August 4, 2008 8:01 AM
Posted By News Questions
& comments 4
Mukasey's Attempted Legislative End Run Around the Courts: Part II
by Shayana Kadidal, head of the Guantánamo project at the Center for Constitutional Rights
[This is the second half of an article examining Attorney General Mukasey’s recent call for Congress to enact legislation governing Guantanamo detainee’s habeas court proceedings. The first half is available here.]
Attorney General Mukasey called for a third round of legislation to ensure that the federal courts will never force the Bush administration to explain why they have held our clients in Guantánamo for over six years. Mukasey’s complaints and legislative proposals, outlined in a speech before the American Enterprise Institute and in testimony before Congress, are another attempt to drag us into years of further delays in these cases. This article concludes my examination of his arguments, one-by-one, to delve beyond the administration’s rhetoric.
“Fourth, any legislation should acknowledge again and explicitly that the Nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations.”
This is a transparent response not to the Boumediene decision but rather to this summer’s decision in Parhat v. Gates, a summary judgment challenge brought by a Uighur detainee under the Detainee Treatment Act’s procedures for review. Even under the limited window for review provided under the DTA, the Court of Appeals found that there was no legitimate evidence that the detainee — a refugee from a Muslim minority in China’s far Western region — was ever associated with a group that was allied with the Taliban or Al Qaeda at the time of the 9/11 attacks.
Because Congress, acting immediately after 9/11, authorized the use of military force only against groups that “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored” them, Mukasey knows that many of the detainees in Guantanamo will be freed if this standard is applied. So he wants Congress to allow the use of the armed forces — and the use of military detention – against anyone the President claims is linked to terrorism. No president should be handed this kind of unlimited power.
For one example of how far the administration is willing to stretch this kind of definition, examine the Defense Department’s accounts of released detainees who have “returned to the battlefield.” Among other false claims, DOD categorized several released Uighur detainees, shipped off to Albania days before a court hearing, as having participated in “anti-coalition militant activity” for having spoken to Tim Golden of the New York Times for a story about their miserable living conditions in the refugee camp there.
Similarly tarred were the Tipton Three, a group of released English detainees including Shafiq Rasul, the name petitioner in the 2004 Supreme Court case. Their “anti-coalition militant activity?” Participating in the making of Michael Winterbottom’s film The Road to Guantánamo. (The entirely false claim that thirty men have been released and returned to fight against the United States is debunked in this Seton Hall Law School report.)
“Fifth, Congress should establish sensible procedures for habeas challenges going forward. In order to eliminate the risk of duplicative efforts and inconsistent rulings, Congress should ensure that one district court takes exclusive jurisdiction over these habeas cases and should direct that common legal issues be decided by one judge in a coordinated fashion.”
Along with hundreds of our co-counsel, I’ve just spent five weeks before two federal Judges in one court in Washington, D.C., ironing out the rules for the orderly progress of these cases. We have a schedule for the government to respond to our habeas petitions, and two neat stacks of status report summarizing where each of the 200-odd cases stand. By this Friday, we will have completed briefing on the question of what rules and standards should apply going forward. The cases are already in one set of courts, and the process is already moving along quickly and in an orderly fashion (despite the involvement of over 500 lawyers!). I suspect this is exactly what Mukasey doesn’t want to see happen.
The idea that “common legal issues [should] be decided by one judge in a coordinated fashion” is unworkable here. Any ex ante rule is likely to be too abstract to be helpful when applied in an individual case. Moreover, broad rules of general applicability, announced by a single coordinating judge, purporting to resolve questions germane to a large number of cases are precisely the sort of decisions that attract interlocutory review. Interlocutory reviews of the district court’s first general ruling in the wake of the 2004 Rasul decision were what led to the years of delay during which Congress passed the MCA. The government is undoubtedly keen to create circumstances allowing them to once again place all these cases on hold while some broad, abstract, and otherwise-useless general ruling from a coordinating judge vanishes into a black hole of appeals.
“Such rules should not provide greater protection than we would provide to American citizens held as enemy combatants in this conflict. And they must ensure that court proceedings are not permitted to interfere with the mission of our armed forces. Our soldiers fighting the War on Terror, for example, should not be required to leave the front lines to testify as witnesses in habeas hearings; affidavits, prepared after battlefield activities have ceased, should be enough.”
