Sanctioning Tyranny, Torture,

Petition re: Military Commissions Act of 2006

1) Petitioner petitions for relief on the same grounds that the Magna Carta was established on those fields of Runnymeade; to forbid injustices, ex post facto laws, which are the hallmark of tyranny. Petitioner pleads pro se from love and concern for the virtue and integrity of our beloved Constitution of the United States and begs the Court consider the totality of his petition, in joinder, as it contains a number of serious inter-related pleas and concerns about threats to our beloved Constitution that only the Court can remedy.


2) 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 USC 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 Sates 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 prosecute for all offenses against the United States.


3)(a)Insofar as the Military Commissions Act of 2006 has amnesty provisions: S. 3930 “[d(2) RETROACTIVE APPLICABILITY.—The amendments made by this subsection, except as specified in subsection (d)(2)(E) of section 2441 of title 18, United States Code, shall take effect as of November 26, 1997, as if enacted immediately after the amendments made by section 583 of Public Law 105–118 (as amended by section 4002(e)(7) of Public Law 107–273).]” (#1a)…ex post facto law
Petitioner begs the Court to recognize such provisions of the Military Commissions Act of 2006 (#1b) and provisions exempting judicial review, are unconstitutional violations of due process and 5th Amendment , and Petitioner begs the Court to declare such provisions or amnesty amendments to other statutes null and void as being inconsonant with democratic justice and our beloved Constitution. Judicial review of laws and statutes is an essential element of due process of law(#1c). The genius and wisdom of our Constitution for its three co-equal branches of government cannot be allowed to stay thrown into imbalance. The Petitioner begs the Court declare, pro-actively, what is the law to the executive. The court needs to require that the Office of Legal Counsel(OLC) interact regularly with the US District Court of the District of Columbia, the jurisdiction being appropriate, for the purpose of ensuring that the executive acts with fealty to the Constitution. Making the Executive's plans and scheme subordinate to the US Constitution, not the other around, as happened during the Bush administration. When obliging OLC attorneys conspired to subvert the US Constitution


3)(b) Further, the Court needs to declare that OLC attorneys are officers of the Court, to which they are responsible. The Office of Legal Counsel has no more important role than saying “what the law is” .. to the Chief Executive, which is a judicial function. It is fundamental to the juris prudence of the law of the United States, emanating from our Constitution, that each branch of government has its own power and responsibilities:
The following are the powers of the Executive: veto power over all bills; appointment of judges and other officials; makes treaties; ensures all laws are carried out; commander in chief of the military; pardon power. The following are the powers of the Legislature: Passes all federal laws; establishes all lower federal courts; can override a Presidential veto; can impeach the President. The checks can be found on the Checks and Balances Page.
The following are the powers of the Judiciary: the power to try federal cases and interpret the laws of the nation in those cases; the power to declare any law or executive act unconstitutional. (#1)(e)
3)(c)Petitioner pleads with the Court that “signing statements”, that is, when the President makes a declaration while signing a bill, qualifying the law as he would like it to be, be declared mute, with no legal bearing, for they are not legislated, nor could they say what the law is, for that is the sole jurisdiction of the Court. Only the judiciary has the power to say what the law is, to declare what the law is. The Court needs to Declare that signing statements do not absolve the chief executive from ensuring the laws are carried out . If the Chief Executive has any question about what the law is, especially a concern which has human rights implications, an arm of the Court should be consulted to ensure Constitutionality, not some secretary for the President, since it is the job of Secretaries to facilitate and oblige the Chief Executive who appointed them. For, otherwise, who then is there to check to ensure their fealty is always first to the US Constitution, rather than the promise of higher office? Even a cursory check by an arm of the Court that is kept informed would not be a burdensome requirement for the executive, however, the injuries done to the rule of law and our Constitutional republic could be catastrophic, even leading to fraudulently instigated war, as has actually occurred during the Bush administration.
3)(d)The Constitution does not exist solely in the courtroom, nor should the Court passively await a lawsuit or criminal or civil proceeding to say, proactively, what the law is to the executive. **Petitioner begs the Court to use to the power of issuing writs to command the executive to "show cause” to the Court that his(the executive’s) declarations and edicts, particularly which have human rights implications, pass Constitutional muster, before he makes public his declarations. Had the Court acted thus, proactively, when President Bush declared that the Geneva Conventions did not apply to detainees in February of 2002, instead of letting years of human rights abuses to occur while awaiting relevant cases to be adjudicated, much suffering, including an unjust war, would have been avoided.
