Petition regarding Holder's Discrimination

Though I’m NOT an attorney, I’ve done enough research to make germane legal arguments. This Petition, regarding discrimination in Eric Holder’s prosecutorial discretion was filed in the US District Court, District of Columbia on 7/27/09.

PETITION for a WRIT of MANDAMUS

A.) Preface 1.) Suppose the White House one day, because of a monstrous crime, began a campaign of demonizing "black violence" in a prolonged series of speeches, press conferences and press releases, and issued directives to the military for soldiers to capture, abuse and torture blacks merely suspected of violence, even if some of them might be innocent. Then, as a result of these directives, many hundreds of blacks were abused and gruesomely tortured. We should be surprised if, years later, after a change in administration, when publicity about the abuse and torture of blacks and righteous public out-rage that such inhumanity and uncivilized, criminal behavior be done in the name of the United States and its honored, beloved Constitution, the responsible government officials only prosecuted several low-ranking soldiers and agents of the crimes of abuse and torture. While numerous officers and officials up the chain of command responsibility, including those persons positioned in the deliberative chambers of the White House itself. who considered and approved, then directed the cruel, dehumanizing treatment were not held accountable. Yes, earlier, because the victims were black, and the White House had been demonizing blacks in an on-going, self-serving, well-publicized campaign, the prosecution for the crimes of torture and abuse of the blacks was half-hearted and occurred only in the military, of low-rank, for the Attorney General refused to prosecute crimes of torture and abuse against White House officials, ignoring the reams of evidence, because the victims were all, after all, only blacks, as in what happened in pre-Mandela South Africa Suppose though, in this hypothetical development, the term "Jews" were substituted for "blacks", would that not resemble what happened in Nazi Germany? How about then substituting the term "Islamics” for "blacks". Would that not resemble what happened under the Bush administration at Abu Garaib and Gitmo? Wouldn't that abuse and torture, authorized and directed from the White House qualify as a discriminatory hate crime, especially deserving vigorous prosecution?

2.) In the preceding hypothetical scenario, the prosecutors were discriminatory in their prosecutorial decisions in two ways: 1st, by prosecuting only lower-ranked soldiers who implemented the illegal directives given to them, while failing to prosecute with vigor all who passed on the illegal directives, including those White House officials who instigated and directed the illegal acts of abuse and torture of captives including removing Geneva protections from Islamic detainees, thereby discriminating by class. 2nd, by failing to vigorously prosecute all involved in the criminal abuse and torture because all the victims of the abuse and torture were black, the prosecutor is showing, again, discrimination in his prosecutorial decisions. By stating that he "will not criminalize policy differences"(#1), the current Attorney General is stating his intention to continue that discrimination in prosecutorial decisions. By obviously failing to prosecute occurrences of discriminatory torture, tacit approval is given and the “foul-lines” are moved. Geneva conventions wisely insist on vigorous prosecution of all torture, without discrimination. The White House directed policy of “harsh interrogations” was torture and torture is a very serious crime and not a policy which the US Constitution and treaties signed by every civilized nation forbid, because its evil nature harms far more than the poor, tortured victim. Torture, of course, offends and distorts the minds and hearts of the victims’ family, ethnic groups, and nation, but it also offends and distorts the mind and hearts of the torturers and his nation. All society is made barbaric by torture. Torture is thus a crime against humanity, against civilization. Petitioner pleads for not only prosecution without discrimination but also that the Court direct the appropriate executive offices of the government to fulfill the government’s obligation under the Convention Against Torture providing for the full integration of education and information about the prohibition against torture into the training of law enforcement personnel, civil or military, medical personnel, public officials and others. (#2)

B.) INTRODUCTION
