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Diego Garcia: The ‘criminal question’ doctrine

by Charles Judson Harwood Jr.

Discussed on separate pages: Federal Tort Claims Act and Alien Tort Claims Act and Other defenses and issues

Bancoult  v. McNamara
(D.D.C. filed Dec. 20 2001)

 

Islanders Sue U.S. Over Relocation

Friday, Dec. 21, 2001; Page A5

A group of indigenous people who say they were forced from their archipelago when the United States assumed control of Diego Garcia and the Chagos Islands in the 1960s sued the government in U.S. District Court yesterday, alleging genocide, torture and forced relocation.

The class action was filed by some of the more than 1,000 people who had lived in the isolated chain of islands in the Indian Ocean until the United States acquired control of the territory from British colonial rule in 1965. They are asking for millions of dollars of damages.

The United States uses the island – more than 1,000 miles from India, Mauritius, Australia and the Gulf states – as a communications post and refueling station. The Chagossians charge that the agreement with the British says “acquisition of Diego Garcia for defense purposes will imply displacement of the whole of the existing population of the island”. The Chagossians say U.S. military and contract workers forced them from the island in the late ’60s and early ’70s. The last movement of people was accomplished by herding them onto boats loaded with horses and other animals for a six-day voyage to Mauritius.

– Neely Tucker, © Copyright 2001 The Washington Post Company”

Neely Tucker, “Islanders Sue U.S. Over Relocation” (Washington Post, Dec. 21 2001, p.A5), bold-face added. A year earlier, their Washington DC lawyer, Michael Tigar, submitted a compensation claim to the Pentagon, a pre-condition to a subsequent lawsuit which cannot claim for a higher amount (28 U.S.C. § 2675): ‘Pentagon sued for $6 billion by evicted islanders’ (The Times, London, Dec. 13 2000, p.18, archive chargeable). Likewise, their London lawyer, Richard Gifford, filed a compensation claim with the UK government: ‘Displaced islanders seek compensation’ (The Independent, London, Jan. 10 2001) and, when he too was ignored, he too filed a law-suit for damages: ‘Islanders sue Britain for eviction’ (The Times, London, May 25 2002, p.4, archive chargeable).

 

Docket as of April 4, 2003 7:42 pm

U.S. District Court

USDC District of Columbia (Washington)

Civil docket for case #: 01-CV-2629

Bancoult, et al v. McNamara, et al

Filed: 12/20/01

Assigned to: Judge Ricardo M. Urbina

Jury demand: Both

Demand: $10,046,000

Nature of Suit: 890 {“Other Statutory Actions”}

Jurisdiction: US Defendant

Cause: 28:1346 Tort Claim  {28 U.S.C. § 1346(b)(1)}

Docket proceedings {full-text: 125 kb}:

12/20/01  1  Complaint {130 kb} filed by plaintiffs Olivier Bancoult, Terese Mein, Marie Isabelle France-Charlot, Chagos Refugee Group, and Chagos Social Comm; jury demand (bm) [Entry date 12/21/01] ”

Via http://pacer.uspci.uscourts.gov, case number 1:01cv02629, region District of Columbia (U.S. Party/Case Index, WebPACER: ‘Public Access to Court Electronic Records,’ access chargeable).

 

Bancoult v. McNamara:

The ‘criminal question’ doctrine

by Charles Judson Harwood Jr.

According to the newspaper, the Chagos islanders base their claim for damages, against the U.S. Government, on three criminal torts: genocide, torture, and forced relocation. I haven’t yet applied my mind to their torture theory, but I have to their other two theories, and here’s what I conclude:

The U.S. ratified (with strings attached) the 1948 Genocide Convention {US Senate Treaty No. 81-15} 40 years later (Nov. 25 1988). Long before then, U.S./UK officials completed their joint ethnic-cleansing of Diego Garcia (1971) and the rest of the 65 Chagos Islands (1973).

Nevertheless, after 1988, U.S. officials and military officers incited, conspired, aided-and-abetted, facilitated, and directly employed continuing measures (armed force, exclusionary civilian hiring practices, public official lies) with the willful ‘specific intent’ to maintain and enforce their joint ethnic-cleansing of the Chagos population, by preventing the expelled indigenous citizens from returning to their homeland.

And, long before their joint ethnic-cleansing, genocide was and remains both a crime and a tort under international customary (common) law, in addition to its treaty law articulation. And long before there ever was any genocide treaty, the U.S. and UK jointly prosecuted Nazi officials for genocide:

“They conducted deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial, or religious groups, particularly Jews, Poles, and Gypsies and others.”

Indictment, count three (60 kb) (excerpt), USA, France, UK, USSR  v. Hermann Goering, et al (Berlin, Oct. 6 1945, International Military Tribunal) (Yale Law School, New Haven Connecticut); 1 I.M.T. 27-93, at 43-44: Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945 – 1 October 1946 (42 volumes, International Military Tribunal, IMT Secretariat, Nürnberg Germany, 1947-1949, the ‘Blue Books’, reprinted 1995: W.S. Hein, Buffalo New York) (Mazal Library, San Antonio Texas).

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A court or a jury might decide the joint U.S./UK ethnic-cleansing of the Chagos population was not genocide, as they didn’t murder anybody — notwithstanding they jointly destroyed the national group, by dispersing the islanders, destroying their life-style, livelihood, and culture. In the words of the Genocide Convention (Article 2): “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”, and “causing serious bodily or mental harm to members of the group”.

A plaintiff in another case “has not demonstrated that cultural genocide has achieved universal acceptance as a discrete violation of international law”:

Complaint under the Alien Tort Claims Act against Freeport-McMoran Inc., a New Orleans based operator of the ‘Grasberg Mine’, an open pit copper, gold, and silver mine comprising 26,400 square kilometers in the Jayawijaya Mountain in Irian Jaya Indonesia –

Alleging beatings, death-threats, and murder by Freeport’s security guards dismissed because the plaintiff, a leader of the indigenous Amungme people, did not have standing to assert the claims of those victims.

Alleging the dumping of “approximately 100,000 tons of tailings per day in the Aghwagaon, Otomona and Akjwa Rivers” polluting the waterways, drinking water, and terminal lakes with heavy metals and acids and daming and overflowing the rivers thereby destroying the lowland forests, dismissed for failing to allege a violation of international law, because “the sources of international law cited by Beanal and the amici merely refer to a general sense of environmental responsibility and state abstract rights and liberties devoid of articulable or discernable standards and regulations to identify practices that constitute international environmental abuses or torts” and because “the argument to abstain from interfering in a sovereign’s environmental practices carries persuasive force especially when the alleged environmental torts and abuses occur within the sovereign’s borders and do not affect neighboring countries”.

Alleging cultural genocide because “Freeport’s mining operations caused the Amungme to be displaced and relocate to other areas of the country [and] destroyed the Amungme’s habitat [and] cultural and social framework” dismissed because the “several international conventions, agreements, and declarations ... [which] make pronouncements and proclamations of an amorphous right to ‘enjoy culture’, or a right to ‘freely pursue’ culture, or a right to cultural development ... fail to proscribe or identify conduct that would constitute an act of cultural genocide ... [and are] devoid of discernable means to define or identify conduct that constitutes a violation of international law ... [and because] Beanal has not demonstrated that cultural genocide has achieved universal acceptance as a discrete violation of international law ... [and] it would be imprudent for a United States tribunal to declare an amorphous cause of action under international law that has failed to garner universal acceptance.”

Why do people hate America?