3)(e) Insofar as obliging Republican legislators cynically passed two Acts with amnesty provisions, ie. the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, when they became aware of evidence of extensive law-breaking of anti-torture statutes by conniving policy-makers and obliging attorneys in the Bush administration as well as by agents who implemented or even went beyond their illegal policies. Petitioner pleas that the Court needs to declare such ex post facto provisions in the military Commissions Act of 2006 tyrannical, abhorrent to democracy, and unconstitutional.
4) And now Attorney General Eric Holder is pretending that the class of “Bush administration officials” is beyond prosecution, as he gave the prosecutor he assigned to investigate and prosecute for crimes of torture, John Durham, only a narrow focus, ie. "rogue” CIA agents.
5) Our nation’s founders so realized that ex post facto laws, such as amnesty laws, are tools of tyranny, unworthy of a democracy. They are expressly forbidden in two places in the US Constitution: Article I, section 10, clause 1 of the Constitution provides that no state shall pass any ex post facto law; Article I, section 9, clause 3: "No Bill of Attainder or ex post facto Law will be passed " imposing the same prohibition upon the federal government.
6) The prohibition of Ex Post Facto laws means not only that “a citizen can be placed on trial with only the laws that existed at the time the crime was committed”, but that prosecutors must use laws as they existed at the time the crime was committed. The antagonism to ex post facto laws is not based on a lawyer's prejudice encased in a Latin maxim. It rests on the political truth that if a law can be created after an offense, then power is to that extent, absolute and arbitrary. Allowing retroactive law disparages the principle of constitutional limitation and abandons what’s usually regarded as one of the essential values at the core of our democratic faith.
7) “Even where a statute is ambiguous under ordinary rules, courts will not retroactively apply a statute that impairs rights or attaches new legal consequences to events completed before its enactment”. Landgraf, 511 U.S.at270.Petitioner pleads the same logic applies to amnesty laws.
8) An amnesty law is a type of ex post facto law. Quoting Wilkopedia, “An amnesty law is any law that retroactively exempts a select group of people, usually military leaders and government leaders, from criminal liability for crimes committed. Most allegations involve human rights abuses and crimes against humanity. During the War on Terror, the Bush administration enacted the Military Commissions Act (MCA) in an attempt to regulate the legal procedures involving detainees called illegal combatants. Part of the act was an amendment which retroactively rewrote the War Crimes Act effectively making both policy makers (i.e., administrators and military leaders) and those applying policy (i.e., CIA interrogators and soldiers) no longer subject to legal prosecution under US law for acts defined as war crimes before the amendment was passed. Because of that, critics describe the MCA as an amnesty law for crimes committed in the War on Terror.” “However, in a nation with an entrenched bill of rights or a written constitution, ex post facto legislation may be prohibited. The ban on ex post facto laws operates solely as a restraint on legislative power.” (#1)
9) Two provisions of the MCA have been widely criticized for allegedly making it harder to prosecute and convict officers and employees of the US government for misconduct in office. First, the MCA changed the definition of war crimes for which US government defendants can be prosecuted, inventing a hitherto unknown term “grave breach” . (#1a),(#1b) Such a change in definition has the effect of an ex post facto law , in that, it provides a retro-active impunity for those who broke the law under the definition of the law as it had existed at that time.
And, under the War Crimes Act of 1996 ,18 U.S.C. § 2441 , any violation of Common Article 3 of the Geneva Conventions was considered a war crime and could be criminally prosecuted. Section 6 of the Military Commissions Act of 2006 amended the War Crimes Act so that only actions specifically defined as "grave breaches" of Common Article 3 could be the basis for a prosecution, and it made that definition retroactive to 11/ 26/97. Specific actions defined in section 6 of the Military Commissions Act include torture, cruel or inhumane treatment, murder, mutilation or maiming, intentionally causing serious bodily harm, rape, sexual assault or abuse, and taking of hostages. According to Mariner of Human Rights Watch, the effect is that “perpetrators of several categories of what were war crimes at the time they were committed, can no longer be punished under U.S. law,"(#1d). The MCA revises this portion of the War Crimes Act, replacing the blanket criminalization of Common Article 3 violations with a list of "grave breaches" of Common Article 3, which are specified and defined in the legislation. And the law is amended retroactively to November 26, 1997, meaning that perpetrators of several categories of what were war crimes at the time they were committed, can no longer be punished under U.S. law, thus fitting the definition of an ex post facto law and unconstitutional on its face. (#1d)
10) Techniques permitted by MCA 2006 include limited water-boarding, stress positions, hypothermia, threats to the detainee and his family, severe sleep deprivation, and severe sensory deprivation. Such treatment would not be allowed in US prisons because it is cruel and inhumane so the Court needs to declare provisions authorizing such techniques unconstitutional, in violation of the 8th Amendment, 5th Amendment and the Convention Against Torture.