3.) The Attorney General's office recently revealed to reporters that he was leaning toward appointing a prosecutor within several weeks to investigate whether CIA interrogators tortured suspected terrorists beyond the rules set by President Bush’s own justice department which allowed some forms of “enhanced interrogation”, that is, torture, including water-boarding(#3) , or anticipated them before they were actually made. However, Petitioner Elliott declares that limiting the scope of criminal investigation and prosecution to agents and soldiers implementing the criminal policy while ignoring the crimes of those in the Bush administration's White House who conspired to develop and direct the crimes of torture is improper discrimination in the prosecutorial decision-making process, which is disallowed by the Court in Wayte v. United States 470 U.S. 598, "the decision to prosecute may not be 'deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification“. Petitioner begs the Court recognize that "soldiers, agents, or White House Officials" are arbitrary classifications of individuals participating in the same criminal scheme of torture and abuse. The Attorney General's intention to discriminate has been telegraphed by Mr. Holder, when, in Congressional testimony, he stated that he "would not criminalize policy differences". Since policies are developed and directed by White House Officials, he is making it clear he intends to discriminate by class by Not prosecuting these former White House officials, even while soldiers and agents have been or are going to be prosecuted for the torture they, the same White House officials have instigated and directed. Such a stated intention by Holder fulfills the Court's requirement of Washington v. Davis, 426 US 229, showing an intention to discriminate by the Attorney General, to prove that there has been discrimination in the process of prosecutorial decision-making, disallowed by the Court in Wayte v. United States. The purpose for this discrimination has been stated publicly by the Attorney General, that is, he is concerned how prosecuting those in the Bush administration for torture will affect the President's legislative agenda. But, as the Court said in Marbury v Madison 1 Cranch 137, 177.,
"If one of the heads of departments(or government) commits any illegal act, under the color of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from ...the judgment of the law".
4.) Petitioner claims further that the torture of numerous Islamic detainees, (all the hundreds, maybe thousands, of victims of US torture have been Islamic -more accurately, no victim of US torture could be found who was not Islamic), coupled with the propaganda campaign demonizing Islamics, orchestrated by the Bush White House, of hatred against "Islamic extremists" and "Islamic terrorists" constitutes hate crimes,ie. Hate Crimes Prevention Act of 2009 (H.R. 1913, HCPA) especially worthy of vigorous prosecution of all involved in the torture and abuse offenses suffered by the Islamic detainees. The Attorney General will be engaging in prosecutorial discrimination regarding the victims' Islamic religion should he follow through on the reported intention to use the flawed reasoning and interpretation contained in the widely criticized "Bybee memos" or "torture memos" of what constitutes a violation of 18 USC 2340,2340A and 2441. The Court should not allow the Attorney General the use of the flawed memos as guidance in filing indictments for crimes of torture and abuse under 18 USC 2340,2340A and 2441, lest they become legal standards, precedents for the executive in its treatment of detainees hereafter, for the flawed "torture memos" were developed at the direction of the same Bush White House officials who were orchestrating the discriminatory hate propaganda against "Islamic extremists" and "Islamic terrorists", and using them would constitute prosecutorial discrimination.(#4) These same standards of the "torture memos" have been replaced at the DOJ for their faulty legal reasoning, so they should hardly be used as a guide for determining whether laws have been broken. The United States is a nation of laws, not memos.(#4A) We must remember that the beneficiaries of the Attorney General’s prosecutorial discrimination, the presidential staff, is uniquely situated. If anyone was sincerely concerned with the legality of various interrogation methods, including the attorneys, they could have just picked up a phone and asked the The Most Honorable Chief Justice of the United States! Instead, they asked their obliging attorneys who willing to interpret the law diabolically and disingenuously as part of their criminal conspiracy. John Yoo even publicly argued there is no law that could prevent the President from ordering the torture of a child of a suspect in custody – including by crushing that child’s testicles. (#4B)