“We acknowledge that the district court exercised considerable judgment, discretion, and patience below. In light of the gravity and far ranging implications of Beanal’s allegations, not only did the court give Beanal several opportunities to amend his complaint to conform with the minimum requisites as set forth in the federal rules, the court also conscientiously provided Beanal with a road-map as to how to amend his complaint to survive a motion to dismiss assuming that Beanal could marshal facts sufficient to comply with the federal rules. Nevertheless, Beanal was unable to put before the court a complaint that met minimum pleading requirements under the federal rules.”

Beanal v. Freeport-McMoran, Inc. {59kb.pdf}, 197 F.3d 161 (5th Cir., No. 98-30235, Nov. 29 1999,  panel: Carolyn Dineen King, Jerry Edwin Smith, Carl E. Stewart), also via 1999 Westlaw 1072274 and 1999 U.S.App. Lexis 31536, affirming 969 F.Supp. 362 (E.D.La. Apr. 9 1997, Judge: Stanwood R. Duval Jr.), via Westlaw and 1997 U.S.Dist. Lexis 4767 (233 kb).

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Yet, their actions are a tort on other grounds, by both the U.S. and the UK, an active joint-venture partnership with each partner responsible for the torts of each partner.

Prominent among other crime-torts is the “deportation or forcible transfer of population” (Rome Statute of the International Criminal Court, Article 7):

“Numerous instruments support the proposition that forced exile violates international law. See Universal Declaration of Human Rights, art. 9, U.N. GAOR, 3d Sess., Supp. No. 71, U.N. Doc. A/810 (1948) (‘no one shall be subjected to arbitrary arrest, detention or exile‘); id. art. 13 (‘everyone has the right to ... residence within the borders of each state’); id. art. 15 (‘no one shall be arbitrarily deprived of his nationality’); International Covenant on Civil and Political Rights, art. 12, 21 U.N. GAOR Supp., No. 16, at 52, U.N. Doc. A/6316 (1966) (right to freedom of residence within a country subject only to restrictions provided by law, necessary to protect national security, public order, health, morals or rights and freedoms of others); ¶

International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (Dec. 16 1966, March 23 1976) {U.N. Doc.: ST/LEG(05)/U5, ISSN: 0379-8267, LCCN: 48022417, WorldCat} (status) (MTDSG) {U.N. Doc.: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 48022417, WorldCat}. U.S. Senate Treaty No. 95-20; President Jimmy Carter transmitted, “Human Rights Treaties, Message to the Senate,” 1978 PPPUS 395-396 {ucsb} (Feb. 23 1978) {SuDoc: GS 4.113:978/BK.1, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat}; Senate Executive Document No. 95/2-E (Feb. 23 1978), part of, Four Treaties Pertaining to Human Rights, message from the President of the United States {SuDoc: Y 1.95/2:C-F/corr, Serial Set 95-2: omitted (“Senate executive documents and reports were not included in the Serial Set until 1980”), CIS: 78 S385-3, LCCN: 78601565, GPOCat, LL: paper, UC, WorldCat}; Senate Hearing 102-478 (Nov. 21 1991) {SuDoc: Y 4.F 76/2:S.Hrg.102-478, CIS: 92 S381-25, LCCN: 92191239, GPOCat, LL: paper, microfiche); Senate Executive Report No. 102-23 (March 24 1992) {63kb.txt, 302kb.pdf} {SuDoc: Y 1.1/6:102-23, Serial Set 102-2: 14102, CIS: 92 S384-1, GPOCat, LL: paper, microfiche}; Senate consent, 138 Cong. Rec. S4781-4784 {pf} (April 2 1992, daily edition 138/49) {SuDoc: X/A.102/2:138/49, ISSN: 0363-7239, LCCN: 80646573, GPOCat, LL: paper, microfiche, WorldCat}; U.S. ratified, June 8 1992, effective Sept. 8 1992, 1676 U.N.T.S. 543, accord, T.I.F. {185kb.pdf} {SuDoc: S 9.14:2004, ISSN: 0083-0194, LCCN: 56061604, DL}CJHjr

American Convention on Human Rights, 9 I.L.M. 101, art. 20, 22 (1970) {U.S. Senate Treaty No. 95-21, President transmitted February 23 1978} (no one to be arbitrarily deprived of nationality; every person has a right to reside within his or her country of citizenship, subject to provisions of law).”

Wiwa v. Royal Dutch Petroleum Company (S.D.N.Y., No. 96-civ-8386, Feb. 28 2002, Judge: Kimba Maureen Wood), bold-face and links added (complaints under the Alien Tort Claims Act against two European oil companies, their Nigerian subsidiary, and its managing director Brian Anderson alleging complicity in the judical murder of Ken Saro-Wiwa and 8 other environmental activists, forced exile of the plaintiffs, and other wrongs, validly plead tort violations of international law which the U.S. District Court has jurisdiction to adjudicate); also via 2002 Westlaw 319887 and 2002 U.S.Dist. Lexis 3293 at *25-26 {2002 U.S. Dist. Lexis 3293, 109kb.pdf, source, menu, legal, search}.

Long before their joint ethnic-cleansing of the Chagos population, and long before there ever was any ‘Rome Statute’, the U.S. and UK jointly prosecuted Nazi officials for this self-same inhumane ‘crime against humanity’:

“(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”

Charter of the International Military Tribunal(24 kb), article 6(c) (London, Aug. 8 1945, 1 I.M.T. 8, 11, 82 U.N.T.S. 279, 288, 58 Stat. 1544) (Yale Law School, New Haven Connecticut), bold-face added, and (Mazal Library, San Antonio Texas); also via ICRC (International Committee of the Red Cross, Geneva); and (University of Minnesota Human Rights Center, Minneapolis).

Additionally, both nations voted in favor of the Universal Declaration of Human Rights (United Nations, Dec. 10 1948) which articulates the same “well-established, universally recognized norms of international law” in positive terms, from the view-point of the victims, namely: a human right against forced exile and against barred-entry to a homeland (articles 9, 13, annex-4).

And, both nations ratified a treaty further outlawing such deportations:

“Art. 49. Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”

Geneva-4: Geneva Convention for the Protection of Civilian Persons in Time of War {copy, copy} (Geneva, June 8 1977, Dec. 7 1978) {status: 183kb.pdf}, article 49, 75 U.N.T.S. 287 (Aug. 12 1949, Oct. 21 1950) {U.N. Doc.: ST/LEG(05)/U5, ISSN: 0379-8267, LCCN: 48022417, WorldCat}, U.S. ratified Aug. 2 1955, effective Feb. 2 1956, 213 U.N.T.S. 384. Though this treaty pertains to armed conflicts, its prohibition also reflects peace-time customary law as well – as the 1945 IMT Charter asserts (“before or during the war”, Article 6(c), above); as the 1945 IMT Indictment charges (“Such deportations were contrary to international conventions, in particular to Article 46 of the Hague Regulations, 1907, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and to Article 6(b) of the Charter”, Count 3, above and at 1 I.M.T. 51); and as the Rome Statute of the International Criminal Court bears current witness (Article 7, annex-4).

And see Declaration of International Law Scholars on Forced Relocation (Feb. 25 2000).

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The Chagos islanders are not bringing a criminal prosecution against individual U.S. military and other officials, even though what those officials did to them was a prima-facie international crime. Such a prosecution is impossible under U.S. law, for two reasons:

Unlike England, ‘private prosecutions’ are not allowed in U.S. Courts. If the U.S. Attorney-General, or one of the 95 subordinate U.S. Attorneys s/he commands, won’t agree to a prosecution, there will be no prosecution. Hence, the non-prosecuting U.S. Attorney-General is the lynch-pin of all criminal enterprises within the U.S. Government.

