of evidence may complement each other, and possibly disclose information about still-secret DOJ OLC memos. We suggest this timeline be interwoven with this. (ProPublica should be commended for creating a useful table.) After the jump, we offer a sample of issues of public interest related to the interwoven timeline.

Contents of this TPM Thread On

"Interwoven EO-DOJ OLC Memo Timeline"

Part I: Summary of Interwoven EO-DOJ OLC Memo Timeline
Part II: Sample issues related to interwoven Timeline
Part III: Finding other DOJ OLC memos not within the Table

The interwoven timeline may shed light on the reasonableness of actions taken after 9-11; strengthens arguments for FOIA disclosure; and raises questions whether the Obama Administration is inappropriately shielding documents that could be redacted.

The information below may provide a platform to discuss specific documents the US government might provide in response to this letter. In Part III, we discuss the basis for concluding the US government has in its position specific alleged war crimes evidence which has been requested, but has not, as required, been included within the FOIA "withhold" summaries or other disclosed information (requested via this letter).


Important Distinction

DoJ lawyers have a habit of creating confusion despite the appearance of clarity. They do this when they're in legal trouble, and want to pretend a legal standard is vague, when, in truth, it is specific. One example are the absurd assertions that Geneva is "vague" on how "unlawful combatants should be treated." This is irrelevant. Violations of Geneva are not narrowly related to whether a POW is or isn't "protected". The DOJ OLC smokescreen is to divert attention from the legal obligations on the US as a detaining power.

As you read this, one key is not to get distracted over whether we're talking about (a) "torture prohibited by the Convention Against Torture (CAT)"; or (b) "abuse". Geneva bars all abuse. Something may be "not torture," but still impermissible abuse under the laws of war.

Arguably, DOJ OLC's red herring is to argue whether the POW treatment does or does not meet the "specific intent" standard under the CAT. The better starting point and question is whether the POW treatment was foreseeably violating the Geneva standard against all abuse. This obligation remains on the US as a detaining power, regardless the status of the POW.

The DOJ OLC cited cases on "specific intent" are generally inapposite, related to non-combat operations. Arguably, the CAT is a peacetime standard related to internal struggles and tolerates some mistreatment for gathering information. However, Geneva is a wartime standard and applies to international conflicts, and bars all abuse, even against one's own civilian population.

Rule of Thumb: Not all Geneva violations are CAT violations; just because something isn't a violation of CAT doesn't mean its lawful or permissible under Geneva.

Part I: Summary of Interwoven Timeline

The interwoven timelines suggest the memos are secret to hide evidence of US Government Geneva violations against American civilians.

Stronger Support: Classified DOJ OLC 'Legalized' FISA, Geneva Violations

The interwoven EO and DOJ OLC timelines provide stronger support that legal counsel made convoluted arguments in still secret memos to thwart detection of (a) illegal policies; and (b) the legal justifications for those illegal programs.

It is not (supposed to be) lawful to classify information to hide evidence of illegal activity. Regardless the "holes" in the US statutes, it appears legal counsel have ignored their Geneva obligations to ensure Geneva is enforced.

We conclude the interwoven EO-DOJ OLC timelines show the United States government imposed, in an international conflict, impermissible abuse on American civilians who were protected, not able to defend themselves, and denied all their Geneva and FISA protections.

We believe the interwoven timeline demonstrates the US JTTF, infragard, and Homeland Defense-Intelligence Community (a) ignored the prohibition against outrages against civilians; (b) illegally use unlawful methods to acquire information; and (c) subsequently relied on and continue to rely on perverse legal language to "justify" unlawful outrages against American citizens including illegal detention, unlawful surveillance, abuse, and mistreatment in an  international conflict.

The interwoven timeline suggests the motivation of the US government to derail a war crimes investigation is to thwart public discussion of the war crimes the US. state, and local governments have been complicit against American civilians. German Jews were exterminated; and the German civilian leadership and legal counsel were prosecuted for war crimes against their own civilians.

Once the civilian leadership refuses in an international conflict to enforce the laws of war, and are instrumental in inflicting war crimes against civilians, arguably those government officials could be classified as legitimate targets, and subject to lawful military attack. Civilians who take up arms against those inflicting war crimes or refusing to enforce the laws of war would also lose some Geneva protections afforded to non-combatants.

Bold Face Warning

This is for discussion purposes only.

This information on this site should not -- repeat, NOT be construed as legal authorization for civilians or anyone to conduct para-military operations against those they believe are complicit with war crimes 2001-9. You are expressly advised not to take any action based on the information below.