5.) Petitioner herein pleads with the Court to remedy this prosecutorial discrimination by ensuring that the Attorney General give the prosecutor he has already stated he intends to appoint for prosecution of torture crimes wide latitude and political independence, so the scope of the subsequent investigation and prosecution includes as defendants the White House officials who ordered and directed the Torture and abuse of Islamic detainees under 18 USC 2340,2340A and 2441 as well as any concomitant felonies whose enterprise was furthered by the torture of Ibn Libi and others.(#5) The scope of investigation and prosecution needs to include as well prosecution of the whole criminal enterprise of concomitant felonious crimes of fraud and perjuries that led to the war in Iraq(#8), as reports indicate that the policy of "harsh interrogations", that is, torture, began with the torture of Ibn al-Shaykh al- Libi in January of 2002 who was tortured until he told his tormentors what they wanted to hear. (#5A) He was subjected to ever-harsher interrogation techniques) that is, torture, until he fabricated a tale linking Saddam Hussein with Al Qaeda, by claiming that Saddam Hussein had offered to train two al-Qaeda operatives in the use of chemical and biological weapons to provide a justification for the Invasion of Iraq(#6)(#33). Although the Defense Department’s own Defense Intelligence Agency had concluded and informed the White House, in February 2002, that Ibn al-Libi was “intentionally misleading” his interrogators(#7), the lies he was tortured to tell endured and were used by the Bush White House policy-makers to reinforce their perjuries and fraud to Congress as justification to invade Iraq(#8) although the CIA had identified Ibn Libi as a “likely fabricator”(#9). Thus, the crimes of torture against Islamic detainees committed by Bush White House officials are a part of the same larger criminal enterprise of the perjuries and fraud that led to the Iraq war, which has cost the US its treasure and thousands of lives, so they could enrich themselves(Cheney-Halliburton), their friends(big oil and defense contractors) and their agenda.(#9A)
6.) Petitioner pleads with the Court to correct or prevent prosecutorial discrimination by the Attorney General regarding prosecution for crimes of torture and abuse of detainees. the Court needs to ensure that the "catastrophically flawed" reasoning in the "torture memos" from the Bush DOJ at the direction of Bush White House officials (#10) to justify their crimes of torture and abuse are not given legitimacy by being used as the legal parameters of the definition of torture in legal indictments by the Attorney General. Petitioner fears, and the Court should be concerned that the widely criticized torture memos would become legal standards, precedents for the executive in its treatment of detainees hereafter, should the Attorney General be allowed to use the flawed memos as guidance in filing indictments for crimes of torture and abuse (#11).
7.) Petitioner pleads that the Court needs to involve itself in defining more clearly what are the legal limits that interrogators are allowed to use with detainees in their custody. Petitioners suggests the court define limits as what would be appropriate for the treatment of one’s own children were they captured as soldiers by an enemy. Under the "Charming Betsy Rule", Murray v. Charming Betsy, 6 U.S. (2 Cranch) 64, 2 L.Ed. 208 (1804) "congressional acts must be construed in conformity with customary international law." Weinberger v Rossi, 456 U.S. 25(1982) "federal law must be interpreted consistently with international law when the federal law is ambiguous." Therefore the arguably ambiguous language in both federal statutory and common law regarding what is “extreme pain and mental stress” must be construed in conformity with the international human rights treaties and humanitarian laws of Geneva requiring states to prosecute persons for international crimes.(International Human Rights and Humanitarian Law, p. 93).
A.. JURISDICTION: 8.) The United States District Court, District of Columbia has jurisdiction over the subject matter of this cause of action pursuant to the provisions of Title 28 U.S.C. 1361 -Action to compel an officer of the United States to perform his duty. Title 28 United States Code Chapter 85 Section 1331 actions arising under the Constitution, laws, or treaties of the United States, Title 28 section 1346 -the United States as defendant the district court shall have jurisdiction. Title 18 USC 7(9) With respect to offenses committed by national of the United States as that term is used in section 101 of the Immigration and Nationality Act, Title 28 USC Section 547 -each United States attorney (will) 1) prosecute for all offenses against the United States.