Secondly, the U.S. Government (like the Nazi Government) doesn’t recognize common-law (‘customary’) international crimes, or even common-law U.S. crimes, or most extra-territorial crimes. And so many foreign crimes by U.S. military, CIA, and other U.S. officers, contractors, operatives, and partners are ‘legal’ under U.S. federal statutory criminal law, exactly as all Nazi crimes were also ‘legal’ under Nazi law.

Were a criminal prosecution to be brought in a U.S. Court for the international crime of deporting the Chagos islanders from their homeland, the individual defendants, U.S. officials, would assert the exact same defense their Nazi counterparts asserted in their trials, namely: they committed no crime under their law. This assertion is true, both for the Nazis and for the Americans, and the U.S. Court would dismiss the prosecution and, doubtless, fine the U.S. Attorney to boot, for bothering the defendants, notwithstanding their crimes.

The Nazi officials were prosecuted and convicted, despite this fact – despite they committed no crime under their own law. And this illustrates why the U.S. Government won’t submit to the UN’s International Criminal Court. What the officials did is a crime (both the Nazis in Europe and the Americans in the Chagos), though their own Courts be carefully prevented from trying them. To prosecute them you have to do so in a Court with jurisdiction over international crimes. That’s what we did to the Nazi officials, by creating Military Tribunals for that specific purpose, and it perplexed them.

However, U.S. state criminal law applies to U.S. federal officials and to their criminal acts of complicity (inciting, conspiring, aiding and abetting, facilitating) in foreign crimes which are also U.S. state law crimes, but-for their foreign location (murder, kidnapping, theft, arson, and such). This, if they commit any such acts of complicity within a U.S. state – eg: by internet or telephone from home, or in meetings about town, or in conversations in the car on the way to the airport, or in helicopters or in Air Force One in state or District airspace. These complicity crimes can be investigated by state investigators within state territory (eg: at the homes of the suspect U.S. officials), and prosecuted by state prosecutors, and tried in state Courts. But they never are, despite numerous such complicity crimes within U.S. states – for example by FBI agents, in burglery, theft, perjury, corruption of justice, and murder – not to mention complicity in foreign violent crimes by CIA and U.S. Military Officers.

See, generally,Chapter-5: Criminal Jurisdiction(65 kb txt), part-2 pp.105-144, andApplicability of state Criminal Laws to Federal Employees and Functions(53 kb txt), part-2 pp.308-313 in ‘Chapter-10: Federal Operations Not Related to Land’, part-2 pp.293-321, of Jurisdiction Over Federal Areas Within the states {1.15 mb txt}, Report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the states’, transmitted by U.S. Attorney-General Herbert Brownell Jr. to U.S. President Dwight D. Eisenhower (Jan. 20 1953–1961 Jan. 19) (U.S. GPO part-1 1956, part-2 1957) (Constitution Society, Austin Texas).

So too, even if they commit those same acts of complicity exclusively inside U.S. federal territory – federal office buildings and military bases – situated within a state (‘federal enclaves’), or the District of Columbia, though these can not be investigated or prosecuted by state, or District, officials – but only as ‘assimilated’ federal crimes by federal investigators and federal prosecutors in federal courts. Assimilative Crimes Act, 18 U.S.C. § 13, codifying the Federal Crimes Act of 1825, § 3 (Mar. 3 1825), 4 Stat. 115 (59 kb) {523 U.S. 155, 160}:

“The ACA’s basic purpose is one of borrowing state law to fill gaps in the federal criminal law that applies on federal enclaves. See Williams v. United States , 327 U.S. 711, 718-719 (1946) (ACA exists ‘to fill in gaps’ in federal law where Congress has not ‘define[d] the missing offenses’)....

In the 1820’s, when the ACA began its life, federal statutory law punished only a few crimes committed on federal enclaves, such as murder and manslaughter. See 1 Stat. 113 {56 kb}. The federal courts lacked the power to supplement these few statutory crimes through the use of the common law. See United States v. Hudson {7 kb}, 7 Cranch 32, 34 (1812). Consequently James Buchanan, then a Congressman, could point out to his fellow House Members a ‘palpable defect in our system,’ namely that ‘a great variety of actions, to which a high degree of moral guilt is attached, and which are punished ... at the common law, and by every state ... may be committed with impunity’ on federal enclaves. 40 Annals of Cong. 930 {98 kb} (1823). Daniel Webster sought to cure this palpable defect by introducing a bill that both increased the number of federal crimes and also made ‘the residue’ {523 U.S. 155, 161} criminal, see 1 Cong. Deb. 338 {125 kb} (1825), by assimilating state law where federal statutes did not provide for the ‘punishment’ of an ‘offence’. 4 Stat. 115 {59 kb}. This law, with only a few changes, has become today’s ACA. See Williams, supra, at 719-723 (describing history of ACA).”

Lewis v. United States (81 kb), 523 U.S. 155, 160-161 (Mar. 9 1998), bold-face, links, and text {in braces} added, via FindLaw, but substituting the penultimate ‘ACA’ for ‘Assimilated Crimes Act’, a correction made by the Court in the final version of its opinion as published in its bound-volume (5.470 mb pdf). Interestingly, Lexis, Cornell, and FindLaw all report the same uncorrected text, reminiscent of the days prior to widespread printing when scholarship was based on copies of copies of manuscripts copied by professional scribes who sometimes omitted text and also repeated deviations from the original text, and introduced new ones, to correct errors by the original author or previous scribes, or due to ambiguities in Latin abbreviations and truncations, imprecise handwriting, misunderstanding, fatigue, or inattention).

And, the same acts of complicity by U.S. officials inside the U.S. – whether within federal territory, state territory, or both – are also federal crimes under the U.S. federal RICO statute, even if the primary crimes themselves are foreign in their location, because RICO references state law, and state law criminalizes such acts of complicity, as explained above.

Racketeer Influenced and Corrupt Organizations, 18 U.S.C. §§ 1961-1968 (Oct. 15 1970).

Indeed, RICO applies even if both all acts of complicity, and the primary crimes themselves, all occur outside the U.S., one Court has ruled (provided, in that case, the effects of the crime are felt inside the U.S.):

“Defendants contend that plaintiffs’ alleged predicate acts are invalid because they occurred in Nigeria and thus do not plead violations of the laws of a state or of the United States . The Court disagrees....

The issue for this Court to determine is whether location of the crime is an ‘essential’ element under Carillo, and therefore whether a predicate violation of state law must occur within the jurisdictional boundaries of a state in order to be chargeable under the laws of the state. The Court finds that location is not an essential element.”

Wiwa v. Royal Dutch Petroleum Company, 2002 U.S.Dist. Lexis 3293 at *80-81 {2002 U.S. Dist. Lexis 3293, 109kb.pdf, source, menu, legal, search} (S.D.N.Y. Feb. 28 2002, Judge: Kimba Maureen Wood), cited more fully above.

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But, it’s the policy of the U.S. Attorney-General to not prosecute FBI officials for their crimes inside the U.S., or U.S. officials for their headquarters complicity in the foreign violent and other crimes by CIA and U.S. Military Officers.

