Our system of governance separates power. There are overlapping jurisdications. Illegal policies, in our government, are not the product of a single person or branch. The other two branches must enable that illegal activity. This is where we find ourselves. Congress has enabled war crimes; it has refused to shut down funding for Geneva violations; and it has refused to confront the Executive on impeachable offenses and war crimes. Where one branch refuses to check another, they are attached to that illegal activity of the other. Complicity and silence isn't a defense, but evidence of illegal activity.

When we discuss issues of war crimes, some in the legal community like to pretend that Geneva does not confer Constitutional rights, and is not an issue the public needs to concern itself. Yet, this assertion misses a core issue of Our Constitution: It binds leaders to enforce, as written law, the Constitution and all treaty obligations which includes the laws of war.

Some think of Geneva as a set of rules helping POWs. This misses an important aspect of the laws of war. Geneva has two prongs: One is a shield for POWs; the second is the leash on the constraining power. Geneva is intended to ensure civilized conduct toward those who have been taken out of the fight. However, when the US continues to abuse POWs, the US is saying it will not treat non-combatants as non-combatants. Then other nations are not required to either.

Geneva bans all abuse of people who have been taken out of the fight. Whether they are or are not POWs is irrelevant. Whether something is or isn't torture is meaningless: Abuse is prohibited. Whether waterboarding is or isn't "torture" is irrelevant. Something can be "not torture," yet still illegal abuse.

If we refuse to punish those who permit any abuse against those who have been taken out of the fight, then other nations may lawfully refuse to punish others who commit like abuses against Americans. This is permitted under the laws of war through the principles of reciprocity and retaliation.

Some like to pretend that the Members of Congress know best. Indeed, the intent of the Framers was to have leaders in the District of Columbia who would specialize on the law. However, the Framers also intended for the States to be a check on power, not to be complicit. Before the days of the telegraph, the Framers thought the States would be the place where the problems of the Federal Government would quickly surface. Today, citizens in the blogosphere provide some of this communication. Self-evidently, Members of Congress do not know the laws of war, refuse to challenge this President for war crimes, and are not meeting their legal obligations or the intent of the Framers. These Members of Congress have not become experts on the law, but experts on excuses for lawlessness.

The Framers intended for factions to clash not just in debates in Congress, but in the Courts. Today's Factions have not clashed. The debates have not been to arrive at truth, but to impose reality, largely disconnected from truth. The error is for the Congress to claim it is concerned with policy making, but uninterested in the facts of impeachable offenses. There is no higher obligation for legislators, leaders, and policymakers: Facts. Those who refuse to find, much less confront facts, are not leaders, but enablers of tyranny.

The facts as we've been able to gather, with little help from the US and State Governments, is that the President, Vice President, and Members of Congress have failed to adjust policies that permitted illegal war crimes against POWs; and have permitted illegal violations against US citizens.

Where there was evidence of Geneva violations, the policy makers refused to adjust that policy. The Supreme Court is allegedly complicit. They refuse to examine allegations of war crimes, calling them secrets. It is not a secret that illegal POW abuse gave the US President false information he used as a pretext for illegal war; and the pretext to expand illegal surveillance against American citizens. Warrants exist to ensure there is judicial oversight of the Executive: To ensure there is prudence behind the proposed plan to lawfully ignore the Bill of Rights.

Nuremberg is precedent for prosecuting civilian policy makers, lawyers, and judges. Nuremberg at the Justice Trial concluded that policy makers, like Members of Congress, could be held liable for refusing to stop illegal activity; and judges could be prosecuted for enforcing illegal laws which violated the laws of war. The State AG's have role in doing what Nuremberg says must be done: Enforce the laws of war. Geneva, as a treaty obligation, is part of the US Constitution, and the State AG's oath of office. The issue isn't whether the AGs are obliged to enforce Geneva (they are); but whether they will be held to account for refusing (they can).