9.) Venue is proper in this Court pursuant to Title 28 United States Code, Chapter 87, Section 1391 - The defendant being an officer of the United States, the United States Attorney General; District of Columbia being the seat of U.S. government.
10.) Mandamus is regarded as an extraordinary writ reserved for special situations. Among its ordinary preconditions are that the agency or official have acted (or failed to act) in disregard of a clear legal duty and that there be no adequate conventional means for review. In re Bluewater Network & Ocean Advocates, 234 F.3d 1305, 1315 (D.C. Cir. 2000); Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70, 78 (D.C. Cir. 1984). Mandamus will be granted if the Petitioner shows “(1) the presence of novel and significant questions of law; (2) the inadequacy of other available remedies; and (3) the presence of a legal issue whose resolution will aid in the administration of justice”, see In re United States, 10 F.3d 229 at 931, 933 (2d Cir. 1993). Plaintiff will fulfill these requirements.Marbury v Madison 1 Cranch 137, 177 :"But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the president, and the performance of which the president cannot lawfully forbid,.......... it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment," "This writ, if awarded, would be directed to an officer of government, and its mandate to him would be… to do a particular thing therein specified, which appertains to his office and duty, and which the court has previously determined or at least supposes to be consonant to right and justice." 11.) Whereas the Plaintiff petitions the Court for a writ of mandamus only as a last resort, having exhausted, to the point of harassment, appeals to the Department of Justice and Congressmen and Senators, as well as participating vigorously in the electoral process for enforcement of US and International laws torture and the prosecution of those responsible for transgressing them. And insofar as numerous organizations have also called for the prosecution of Bush White House officials for the crime of torture(#12). And because Torture is an especially heinous and vile crime, in this case, indeed, a HATE CRIME, against a religions group -Islamics, so vigorous and thorough prosecution of the crime of torture is important. Not only is torture cruel and inhuman, but it damages and undermines and sullies culture, civilization and the very psyche of an American population that endeavors to rationalize why it's own government officials and soldiers would resort to such barbaric tactics.
12.) Whereas the Defendant's prosecutorial decision process is subject to the ordinary constitutional standard of equal protection, the judiciary needs to ensure that it meets that standard. "Equal Justice Under the Law" is engraved upon the building housing the Dept. of Justice. The doctrine of separation of powers, rather than requiring unquestioning judicial deference to the Executive's prosecutorial decision-making, instead affirmatively permits the courts to assert their own constitutionally granted duty to say “what the law is" and ensuring the proper, equal administration of justice in the executive's execution of the law, including as regards discrimination in the prosecution of violations of US statutes.
13.) Under the equal protection component of the Fifth Amendment's Due Process Clause, "the decision may not be deliberately based on race, religion or other arbitrary classification," Wayte v. United States, 470 U.S. 598 “the decision to prosecute may not be 'deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Petitioner begs the Court recognize that "soldiers, agents, or White House Officials" are arbitrary classifications of individuals participating in the same criminal scheme of torture and abuse.
14.) The Plaintiff notes that while 9 lower-ranking soldiers were prosecuted for implementing the White House abuse and torture policy at Abu Graib and 37 troops have been disciplined for abuse throughout the Iraq-Afghanistan theatre of war as of 12/04 (#13), none of the White House officials involved in developing and directing the abuse and torture policy have been prosecuted. Despite their geographical distance, the While House officials and the soldiers were similarly situated on the same "chain of command", though on different ends of the "chain." The US Senate Armed Services Committee said in its report of, "Attempts by senior officials to pass the buck to low-ranking soldiers while avoiding any responsibility for abuses are unconscionable. The message from top officials was clear; it was acceptable to use degrading and abusive techniques against detainees."(#14) The “senior officials”, especially those who held positions in the Bush White House must be prosecuted as well, or the US Constitution and rule of law will be diminished because of discrimination. And that, the Court cannot permit.
