A) The Court cannot countenance discrimination affecting prosecutions
While the Appellant-petitioner acknowledges that it is the executive’s responsibility to execute the law, he asserts that it is the duty of the judiciary (as Appellant notes in Pet.#12) to “say what the law is” Marbury v. Madison, ensuring the proper, equal administration of justice in the Executive’s execution of the law. And, Appellant notes at Pet.#18, the Court said 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.” While the Judiciary respects prosecutorial discretion, the Court cannot countenance discrimination affecting prosecutorial decisions in light of due process protections from the 5th Amendment, as decided 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. " And, Washington v. Davis, 426 US 229, that demonstration of intent is necessary to show discrimination is not incidental, eg, “I will not criminalize policy differences”.B)
Prosecutorial Discrimination
Appellant charges that the opinion of the judge declining his petition completely ignores his repeated arguments in his petition that the Attorney General, Eric Holder has been engaging in prosecutorial discrimination, even though he even entitled his petition, "re:Prosecutorial discrimination". At Pet. #3,#13, #16 the Petitioner-appellant had referred to the Court's opinion 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, Thus, the Attorney General discriminates by arbitrary classification when he favors the class of White House Officials by failing to prosecute them despite what Rep. John Conyers, whose Judiciary Committee has investigated the issue of torture offenses by the US, has said is "reams of evidence incriminating White House officials”, as noted by Appellant at Pet. #19, although numerous soldiers have been prosecuted.
C) Expressed Intent to Discriminate
Petitioner-appellant notes at Pet. #3, #14, and #15, the Court has said in Washington v. Davis, 426 US 229, that demonstration of intent is necessary to show discrimination is not incidental. The Attorney General's intention to discriminate has been telegraphed by Mr. Holder, when, in Congressional testimony, he stated that "I will not criminalize policy differences". Since policies are developed and directed by White House Officials, he is making it clear he intends to discriminate by “arbitrary classification” by Not prosecuting this class of "former Bush White House officials", even while soldiers and agents have been or are going to be prosecuted for the torture they, the same former White House officials had instigated and directed, is discriminatory as regards “classification“(see Pet.#19). 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.
D) Holder’s Discrimination Compromises his Unbridled Discretion
Appellant pleads that the Court’s “duty and authority… to call the jailer to account“(Boumediene v. Bush)-Pet.#18, regarding demonstrated prosecutorial discrimination is to involve itself enough to ensure the equal administration of justice without discrimination by removing the discriminatory ban on prosecuting the class of Bush White House officials. Because of his demonstrated discrimination regarding prosecution of crimes of torture, the Court needs to involve itself to the extent that it ensures the independence and wide latitude of the prosecutor appointed by the Attorney General, who is reportedly poised to appoint to prosecute the crimes of torture committed by US personnel. Under such circumstances the Attorney General’s prosecutorial function is more ministerial than discretionary.
E) No Class is Above the Law
As Petitioner-appellant notes in Pet. #3 The Court said in 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"". In Marbury the Court is clearly saying that the "color of office" offers no protection from prosecution and "..the judgment of the law" (-there is no "protected class" in the United States, immune from prosecution, including the class of Bush White House officials), particularly if, "by which an individual sustains an injury". Certainly innumerable individuals have been seriously, and hideously injured, including those Islamic detainees who've been tortured, some, to death(over a hundred Islamic detainees have been killed while in US custody)-noted by Appellant-petitioner in Pet.#17). The prosecutor appointed by Holder needs the independence and latitude to prosecute any concomitant felonies it finds evidence for, including fraud, perjury and manslaughter.
F) Torture began with Political motives NOT national defense
Appellant-Petitioner notes at Pet.#5, ”the policy of "harsh interrogations", that is, torture, began with the torture of Ibn al-Shaykh al- Libi in January of 2002 who had already told his FBI interrogators all he knew. The White House wanted “harsher interrogation”(torture) used on Ibn al-Shaykh al-Libi . The FBI, to their credit, refused. The CIA complied, however, and he was tortured until he told his tormentors what they wanted to hear. That is, 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. At Pet.#19 appellant notes Colin Powell's former chief of staff, Col. Lawrence Wilkerson testified:
Thus, Bush White House officials initiated the policy of harsh interrogations, that is, torture, not for purpose of defense of the US, but rather for the purpose of politically further advancing the criminal enterprise including perjuries and fraud to justify misleading the US into an unwarranted invasion of Iraq, which had been the goal of the Bush White House officials since the beginning of the Bush administration, according to former Bush administration insiders Paul O’Neil and Richard Clarke -see Pet.#17 and Pet.#23. Crimes which result in death have no statute of limitations.G)
G.Torture part of larger criminal enterprise
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(he was trying to end the torture), the lies he had been 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.-Pet.#5 Poor Ibn Libi’s tortured fabrications even made it into Colin Powell’s speech in February 2003 before the UN as justifications for invading Iraq. Thus, the crimes of torture committed by Bush White House officials are a part a larger criminal enterprise including the perjuries and fraud that led to the Iraq war, which has cost the US its treasure and thousands of lives. The prosecutor Newsweek has reported Holder is close to appointing, however, reportedly will have only a narrow focus on rogue CIA Agents, because of the stated intention of Prosecutorial discrimination by the Attorney General, ie. “I will not criminalize policy differences”, the Court has cause to involve itself, to the extent that it makes sure the class of “Bush White House officials” are not treated as a privileged class, immune from prosecution, by ensuring the prosecutor appointed by the Attorney General has complete independence and a wide scope and latitude. 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" -Pet 13.
H) Torture of Islamics an Hate Crime
In order to generate fear and hate to justify their plans for war, the Bush Administration demonized Islamics, with scary propaganda about “Islamic terrorism” and “Islamic extremists”. All of the hundreds, maybe thousands of victims have been Islamics. Petitioner claims that prosecutions for crimes of torture against Islamic detainees would have been far more widespread and vigorous had the victims been of another religion, just as crimes against Jews in Pre-war Germany or blacks in the pre-war South were infrequently prosecuted. The discriminatory victimization of Islamic detainees by the Bush administration has been tacitly continued by Attorney General Holder in his decision to continue to fail to vigorously prosecute all who evidence indicates are guilty of torture, including the class of Bush White House Officials; the Court's opinion 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.” Pet.#2, 11.
I) On-Scene Investigation Insights
Investigating officer Gen.(Ret.) Antonio Taguba :"...the fact is that we violated the laws of land warfare in Abu Ghraib. We violated the tenets of the Geneva Convention. We violated our own principles and we violated the core of our military values. The stress of combat is not an excuse, and I believe, even today, that those civilian and military leaders responsible should be held accountable.” , New Yorker 6/25/07
"There is no longer any doubt as to whether this (Bush)administration has committed war crimes. The Commander-in-Chief and those under him authorized a systematic regime of torture. The only question that remains to be answered is whether those who ordered the use of torture will be held to account." — Maj. Gen. Antonio Taguba in 2004,investigating officer -Pet.#22