Thereby, the U.S. Attorney-General becomes criminally complicit in their crimes, if s/he either knows about them, or doesn’t want to know about them. And, for just such a willful failure to prosecute, the U.S. Government prosecuted, convicted, and imprisoned an assistant attorney-general in the Ministry of Justice of the Nazi Government:

United States v. Herbert Klemm (Assistant Attorney-General, Ministry of Justice, Nazi Germany), in The Justice Case (U.S. Military Tribunal 3, Dec. 4 1947, Judges, U.S. civilians: James T. Brand, Supreme Court of Oregon; Mallory B. Blair, Court of Appeals, Texas; Justin W. Harding, District Judge, Alaska):

“ It is the judgment of this Tribunal that he knowingly was connected with the part of the Ministry of Justice in the suppression of the punishment of those persons who participated in the murder of Allied airmen.”

Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Nuernberg, October 1946–April 1949 (U.S. GPO, 15 volumes, 1949-1953) {SuDoc: D 102.8, ditto, LCCN: 49045929} (reprint: W.S.Hein, Buffalo New York, 1997) {LCCN: 97071903} (the “Subsequent Proceedings,” the “Green Books”), volume 3 (1950), pages 1, 568-593 (“d. The Withholding of Criminal Proceedings against Persons Participating in ‘Lynch Justice’ against Allied Fliers”), 1087-1107 (“The Defendant Klemm”), 1096-1099, at 1099 (Mazal Library, San Antonio Texas).

The Attorney-General himself (Minister of Justice) escaped captivity and trial at Nürnberg, by hanging himself at Neumünster camp (Nov. 22 1946) in the month after the final judgment by the International Military Tribunal (Oct. 1 1946) and the execution of 10 of his colleagues (Oct. 16 1946), in accordance with the Tribunal’s Order:– Death, by hanging. He would have been indicted (Jan. 4 1947) in The Justice Case, before the U.S. Military Tribunal.

Otto Georg Thierack (1889–1946), Minister of Justice (August 20 1942–1945 May 5), previously President of the People’s Court in Berlin (1936–1942), a criminally-administered criminal court which, in secret proceedings, dispensed death-sentences with no right of appeal. Like the present-day secret U.S. Military Tribunals for the secret ‘trial’ of prisoners held incommunicado by the U.S. from its war against the Taliban Government of Afghanistan and against its allied Belligerent combatants (who commit no crime by waging war), Al Qaeda, on secret charges, with secret ‘information’ outlawed in the U.S. District Court, because it is not “evidence” (rumor, supposition, innuendo, hearsay).  CJHjr

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The U.S. President routinely enleagues his Attorney-General into his criminal enterprises by briefing him/her.

As in the case of John Kennedy (President, Jan. 20 1961–1963 Nov. 22), Robert Kennedy (Attorney-General, Jan. 20 1961-1964 Sept. 3), and the felony-murder of the Diem brothers (Vietnam, Nov. 2 1963).

And, as in the case of Richard Nixon (President, Jan. 20 1969-1974 Aug. 8), John Mitchell (Attorney-General, Jan. 20 1969-1972 Feb. 15), and the felony-murder of René Schneider (Chile, Oct. 22 1970).

The Chagos islanders are lucky Richard Nixon ordered them merely deported/exiled (1969-1971), not murdered.

Why do people hate America?

________________

The particular prima-facie international crime against the Chagos islanders (deportation/exile) is not the sort of crime any U.S. state has ever bothered to criminalize (a RICO requirement), at least in specific terms (as I suppose), because state legislators are normally thinking about the crimes of their citizens, and not crimes by their own state officials. But, if U.S. federal officials, or U.S. state officials, were to forcibly exile a segment of a state’s population, the normal state crime of kidnapping would appear to apply.

I suppose the exile of the Japanese Americans in World War 2, into concentration camps, presumably superseded state criminal law, as the President was then asserting a foreign affairs rationale for his action.

Query:  Under this rationale, can President George W. Bush lawfully kidnap and imprison in concentration camps U.S. citizens who may peaceably oppose his foreign wars? The FBI has long had a plan to do this. And, a new secret contingency plan to do this was developed by the U.S. Military and U.S. civilian officials during the U.S. war against Nicaragua (1981–1990), under his father’s administration, as Vice-President (Jan. 20 1981–1989 Jan. 19), and President (Jan. 20 1989–1993 Jan. 19).

For a federal kidnapping case, see Alvarez-Machain v. United States {425kb.html}, 331 F.3d 604 (9th Cir., No. 99-56762, June 3 2003) (en banc, 11 Judges) {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}.

Status of pending en banc cases, Today’s date: June 3, 2003”: “Issue(s): In litigation which followed the 1990 arrest of Doctor Humberto Alvarez-Machain at his office in Guadalajara by Mexican civilians at the behest of United States Drug Enforcement Agency agents, is the United States liable for his abduction under the Alien Tort Claims Act, on the ground that Alvarez-Machain’s arrest violated the law of nations? Did DEA agents also violate the Federal Tort Claims Act? Holdings: The DEA had no authority to effect Dr. Alvarez-Machain’s arrest and detention in Mexico, and he may seek relief in federal court under the ATCA and the FTCA. The unilateral, non-consensual extraterritorial arrest and detention were arbitrary and in violation of the law of nations where Congress has expressed no intent authorizing extraterritorial law enforcement powers to support the DEA’s actions. Neither the “foreign activities” exception nor the “intentional tort” exception applies to shield the United States from FTCA liability. United States rather than Mexican law applied to determine damages, and damages are limited to Alvarez-Machain’s captivity in Mexico.” (U.S. Court of Appeals for the Ninth Circuit, San Francisco).

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U.S. Government Officers have a long history with deportations – beginning with the Cherokee Nation, when gold was discovered in part of their homeland, in North Carolina, Tennessee, Georgia, and Alabama – the ‘Trail of Tears’, a 1,200 mile death-march to Oklahoma by 16,000 people, herded by the U.S. Army, 4,000 dying in that winter of 1838-1839.

This, in violation of the U.S. Supreme Court decision in Worcester v. Georgia, 31 U.S. 515 {altlaw, lexisone} (March 3 1832), which marks the onset of contempt by the U.S. military and their Commander-in-Chief for the rule-of-law, well-expressed at the time by President Andrew Jackson (Mar. 4 1829–1837 Mar. 3), referring to the Chief Justice, who wrote the Court’s opinion: “John Marshall has made his decision, now let him enforce it”.

Many other forcible transfers followed, against other native Americans.

In recent history, President Franklin D. Roosevelt (Mar. 4 1933–1945 Apr. 12) ordered the U.S. military to arrest Americans of Japanese ancestry and forcibly transfer them into concentration camps (Executive Order 9066, Feb. 19 1942). His public Order was vague and oblique and didn’t mention them, but the U.S. military obeyed his secret order – secret because he feared public opposition before the U.S. military were able to build their concentration camps and quietly make their other preparations before setting about their work, arresting their fellow citizens.

As with the Nazi Government, all U.S. Government deportations enleagued popular support by its citizens and the military, both of whom looted the property of the victims, or made token payments in forced sales. The U.S. Government has paid nothing for the rights the U.S. military looted from the Chagos islanders.

________________

What the Chagos islanders are now seeking in the U.S. Court is damages for the tort done to them and a declaratory judgment that what the United States did to them was wrong and unlawful.

Crimes by military and other government officers, contractors, operatives, and partners are also torts by the nations they disserve, dishonor, and shame – and particularly so this tort and prima-facie crime against the Chagos islanders, which was agreed in advance by a conspiracy of top-level government officers of two nations.

The burden-of-proof in a civil suit, for damages from a criminal tort, is ‘more likely true than not’ (the ‘balance of probabilities’).