Before AEI, Mukasey did his best to propagate one of the greatest public misunderstandings about Guantánamo—the Myth of Battlefield Capture: “Now, the fact is that all of these people, every single one of them, are aliens captured abroad in essentially battlefield conditions . . . .” Nonsense. The Seton Hall Law School study of the military’s own CSRT records shows that only 4% of the detainees were captured on anything resembling a battlefield. Only 5% were picked up in the first instance by American forces. Far, far more were purchased for $5000-per-head bounties from hungry villagers, corrupt Pakistani police, rival clans or warlords. The “rights” paradigm is also nonsense.
Putting that to one side, as Senator McCain likes to say, “this isn’t about them, it’s about us.” We have judicial review not just to ensure that the rights of people in detention are protected, but also to protect the public interest by making sure the executive branch is doing a competent job in figuring out who to detain. We haven’t had much robust oversight by the courts over the last six years, and you see the results in terms of executive competence.
The Parhat decision chastised the government for relying on evidence that lacked the barest indicia of source or reliability: “The documents [relied on against the detainee] repeatedly describe those activities and relationships as having ‘reportedly’ occurred, as being ‘said to’ or ‘reported to’ have happened, and as things that ‘may’ be true or are ‘suspected of’ having taken place. But in virtually every instance, the documents do not say who ‘reported’ or ‘said’ or ‘suspected’ those things. Nor do they provide any of the underlying reporting upon which the documents’ bottom-line assertions are founded, nor any assessment of the reliability of that reporting. Because of those omissions . . . this court cannot assess the reliability of the assertions in the documents.”
Mukasey wants Congress to statutorily legitimate multiple-hearsay affidavits because he knows there is no way most of these detentions can be upheld if the affiants’ testimony is scrutinized.
“Sixth and finally, because of the significant resource constraints on the Government's ability to defend the hundreds of habeas cases proceeding in the district courts, Congress should make clear that the detainees cannot pursue other forms of litigation to challenge their detention. One unintended consequence of the Supreme Court’s decision in Boumediene is that detainees now have two separate, and redundant, procedures to challenge their detention, one under the Detainee Treatment Act and the other under the Constitution.”
The first decision in the DTA cases was a panel opinion in Bismullah v. Gates, holding that the government had to turn over extensive information from its files in order to allow a detainee’s attorneys to ensure that the military considered everything in coming to its conclusion that the detainee was an “enemy combatant.” While the Supreme Court vacated the opinion for reconsideration in light of Boumediene, nothing in Boumediene undermines the core aspect of Bismullah: that the government must allow scrutiny of the full factual records purportedly justifying detention, including any exculpatory information the government possesses. The administration understandably is desperate to kill off this ruling, and repealing the DTA is now the easiest way to do it.
Ironically, Mukasey is calling on Congress to undo the scheme the administration concocted to kill these habeas cases in the first place. Moreover, the idea that this production will unduly burden the government because there are two avenues of review at work is patently absurd.
In the habeas cases, the government will presumably review all this information in the course of gathering or amending its factual returns; in the DTA cases, the government claims it produced all of this information to military panels (CSRTs) in the few months in late 2004 when it conducted almost all of the “enemy combatant” determinations. The government has repeatedly claimed in filings before the Court of Appeals that it has been hard at work on gathering all of this information in the DTA cases ever since last spring, when the Supreme Court’s initial cert denial in the habeas case resulted in 170 DTA actions being filed. If Mukasey now believes this is a burden, someone in DOJ is lying.
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For six and a half years, Congress and the Bush Administration have done their level best to prevent the courts from reviewing the legality of the detention of the men in Guantanamo. Thankfully — if this brutal Newsweek account of Mukasey’s reception on Capital Hill is accurate — it doesn’t look like that will happen this time around. However, even the threat of new legislation coming over the horizon has a tendency to make the courts hesitant to act. Congress should be a part of the solution this time by staying out of the way and letting the courts do their job.
Something really dangerous has happened. The Privacy Act forbids DOJ from holding first amendment records without one's permission. It also forbids DOJ from holding records outside its statutory authority, which according to the U.S. Attorney website for Eastern WI is "prosecution of criminal cases brought by the federal government, prosecution and defense of civil cases in which the U.S. is a party, and collection of debts owed the Federal govt which are administratively uncollectible".
I was jailed and the jailing was paid for by the Feds without even being accused of a crime or terrorism. This was on 3 different occasions and totaled 5 months. I was taken 1200 miles in chains. I have no criminal record at all.