11) * Petitioner pleads with the Court to declare these MCA 2006 provisions(from Pet 10) (#2) unconstitutional and such treatment be declared by the Court to be forbidden, absolutely, as they are a violation of the 8th Amendment, which bans inhumane treatment, and the Geneva Accords, including the Convention Against Torture, effectively reinstating the War Crimes Act of 1996’s provisions definitions of torture, eliminating the “grave breaches “ definition of the 2006 MCA. Petitioner begs the Court to use this opportunity to declare what constitutes the “cruel and unusual punishment” banned by the 8th Amendment as being in accord with the Geneva Accords. Under the Charming Betsy rule
12)*Petitioner begs that the Court deny any exceptions, including for “National Security”, for torture. The rationale that torture has any value at all goes against the testimony of experts of interrogation at the FBI. Whereas the dangers and evils of torture are exemplified by the horrors its use brought during the Bush administration, as torture was used to fabricate evidence to justify a pre-planned war, #13. The court has the power, has the right, has the duty, to tell the executive what is the law[citing Marbury v. Madison], and declare as unconstitutional, incompatible with, and in violation of the Due process clause of the 5th Amendment to the US Constitution, any provision exempting anyone from applicability of US Law and statutes, including the Chief Executive and Commander in Chief. With such an exception and exemption, the President of the United States becomes a monarch and a tyrant. Pretending that laws against torture can be suspended during a “national emergency” is much more dangerous to our democratic republic than any possible advantage. In the furthest emergency imaginable involving national emergency the chief executive may a declare martial law, but torture and abuse cannot be legal under any circumstances, “martial law” is still law and, under the laws of our beloved Constitution, any legislative or executive contrivances notwithstanding, tyranny is NOT allowed. This is one of the reasons the Constitution bans ex post facto laws.
(13) There are many good reasons that wise diplomats from around the world have, for generations, met at conventions, largely by the diplomatic efforts of the United States and the values of the rule of law instilled within our revered Constitution of the United States of America. Our Constitution inspires us to instill its values in these conventions of nations, including the rule of law and the equality of all. That is why any provisions in US law, including the National Securities Act of 1947 and all the Military Commissions Act of 2006, which allow the Chief Executive unchecked exemption from laws of war, is abhorrent with our beloved Constitution. “It cannot be pretended that his office alone exempts him from ..the judgement of the law “ Marbury v Madison,
"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"


14) “EQUALITY UNDER THE LAW” –it isn’t just quaint art on the side of a building. The Court has seen the concept embodied in the due process clause of the 5th Amendment of the US Constitution. And that is a concept which transcends the rationalizations of war, not the other way around. Of course, the need to for legitimate police actions is necessary, including interrogation. But legitimate interrogation forbids torture and mistreatment. Torture is abhorrent to legitimate interrogation for it coerces false testimony. According to Lawrence Wilkerson, aide to Colin Powell, torture was being used to buttress a case for war as much as it was for defensive against attacks. The felony of torture was being used with other concomitant felonies, proven forgeries and perjuries regarding intelligence in the 2003 State of the Union address. *Petitioner pleads the Court order the Attorney General to cease the discrimination that he has been demonstrating in his prosecutorial decisions. By pretending not to notice these crimes against the United States government, Congress and people the defendant, the Attorney General, is pretending that their former office grants them those Bush administration officials impunity, too rich and powerful . “It cannot be pretended that his office alone exempts him from ..the judgement of the law “Marbury v Madison, Petitioner begs that the Court end the discrimination in the prosecutorial decisions regarding prosecution of crimes of torture by the Attorney General., by removing the blinders that have limited the breadth and scope of prosecutor Durham’s investigation and prosecution for crimes of torture committed by US agents at Guantanamo and elsewhere.
15)(a) In the wake of Watergate, the legislature had made an effort to curb law-breaking by the executive with a Special Prosecutor Act. The Act failed to account for over-zealous prosecution however, which led to the Impeachment of President Clinton. Unfortunately, rather than correcting and fine-tuning the Special Prosecutor Act to make it less susceptible to abuse, yet still provide the oversight needed to prevent law-breaking by the executive, Congress just let the Special Prosecutor Act expire in December of 2000.
Within months of the end of the Special Prosecutor Act, some in the Bush White House were plotting the invasion of Iraq and discussing ways of fabricating evidence to justify such an invasion to Congress and the American people.(#14), (#12) The Bush White House was unrestrained and unchecked, without a vigilant special prosecutor. *Petitioner pleas The Court needs to provide some check on executive power, unless or until Congress passes a Special Prosecutor Act by placing the Office of Legal Counsel under the Court’s jurisdiction.