Thanks to the UK Court judgment, the Chagos islanders would have no difficulty proving their case. Indeed, the issues decided by the UK Court are res judicata against the U.S. Government, by reason of its ‘privity’ with the UK Government in the tort (as accomplice and partner). This means the U.S. Court, if it finds that privity to be a fact, would not allow the U.S. Government to recontest those same issues in the U.S. Court, but instead treat them as already proven facts – for example: that the expulsion of the Chagos population was unlawful, and that the UK Government did it (a little something for both their plates) {247 U.S. 464, 475}:

“The doctrine of res judicata rests at bottom upon the ground that the party to be affected, or some other with whom he is in privity, has litigated or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction.” Postal Telegraph Cable Co. v. Newport (44 kb), 247 U.S. 464, 475 (1918).

The role of the U.S. Government, as partner with the UK Government in the tort, was lavishly documented in the UK Court. So too, the U.S. Government’s role as accomplice, namely: inciter, conspirator, aider and abetter, and facilitator to the UK Government’s action. But, these actions by U.S. Government Officers were not a legal issue before the UK Court, which concerned itself only with the conduct of the UK Government. Therefore, the involvement by the U.S. Government in the tort, through its Officers, may not be res judicata.

This means the U.S. Government lawyers may be free to argue, in the U.S. Court, that what the UK Government did to the Chagos islanders was nothing to do with the US Government – which was an indifferent and innocent by-stander to these events. That the U.S. Government was a mere customer of the UK and only wanted the islands. That never in a million years would the U.S. Government knowingly participate in an illegality, let alone an inhumane crime. That the U.S. Government relied upon the wisdom and competence of the UK Government – a world empire, a permanent member of the United Nations Security Council, and acknowledged world authority on international law and on the governing of such island groups – to do what needed to be done in a lawful, humane, and honorable manner. That the U.S. Government was disappointed to learn, and so too the UK Government itself, of the technical illegality, which was never intended. That the UK Court interpreted an internal domestic law of the United Kingdom, and not an international law, and that it was difficult to interpret, and reasonable minds could differ about it’s meaning. That there could be no question, therefore, of an ‘international crime’, not least for want of criminal intent, which is nothing but unhelpful rhetoric. That as for the tort itself, which does not depend upon criminal intent, the U.S. Government is, of course, sympathetic to the Chagos people, if the UK Government inadvertently mistreated them in some technical manner. And that the UK Government will no doubt pay them for any actual damages there may be, if any, eventually.

This speech, while entertaining, won’t cut any ice with the Judge:

“Accordingly, we may impose aiding and abetting liability for knowing practical assistance or encouragement which has a substantial effect on the perpetration of the crime....”

Doe I v. Unocal Corporation {356kb.pdf}, at p.14219 (9th Cir. Cal., No. 00-56603, Sept. 18 2002, panel: Harry Pregerson, Stephen Roy Reinhardt, Atsushi Wallace Tashima) (complaints under the Alien Tort Claims Act against the oil companies Unocal and Total and Unocal’s chief executive officer Roger Beach and president John Imle, alleging complicity in international crimes by the military against villagers in Myanmar, formerly Burma – namely “forced labor, murder, rape, and torture when the Defendants constructed a gas pipeline through the Tenasserim region” – validly plead tort violations of international law which the U.S. District Court has jurisdiction to adjudicate), bold-face added, reversing in part and affirming in part 963 F.Supp. 880 (C.D.Ca. Mar. 25 1997, Judge:  Richard A. Paez) and 10 F.Supp.2d 1294 (C.D.Ca. Aug. 31 2000, Judge:  Ronald S. W. Lew); also via 2002 Westlaw 31063976 and 2002 U.S.App. Lexis 19263.

Why do people hate America?

________________

But the U.S. Government lawyers may not get to make their speech. First, there’re some preliminaries to attend to. And these concern the ‘jurisdiction’ of the U.S. Court to trouble them to compose such a speech.

U.S. law is carefully and purposefully crafted (like Nazi law) to prevent U.S. Courts from hearing the complaints by victims of the foreign crimes and other torts of the U.S. Government.

‘Crime pays’ when its not punished, and so too other intentional torts. Like the Nazi Government, the U.S. Government depends upon violent crime as its most valuable tool in its foreign policy. And, like the Nazi Government, the U.S. Government will not permit itself to be sued in an international court (the United Nation’s International Court of Justice), or in the court of a foreign nation, or, in most cases, even in its own courts – whether by victim nations or by individual victims – for its foreign torts, criminal and otherwise. Like this:


Escaping justice

Can the United States escape justice for its wrongdoing by denying the Court’s authority to sit in judgment upon it?:

1 Federal Tort Claims Act (100 kb) (money-damages against the United States )

2 Alien Tort Claims Act (65 kb) (money-damages against others, and declaratory judgment and injunction against the United States ?)

3 Other defenses and issues (25 kb) (statute-of-limitations, act of state, standing, case or controversy, injunction, Tucker Act, supplemental jurisdiction)

 

Escaping justice

Yet, were they to prevail, the Chagos islanders could at least hope for prompt payment of their actual damages, without having to beg Congress to provide the actual money to pay them with. And that’s a relief for them because, if Congress won’t pay U.S. debts to prominent creditors, like the United Nations, what hope for a group of nobody-islanders?

In 1956 Congress appropriated funds, permanently and indefinitely, for the ‘Judgment Fund’, for automatic payment of judgments against the United States , but only if rendered by a U.S. Court: 31 U.S.C. § 1304 with 28 U.S.C. § 2414. And, in 1961, for payment of voluntary settlement of such lawsuits as well, after they’re filed, if the Attorney-General agrees to it: 28 U.S.C. § 2677 with 28 U.S.C. § 1346.

Of course, President George W. Bush (Jan. 20 2001–2005 Jan. 19) could thumb his nose at the Court (as President Andrew Jackson did), and order the Treasurer to not pay the judgment – high-noon, showdown politics, with the prospect of another entertaining impeachment trial. Or instead, would Congress simply agree it’s just another ‘discretionary function’ or ‘political question’ (below) which the President is entitled to decide, and no business of a U.S. Court?

That’s what his idol did, President Ronald Reagan (Jan. 20 1981–1989 Jan. 19), when the 15 Judges of the United Nations International Court of Justice in The Hague did not follow Antonin Scalia’s example and “stay our hand(below) but instead awarded Nicaragua judgment for damages against the United States for the unlawful war the United States waged against Nicaragua (1981-1990), killing about 30,000 citizens and maiming about 30,000 more, few of them combatants, and destroying more than a billion dollars in property.

Nicaragua v. United States of America (5 mb pdf, 404kb.html, 428kb.html) (‘Military and Paramilitary Activities in and against Nicaragua’, UN ICJ, judgment on the merits: June 27 1986); Case Summary (Blue Book: International Court of Justice 1946–1996 ‘A guide to the history, composition, jurisdiction, procedure and decisions of the Court’ (Registrar, UN ICJ).

The reparations phase of the case was never completed (damages estimated at $3.5 billion). Reagan withdrew the U.S. from the UN Court’s compulsory jurisdiction (April 6 1984) – desperate to block Nicaragua’s impending suit, which its U.S. lawyers nevertheless timely filed within the 30-day notice period (April 9 1984).