There is a docket in WWI called U.S.A. v Kay Sieverding. In that docket it shows that there is no criminal complaint and no initiating or terminated criminal charges. That is the only docket in any court entitled "U.S.A. v. Kay Sieverding"
When I was first taken into custody, there was no government prosecutor. No government prosecutor was requested. The prosecutor was a civil defense lawyer named Christopher Beall, a partner at Faegre & Benson. They were billing Mutual Insurance Limited of Bermuda. That company does not have a NAIC #. Previously I had sued their client for defamation and conspiracy under Section 1983. In that case, Beall filed a motion to dismiss and never filed for summary judgment nor an answer. On his resume, Beall claimed he won by "statute of limitations" an affirmative defense that cannot be pled by motion. In fact, there were publications two months and also exactly two years before we filed and we pled special damages.
Beall wrote:
Another unrepresented civil action in violation of this Court's injunction against unrepresented litigation...evidence that the Court should enter an order requiring the plaintiffs to show cause why they should not be held in contempt for violating this Courts injunction against unrepresented litigation.request that the Court takes all steps necessary
But there was no document entitled "injunction", no motion for an injunction, no injunction bond, no injunction hearing, and no statute allowing an injunction against pro se litigation.
Beall said in court:
If I may, I'd just like to make sure that the record is clear with respect to some points of law. And first, the point is that this is a civil contempt proceeding. Regardless of any possibility of incarceration, Mr. and Mrs. Sieverding hold the keys to their cell They may comply with the Court's order, at least prospectively, and they may avoid incarceration. As a result, this is civil, not criminal contempt. They do not have a right to counsel. They do not have the right to a jury trial. They do not have the right to a full and complete evidentiary hearing. Rather, this is a civil contempt proceeding, summary in form. And all that is required under the Fifth Amendment is notice and an opportunity to be heard.'
The Supreme Court in YOUNG v. UNITED STATES EX REL. VUITTON ET FILS S. A. ET AL., 107 S. Ct. 2124, 481 U.S. 787 (U.S. 05/26/1987) was clear that an interested party cannot be appointed as a prosecutor in indirect contempt nor can summary procedure be used in indirect contempt.
I was committed to custody until such time as I terminated all litigation against Beall's client. I then sued Beall's client again for then new defamation. Beall filed:
While she was still incarcerated at the Clear Creek County Jail pursuant to the Courts order, Kay Sieverding filed an entirely new pro se lawsuit, this time in the U.S. District Court for the District of Kansas, again based on the same series of transactions described in this case... require David Sieverding to show cause why he should not be held in contempt of court for assisting Kay Sieverding.' (Christopher Beall motion filed in District of Colorado 12/12/05 document 704 p.5)
I really had no choice but to agree to dismiss so that the district court would not jail my husband as explicitly threatened by Federal Judge Edward Nottingham. When I did not immediately file the motion to dismiss the civil charges, the Marshals came to my home and I was taken into custody again. I then filed the motion demanded by Faegre & Benson. They decided that they didn't like the exact way I filed it. I was forced to refile the motion in the civil matter under explicit threat of jailing if I did not use the exact form and words demanded by Faegre & Benson.
Faegre & Benson then requested another warrant for the stated reason that I had filed motions in a civil case and appealed a civil case. The U.S. Marshals repeatedly called me and my husband demanding that I go into custody even though the warrant was blank where the law is supposed to be. I was not listed as a fugitive. I called the U.S. attorney and they had no charges showing for me.
I filed for habeas corpus and Judge Nottingham was ordered to respond by he did not. He said later that he thought the civil defense lawyers would respond for him. I was then arrested by the local police who did not have a warrant. They brought me in and produced the blank warrant. I was taken to a magistrate and the assistant U.S. attorney appeared and said "the government isn't a party to this". A public defender appeared and said that the judge hasn't charged her with contempt or anything else. However, the magistrate, (who was listed on the court website as a court clerk and appeared in no other hearings all year), ordered me taken into custody and extradited to Colorado anyway. I was held for 22 days, strip searched at gunpoint, & taken 1200 miles in chains. Then Judge Nottingham said "whoops" and let me go. The office of the governor of Wisconsin has confirmed that they did not receive the required request to extradite.
I kept writing to the DOJ and the FBI asking why I was in jail and they would just not respond at all. Finally, my congressional representative put in a request to the U.S. Marshals. They sent all sorts of papers about my civil court filings. By definition those are first amendment records that they were not supposed to have. Those records (informal faxes from the Colorado marshals to the Wisconsin marshals) even showed that they talked to the defense counsel and on their advice went looking for me at the law library.