It doesn't matter why we got to where we are. The issue is confronting the facts, and developing a way forward. Members of Congress, this AG, and this President swore an oath to defend the Constitution and the US treaty obligations in Geneva against both foreign and domestic enemies. They refuse. The State AGs must decide whether they look at the Constitution or Members of Congress as the enemy; or whether they want to confront the Constitution or the Members of Congress. Inaction isn't an answer, but an excuse; it is not leadership, but acquiescence to illegal activity. Their decision isn't a defense or a policy; it is evidence of their illegal activity.

We the People have learned the hard way what American lawyers are willing to do when they conduct their planning in secret. They are willing to justify in their own minds illegal conduct, pretend that it cannot be discussed, and believe that they will not be held to account. They miscalculated. Going forward, the public will have to discuss methods to more effectively oversee the legal community to ensure their complicity is checked, not given a rubber stamp. The first step to solve the problem the President, Congress, courts, and legal community have created for themselves is to challenge the AGs to decide whether they want to work on the basis of facts and the law; or whether they would like to act on the basis of lawlessness.

why are the Democratic Leaders complicit in the torture & other criminal activity ? It appears jANE Harmon for example is up to her eyeballs in all of this- why ?

Some have been caught up in the "we will do what we want"-mantra, without thinking about the legal implications.

Why have they done this? Because they chose not to challenge what should have been challenged: Out of fear of challenging the President. They didn't want to appear to be "with the terrorists". They incorrectly believed the options were only "with the President" or "With terrorism", and they didn't consider that holding the President to the law doesn't mean they're supporting terrorism.

They've drunk the KoolAid. The GOP put the legal issue not in terms of what was legal, but "If you don't support us, you are traitors." That assertion wasn't challenged out of fear. The question is why they haven't woken up, asserted the law, and refused to respond to fear. It appears they view themselves as being stuck, without options. They are incorrect: They could choose to remove themselves and say, "I was wrong, and this is what we need to do."

The AG can be stripped of his right to practice law and is subject to a disbarment investigation. A legal profession that permits this level of illegal activity, does not challenge it, and refuses to openly call for investigations is not self regulating, but complicit. The public needs to discuss more effective methods to oversee, regulate, manage, and monitor the attorneys not just in the US government, but across the spectrum. Their collective inaction has enabled this abuse of power. Their inaction raises reasonable public questions about the ability of the lawyers to "self" regulate; and what reforms are needed at the State level to better conduct oversight of the lawyers at the state level.

It is absurd that state-level regulated attorneys have given a green light to Federal-level criminal conduct. That's not oversight, but a system which demands reforms. The lawyers have well demonstrated that they are not willing to timely lead efforts to challenge this abuse of power; nor in independently reviewing the individual action, inaction, or criminal activity of their lawyer-peers.

The Attorney General is not beholden to the President's view of the law. The AG is the Chief Law enforcement officer of the United States. This AG appears to require reminding of his ultimate oath: Not to the President, but to the law.

If he isn't going to fulfill the obligations in being Attorney General then he should resign. If he doesn't resign then he should be removed. That's it - no long discussion....Gonzo was used the same way. We don't need to go through years of debate and discussion.

I think you've made an important point: The lessons of Gonzalez show us what an Attorney General is willing to do: Violate the law, and make excuses for it. This one appears to be doing the same, and openly bragging about it.

You're correct: If he's not going to fulfill his legal obligations as attorney General to the United States (not the President), then he needs to be challenged. His oath isn't to make excuses for the President's illegal activity. Rather, his job is to enforce the law, even against the President.

Curiously, this AG appears to have filed false statements with Congress, and should be subject to a DOJ OPR/Congressional review. Whether the Senate did or didn't rubber stamp him is unrelated to whether the House can conduct an impeachment investigation against this AG. Saying, "Oh, but it's going to be near an election" is an excuse: We're always, by design, "near" an election. That argument would ask us to believe, "We can never prosecute anyone because we've either just had, or are about to have an election." That is a silly argument.