15.) Plaintiff Elliott acts pro se herein to decry the defendant's, Attorney General Eric Holder's, statement of discriminatory intent(called for by the Court in Washington v. Davis, 426 US 229 (1976). at his Congressional confirmation hearing, he said, "...I will not criminalize policy differences"(#15). Perhaps with the goal of protecting executive policy makers and their assumed powers from the previous administration in mind. Furthermore, by stating he “will not criminalize policy differences", Eric Holder thereby is showing intent to discriminate in his prosecution of the crime of torture. Policy is formulated and directed from the White House and that is where the policy of “enhanced interrogation”, that is, torture, originated. Soldiers involved in implementing that torture policy developed in the White House have been prosecuted and he's reportedly leaning toward prosecuting those “rogue” CIA agents who went beyond even the illegally broad guidelines in the flawed "torture memos"(#16). Clearly, by his stated intent, he is showing a discriminatory purpose or intent in his exercise of prosecutorial decisions on the basis of arbitrary classification, that is, rank in the chain of command. Holder is indicating his intention not to prosecute White House officials who kept authorizing increasingly harsh interrogation techniques although allowing for the prosecution of soldiers and agents. Such expression of "discriminatory purpose or intent" proves the discrimination of not prosecuting White House officials while allowing for the prosecution of soldiers and agents is not “incidental” , Washington v. Davis, 426 US 229 (1976).
16.) In Wayte v. United States, 470 U.S. 598 The Court recognized that prosecutor's decisions could not be based on "race, religion, or other arbitrary classification". Plaintiff prays that the Court recognize that military rank or rank of office are arbitrary classifications, so the Attorney General's decision not to investigate and prosecute suspect White House officials(#17), while soldiers of lower rank have been or, are going to be, prosecuted is discriminatory, particularly when an abundance of evidence has already become public knowledge that incriminates at least 13 principal White Houses officials. Although the Constitution grants the chief executive power to pardon those convicted of crimes, the executive is not precluded from "faithfully executing the law". Because the executive has displayed discriminatory intent and exercised discrimination in its prosecutorial discretion, the court has cause to involve itself to see that equal justice is done.
17.) The Plaintiff pleads the Court use its special power to issue a writ of mandamus by directing the Defendant Holder remedy a situation where prosecutorial discrimination has occurred in the prosecution of the detainee abuse and torture at Abu Ghraib, Gitmo and elsewhere. Thus far As the Court noted in Boumediene v. Bush, it is the
"duty and authority of the Judiciary to call the jailer to account.” and, "protect against the cyclical abuses of the writ(or the 8th Amendment) by the Executive and Legislative Branches."
*The remedy for the prosecutorial discrimination committed by the government is to widen the parameters of the Prosecutor to include consideration of the extensive evidence incriminating those Bush White House officials who developed and directed the policy of torture and abuse, just as 79 soldiers have been court-martialed(as of 4/2006)(#19) for torture as well as any concomitant felonies. President Bush told an ABC News reporter during an interview that he approved meetings of the NSC’s Principals Committee to discuss specific interrogation techniques(#20) the CIA could use against detainees. The Principals Committee included Vice President Dick Cheney, Secretary of State Colin Powell, CIA Director George Tenet and Attorney General Ashcroft as well as Rumsfeld and Rice.(#21)
18.) Thus far policy-makers in the White House who instigated and directed the "harsh interrogation techniques" that amounted to torture have escaped prosecution, while at least(as of 4/2006) 79 US soldiers have been court-martialed for "detainee abuse" stemming from the criminal directives and authorizations from the White House policy-makers. The Attorney General's stated intent "not to criminalize policy differences", refusing to investigate and prosecute these 13 Bush White House officials who authorized the abuse and torture, while soldiers of lower rank have been prosecuted is discriminatory, particularly when an abundance of incriminating evidence has already become public knowledge. Despite, what Rep. Conyers said is "reams of evidence incriminating White House officials".(#22)(#22A)