Reagan said he would never pay for his massive tort and the U.S. Government would never be held to account for it under the rule-of-law. His Vice-President, an active supporter of this unlawful war of aggression (as the Court held it to be), and successor President, George H. W. Bush (Jan. 20 1989–1993 Jan. 19), via the CIA, bank-rolled into power a new compliant government in Nicaragua, and doubtless their personal bank accounts as well, on the likely condition they would voluntarily discontinue the suit. And, after a decent interval, that’s exactly what they dutifully did, having already won their suit – a first in the history of the world.

Order, Sept. 26 1991 (81 kb pdf) (UN ICJ); S. Brian Willson ‘How the U.S. Purchased the 1990 Nicaragua Elections(19 kb).

When money talks, corrupt government officials listen carefully. And as for Nicaragua?– What’s $3.5 billion between friends. And as for the 60,000 victims?– Well ... they’re mostly low-class nobodies anyway – like the Chagos islanders – and half of them are dead already – so who cares about them.

Why do people hate America?


Query

Can the 60,000 Nicaraguan victims sue the United States in U.S. Court for the ‘headquarters’ bribery tort by President George H. W. Bush, and his CIA accomplices, which denied the victims the benefit of their Country’s judgment against the United States by the UN International Court of Justice? See ‘Bribery’.

 

Query

To prevent U.S. lawyers (who are best qualified to confront the U.S. Government in Court) from again representing foreign victims of U.S. Government crimes and torts in the future (as they sucessfully did for Nicaragua), President Reagan issued an Excutive Order, making it unlawful for U.S. lawyers to provide legal services to Libya, or any person in Libya, without a license from the U.S. Government (Jan. 7 1986). This, doubtless, in contemplation of his then secret battle-plan to attack Libya (Apr. 15 1986), at the next plausible provocation. I presume he did the same for the rest of the U.S. ‘whipping boys’ as well (Cuba, Iran, North Korea, Sudan, and such), which he could also do without consent of Congress, but I haven’t bothered to check. Iraq was not then on this list as the U.S. military was then secretly participating actively with Iraq in the Iran-Iraq war (Sept. 22 1980–1988 July 18), without authority from Congress, and thus in willful violation of the U.S. Consitution.

“Prohibiting Trade and Certain Transactions Involving Libya,” Executive Order 12543 (January 7 1986) {6kb.html, 8kb.pdf} § 1(b), Jan. 7 1986, 51 F.R. 875 and Lybian Sanction Regulations (129 kb) 31 C.F.R. § 550.422 (’Exportation of services; performance of service contracts; legal services’), § 550.517 (‘Exportation of certain legal services to the Government of, or persons in, Libya’), current version July 1 2001 (Office of Foreign Asset Control, U.S. Treasury).

Subsequent Presidents maintained these rules in force to the present, though they periodically dictate a new list of ‘countries which support terrorism’. Like all powerful nations of the past, the U.S. Government labels all violence against itself and against its innocent citizens as ‘terrorism’, including violence which the U.S. has legalized by its own unlawful violence and subsequent refusal to admit, apologize, and pay for – or else litigate.

As for U.S. lawyers, licenses have apparently been granted for U.S. Court proceedings, but I don’t suppose for the UN International Court of Justice, where the U.S. can still be sued by other nations, but not by individual victims and only for violations of a limited group of treaties, which don’t normally pertain to the violent crimes and torts by the U.S. Government, apart from genocide, which is in that group.

Iran nevertheless squeezed into that limited group of treaties its suit for damages for the U.S. ambush of its airliner (Iran Air Flight 655, July 3 1988, 290 killed, $30 million AirBus destroyed), even though that tort by the U.S. military – while violating treaties – was caused by factors which the U.S. would not permit the UN Court to examine, namely: the neglegent equipping and negligent operational protocol of its war-ship, the USS Vincennes (CG-49), though intentional torts were also a factor. Iran’s suit (May 7 1989) prompted President George H. W. Bush (Jan. 20 1989–1993 Jan. 19), two months later – and for the first time – to offer money to the victims (July 15 1989), but not to Iran, for its AirBus, and without apology or admission of wrongdoing. President Bill Clinton (Jan. 20 1993–2001 Jan. 19) eventually settled Iran’s lawsuit (Feb. 22 1996), for a higher amount, before the UN Court could announce its judgment.

Iran v. United States of America (‘Aerial Incident of 3 July 1988’, UN ICJ), and via Case Summary via the UN Court’s Blue Book (International Court of Justice 1946–1996 ‘A guide to the history, composition, jurisdiction, procedure and decisions of the Court’ (Registrar, UN ICJ). William J. Clinton Report to Congress, May 16 1996 {12kb.txt, 91kb.pdf}.

Why do people hate America?

________________

But current President George W. Bush may not receive the opportunity to emulate his idol, President Ronald Reagan.

Even where Congress has not barred U.S. Courts from awarding damages – as this case of the Chagos islanders appears to be – U.S. Judges will nevertheless normally decline to adjudicate civil complaints which question the military and other foreign crimes, torts, and wrongdoings by the U.S. Government, and its Officers, contractors, operatives, and partners, on the ground that the U.S. Government’s foreign crimes and torts pose a ‘political question’. And that’s what the U.S. Government asserts in this case:

“The United States argues that this court lacks subject-matter jurisdiction because of the doctrines of sovereign immunity and political question, and for lack of standing.”

Bancoult v. McNamara, Memorandum Opinion {49 kb}, Sept. 30 2002, § II.B. (D.D.C. 1:01cv02629, filed Dec. 20 2001).

Antonin Scalia established himself as the alpha-male of this pack of U.S. Judges, with his decision to become complicit in violent crimes of the U.S. Government via the following opinion. But he’s now a U.S. Supreme Court Justice, and so too his concurring partner Ruth Bader Ginsburg, and that’s a long way from the U.S. District Court for the District of Columbia (procedurally); so, the Chagos islanders can hope, if the Supreme Court later consents to hear their case, that the opinion of these two Justices will be as dissenters, and not the majority {770 F.2d 202, 209}:

“[T]he special needs of foreign affairs must stay our hand in the creation of damage remedies against military and foreign policy officials for allegedly unconstitutional treatment of foreign subjects causing injury abroad. The foreign affairs implications of suits such as this cannot be ignored – their ability to produce what the Supreme Court has called in another context ‘embarrassment of our government abroad’ through ‘multifarious pronouncements by various departments on one question’.”

Antonin Scalia (Judge, U.S. Court of Appeals) Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir. Aug. 13 1985, panel: Antonin Scalia, Ruth Bader Ginsburg, Edward Allen Tamm) (complaint alleging violent crimes by the Contras in Nicaragua – including war-crimes, assassinations, torture, and rape – incited, aided and abetted, conspired in, and facilitated by U.S. Government officials, dismissed).

Why do people hate America?

God forbid that a Government should be subjected by its crimes to the dread of embarrassment abroad. Perhaps Mr. Scalia would prefer the German Government to now return the favor, and prosecute and adjudicate the prima-facie crimes of U.S. Government officials including – as his decision in this case constitutes – his own.

By their decisions, U.S. Judges (on their own initiative, and not by Act of Congress) voluntarily abandon such questions to their fellow U.S. Officers in the executive branch, thereby licensing them to do as they please. These ‘political’ acts by U.S. executive officers are subject to moderation, therefore, only by political persuasion, by the intervention of Congress to terminate funding – very rare, and willfully violated the last time, with ‘specific intent’ (a common-law crime) by Oliver North and his gang of Contra supporters – or by force, another form of political persuasion.