16) While the Bush Administration may claim that torture(what they called harsh interrogation) was justified for reasons of “national security”, closer scrutiny by a prosecutor(John Durham) is warranted, for witnesses have reported that torture was applied under the direct authority of the Bush White House[for political purposes!], with ever-increasing “harshness” upon bin Libi in January of 2002 until he fabricated evidence of a link between Al Qaeda and Saddam Hussein.(#13a)(#6c) Thus, the crime of torture is connected to the other felonies including forgery and perjury(see appendix 2) involved in the criminal conspiracy to defraud the US Government by making a fraudulent case for war. see (#9)
17) The CIA and the State Department’s INR had already told the White House that there was no connection or link between Al Qaeda and Iraq. But the Bush White House officials ordering the torture didn’t care about the truth. They were just interested in faking evidence of a link between Iraq and Al Qaeda and 911, so they could sell their pre-existing plan to Invade Iraq. They had directed, repeatedly, that Libi be tortured with ever-increasing cruelty, relentlessly, until he fabricated evidence, that is, he made up stuff, cause he didn’t know of any connection between Al Qaeda and Iraq(because there wasn’t any!), but they wouldn’t stop torturing him until he “fabricated”, providing fake evidence to contribute to the pile of false evidence, including forgery being used by the Bush White House officials to politically justify the unprecedented, pre-emptive war, the invasion of Iraq(Which the Bush administration had been planning on since at least 2/01) . There’s record that the CIA informed the Bush White House that Ibn Libi was probably fabricating, but the Bush White house didn’t want to hear that, because they needed that fabrication to help make a case to defraud Congress and the American people. Ibn's fabrications were used months later in a speech by Bush and Colin Powell in his address to the United Nations in February of '03.
18) There’s evidence that there was some resistance to use of these techniques, primarily by the military, who did not want their soldiers subjected to the torture techniques. Military leaders have an instinct to invoke the Geneva Accords, for fear that the same standards of law that were applied at Nuremburg might be applied to them. If only the “Bush administration officials” had the same respect for the rule of law and due process as soldiers! Petitioner begs the Court to insist that the rule of law prevails in these United States. The defendant, as Attorney General, has a duty to challenge the Constitutionality of ex post facto laws which lend impunity to torturers. The defendant has been "pretending their (former) office alone exempts them from ...the judgment of the law" , and pretending that the ex post facto amnesty provisions in the Military Commissions Act of 2005 and the Detainee treatment Act of 2005, which does violence to the rule of law and the due process of law of the 5th Amendment disallows that.
19) The Center for Constitutional Rights adds: “The MCA's restricted definitions arguably would exempt certain U.S. officials who have implemented or had command responsibility for coercive interrogation techniques from war crimes prosecutions. This amendment is designed to protect U.S. government perpetrators of abuses during the "war on terror" from prosecution.”[33] (#3) It is an ex post facto, amnesty law.
20) ) “The Military Commissions Act] is unconstitutional. It is un-American. It is designed to insure that the Bush-Cheney administration will never again be embarrassed by a United States Supreme Court decision reviewing Its unlawful abuses of power." * Senate Judiciary chairman Patrick Leahy, January 4, 2007(#5)
21)(a) In 2005, a provision of the Detainee Treatment Act of 2005(section 1004(a)) had created a new defense as well as a provision to providing counsel for agents involved in the detention and interrogation of individuals “believed to be engaged in or associated with international terrorist activity”. Section 1004 of the DTA helps to immunize officials from accountability in violating the previous two sections, and Section 1005 limits the ability of detainees to access the domestic U.S. legal system.(#4)
(#21b)The 2006 MCA amended section 1004(a) of the Detainee Treatment Act guarantee free counsel in the event of civil or criminal prosecution and applied the above mentioned legal defense to prosecutions for conduct that occurred during the period September 11, 2001 to December 30, 2005. Although the provision recognizes the possibility of civil and or criminal proceedings, the Center for Constitutional Rights has criticized this claiming that "The MCA retroactively immunizes some U.S. officials who have engaged in illegal actions which have been authorized by the Executive." [34] (#4) http://en.wikipedia.org/wiki/Military_Commissions_Act_of_2006 *It is an ex post facto-Amnesty law.
22)(a) *Petitioner further pleads with the Court that out of respect for the Due Process of law clause in the US Constitution’s 5th Amendment that it disallow the use of discredited, disingenuous OLC “torture memos”, so-called “Bybee Memos” for “guidelines in determining who should be prosecuted for torture”. Their cynical use grants blanket impunity to those who violated US Statute(War Crimes Act 18 USC 2441A) as well as the Geneva Conventions International, the degree of complicity is much more obvious for “hand-on” CIA Agents”, however, those who conceived, conspired and directed torture, particularly those who used torture to fabricate evidence to defraud the US Congress and the People of the United States to a “pre-emptive war” are especially culpable, worthy and deserving of prosecution for fraud, perjury and forgery. Plenty of evidence is aleady available, facilitating investigation. Yet the defendant has been pretending that the former position of Bush administration officials is beyond the reach of the law and won’t allow them to be included within the scope of prosecutor Durham's investigation. This is a violation of due process of law and the 5th Amendment to our beloved Constitution.