Colin Powell's former chief of staff, Col. Lawrence Wilkerson dropped a bombshell, “what I have learned is that as the administration authorized harsh interrogation in April and May of 2002 -well before the Justice Dept. had rendered any legal opinion -its principal priority for intelligence was not aimed at pre-empting another terrorist attack on the U.S. but discovering a smoking gun linking Iraq and al-Qa'ida.” (#23)
19.) Bush’s Feb. 7, 2002, memo prompted Lt. Gen. Ricardo S. Sanchez, who became the top commander in Iraq, to institute a “dozen interrogation methods beyond” the Army’s standard practice under the convention, according to a report by a panel headed by James Schlesinger on the Abu Ghraib prisoner abuses in 2004 (#24). On Dec. 2, 2002, Rumsfeld authorized “aggressive interrogation techniques,” leading to
“interrogation policies and plans approved by senior military and civilian officials [that] conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody,”
the committee report said(#25). On January 25, 2002, then-White House counsel Alberto Gonzales advised George W. Bush in a memo to deny al-Qaeda and Taliban prisoners protections under the Geneva Conventions(#26) because doing so would "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act" and "provide a solid defense to any future prosecution."(#27) This memo reveals a “cognizance of guilt” that the torture of Ibn Libi and the already intended torture of other Islamic detainees had been a violation of US and international law and that a defense needed to be manufactured to justify it.
20.) A bipartisan congressional report traces the U.S. abuse of detainees at Guantanamo Bay and Abu Ghraib to President George W. Bush’s Feb. 7, 2002, action memorandum that excluded “war on terror” suspects from Geneva Convention protections. The Senate Armed Services Committee’s report said Bush’s memo opened the door to “considering aggressive techniques,” which were then developed with the complicity of then-Defense Secretary Donald Rumsfeld, Bush’s National Security Adviser Condoleezza Rice, and other senior officials.(#28) The 19-page report is the final installment in the Armed Services Committee’s 18-month investigation, which generated 38,000 pages of documents and relied upon the testimony of 70 people.
“The President’s order closed off application of Common Article 3 of the Geneva Conventions” which would have afforded minimum standards for humane treatment, to al-Qaeda or Taliban detainees. “The abuse of detainees in U.S. custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own,” the committee report said,
“The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against (Islamic) detainees.”(#29)
21.) Five years ago, revelations of the torture of prisoners in Iraq at Abu Ghraib prison resulted in the prosecution of low-ranking members of a military police unit headed by then-Brigadier General Janis Karpinski, who was demoted to colonel for not having prevented abuse of detainees, despite evidence that such “extraordinary measures” had been sanctioned by commanders in Washington. Col. Janis Karpinski told Howard K. Smith,
She added that this week’s Senate report is “black and white proof” that uniformed servicemen and women were not alone responsible for the abuses.(#30) The Bush administration’s handling of the Abu Ghraib scandal drew especially sharp criticism from the Armed Services Committee chairman,
“Attempts by senior officials to pass the buck to low-ranking soldiers while avoiding any responsibility for abuses are unconscionable,” Levin said. “The message from top officials was clear; it was acceptable to use degrading and abusive techniques against detainees.”
“The abuse of detainees in U.S. custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own,” the committee report of The Senate Armed Services Committee’s said. “The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.” (#31)
Maj. Gen. Antonio Taguba, who led an early investigation of abuses at the Abu Ghraib prison in Iraq said,
“there is no longer any doubt as to whether the current(Bush) administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.” (#32)
22.) As the 2008 Senate Armed Services Committee report made clear, interrogators at Gitmo were under “pressure” to produce evidence of ties between Iraq and al Qaeda, even though they were ultimately unsuccesful.