My husband filed a motion in the D of Col (where it was ordered that I cannot file any motions) to find out the charges against me but that was denied as "moot" by Judge Nottingham. I filed a motion to find out any past or present federal criminal charges against me in the D of WWI and the U.S. attorney responded that there were none however I was involved in a civil law suit. According to the Privacy Act, he was not supposed to have those records.
I filed a civil law suit against Faegre & Benson in April 2008. They did not file any motion allowed under Rule 12. The judge dismissed the case for the sole reason that I did not have a lawyer. He found one grammatical error but no other mistakes in our pleadings. No rule 11. c..6 order was ever issued against us in any court so we couldn't be too incompetent. I filed an appeal in the 8th Circuit, 08-2494, and argued that Rule 17b(1) defines capacity to sue as determined by one's residence and WI explicitly recognizes as "Absolute Right" of self representation. The appeal was timely and paid. 20 days later Faegre & Benson filed a motion suggesting that the appeal be dismissed because we didn't have a lawyer.
Now, I don't know what to do to help myself, but I know this is very dangerous precedent. I have been searching on the term "pro se" in various federal courts and cannot find any record of any other person jailed for engaging in pro se litigation nor any court records to "injunctions" against pro se litigation. I looked up every pro se reference in every federal circuit court between 1946 and 1948. In fact, in the 40's in the 5th Circuit, Judge Learned Hand ruled in favor of the pro se more often than against. So finding parties to be in contempt was not in the prevailing usage in law when Title 18 Part 1, Chapter 21 402. Contempts Constituting Crimes was amended in 1948. That restricts the U.S. judiciary from prosecuting parties for contempt unless the contempt was disrupting a hearing, a prevailing usage, a criminal contempt, or prosecuted on or in behalf of the U.S., but the U.S. judiciary did it anyway. The judiciary does not maintain its own jails, that is done by the administrative branch, but they did not have an order finding me guilty of a crime or disrupting a hearing, only documents related to first amendment civil lawsuit filings which they were prohibited from having. Now, I think there is a big cover up.
There are lots of people in this country who can't afford a lawyer or who have a case against lawyers that other lawyers want to cover up. Even if you start out with a lawyer, they can run up the costs to force you to drop the suit. I thought that it would be good for a jury to see that I was competent, since I was defamed, and since I have a masters degree I am confident of my research skills. With the economy being as it is, it is harder than ever for many aggrieved parties to afford a lawyer. Faegre & Benson attacked me financially to make it harder for me to afford a lawyer. Although they filed no counterclaim, filed no Rule 11 motion, and received no Rule 11 c. 6 order, they published that I owed them money, and without any court order that I can find, garnished my bank accounts.
I tried to help myself by blogging. That is suggested by services to counteract defamation. When I do so, anonymous posters accuse me of being a"frivolous serial litigant" or a criminal because I was in jail. One party posted accusing me of being too cowardly and incompetent to settle my disputes using violence. I have always been nonviolent. However, these other aggrieved parties are not all going to be nonviolent. Especially the men. For instance, Marvin Heemeyer in Colorado converted a back hoe into a tank and demolished several buildings after he spent over $50,000 in legal fees to pursue a defamation and 1983 case that was dismissed for unknown reasons.
Even though I do not have a law degree, I know that the most basic fundamentals of constitutional law were violated including Canon III, the state remedies act and the Anti-Injunction Act. It took me a while to figure out the Anti-Injunction Act and Beall wrote that the Anti-Injunction Act does not apply in Federal Court. However it does because of Stare Decisis and the principles of outcome independence and conformity. The Anti Injunction Law is also common law as recognized in 1640 in the Laws and Liberties of the Massachusetts Colonies and it is recognized in Deuteronomy. Chief Justice Reinquist wrote in "Seminole Tribe Of Florida v. Florida, 517 U.S. 44 (U.S. 03/27/1996)" that common law is the law at the time of the U.S. Constitution that has not been changed by Congress. Pro se litigation including that of defamation cases was the norm at the time and is specifically authorized in Title 28 section 1654. According to the Seminole case, the judiciary is restricted from using judicial interpretation to stop an action against a government but in D.C. I was explicitly threatened with incarceration if I file any related claim in that federal court. So I guess I will be put in jail again if, while representing myself, I sue the government for jailing me without a basis in law. And not only is jail very stressful and dangerous, but there is no law library or computer access.