Baker v. Carr (400 kb), 369 U.S. 186 (1962) (the ‘political question’ doctrine) and see the current advocacy of the U.S. Justice Department, concerning some of this decision’s numerous progeny, in ‘Government’s opposition {225 kb pdf} to defendant’s motion to dismiss count one of the indictment ...’, June 5 2002, United States v. Lindh (E.D.Va., Crim. No. 02-37-A).

________________

Decisions by U.S. Judges to not adjudicate (to ‘decline jurisdiction’) are usually portrayed by the media, quoting the written opinions of the U.S. Judges, to mean the complaints are ‘hopeless’, ‘baseless’, ‘doomed’, ‘frivolous’, and ‘meritless’.

But their decisions have nothing to do with the merits of the victims’ claims (which the Judges don’t trouble themselves to consider). Their phraseology applies – not to the claims, but instead – to U.S. law which deprives the Judges of jurisdiction to adjudicate the merits of the victims’ claims. The decisions by the U.S. Judges therefore demonstrate solely that the legal structure of the U.S. Government is like that of the Nazi Government, and permits foreign violent crimes and torts by the U.S. Government, with no peaceable remedy to the victims and no peaceable means for the citizens to stop it.

Hence, the purpose and the value of the gun clause in the U.S. Constitution – a last, desperate, defense by citizens against their own Government. And hence, international law, which gives foreign victims the right to resort to violence against the U.S. and its innocent citizens – the last-resort lawful remedy which the U.S. Government thereby makes available to them.

________________

In this case, the Chagos islanders aren’t seeking to close the base (and that surely is a ‘political question’), but merely damages, and a declaratory judgment, instead.

Under U.S. law, the President can violate international law which is part of U.S. law, including binding U.S. treaties, ratified by the Senate. This, even though President Richard Nixon (Jan. 20 1969–1974 Aug. 8) could just as easily have accomplished his objective lawfully, had that been his nature, by purchasing from the Chagos islanders their right to continue living in the Chagos archipelago.

But, the President’s internal authority to violate the law doesn’t make his action ‘legal’. It only means that, internal within the U.S. Government, a U.S. Court won’t issue its order directing him to stop. It’s a limited right, in aid of the President’s Consitutional authority to conduct the nation’s foreign affairs. The exercise of this right, however, has legal consequences. And it’s those consequences which now confront the Judge in the Chagos case.

Will the Judge (an Officer of the U.S. Government) hold the U.S. Government to account for it’s unlawful actions? Or will he rule that the decision to pay damages is itself a ‘political question’ as well, and one he shouldn’t adjudicate?

We’ll have to wait and see.

________________

The trial judge’s decision on such a legal issue (raised by the motions to dismiss the Chagos complaint) is not binding on the Court of Appeals or the Supreme Court, which are both free to decide legal issues afresh (‘de novo’), giving no regard to the opinion of the trial judge.

It’s otherwise on ‘findings of fact’ which are binding in the appeals process unless they are ‘clearly erroneous’; hence, the demand by the Chagos plaintiffs for a trial by jury – a jury of citizens (the fact-finder) being the best available safeguard against political pressure.

Congress will not permit a jury trial against the United States on tort claims. Thus, in a trial against multiple defendants, the Judge decides the case against the United States and the jury decides the case against the rest, and they can reach inconsistent conclusions.

________________

Significantly, Congress – by depriving U.S. Courts of jurisdiction to adjudicate most foreign claims – and U.S. Judges – by refusing to exercise the remaining bits of jurisdiction which have escaped Congress’s notice – and the President – by withdrawing the U.S. from the compulsory jurisdiction of the UN International Court of Justice, by refusing to obey the orders of that Court (as in the Nicaragua case: orders on issues in addition to damages), and by refusing to provide any other suitable method of settling claims – all three branches of the U.S. Government acting thus in concert, thereby license the foreign victims of violent wrongdoings by the United States to exercise their right under international law which thereby arises (for want of a peaceable remedy) to resort to force, namely: an eye-for-an-eye ‘countermeasure’, a species of self-defense.

The resulting acts of violence against the United States and against its innocent citizens – which would otherwise be criminal terrorism – thereby become lawful law-enforcement actions by foreigners in the role of valiant law-enforcement officers, licensed by the U.S. Congress, by U.S. Judges, and by the U.S. President to do what these U.S. Officers are themselves unwilling to do, namely: to obey and enforce the rule-of-law by holding the United States to account for its wrongdoings, thereby endeavoring to dissuade the United States from persisting in its unlawful practices in the future.

It’s a death-lottery: U.S. Government Officers put the social security number of each U.S. citizen into the machine; and then entitle foreign law enforcement officers, one-by-one in turn, to push the button and retrieve the names of innocent U.S. citizens equal to the number of innocent foreign citizens the U.S. has wrongfully killed; and these U.S. citizens U.S. Government Officers then voluntarily deliver to the foreign law enforcement officers for summary execution.

This, because U.S. Government Officers are unwilling themselves to be judged in a court of law for their own wrongdoings, or else voluntarily admit their wrongdoings, apologize, and pay damages.

________________

As an added spectacle, U.S. Judges can punish U.S. lawyers with large fines for simply filing complaints for foreign victims.

This, they did to former U.S. Attorney-General Ramsey Clark, son of former U.S. Supreme Court Justice Tom C. Clark, and his partner Lawrence W. Schilling, for bothering the Court, and the U.S. and UK government defendants, with a complaint for damages, and a subsequent appeal, by victims of the ‘Pearl Harbor’ surprise attack by the U.S. on Libya (April 15 1986), launched from UK airfields, killing several hundred civilians and destroying civilian property. Total personal fines: $36,000.

Saltany v. Reagan (25 kb), 886 F.2d 438 (D.C. Cir. 1989). The FRCP Rule-11 fine, for filing the “hopeless” complaint was $20,000 against Ramsey Clark and Lawrence W. Schilling, counsel for the Libyan victims, payable half each to the UK government: Saltany v. Bush, 960 F.2d 1060 (D.C. Cir. 1992). The separate FRAP Rule-38 fine, for pursuing the “frivolous” “doomed” appeal was $16,000, as Mr. Schilling now recollects it.

Rule 11 was modified the next year (Dec. 1 1993) (“may” impose sanctions, instead of “shall”), via Cornell. The complete Federal Rules of Civil Procedure {407 kb pdf}, with Forms and Federal Rules of Appellate Procedure {273 kb pdf}, as amended by the U.S. Supreme Court in advance each year, effective Dec. 1, are available via http://www. house.gov/judiciary/documents.htm (U.S. Congress, House Judiciary Committee Print).

________________

U.S. Judges will not adjudicate, even when the complaint credibly alleges, and the prima-facie evidence substantiates, that the U.S. action is a crime – as defined by a U.S. statute or treaty or by “well-established, universally recognized norms of international law”.

But the line dividing politics from crime is a bright line – even though it’s not always clear, beyond a reasonable doubt, to outside observers on which side of that bright line a particular action falls, at least in the heat of the moment, and if the members of the Government criminal enterprise in charge of lies, cover-ups, and obstruction of justice are doing their jobs well. And in this case of the Chagos islanders, those members of the U.S./UK joint criminal enterprise were doing their jobs well.

Setting aside the investigating difficulties of penetrating a powerful Government criminal enterprise, the legal principle is plain: fundamental crimes, recognized as such internationally by all human beings, are on the wrong side of that bright line, and thus beyond the political authority of any Government to legalize. And so the Courts ruled in the Nazi prosecutions:

“The principle of international law, which under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings.”