“While we were there a large part of the time we were focused on trying to establish a link between al Qaida and Iraq and we were not successful in establishing a link between al Qaida and Iraq…the more frustrated people got in not being able to establish that link…there was more and more pressure to resort to measures that might produce more immediate results…" said Army psychiatrist Maj. Charles Burney telling Army
investigators in 2006 that interrogators at the Guantanamo Bay, Cuba, detention facility were under "pressure" to produce evidence of ties between al Qaida and Iraq.(#33)
The Bush Administration used torture to intentionally extract false confessions linking Al Qaeda (and 9/11) to Iraq, to give Bush a false "causus belli" to invade Iraq. Let’s say this slowly: the Bush administration wanted to use 9/11 as a pretext to invade Iraq, even though Iraq had nothing to do with 9/11, and in so doing they used torture to advance their aforementioned criminal conspiracy, including the perjuries and fraud which led to the US invasion of Iraq on 3/20/03. So it tortured people to make them confess to a nonexistent link, only stopping the continuing and ever-harsher torture techniques when the victims fabricated information, telling their tormentors what they wanted to hear. There’s a word for this: it’s evil…as well as felonious. A former U.S. Army psychiatrist, Maj. Charles Burney, told Army investigators in 2006 that interrogators at the Guantanamo Bay, Cuba, detention facility were under "pressure" to produce evidence of ties between al Qaida and Iraq. "The more frustrated people got in not being able to establish that link . . . there was more and more pressure to resort to measures that might produce more immediate results.", said Burney.
“The cheerleading for war had begun-a war that would fit the post-WWII Nuremberg Tribunal's description of a "war of aggression." Nuremberg defined such a war as “the supreme international crime, differing from other war crimes only in that it contains within itself the accumulated evil of the whole.” (#34)
24.) Susan J. Crawford was the convening authority of the military commissions at Guantanamo Bay. Crawford said,
"If we tolerate this and allow it, then how can we object when our servicemen and women, or others in foreign service, are captured and subjected to the same techniques? How can we complain? Where is our moral authority to complain? Well, we may have lost it." Crawford said. "I think the buck stops in the Oval Office." (#35)
70 intelligence professionals, mostly retired, who have served in virtually all U.S. civilian and military intelligence agencies say,
“You need to know that the vast majority of intelligence professionals deplore “extraordinary rendition” and the other torture procedures that were subsequently ordered by senior Bush administration officials.” (#36)
25.) America's historic values in time of war: "Treat them with humanity, and let them have no reason to Complain of our Copying the brutal example of the British Army in their treatment of our unfortunate brethren who have fallen into their hands." — George Washington, January 8, 1777,
"Military necessity does not admit of cruelty — that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult." - Abraham Lincoln, , 1863
"Our values and the laws governing warfare teach us to respect human dignity, maintain our integrity, and do what is right. Adherence to our values distinguishes us from our enemy….Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy. They would be wrong. Beyond the basic fact that such actions are illegal, history shows they also are frequently neither useful nor necessary….What sets us apart from our enemies in this fight is how we behave. In everything we do, we must observe the standards and values that dictate that we treat noncombatants and detainees with dignity and respect." General David Petraeus, Commander, U.S. military in Iraq, May 10, 2007
26.) Impunity, that is, exempting torturers from punishment, undermines the systems built up over the years to protect against torture. When society's defenses are down, any opportunistic pretext - such as the need to combat ''terrorism'', the fight against crime, or hostility to groups such as asylum-seekers - may be used as a license to torture. Impunity must also be overcome because it adds to the wrong that has been done to the victims of torture. Impunity adds insult to injury, it prolongs the original pain of torture by seeking to deny that it ever took place - a further affront to the dignity and humanity of the victim. Torture itself twists the hearts and minds of the people of the torturer as well as that of the poor victims, as people try to rationalize and justify crimes of their soldiers and government. Impunity for torturers increases the outrage and hate in the people of the victim, for it not only disrespects the victim, but allows for possible repetition of the torture with impunity, even encouraging it, as well as providing tacit approval. Intelligence officers know from experience that information obtained from torture is unreliable and very counter-productive, even dangerous, for misinformation from torture can reinforce misconceptions and bolster a criminal fraud, as the plaintiff alleges herein.