Today is today. We can only go with the facts that we have. Anyone saying, "Oh, we have more important things to do," is making excuses not to confront those who have confronted the law. This AG's statements are subject to review by the public; and the Congress' failure to oversee does not oblige the public to support either the AG or the Congress. The public has the power to impanel Grand Juries, and indict these sitting Members of Congress and this AG. He is subject to law; and his assertion that he has "legalized something" is reviewable. He is not a judge, nor is he in the judicial branch. He has no power to "determine" that something is lawful; her can only certify something, but that certification is subject to a legal review. He has no judicial power to determine that he or anyone else is above judicial review.

Game on for an impeachment investigation of this AG.

This is a doable task: That of developing a public relations strategy to support the AG led efforts to arrest, indict, and prosecute a sitting President. Draft: Feel free to add your suggestions, ideas, or comments.

Let's assume for the sake of discussion only, that the task we would agree to is something like this: Developing a public relations strategy to identify at least one [1] State AG who will support a direct indictment/prosecution of the Vice President and President; and the subsequent support to that State AG's staff to carry that prosecution through to a grand jury indictment, arrest, and trial. The State AG's would have to understand that this is different than a removal decision, which only the Senate can make. Also, the AG would need to understand that this idea isn't something that has been dreamed up, but has been well discussed and has been debated.

Here's what's required:

1. Contact the State AG association with the idea: Give them this citation:

Turley, Jonathan, "'From Pillar to Post': The Prosecution of American Presidents," 37 Am. Crim. L. Rev. 1049 (2000)

2. Review the State AGs conducting the NSA litigation in re privacy statutes. They may have some sort of inclination of the discussions with their peers in the State AG association on which of the AGs would like to jointly prosecute these indictments against the VP and President.

3. Develop a summary table of likely GOP-DNC talking points about "reasons why this wouldn't work", and share these with the AGs: Then share the reasons why "the reasons this cannot work" are not valid. One source for this will be to look at the House Rule 603 effort, and the excuses given to do nothing. These will need to be turned around, and as was done with the FISA litigation, shown to have no merit.

4. The DC Atty Disciplinary Board will need to get a referral about the legal staff refusing to fully assert their oath. Copies would need to be provided to DOJ OPR. CREW may be interested in this, and working with the ABA and National Lawyers Guild.

5. Disseminate to the AG staff the legal citation of the law articles related to prosecute a sitting President. The momentum already exists; and the lawyers working with the Vermonters could be encouraged to work with the State AGs.

6. Need to contact the Leading Investment Bankers not to get their OK, but to give them a heads up that there's a credible threat the President, VP, and Members of Congress could be prosecuted. Wall Street would appreciate a courtesy call during the transition effort.

7. Need to contact the Secret Service, and House and Senate Sergeant at Arms to let them know of the arrest efforts. This isn't to ask their permission; but to remind them that there isn't a group of people attempting to illegally overthrow the government.

8. Need to contact the Congressional Committee Overseeing the Continuity in Government Plan. Again, this isn't to ask their permission, but to let them know what is happening so they do not panic.

9. Also review the primary advocates for inaction: GOP and DNC leadership; the telecoms; and the legal personnel in the various DC groups closely aligned with the White House and Congress. They've provided ample notice of their non-sense arguments. The point isn't to ask their permission, but to ensure that they are considered when formulating a strategy.

10. Meet with Dan Dewalt an VT, and ask him about the feedback he's been getting from the legal community. Some of the lawyers are working behind the scenes, and their feedback is needed to ensure something isn't missed.

Working With AGs

The AGs need to be reminded that they already hold office, they have the majority support, and they have a job to do. It will be key to work with the State AGs working on the NSA effort. Their staff can work with the other State AGs who support this effort to issue on their websites their State AG's indictments.

The State AGs need to hear that the proposed arrest/prosecution plan isn't something that someone imagined, but its well thought out, connected with the law, and fully within their legal mandate. Where the Congress and AG refuses to act, the State AG's are obliged to issue indictments.