I have until 8/22 to file in the 8th Circuit a petition for rehearing en banc of the order that I cannot represent myself but I know that they will probably deny it with no explanation and that if I appeal to the S.C., that will probably also be denied without explanation. My name has already been used to justify similar orders against self-representation to other parties and a new amorphous class of people has been created who lose their most basic rights without a statute or formal due process. Any suggestions would be appreciated.
I did write to Mr. Mukasey about this but he didn't write back. So it seems that it is not just DOJ trying to evade the courts but the courts and DOJ working together to take the most basic rights from U.S. citizens in order to benefit insurance companies that are not even located in or paying taxes in this country.
Since it also came to light that the judge who ordered my imprisonment without charges, Edward Nottingham, had prostitutes delivered to him at least 10 times and charged $3,000 to his AMEX at a strip club the same weekend he put me in jail the first time, my theory is that these foreign insurance companies keep records about the potential weaknesses of U.S. judges. Judge N was not originally assigned to my case. It was transferred to him after Lloyds of London billed for a discussion and review of "case assignment issues".
P.S. the prostitutes and strip clubs became public thru the Judge's divorce hearings and are written about by Nine News of Denver, the Rocky Mountain News, and the Denver Post. Also AP had an article.
Another reason why pro se litigation must be processed is:
We once again reiterate, however, as we did unanimously in Leatherman, Swierkiewicz, and Hill, that adopting different and more onerous pleading rules to deal with particular categories of cases should be done through established rulemaking procedures, and not on a case-by-case basis by the courts.†JONES v. BOCK U.S. Supreme Court Nos. 05-7058 and 05-7142) No. 05-7058, 135 Fed. Appx. 837; No. 05-7142, 136 Fed. Appx. 846 (second judgment) and 859 (first judgment), reversed and remanded.
As far as prisoner litigation being "burdensome", I think that the courts should just hire as many magistrates as they need. If you want to think of it as just a cost issue and not a morality issue, you must consider the costs of unresolved prisoner problems to the government as a whole, not just the time problems of judges. If they don't process requests for DNA testing or medical care, the government will just get hit with more lawsuits and other costs later. Plus the associated costs of jailing so many people -- lost taxes, child care, etc. are huge.
A better way needs to be developed for handling enemy combatants because it is precedence and can be used against American soldiers. A huge amount of effort went into the U.N. Declarations and we should stick to them both domestically and militarily
Hey =) Just check this out: Tila Tequila is naked uhhhh.... hot bitch: http://tilatequilanaked.0catch.com/
Something really dangerous has happened. The Privacy Act forbids DOJ from holding first amendment records without one's permission. It also forbids DOJ from holding records outside its statutory authority, which according to the U.S. Attorney website for Eastern WI is "prosecution of criminal cases brought by the federal government, prosecution and defense of civil cases in which the U.S. is a party, and collection of debts owed the Federal govt which are administratively uncollectible".
I was jailed and the jailing was paid for by the Feds without even being accused of a crime or terrorism. This was on 3 different occasions and totaled 5 months. I was taken 1200 miles in chains. I have no criminal record at all.
There is a docket in WWI called U.S.A. v Kay Sieverding. In that docket it shows that there is no criminal complaint and no initiating or terminated criminal charges. That is the only docket in any court entitled "U.S.A. v. Kay Sieverding"
When I was first taken into custody, there was no government prosecutor. No government prosecutor was requested. The prosecutor was a civil defense lawyer named Christopher Beall, a partner at Faegre & Benson. They were billing Mutual Insurance Limited of Bermuda. That company does not have a NAIC #. Previously I had sued their client for defamation and conspiracy under Section 1983. In that case, Beall filed a motion to dismiss and never filed for summary judgment nor an answer. On his resume, Beall claimed he won by "statute of limitations" an affirmative defense that cannot be pled by motion. In fact, there were publications two months and also exactly two years before we filed and we pled special damages.
Beall wrote:
Another unrepresented civil action in violation of this Court's injunction against unrepresented litigation...evidence that the Court should enter an order requiring the plaintiffs to show cause why they should not be held in contempt for violating this Courts injunction against unrepresented litigation.request that the Court takes all steps necessary
But there was no document entitled "injunction", no motion for an injunction, no injunction bond, no injunction hearing, and no statute allowing an injunction against pro se litigation.