Any action you take could be construed as criminal activity, terrorism or other illegal activity.

Part II: Sample EO, DOJ OLC Memo Timeline Interweaving and Issues

Below we highlight (in bold) themes which emerge when we interweave the EO and DOJ OLC document timelines. Below each theme are sample EO and DOJ OLC documents which show contradictions. We conclude each section with issues and questions warranting discussion related to this interwoven timeline.

Drawing a New Line for Civil Liberties

DOJ OLC issued a Feb 2003 memo on lawful use of collected intelligence. Three months later, he increased the size of the IOB. In July 2003, the President signed the EO on DHS information sharing.

- How did the President pack the IOB to thwart IOB review of questionably collected intelligence about American civilians?

- What information about American civilians was DHS sharing that should not have been collected, and the IOB should have questioned?

- How were these DOJ OLC memos factored into what the FIB would review?

Geneva and Protected Combatants, Non-Combatants

This terminates in July 2002 hostilites with the Taliban:

"terminate the national emergency declared in that order with respect to the Taliban."

Yet we have Taliban still held at Guantanamo; and Feb 2002, the DOJ OLC issued a memo on Taliban as POWs. Once "the emergency" with the Taliban "ended," they should have been released not abused.

- Why is the US still holding a Taliban cook at Guantanamo, yet the President said in 2002 the emergency re the Taliban is over?

- Why was there "confusion" about the treatment of any POW when Geneva was "determined" to be applicable; and some prisoners were no longer linked with the national emergency?

- Why is this Jan 2002 memo about the Taliban still secret, despite the President determining they were no longer a threat; is there a reason the information "not related to the enemy" has not been disclosed; and the other information related to the "ongoing" enemy has been redacted?

- Regardless whether CAT does or doesn't apply in the US, what review was done on whether Nuremberg precedents apply?

- What review did DOJ OLC legal counsel make of the Justice Trial when reviewing whether they, as legal counsel, were or were not adequately enforcing Geneva in the DOJ OLC memos?

Rendition

DOJ OLC said Geneva does not apply to Off shore prisons. Mar 2004, DOJ OLC says persons could be rendered from Iraq.

- How were the May 2004 exceptions to what could or could not be sent to Syria crafted with the intent of hiding the US use of Syria to abuse Pows?

- How were these exceptions factored into what the US government would ignore re US citizen personal information?

- How many American citizens, outside the intent of the AUMF authorizations, were rendered to Syria?

- How many people has the US government rendered that have no connection with terrorism; but they've been detained because this is an easy excuse to intimidate them outside the courts and legal system?

Discussions on CIA Personnel

In November 2001, Memo 34 says Geneva applied. Once the Taliban were no longer targets of the US, their status as Geneva-protected persons should have continued. November 2001, the President waived the rules on dual compensation, implicitly revealing he discussed using retired CIA employees.

- Which statutes is the Executive Branch saying do not apply to CIA?
- Why is the President claiming that actions about paying CIA agents can be waived; but we do not need to know which of those retired CIA agents were involved with POW abuse?
- Why is it OK, prospectively from 2001, to pay retired CIA agents; but we can't, retroactively from 2009, look at how that money was spent, for what purpose, and how that appropriation relates to Geneva?
- How can the US government claim statutes related to Plame's outing are not enforceable because of their connection to the CIA; yet the President passed an EO related to the CIA?

DoD Role In FISA Violations

The DOJ OLC October 2001 memo "legalized" military actions violating the 4th Amendment against US civilians.

January 9th, 2002, the President reauthorized the wiretapping. January 18, 2002, he authorized an increase in the number of ready reserves.

- How many of the returning ready reserves were incorporated into the NSA surveillance?

- How were foreign nationals rewarded with speedy US citizenship for their cooperation with the US government in committing FISA violations against US citizens?

"Legalized" Geneva, FISA Violations Against US Civilians

April 11, 2002, the President signed an EO on changes to courts martials. The same month, the DOJ OLC stated some provisions did not apply to military commissions.

- How did the DOJ OLC memo argue for prosecuting US civilians before a military tribuanl through "waivers" and 'exceptions" to Geneva, which bars treating non-combatants as combatants?

- Why did the President not look at Geneva prohibiting abuses against Civilians before "determining" that US civilians could be detained in violation of Geneva?

- How were subsequent EOs written to create exceptions and subject American citizens to military tribunals?