The wise jurists know that torture is usually a crime of discrimination, ie. Of black slaves, Jewish prisoners or Islamic detainees, torture is an hate crime.
A soldier or agent may feel the passion of generalized hatred for the enemy during a war. They need guidelines and the laws against torture, ie, 18 USC 2440A, Geneva and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to serve as boundaries, foul-lines, beyond which is forbidden behavior, which must be prosecuted, otherwise, the perceived boundaries or foul-lines are moved, or, at least, are uncertain, to the actual soldier or agent in the field. Regarding torture, especially, the need exists for the Court to mandate the prosecution of credible allegations of torture, or, at least, to require a jurisdiction’s prosecutor to show cause to the Court why evidence of such dangerous transgressions of the law are not being prosecuted. The Court needs to make clear to the executive branch, to all members of the “chain of command” exactly what is permissible custodial treatment and intelligent interrogation to say “what the law is”, Marbury v Madison . As the Court noted in Boumediene v. Bush, it is the "duty and authority of the Judiciary to call the jailer to account.” and, "protect against the cyclical abuses of the writ(or the 5th and 8th Amendment) by the Executive and Legislative Branches."
27.) Petitioner pleads with Court that torture be declared a capital crime, like murder, prosecution for which is more of a “ministerial function”, than an exercise of prosecutorial discretion. With a capital crime the police collect evidence and the prosecutor, presented with substantial evidence, prosecutes. And with capital crimes the decision to prosecute is more ministerial than arbitrary, more routine than uncertain. Failure to prosecute for all crimes of torture grants impunity to criminal barbarians and actually encourages those sadists who want to torture. For those who are afraid or desperate in a time of war, impunity for previous instances of torture lets them consider torture as a viable outlet of their frustrations. And there are those who are self-righteous enough, or so criminally disingenuous, to whom the use of torture to elicit certain desired information, even if it be fabricated, that is, false, is justifiable, particularly when the clear boundaries established by Geneva Conventions are obviated by the Chief executive and his staff, as had occurred since 2/7/02 that excluded “war on terror” suspects(Islamic detainees) from Geneva Convention protections. (#18)
Plaintiff argues that any prosecutor who neglects to prosecute evidence of crimes of torture is committing discrimination in their prosecutorial decision-making. The Courts have cause to require prosecutors to present justifiable reasons as to why instances of possible torture that come to its attention are not prosecuted, so the court can ensure that discrimination is not affecting prosecutorial decision-making when it comes to the crime of torture. Governments must ensure that torture is not committed with impunity, for it sets precedence. All reports of torture should be promptly, independently, impartially and thoroughly investigated; decisions on whether to prosecute should be made by an independent prosecutor or investigating judge, not a political official. As the Court noted in Boumediene v. Bush, it is the "duty and authority of the Judiciary to call the jailer to account.” and, "protect against the cyclical abuses of the writ(or the 5th and 8th Amendment) by the Executive and Legislative Branches."
Individuals suspected of participating in crime of discriminatory torture should be brought to justice in fair trials; There's evidence that scores were tortured to death at the direction of Bush White House officials, and many more were permanently maimed, suffering long-term disability. Justice demands prosecution of heinous crimes.
28.) The Petitioner prays that the Court will involve itself in and remedy this issue of discrimination in prosecutorial discretion as regards the parameters the Attorney General gives the prosecutor he appoints for the investigation and prosecution of crimes of torture and concomitant felonies by US personnel, thus restoring national and international respect for the US Constitution. And the Petitioner is grateful to the Court to the serious attention it gives to this important concern.