Beall said in court:
If I may, I'd just like to make sure that the record is clear with respect to some points of law. And first, the point is that this is a civil contempt proceeding. Regardless of any possibility of incarceration, Mr. and Mrs. Sieverding hold the keys to their cell They may comply with the Court's order, at least prospectively, and they may avoid incarceration. As a result, this is civil, not criminal contempt. They do not have a right to counsel. They do not have the right to a jury trial. They do not have the right to a full and complete evidentiary hearing. Rather, this is a civil contempt proceeding, summary in form. And all that is required under the Fifth Amendment is notice and an opportunity to be heard.'
The Supreme Court in YOUNG v. UNITED STATES EX REL. VUITTON ET FILS S. A. ET AL., 107 S. Ct. 2124, 481 U.S. 787 (U.S. 05/26/1987) was clear that an interested party cannot be appointed as a prosecutor in indirect contempt nor can summary procedure be used in indirect contempt.
I was committed to custody until such time as I terminated all litigation against Beall's client. I then sued Beall's client again for then new defamation. Beall filed:
While she was still incarcerated at the Clear Creek County Jail pursuant to the Courts order, Kay Sieverding filed an entirely new pro se lawsuit, this time in the U.S. District Court for the District of Kansas, again based on the same series of transactions described in this case... require David Sieverding to show cause why he should not be held in contempt of court for assisting Kay Sieverding.' (Christopher Beall motion filed in District of Colorado 12/12/05 document 704 p.5)
I really had no choice but to agree to dismiss so that the district court would not jail my husband as explicitly threatened by Federal Judge Edward Nottingham. When I did not immediately file the motion to dismiss the civil charges, the Marshals came to my home and I was taken into custody again. I then filed the motion demanded by Faegre & Benson. They decided that they didn't like the exact way I filed it. I was forced to refile the motion in the civil matter under explicit threat of jailing if I did not use the exact form and words demanded by Faegre & Benson.
Faegre & Benson then requested another warrant for the stated reason that I had filed motions in a civil case and appealed a civil case. The U.S. Marshals repeatedly called me and my husband demanding that I go into custody even though the warrant was blank where the law is supposed to be. I was not listed as a fugitive. I called the U.S. attorney and they had no charges showing for me.
I filed for habeas corpus and Judge Nottingham was ordered to respond by he did not. He said later that he thought the civil defense lawyers would respond for him. I was then arrested by the local police who did not have a warrant. They brought me in and produced the blank warrant. I was taken to a magistrate and the assistant U.S. attorney appeared and said "the government isn't a party to this". A public defender appeared and said that the judge hasn't charged her with contempt or anything else. However, the magistrate, (who was listed on the court website as a court clerk and appeared in no other hearings all year), ordered me taken into custody and extradited to Colorado anyway. I was held for 22 days, strip searched at gunpoint, & taken 1200 miles in chains. Then Judge Nottingham said "whoops" and let me go. The office of the governor of Wisconsin has confirmed that they did not receive the required request to extradite.
I kept writing to the DOJ and the FBI asking why I was in jail and they would just not respond at all. Finally, my congressional representative put in a request to the U.S. Marshals. They sent all sorts of papers about my civil court filings. By definition those are first amendment records that they were not supposed to have. Those records (informal faxes from the Colorado marshals to the Wisconsin marshals) even showed that they talked to the defense counsel and on their advice went looking for me at the law library.
My husband filed a motion in the D of Col (where it was ordered that I cannot file any motions) to find out the charges against me but that was denied as "moot" by Judge Nottingham. I filed a motion to find out any past or present federal criminal charges against me in the D of WWI and the U.S. attorney responded that there were none however I was involved in a civil law suit. According to the Privacy Act, he was not supposed to have those records.
I filed a civil law suit against Faegre & Benson in April 2008. They did not file any motion allowed under Rule 12. The judge dismissed the case for the sole reason that I did not have a lawyer. He found one grammatical error but no other mistakes in our pleadings. No rule 11. c..6 order was ever issued against us in any court so we couldn't be too incompetent. I filed an appeal in the 8th Circuit, 08-2494, and argued that Rule 17b(1) defines capacity to sue as determined by one's residence and WI explicitly recognizes as "Absolute Right" of self representation. The appeal was timely and paid. 20 days later Faegre & Benson filed a motion suggesting that the appeal be dismissed because we didn't have a lawyer.