- When did the telecoms get copies of this memo; why did it take one (1) year for the memo to get drafted, yet public information suggests immediately after 9-11 the US government was sweeping "everything"; did the telecom concerns prompt this memo; if so, why should we believe that the DOJ 'direction' to the telecoms was "inherently lawful" despite the apparently telecom preliminary doubts; did the telecoms reasonably rely on this memo despite the explicit FISA requirements during wartime?

Plame Outing

EO 5 at 22 said information on sources would be considered for classification. 2004, President issues EO on WMD intelligence.

Internal Intelligence Community Audits

We have bad Guantanamo files full of inaccurate information about high profile "threats."

- Why should we believe that "lower priority" files on Americans have more accurate information?

- How were the provisions for auditing of the intelligence community written to ensure looser enforcement?

- How was "access" to intelligence information controlled by creating greater barriers to auditors, members of Congress?

- How much information was shared to "protect" Americans; but this information should not have been collected?

- How much information illegally captured through FISA violations, or from dubious sources did CIA agents use to "justify" mistreating US civilians?

Part III: Other non-Disclosed DOJ OLC Memos

Other DOJ OLC Documents Not Known

This runs through the reasoning behind concluding there are at least two (2) different DOJ OLC memos which have not been disclosed, not (yet) mentioned on the summary table, but have been referenced indirectly.

Note to War Crimes Prosecutor, FOIA Requesters: The information below (Part I, Para A-E) argues there has been an inadvertent disclosure within the exceptions to Executive Privilege; and the public interest demands disclosure of a specific, still unknown DOJ OLC documents and the other communication related to those referenced DOJ OLC memos.

A. Finding the Memo

This memo (Aug 1, 2002) is mentioned by date on this chart. However, there appears to be information about memos which are still-not-disclosed, but have not been included in this chart. 

B. Textual Evidence For Primary, Non-Disclosed DoJ OLC Memo

On page 18 of 18, notice the margin-line on the page for the redaction blocks. Run your eye up and down the left and right margins for the paragraphs on page 18 of 18. See if you notice something unusual about the size of the back-redaction blocks; and the relative spacing of the redaction margins between the paragraphs. Look closely, and you'll see the second paragraph appears to have a slightly different margins, suggesting this paragraph is indented, and includes a disclosed-quote from a different document.  The slightly different left and right margin indentations in the 2nd paragraph on page 18 of 18 suggests a paragraph indentation, a quote, or text from a different DoJ OLC document which is likely not referenced on this table.
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C. Textual Reference Indicating Second Non-Disclosed DOJ OLC Action, Memos

This different margin suggests the citation -- and disclosed, unredacted text -- is from a still-not-known DOJ OLC memo or a White House question.  Notice:

18 of 18: "Your review of the literature . . "

suggests DoJ OLC responsed to a previous tasking; provide a response; and other officials followed up on that previously provided DOJ OLC information.  It appears DOJ OLC not only wrote at least one previous memo linked to this disclosure on page 18; but there is subsequent message traffic about (a) this still not disclosed DOJ OLC memo; and (b) the subsequent response to DOJ OLC disclosed here within the indented paragraph.

D. Relationship of this non-disclosed DoJ OLC memo to the interwoven timeline

The table says:

Recipient: Unknown

It's possible the quoted text points to (a) text the President wrote; (b) remarks another senior Administration official included within their memo to DoJ OLC; (c) a question from a senior official within DOJ, possibly the AG; or (d) comments by an agency head such as the CIA Director or SecDef. [See "Evidence of previous, non-disclosed memos" here for details.]

It's unclear where the referenced document (at 18 of 18, indented paragraph) fits into the interwoven timeline.

E. Other Clues

The disclosed text related to the other DOJ OLC memos is:

DOJ OLC re-paste of other comments, on 18 at 18

"Your review of the literature uncovered no empirical data on the use of these procedures, with the exception . . . [redacted ] . . ."

The question is whether the exception disclosed above references 8 C.F.R. § 208.18(a), discussed below?

One key word is "procedure", which may related to similar documents here with the word "procedure". If the document revealed in the unredacted text relates to a disclosed memo on "procedures," there should be a logical relationship between this memo and one of the documents listed here with the word "procedure" in it.

Basis For Belief US Government Withhold Files Are Incomplete

When the US government withholds documents, it is required to provide a summary of the redacted comments. The missing memo table and the detailed table of missing memos do not adequately relate to the disclosed text on page 18 of 18.