(#22b)Glenn Greenwald notes that in his statement this morning(August 24, 2009), “Attorney General Holder says the prosecutor’s initial review is limited only “to those who hose who failed to ‘act in good faith and within the scope of legal guidance’ — meaning only those interrogators and other officials who exceeded the torture limits which John Yoo and Jay Bybee approved. Those who, with good faith, tortured within the limits of the OLC memos will ‘be protected from legal jeopardy.’”
As a practical matter, Holder is consciously establishing as the legal baseline — he’s vesting with sterling legal authority — those warped, torture-justifying DOJ memos. Worse, his pledge of immunity today for those who complied with those memos went beyond mere interrogators and includes everyone, policymakers and lawyers alike.(#6a)(#11)(b)
22)(c) Petitioner claims that both US laws and ratified treaties specify what are torture violations, providing legal guidelines, that would have worked as they should have had the OLC Attorneys not been so unethical, obliging, and ingratiating as to supercede the law and Treaties with their diabolical “Bybee Memos" thus facilitating torture. One of them, Bybee, got an appointment to a Federal Court Judgeship(#6b) for his part in the conspiracy to use torture to coerce a false confessions with false evidence (#6c), (#13) to perpetrate a fraud upon the US Congress and the United States.(see Appendix 2)
22)(d) For a prosecutor to lend any legal credence to those discredited extra-legal Bybee-memo guidelines is an unlawful violation of Due process of law provisions in the 5th Amendment of the US Constitution for it places those guidelines as the law. The Bybee memos have been replaced as inadequate and their authors face possible disbarment. Their use as any sort of legal guidelines for prosecution would be a travesty of justice.
22)(e) The Attorney General may wish to be lenient with some subordinate CIA agents, the Chief Executive may even issue them pardons, but using the disparaged “Bybee Memos”, instead of the law and ratified treaty obligations for standards for investigation and of prosecution of crimes of torture during the Bush administration, is in violation of the due process clause of the 5th Amendment to our Constitution. For the memos have no legal substance. Attorney General Holder is engaging in sophistry to utilize the memos to avoid prosecuting Bush administration officials for crimes of torture, giving them impunity, again, an act that is forbidden by treaty. Just as he is by pretending that the amnesty provisions of the Military Commissions Act of 2006 are not ex post facto laws.
23) (a) However, John Yoo, author of the memos, wrote a book in 2006, War by Other Means: An Insider’s Account on the War On Terror, where he admitted that he acted as an advocate for White House policy in what would appear to be a violation of Justice Department guidelines.
(b)Yoo was not acting as an independent attorney providing the White House with unbiased legal advice but was more of an advocate for administration policy, *more like a mob-lawyer conspiring with their bosses on how to give the felonies they were committing the appearance of legality."
(3) In his book, Yoo wrote that in December 2001 “senior lawyers from the Attorney General’s office, the White House counsel’s office, the Department’s of State and Defense, and the [National Security Council] met to discuss the work on our opinion” regarding whether the Geneva Convention applied to members of al-Qaeda and the Taliban. Yoo wrote that the policies he and other senior administration officials recommended, that al-Qaeda and the Taliban were not entitled to the protections of the Geneva Convention, also rankled military lawyers. “Judge Advocates General [JAG's] worried that if the United States did not follow the Geneva Conventions, enemies might take it as justification to abuse American POW’s in the future,” Yoo wrote.(#7)

23)(b) I’m not an attorney myself, but I know from reading Professor Jordan Paust of Houston, International law expert, that those compliant OLC attorneys, as well as those Bush administration officials who cynically directed them for their own purposes, to fabricate evidence through torture, to start a war is a significant War Crime. Failure to investigate and prosecute such crimes once clear evidence occurs is itself sanctioned by the Convention Against Torture, as well as the Geneva Protocols. Compliance with CAT’s Article 7 commits the United States to prosecute, by US statute which was passed by Congress and signed into law, all instances of torture, with equanimity, rank of office notwithstanding.