USA, France, UK, USSR  v. Hermann Goering, et al, 1 I.M.T. 171-367, at 223 (International Military Tribunal, Judgment, Oct. 1 1946), cited more fully above (Mazal Library, San Antonio Texas).

This, despite the fact that the U.S. Government (as did the Nazi Government) has chosen to exclude fundamental crimes from it’s technical statutory criminal code (eg: most foreign crimes and many international crimes). These omissions do not make these crimes ‘legal’. And, just because the omission deprives the Court of criminal jurisdiction to adjudicate a criminal prosecution, it does not deprive the Court of it’s normal civil jurisdiction, to adjudicate complaints for damages for these same criminal torts, despite the crimes themselves being excluded from the criminal code.

And I don’t suppose such criminal questions were ever in the minds of the Baker v. Carr Court, which enunciated the ‘political question’ doctrine. It’s now time we had a ‘criminal question’ doctrine.

________________

Though they don’t apply their minds to this distinction between crime and politics when they dismiss complaints against the U.S. Government, U.S. Judges readily adjudicate all such cases (both criminal indictments and civil complaints for torts) against foreign government officials and foreign nations (eg: under the U.S. Alien Tort Claims Act and the Foreign Sovereign Immunity Act).

The voluntary refusal to adjudicate by U.S. Officers (Federal Court Judges), in both types of civil complaints, both civil torts and criminal torts, constitutes – at their hands and by their command – a violation by the U.S. Government of the rule-of-law, expressed in the Universal Declaration of Human Rights (article 8) as a mandate on each nation to provide an effective judicial remedy for wrongdoings, including its own.

Why do people hate America?

U.S. Judges

U.S. Judges are appointed by the President, usually by reason of their political connections, and because their perceived legal instincts and inclinations suit the President of the day.

But, once appointed (and confirmed by the Senate) direct political pressure upon them ceases, at least apparently so: Appointed for life to a particular Court, they can’t be fired, punished with a salary reduction, bribed with a salary increase (paid to all Judges equally), or threatened with transfer to Alaska or an indefinite tour of military bases overseas. They are Article III Judges, and their protections are in that article of the U.S. Constitution.

Trial Judges, in the 94 U.S. Federal District Courts, are paid per year $145,100 £95,000; Judges in the 13 U.S. Courts of Appeals, $153,900; Supreme Court Justices, $178,300 (Chief Justice, $186,300). By comparsion: the U.S. President, $400,000; Members of Congress, $145,100. All these U.S. Judges can retire on full salary at age 65, if they’ve satisfied the ‘rule of 80’ (a combination of age and years of service).

Federal Judicial Pay Erosion (110 kb pdf), Feb. 2001 (American Bar Association, Federal Bar Association) (Administrative Office of the U.S. Courts, Washington DC). Rule of 80: 28 U.S.C. § 371. A 16.5% pay-raise is pending: S.1023 (May 7 2003).

Like the rest of us, U.S. Judges have their social influences, particularly esteem by their peer-group of choice. And, their prospects of political appointment to higher judgeships is always on the line in politically-charged cases, like this one. And, to be rid of them, or to reward them, they can be tempted with a higher-paid position in a cooperating law-firm (funded secretly, if needs be, by the CIA) or, for a change of pace, an ambassadorship or other executive office.

The UK dangles a super-charged set of inducements to encourage its Judges to judge ‘appropriately’, which their chief judge (the Lord Chancellor), an executive branch officer, can make plain to them, if they stray: the promise down the road of a sequence of public ‘honors’ bestowed by the Monarch and, eventually, a seat the House of Lords, both on orders of a grateful Government. And what goes on behind the scenes, we don’t know: I discovered a letter from an English Judge to the Admiralty (c.1719), in the days before telephones, asking for a job for his son and observing that he had ruled in a case the way the Admiralty had asked him to rule; the Admiralty promptly gave his son a job, which he could thereafter retain, at their pleasure.

But the modern appellate process is a check on trial judges, and thus an obstacle both to external influences and to their internal inclinations, particularly as to legal issues, because the ‘buck doesn’t stop here’ in the trial court. Of course, for this check to function in a particular case, the judge has to believe that a litigant is able and willing to pay the cost of an appeal, or is fortunate to have a lawyer who will finance an appeal pro bono or on a contingency.

Another check – and it’s a powerful one – is public access to U.S. court proceedings. It’s a simple matter for a Judge to rule corruptly, while appearing to rule properly: all s/he has to do is modify the facts, conceal certain issues, ignore legal authorities advocated by the lawyers, and pretend the case is about something slightly different from what it’s really about. (And these concerns apply to the secret U.S. Military Tribunals President George W. Bush has ordered for the Taliban/Al Qaeda prisoners at the U.S. base in Cuba). The victim litigant (a nobody) is then left to persuade the public that the Judge (a somebody) is a corrupt liar, a tough row to hoe.

Public access seriously impedes this corruption of justice, because the Judge can be certain that the public can be certain about what was presented to the Judge. This, by public access to all the papers in the case, the testimony, the arguments of the lawyers, the Court Reporter’s verbatim transcripts and the Court’s audio tape-recordings of the proceedings, and the decisions of the Judge, which the rule-of-law requires to be in writing and supported by reasons – and taking account of the apparently applicable law, and the findings of fact, and the arguments and legal authorities advanced by the parties – a professional discipline and a legal guard against arbitrary decisions, the unlawful antithesis of the rule-of-law.

“Democracies die behind closed doors. The First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully, and accurately. ... When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation. The Framers of the First Amendment ‘did not trust any government to separate the true from the false for us.’ Kleindienst v. Mandel {88 kb}, 408 U.S. 753, 773 (1972) (quoting Thomas v. Collins {108 kb}, 323 U.S. 516, 545 (Jackson, J., concurring)). They protected the people against secret government. ...

A true democracy is one that operates on faith – faith that government officials are forthcoming and honest, and faith that informed citizens will arrive at logical conclusions. ... Today, we reflect our commitment to those democratic values by ensuring that our government is held accountable to the people and that First Amendment rights are not impermissibly compromised. Open proceedings, with a vigorous and scrutinizing press, serve to ensure the durability of our democracy.”

Detroit Free Press v. Ashcroft (127 kb) (6th Cir., No. 02-1437, Aug. 26 2002, panel: Damon Jerome Keith, Martha Craig Daughtrey, James G. Carr) (First Amendment to the United States Constitution confers a public right of access to executive branch administrative deportation hearings; the Government must make a showing to overcome that right).

The secret Foreign Intelligence Surveillance Court is an exception (50 U.S.C. §§ 1801-1863). But, there’s no way to prevent the executive branch from engaging in criminal activities, and the blind hope that gave birth to this secret Court was that it might reduce that criminal activity, at least as to that partial selection of domestic wire-taps which the executive branch chooses to reveal to that Court. Though – as with the two secret intelligence committees of the U.S. Congress – it’s also an avenue for the executive branch to enleague the judicial branch in its secret criminal enterprises. The U.S. President claims ‘political question’ authority, without a warrant from any Court, to copy 100% of all international telecommunications (one task of the NSA: National Security Agency) – including those between U.S. citizens and privileged communications between lawyers and clients – and doubtless international mail as well.

Whatever may be their politics, instincts, and inclinations when appointed, U.S. Judges are like the rest of us: they ‘live and learn’, their hearts can move, and their heads can follow.

 

© 2002 Charles Judson Harwood Jr.

This document may be freely quoted.

CJHjr

Posted Sept. 1 2002. Updated Jan. 10 2004

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