If you re inclined, open this document, and review the documents with the word "procedure" in the description; and see if any of them pre-date and logically relate to "procedures" discussed in the August 2002 Bybee memo. The provided index uses "procedure" only in relathionship to trial. However, the disclosed text on page 18 of 18 relates to pre-trial interrogation. The two are not the same.

This suggests there are non-disclosed documents related to interrogation, non-trial procedures which have not, as they should be, included within the summaries or summary table. This is not an error attributable to the public. The government has inadvertently disclosed important information, but has not adequately accounted for the non-disclosure of the document containing that information within the information provided to the public, the Congress, or the courts.

F. Judgment

We believe DOJ OLC was specifically responding to questions about a specific CIA interrogation involving multiple people:

Chart summary: The memo concludes that the personnel carrying out the interrogation didn't have specific intent to cause severe pain to the detainee, and therefore, didn't torture that person.

We leave it for another day whether someone, to be guilty of a war crime, has to have the specific intent to cause pain; or whether, as a logical consequence of their actions, they reasonably should have known the conduct did not meet the intentions of their legal obligations per the Nuremberg precedent.

In our view, "Specific intent under Geneva" doesn't mean an intent to cause a specific result; but can relate to recklessness or a failure to responsibly ensure that violations of the laws of war do not occur; or failure to ensure that any protected POW is free from all abuse. This conclusion would be consistent with Nuremberg. Whether the Convention Against Toture is or isn't violated is, in our view, irrelevant.

Geneva is a treaty obligation binding on all who take an oath to the US Constitution. These obligations were affirmed at Nuremberg. The US as a prosecuting power at Nuremberg had fair notice that these legal requirements were enforceable.

All legal counsel and employees, in our view, knew or should have known that Nuremberg precedents establish that there are some things which are clearly impermissible. It defies logic for Americans to explain how any abuse could be justified during wartime.

It is irrelevant that American prison contractors and jailers regularly abuse prisoners or civilians to gather information. The CAT may not prohibit this type of abuse against American civilians in peacetime. However, Geneva expressly bars abuse against a different class of protected persons under the laws of war in an international conflict.

A previous memo in November 2001 suggests these legal standards within Geneva were known to be applicable. From that legal memo it follows that the President and others working for him knew or should have known that Geneva, not the CAT, was the applicable standard to regulate how the Americans, as a detaining power, interacted with POWs.

It is unavailaing that the US government "thought" one class of prisoners was "not protected" by Geneva. The obligations rest with the detaining power to enforce Geneva, and ensure non-combatants taken out of the fight are protected. The DOJ OLC memos and EO suggest there was a calculated scheme to pretend the US was at war, but not bound to the laws of war.

The US at Nuremberg prosecuted the Germans for subjecting non-combatants, taken out of the fight to abuse. The United States citizens had fair warning, especially in the wake of WWII that that standard was applicable. Sadly, it requires a second set of prosecutions against the US -- the prosecuting power at Nuremberg! -- to remind Americans what the allies argued Germans should have known was applicable.

It defies reason to argue that Geneva applies in November 2001; but then for Yoo and Bybee to use a convoluted argument, later, to argue the opposite.  It is our view the 2002 "Bybee memo" was written after POW were abused, but drafted with the intent of incorporating as 'allowable' conduct which prompted the concerns behind the question to DOJ OLC.

Geneva is an obligation on the detaining power regardless the status of the POW. The question does not turn on whether the US was "confused" about the POW's status; but on whether the United States, as a detaining power was ensuring United States personnel's conduct was consistent with Geneva. In our view, "good faith" is not narrowly related to whether they intended to inflict harm; but whether they reasonably were relying on "permission" to treat the POWs as they did.  Nuremberg rejected the argument of superior orders when a reasonable person should know that those orders were not lawful. The question is what orders and instructions were really issued; and did the primary actors reasonably or unreasonably rely on which instructions.

The contradiction within the disclosed DOJ OLC memos suggests someone knew that Geneva applied; but, after the fact, hoped to explain away impermissible US government-inflicted POW abuse. We expect the still-not-released, but referenced DOJ OLC memo above will likely support these conclusions:

1. The timing of the question from outside DOJ OLC is related to information about conduct falling outside what Geneva permitted;

2. There was serious concern that the abuse and mistreatment would be disclosed;

3. There was no timely war crimes investigation, as required, under the laws of war;

4. Legal counsel in the White House, CIA, and DoD knew or should have known that the Geneva obligations going forward from the AUMF barred the abuse the DOJ OLC said was permissible;