23)(c)The Attorney General is well aware of this, too, yet instead of providing vigorous and thorough prosecution for all occurrences of torture, instead of challenging those blatantly unconstitutional amnesty-ex post facto provisions of the Military Commissions Act of 2006 , or the challenging the ex post facto change in definition of a war crime in (18 USC 2441A) by the Military Commissions Act of 2006, the Attorney General is mocking US law by pretending that those infamous, disparaged Bybee Memos have any legal standing by using their loose guidelines to give impunity to most of the actors in the occurrences of torture including those in the Bush administration who caused and directed the torture. Petitioner pleads with the Court to disallow this travesty of justice. Lawrence Wilkerson, Powell’s aide reported that his investigation showed that the acts of torture had already begun at least as early as January of 2002, yet the relevant Bybee memo wasn’t issued until August of 2002. Petitioner argues that the standards that Prosecutor Durham prosecutes from must be the law. Petitioner is filing pro se, so he begs the Court to tell the Defendant and his prosecutor Durham “What the law is”, as regards the US Statutes The War Crimes Act 18 USC 2441, 18 USC 2340, as well as (see Appendix 2): Violations of 18 USC section 1031, MAJOR FRAUD ACT of 1988, Violations of 18 USC section 1001, FRAUD AND FALSE STATEMENTS Violated, 18 USC Section 1002, POSSESSION of FALSE PAPERS to DEFRAUD the UNITED STATES Violated 18 USC section 371, CONSPIRACY TO COMMIT OFFENSE OR TO DEFRAUD UNITED STATES
24) The quintet of lawyers, who called themselves the “War Council," drafted legal opinions that circumvented the military's code of justice, the federal court system and America's international treaties in order to prevent anyone — from soldiers on the ground to the president — from being held accountable for activities that at other times have been considered war crimes.(#8)
25)In his own book Yoo acknowledges the “torture” memos Yoo helped write were not developed objectively and professionally, but rather, obligingly and collaboratively(which had the effect of furthering a felonious enterprise, that is, fabricating evidence to defraud the Congress of the United States into funding a war with Iraq.)(#8)
26) The Bush administration officials were using legal professionals to twist the law to suit their felonious purposes in the same way that Intelligence personnel were being used, for the same reason. As was said by Dearlove , head of British intelligence(quoted in Downing Street Memo,disussed more in Appendix), "Intelligence and facts are being fixed around the policy." (#9) .

27)David Luban of Georgetown wrote in OF LAW AND MORALS -, regarding the legal reasoning in the torture memos:
“They read as if they were reverse engineered to reach a pre-determined outcome: approval of waterboarding and the other CIA techniques. The memo's authors were obviously looking for a standard of torture so high that none of the enhanced interrogation techniques would count. But legal ethics does not permit lawyers to make frivolous arguments merely because it gets them the results they wanted.
I have called the interrogation memos a legal train wreck.”(#10)
28) UCLA Law Review, August 2007 by Dawn E. Johnsen
Dawn Johnsen, OLC nominee, has said, “ As my article The Absolute Prohibition of Torture documents, death threats, use of dogs to create intense fear, beatings, the cold cell or a related inducement of hypothermia, and waterboarding are each manifest forms of “torture” that are absolutely prohibited under all circumstances and regardless of the status of the victim. In fact, there are 29 U.S. judicial opinions and 7 U.S. executive Country Reports on Human Rights Practices, among other cases and materials, recognizing that waterboarding and related inducements of suffocation are “torture.” If they were not torture, they would also be absolutely prohibited as cruel, inhuman or degrading treatment, along with the other tactics mentioned.” (#11)
29) Sen. Carl Levin, who's leading an investigation into the origins of the harsh interrogation techniques, said at a hearing Tuesday that the abuse wasn't the result of "a few bad apples" within the military, as the White House has claimed. "The truth is that senior officials in the United States government sought information on aggressive techniques, twisted the law to create the appearance of their legality and authorized their use against detainees," said Levin, a Michigan Democrat..
“The U.S. said it was continuing to follow the rule of law but at the same time it sidestepped any international treaties that could create problems for soldiers or officials”, said Rodley, a member of the U.N. Human Rights Committee. The legal architecture, he said, hinged on the notion that "The treaties that were relevant to U.S. criminal law were not relevant. That was the trick." The administration, in other words, set out to circumvent any law that might have restricted Bush's detainee and interrogation programs. (#8)
30) (a) Petitioner begs that the Court not only declare unconstitutional the amnesty provisions of the Military Commissions Act as being ex post facto law, but also those parts the Military Commissions Act that rewrote part of the U.S. legal code on war crimes, changing the definition of a war crime from conduct that "constitutes a violation of Common Article 3" to the much higher standard of "a grave breach of Common Article 3." Within that new definition, it excluded "pain or suffering incidental to lawful sanctions," meaning harsh treatment that's allowed by the Bush administration's legal interpretations.(#8),
Reports on Human Rights Practices, among other cases and materials, recognizing that waterboarding and related inducements of suffocation are “torture.” "If they were not torture, they would also be absolutely prohibited as cruel, inhuman or degrading treatment, along with the other tactics mentioned.”