Both the GOP and DNC leadership at the State levels have shown they are tainted, and willing to make frivolous excuses for inaction. This is to be expected. You can also expect technical details to get attention, as they should; but the key is to focus on solutions, not get paralyzed with excuses. Indeed, there may be questions about whether something has or hasn't been cited correctly. Rather than say, "Oh, we didn't think of that," the correct answer is: "Then we'll find a way to fix this, and correct the language in the resolution/indictment."

You can anticipate opposition from the media and legal community. The many years of inaction reflect poorly on them. Their real reasons for inaction in 2008 are less with "more important agendas," but with the rear view mirror: They would have to explain why they've not done something earlier. Part of their opposition isn't about the law, but about their required change in position. They'll need new information to justify in their own mind why they've reversed themselves. The new information is the House and AG inaction despite the oath.

As this starts, I would encourage a personal visit with the likes of C&L, AmericaBlog, RawStory/Larisa, David Swanson, FDL and Glenn Greenwald. Until they're brought along, you're not going to have the groundswell needed to support this. They may not agree; but that's not the issue: Their views need to be carefully considered. They'll have a better sense of the types of opposition we'll have to assist the AGs surmount.

One solution to the media messaging will be to explore the types of legal arguments the President/lawyers were giving to "justify inaction" on the following issues:
- FISA violations
- POW abuse
- Rendition

This isn't to suggest that these arguments have merit, but to review the legal arguments the law firms and public relations firms were giving. Then work with the Members of Congress to hear their views: Again, the point isn't to get their "OK," but to take their feedback seriously, and address their concerns and reasons for not supporting the arrest efforts. With time, their reasons will be discredited.

Implementation

A. Safeguarding the evidence: PHysical location to store the data for the Grand Jury.

B. Empaneling a Grand Jury/Grand Jury protection, security.

C. Issing Grand Jury indictments.

D. Generating local support for arrest warrants.

E. Serving the arrest warrant; making arrangement for VIP protection while the issues are resolved. Encourage some discussions with the US Atty/Fitzgerald on how the Libby prosecution was handled. Same type of security concerns need to be given attention.

F. Media support/liaision working with the State AGs to help them with any information they may need, but are unable to secure.

Issues For the State AG To Resolve With Sergeant At Arms, Continuity in Government, Courts

Once the President and VP are arrested, and awaiting trial, they would not be "removed" from office, but "incapable" of performing their duties.

A. Once the President is arrested, does he physically get removed from the White House; where does he stay?

B. When is the changeover from President to the VP control; then to the third in line, Speaker?

C. How will the War Reserve Material issues be coordinated with the Joint Staff? [Command and Control Issues for nuclear weapons control]

D. Military District of Washington [MDW]: They need to be notified of the plan well in advance, work with the Secret Service for VIP Protection; and ensure no hostile powers attempt to exploit the transition.

I commend your efforts. I'm not suggesting that something should "not" be done; only not to put all the eggs in one basked. I agree: Approach Wexler, but let's encourage people to pursue their other options as well.

I still believe that if Wexler was approached regarding finding the state AG to do this it would be an excellent opportunity to piggy back on to what they are already doing. I do not know if any of our TPM cohorts on this thread or in D.C, or Wexler's home district - but if one of us was it would be good to get he or she in to see the wexlerwantshearings folks - What about Elizabeth Holtzmann or Elizabeth De La Vega(?) -seems some of this finding the proper AG citation etc could be already researched and developed.

Good point, there is no reason not to do what you propose: Make the AG-related efforts part of the national dialog:

I would also pose the question -when hiring the public relations firm /individual could we not also task that firm/individual to somehow make this state attorney generals impeachment effort part of the national election dialouge.

What Obama "may or may not do" as President is speculative. What we can control is what we do today:

Testing- you & I may have one small disagreement - I actually believe that President Obama would take up criminal charges against these criminals and make Hague referrals where appropriate . One reason I believe this is because Senator Durbin has endorsed Obama -and Durbin has been a consistently outspoken regarding torture et al...

I don't want people to spin their thumbs thinking, "We'll wait," only to be disappointed, thinking, "I wish we had started something earlier." It's not an all or nothing option. Time to start the pressure now: If we wait, it's going to take that much longer to get things going.