5. Senior leadership asked the question of DOJ OLC because they knew there was an issue and the provided defense was inadequate in light of Nuremberg;

6. The evidence of this previous question to DOJ OLC, referenced at 18 of 18, shows there was doubt within the minds of leadership that their defense would succeed, and the confusion had nothing to do whether the primary actors were unclear whether there was or wasn't POW abuse;

7. The leadership, legal counsel, and others believed and were worried the implied "confusion" or "lack of understanding" one might offer as a defense was not compelling;

8. The leadership, despite this articulated, documented doubt about the abuse, hoped to create a slippery legal nexus that the detected activity and POW abuse was somehow acceptable, permitted, or did not require action;

9. The concern evidenced within the implicitly-referenced documents at 18 of 18 suggests leadership was uncomfortable with the first lines of responses because there remained a possibility of leadership and legal counsel prosecution as defendants before a war crimes tribunal;

10. The leadership's questions did not specifically reference a specific case, but hoped to frame the issue in the abstract to avoid revealing that the leadership was worried about a specific, questionable act not consistent with Geneva, which Philbin in 2001 warned there could be litigation;

11. The conduct of the leadership suggests they were concerned about a problem, but despite this concern did not timely adjust the policy, training, supervision, procedures, or instructions;

12. The evidence of the question, discussion, communication indicates that management was concerned, the defense and deniability was weak;

13. The primary actors, legal counsel, and US leadership hoped to create retroactive documentation that would justify their inaction, outside what Geneva permitted, and in contravention to what Nuremberg allows;

14. The course of conduct does not show they were confused about the legal issues, but took calculated steps because of their legal training -- and knowledge of Nuremberg precedents and Geneva obligations -- to create a smokescreen, and not adequately enforce the laws of war;

15. Whether activity was or wasn't a violation of the Convention Against Torture was a calculated strategy, not a product of confusion; but a leader-ratified, DOJ OLC supported smokescreen from the known abuses which violated Geneva;

16. The US Congress, DOJ OLC and primary actors and leaders knew or should have known per the Nuremberg precedents that the proposed treatment during wartime of prisoners was not narrowly regulated by the Convention Against Torture which tolerate some abuses, but broadly by the Geneva Conventions and Nuremberg precedents barring detaining powers from imposing any and all abuse on POWs, regardless their status;

17. The AUMF, EO, and DOJ OLC memos are evidence Members of Congress, the President, and all telecoms relying on that AUMF knew or should have known the combat operations were international in scope, and American citizens and POWs were protected classes who could not be lawfully abused, nor subject to outrages or other illegal activity even during wartime.

Other Comments

The above comments raise the question of whether the question was prompted by a desire to create ambiguity:

528 F.3d 180: "Willful blindness can be used to establish knowledge but it does not satisfy the specific intent requirement in the C A T"

The question is whether the US, as a signatory to Geneva, and outside the Convention Against Torture is or is not liable for breaches of Geneva and Nuremberg precedents:

- Failure of legal counsel to enforce Geneva against protected persons
- Drafting of legal memoranda which do not enforce Geneva

The question may turn on whether we apply the Geneva Conventions, general criminal law or the Convention against torture re specific intent:

528 F.3d 180, RENDELL: "Although obtaining information is an illicit purpose satisfying that prong of C A T's implementing regulations, the official's conduct will not meet the standard the majority has set for the specific intent requirement; his purpose is to obtain information, not to inflict severe pain and suffering. By contrast, an interpretation that adopts the criminal law definition of specific intent and encompasses knowledge or desire that severe pain and suffering will occur includes the above hypothetical in the definition of torture under C A T."

Have legal counsel discuss the following re above:

528 F.3d 180: "In Auguste v. Ridge, the United States Court of Appeals for the Third Circuit has found the language in Zubeda v. Ashcroft--stating that the "intentionally inflicted" language in 8 C.F.R. § 208.18(a) does not impose a "specific intent" requirement, but simply excludes severe pain or suffering that is the unintended consequence of an intentional act--to be dicta."

- When the US denies POWs of their protections, and subjects them to abuse, is that an intentional act? Arguably, yes.

- When did the leadership learn 8 CFR 208.18(a) did not impose a "specific intent" requirement? Arguably, before they drafted the question, prompting the two DOJ OLC responses.

- If "severe pain or suffering" are excluded as unintended consequences, what physical results are still included as unintended consequences? Arguably, the leadership knows there is something that was not excluded from the list of consequences, but included subjecting them to liability per the 8 CFR 208.18a.