(b)“To justify otherwise unlawful policies, President Bush and his lawyers have espoused an extreme view of expansive presidential power during times of war and national emergency.”
(c.)“ Most infamously, government lawyers in OLC gave executive branch policymakers dangerously flawed advice in the early months after the September 11 attacks regarding the legality of using torture to acquire information from detainees. Although the substance of the advice has been almost universally condemned, and the Bush Administration publicly disavowed the advice after it was leaked, the failures that led to this debacle demand far greater scrutiny, both to determine accountability for past misdeeds and to promote future legal compliance.”

(d)“A defense of necessity would argue that torture--notwithstanding the statute's prohibition--was necessary to gain information to prevent a future terrorist attack:”(#11)

31) (a) However, the “defense of necessity” excuse is fallacious FOR USE OF TORTURE in this case and disingenuous and cannot be permitted by the Court, Petitioner pleads. First, Intelligence experts all say that torture is a very unreliable form of interrogation for a number of reasons(#16),--How can information extracted by torture be trusted?
(b) Could the suspect, aka. victim, be telling false information in order to get the pain and suffering inflicted by his torturers aka. interrogators, to stop?
(c.) International treaties, ratified by Congress and signed by the President of the United States recognizes no defense for acts of torture, and must be at least considered by the prosecutor
(d) Such false information could be provided to intentionally deceive, or is totally fabricated because the subject may not know the information demanded from him, so he “makes up” information to get the torture to stop, telling his tormentors whatever he thinks they want to know. In fact, that is exactly what happened to the first Al Qaeda officer captured in Afghanistan, Ibn al-Shaykh Libi (#13a) http://www.newsweek.com/id/54093

32) Fabrication of evidence to make a fraudulent case for war included torturing Islamic detainees, beginning with the torture of Ibn al-Shaykh Libi at a CIA site in Egypt in January of 2002. 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. (#12) 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(#13a)(appendix 2-#33). Although the Defense Department’s own Defense Intelligence Agency had concluded and informed the Bush White House officials, in February 2002, that Ibn al-Libi was “intentionally misleading” his interrogators(#13b), 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(#13c) although the CIA had identified Ibn Libi as a “likely fabricator”(#13b).
33)Torture is then an effective tool only for disingenuous felons who want to perpetrate fraud. Torture was used by those in the Bush White House advancing the fraudulent myth on the American people and Congress that Iraq was a danger to the United States and the American people so it was necessary to invade Iraq because it was such an imminent threat.
34)The intelligence experts say, persuasion is a much more productive, reliable technique for obtaining helpful information.
Using torture, they say is like using dynamite to open a locked box. The lock is broken, and so can’t be used again, and the contents in the box may well be destroyed, or severely damaged. On the other hand, using sophisticated interrogation techniques allows interrogators to use the lock again and again, and the contents are intact, that is, the information reliable.
Second - International law expert has a lot to say about the inapplicability of the “necessity defense” by Bush administration officials:
35)The Complicity of Dick Cheney: No 'Necessity' Defense by Jordan Paust
As my article The Absolute Prohibition of Torture documents, death threats, use of dogs to create intense fear, beatings, the cold cell or a related inducement of hypothermia, and waterboarding are each manifest forms of “torture” that are absolutely prohibited under all circumstances and regardless of the status of the victim. In fact, there are 29 U.S. judicial opinions and 7 U.S. executive Country Reports on Human Rights Practices, among other cases and materials, recognizing that waterboarding and related inducements of suffocation are “torture,” Including the War crimes Act and 10 USC 818.
As documented in my article, criminal complicity can occur when a person is aware that his or her conduct can or will assist or facilitate conduct of a direct perpetrator, such as use of waterboarding, the cold cell, and dogs to instill intense fear. He does not need to know that these are criminal or even “torture.”
What is Cheney’s apparent excuse? He claims that there was a need to engage in the illegal tactics, but others have affirmed that there was no need to engage in illegal interrogation tactics and that, on the contrary, it was well-known by professionals that reliable intelligence must be obtained by lawful means of interrogation. Furthermore, it is well-understood that under every relevant treaty-based and customary international law there is no such thing as a necessity defense with respect to outlawed tactics that are torture or cruel, inhumane, or degrading treatment. Such forms of ill-treatment are strictly prohibited in all circumstances.
Some have argued that there is a common law necessity defense that might be available if conduct was actually necessary. One of the August 1, 2002 Bybee memos made this claim when citing United States v. Bailey, 444 U.S. 394 (1980). The Bybee memo failed to note, however, that the Supreme Court’s opinion expressly warned that “[i]f there was a reasonable, legal alternative to violating the law ... the defense will fail” and the defendant must prove “that given the imminence of the threat, violation of ... [a law] was his only reasonable alternative.” Baily, 444 U.S. at 410-11 (emphasis added).