Now, I don't know what to do to help myself, but I know this is very dangerous precedent. I have been searching on the term "pro se" in various federal courts and cannot find any record of any other person jailed for engaging in pro se litigation nor any court records to "injunctions" against pro se litigation. I looked up every pro se reference in every federal circuit court between 1946 and 1948. In fact, in the 40's in the 5th Circuit, Judge Learned Hand ruled in favor of the pro se more often than against. So finding parties to be in contempt was not in the prevailing usage in law when Title 18 Part 1, Chapter 21 402. Contempts Constituting Crimes was amended in 1948. That restricts the U.S. judiciary from prosecuting parties for contempt unless the contempt was disrupting a hearing, a prevailing usage, a criminal contempt, or prosecuted on or in behalf of the U.S., but the U.S. judiciary did it anyway. The judiciary does not maintain its own jails, that is done by the administrative branch, but they did not have an order finding me guilty of a crime or disrupting a hearing, only documents related to first amendment civil lawsuit filings which they were prohibited from having. Now, I think there is a big cover up.
There are lots of people in this country who can't afford a lawyer or who have a case against lawyers that other lawyers want to cover up. Even if you start out with a lawyer, they can run up the costs to force you to drop the suit. I thought that it would be good for a jury to see that I was competent, since I was defamed, and since I have a masters degree I am confident of my research skills. With the economy being as it is, it is harder than ever for many aggrieved parties to afford a lawyer. Faegre & Benson attacked me financially to make it harder for me to afford a lawyer. Although they filed no counterclaim, filed no Rule 11 motion, and received no Rule 11 c. 6 order, they published that I owed them money, and without any court order that I can find, garnished my bank accounts.
I tried to help myself by blogging. That is suggested by services to counteract defamation. When I do so, anonymous posters accuse me of being a"frivolous serial litigant" or a criminal because I was in jail. One party posted accusing me of being too cowardly and incompetent to settle my disputes using violence. I have always been nonviolent. However, these other aggrieved parties are not all going to be nonviolent. Especially the men. For instance, Marvin Heemeyer in Colorado converted a back hoe into a tank and demolished several buildings after he spent over $50,000 in legal fees to pursue a defamation and 1983 case that was dismissed for unknown reasons.
Even though I do not have a law degree, I know that the most basic fundamentals of constitutional law were violated including Canon III, the state remedies act and the Anti-Injunction Act. It took me a while to figure out the Anti-Injunction Act and Beall wrote that the Anti-Injunction Act does not apply in Federal Court. However it does because of Stare Decisis and the principles of outcome independence and conformity. The Anti Injunction Law is also common law as recognized in 1640 in the Laws and Liberties of the Massachusetts Colonies and it is recognized in Deuteronomy. Chief Justice Reinquist wrote in "Seminole Tribe Of Florida v. Florida, 517 U.S. 44 (U.S. 03/27/1996)" that common law is the law at the time of the U.S. Constitution that has not been changed by Congress. Pro se litigation including that of defamation cases was the norm at the time and is specifically authorized in Title 28 section 1654. According to the Seminole case, the judiciary is restricted from using judicial interpretation to stop an action against a government but in D.C. I was explicitly threatened with incarceration if I file any related claim in that federal court. So I guess I will be put in jail again if, while representing myself, I sue the government for jailing me without a basis in law. And not only is jail very stressful and dangerous, but there is no law library or computer access.
I have until 8/22 to file in the 8th Circuit a petition for rehearing en banc of the order that I cannot represent myself but I know that they will probably deny it with no explanation and that if I appeal to the S.C., that will probably also be denied without explanation. My name has already been used to justify similar orders against self-representation to other parties and a new amorphous class of people has been created who lose their most basic rights without a statute or formal due process. Any suggestions would be appreciated.
I did write to Mr. Mukasey about this but he didn't write back. So it seems that it is not just DOJ trying to evade the courts but the courts and DOJ working together to take the most basic rights from U.S. citizens in order to benefit insurance companies that are not even located in or paying taxes in this country.
Since it also came to light that the judge who ordered my imprisonment without charges, Edward Nottingham, had prostitutes delivered to him at least 10 times and charged $3,000 to his AMEX at a strip club the same weekend he put me in jail the first time, my theory is that these foreign insurance companies keep records about the potential weaknesses of U.S. judges. Judge N was not originally assigned to my case. It was transferred to him after Lloyds of London billed for a discussion and review of "case assignment issues".