Had the OLC attorneys been doing their job, with fealty to the law, they’d have referenced the venerable rule announced in The Charming Betsy, 6 U.S. (2 Cranch) 64, 117-18 (1804), that federal statutes must be interpreted consistently with international law – in this instance, consistently with the absolute prohibition of torture and cruel, inhumane, and degrading treatment. Therefore, the Torture statute, the War Crimes Act, and 10 U.S.C. § 818 (which has incorporated all violations of the laws of war by reference as crimes against the laws of the United States since the 1950s) all apply and should have been referenced. http://jurist.law.pitt.edu/forumy/2009/05/complicity-of-dick-cheney-no-necessity.php
36) 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)

37) The principle of the “Rule of Law” and “equality under the law” is essential to democracy; Marbury v Madison, "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"
38)Petitioner observes that since the advent of the Bush administration and the accompanying expiration of the Independent Prosecutor Act, an unprecedented, headstrong expansion of Executive power has taken place, ie. #1 planning for wars in Iraq and Afghanistan even before 9/11, #2 the fabrication of evidence via forgery…uranium-Niger document, widely known to be fraudulent, yet used nonetheless to buttress a weak case for war(see appendix for notation of Downing Street Memo) #3The Military Commissions Act of 2006 with their ex post facto amnesty provisions forbidden by the Constitution , #4 perjury and #5 torture to perpetrate a fraud upon the US., #6 executive signing statements, #7 use of DOJ memos to create secret laws, #8 and no doubt many more abuses to our nations system of balance of powers this pro se Petitioner feels inadequate to the task of articulating them all….
39) 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." As a practical matter, Defendant Holder is consciously establishing as the legal baseline — he’s vesting with sterling legal authority — those warped, torture-justifying DOJ memos. THE COURT CANNOT ALLOW THIS! For Defendant took an oath of office pledging allegiance to the US Constitution and the laws emanating there from, while those "torture memos" they are as previously described) are abhorrent to the US Constitution. Petitioner pleads with the Court that it disallow the defendant, the US Attorney General to use the so-called Bybee Memos as guidance in determining who should be investigated and prosecuted for violations of torture during the Bush administration.
40) The Petitioner belatedly came across this:In the 1994 opinion United States v. Carlton, the U.S. Supreme Court unanimously held that retroactive tax laws did not violate the constitutional prohibition on ex post facto legislation, provided their retroactive application was "supported by a legitimate legislative purpose furthered by rational means". …However, petitioner notes that granting impunity to war criminals is hardly what can be called “legitimate legislative purpose”, particularly when these war crimes seem to be connected to other concomitant felonies including forgery, perjury, and fraud..see (#9)Downing Street Memo

41) A bipartisan congressional report traces the U.S. abuse of detainees at Guantanamo Bay and Abu Garaib 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,”
The disgrace of secret law by Christopher Kutz, U.C. Berkeley School of Law http://www.law.yale.edu/documents/pdf/Intellectual_Life/Kutz_RepugnanceofSecretLaw.pdf
42) Attorney General Eric Holder has said, “the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.” http://opinionator.blogs.nytimes.com/tag/cia/
Yet, Petitioner claims that Bush administration officials who directed and authorized torture were not themselves acting in good faith, but rather were acting to further their plot to fabricate evidence to politically justify the US invasion of Iraq, which is what they’d been planning since at least February of 2001. As was said, at Nuremburg, these defendants aren’t just clerks, they should have known better. But these conspirators in the Bush White House did not care about the law, confident as they were that they could get their obliging, compliant OLC attorneys to disingenuously interpret the law, they were concerned with fabricating evidence to justify invading Iraq, using torture to compel false evidence and they relied on a known forgery regarding uranium and claims known to be dubious about aluminum tubing that the INR and IAEA both said were for conventional purposes, not for processing uranium.
(43) *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. that Attorney General Holder had stated since his confirmation hearing his intention to discriminate in his prosecutorial decisions, when he said he would “not criminalize policy differences”, The Court said, in Washington v. Davis, 426 US 229, that such an expression of intent to discriminate, coupled with a discriminatory action by a prosecutor is contrary to equitable due process by a prosecutor. Attorney General Holder’s decision to limit prosecutor Durham to narrow, discriminatory parameters in his investigation and prosecution for crimes of torture during the Bush administration, 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.., or .. arbitrary classification
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 5th and 8th Amendment) by the Executive and Legislative Branches." *The remedy for the prosecutorial discrimination committed by the government regarding prosecution for crimes related to torture and abuse is to criminally prosecute Bush White House officials who developed and directed the policy of torture and abuse, beginning with President Bush's order of February 7, 2002 excluding “war on terror” suspects from Geneva protections.