Section 1.  Findings.  

(a) The Congress finds that various entities within the Executive Branch have, in recent history, used various sophistries and made false or fraudulent arguments and that similar may be used or made in the future, to avoid, delay or thwart oversight and communication of accurate and timely information to the Legislative Branch.  These sophistries and arguments have been couched in various terms, but have all had a similar direction and intent, which has been to keep secret from the Legislature, the people, or both, true, complete and accurate information.  As a corollary, these sophistries and arguments have also been used to avoid judicial review.
(b) The Congress finds that various entities within the Executive Branch have, since 2001 arrogated unto themselves, or attempted to, power contrary to the Constitution, and have engaged in various illegal, unlawful or un-American acts or have compelled or encouraged others, subordinate to them, to do so.  These arrogations of power, violations of the Constitution, and illegal, unlawful and un-American acts have greatly damaged both the United States and its standing in the world, and have caused grave injuries and death to innocent persons who were simultaneously deprived of any redress for the harms they endured.

©  The Congress finds that the actions of various entities within the Executive Branch, particularly the Vice President and Office of Vice President, have been taken by using sophistry masquerading as law and legal argument to defeat the Rule of Law, and have created a gravely dangerous imbalance within and without the government of the United States.  This Act seeks to redress this imbalance.

(d) This is an amendatory and supplementary Act and shall be construed as such in favor of the Legislature and the People and against the Executive.

Is there anyone out there now doubting the accuracy of the proposed findings, i.e., the reasons for the law?

Section 2. Prohibition on use of funds for various prohibited acts and purposes.

(a) No funds of the United States may be used for any purpose described in Section 3 hereof.

(b) Any law to the contrary notwithstanding, any use of funds appropriated by the United States for any purpose described in Section 3 hereof shall constitute:

(1) a violation of the Anti-Deficiency Act, codified at 31 U.S.C. section 1341, et seq., and

This law is, as you can see, already on the books.  

(2) entitle the United States to be compensated, and to a judgment to be obtained in a summary proceeding, for both the amount of funds expended for that prohibited purpose and both the costs and expenses in recouping said funds, and interest and attorneys' fees, if any, to be paid by the person or persons directing or carrying out such use of funds for a purpose described in Section 3 hereof, the liability therefor to be joint and several.
(3)  Any other law to the contrary notwithstanding, any judgment or other obligation owing the United States derived from paragraph (2) of this subsection shall not be dischargeable in bankruptcy and shall be entitled to full faith and credit in any jurisdiction, and may be enforceable by issuance of a writ of capias ad satisficiendum or other appropriate writ or order.

In addition to making clear the use of government funds for prohibited purposes is a crime, this also makes the people who take prohibited actions personally liable to the government both to pay back the money spent in those prohibited actions and to pay the costs and expenses of the litigation against them.  For those not up on this, a writ of capias ad satisficiendum is the form of document which sends a judgment debtor to debtors' prison until they pay.  

(4)  If, within thirty days of service, made upon the Secretary of the Treasury, and made in accordance with the methods recited in Rule 4 of the Federal Rules of Civil Procedure, of a written notice of an alleged violation of the Anti-Deficiency Act by any officer, employee, servant or agent of the Executive Branch or any agency or activity thereof, no action has been filed with the appropriate United States District Court having jurisdiction and venue, the purpose of said action being to suspend from duty without pay or remove from office said officer, employee, servant or agent from the office occupied, said action being in fulfillment of 31 U.S.C. sections 1349(a), 1519, et seq., then any seven Members of the House of Representatives shall have standing to sue in any United States District Court having jurisdiction and venue, in a cause of action set forth in paragraph 5 of this subsection.

(5)  In any action brought under this paragraph, any seven or more Members of the House of Representatives shall have standing to sue, as plaintiffs, for the relief available to the United States under the Anti-Deficiency Act, 31 U.S.C. 1349(a), 1519, et. seq.

(A)  In any such action under this paragraph (5), the officer, employee, servant or agent of the Executive Branch or any agency or activity thereof shall be a defendant, and the head of the Executive Department, Agency or Activity, as the case may be, who had responsibility under the Anti-Deficiency Act for bringing said action shall also be a defendant.  
(B)  In any such action under this paragraph (5), the United States District Court in which this action shall be filed shall not, in the event personal or other jurisdiction or venue shall be challenged and such challenge would be successful, dismiss the action, but shall instead transfer the action to any other United States District Court where jurisdiction or venue would be appropriate.  Any law to the contrary notwithstanding, jurisdiction and venue over any officer, employee, servant or agent of the Executive Branch who may be located outside the 50 States and the District of Columbia, shall be deemed proper in the United States District Court for the District of the District of Columbia.

©  In any such action under this paragraph (5), the District Court shall, upon application of the plaintiffs, enter an immediate injunction against the defendants, which shall immediately and pendente lite prohibit said defendants from exercising any duties or possessing or occupying any office under the United States, and from receiving any pay, salary, expenses or benefits therefor.  The District Court may, upon application duly made and after review thereof, allow any defendants so applying to receive pay, salary, expenses or benefits relative to work or services performed during time previous to the filing of the action, without prejudice to later recoupment thereof by the United States in the action.

(D)  In any such action under this paragraph (5), the District Court shall award costs and attorneys' fees in favor of the plaintiffs, and shall not award costs and attorneys' fees in favor of the defendants.

©  All provisions of subsection (b) of this section shall be cumulative to any other provision of law and shall be liberally construed in favor of Members of Congress and relief in their favor.

Section 3.  Prohibited Acts and Purposes.

The following acts or purposes shall be prohibited:

(a)    In response to a validly issued subpoena or subpoena duces tecum from the House of Representatives or the Senate, or a committee of either body:

(1)    assertion of the so-called executive privilege;

(2)    assertion of the so-called state secrets privilege;

(3)    assertion of the so-called unitary executive theory;

(4)    assertion of the so-called deliberative process privilege;

See (1) immediately above...

(5)    assertion of the attorney-client privilege, when the attorney is an employee, servant or agent of the United States;

This codifies a lot of that Clinton-era stuff.

(6)    assertion that any classification of information, documents or things precludes disclosing same in response to the subpoena or subpoena duces tecum;

Can't classify your crimes....

(7)    assertion of any privilege, theory, or argument which resembles or has the ultimate effect similar to any of the privileges, theories or arguments listed in paragraphs (1) -(6) of this subsection, this paragraph (7) to be construed liberally in favor of disclosure and against non-disclosure, except as is set forth in paragraphs (8) and (9) of this subsection

(8)    The invocation of the privilege against self-incrimination by any person shall not be limited by this Act, but upon invocation of the privilege against self-incrimination by any person an adverse inference shall be drawn in any context in which such an adverse inference is permitted by law existing as of the time of passage of this Act.

This preserves the privilege, but makes clear they can, inter alia, lose their jobs for it.

(9)    This Act shall not be construed as conferring any immunity upon any person or entity, and no court, judge or justice shall have jurisdiction to consider any claim or argument that this Act confers any immunity upon any person or entity.

The anti-Ollie North rule.  The "no court, judge or justice shall have jurisdiction" court-stripping language comes from that bastard love-child of Lindsay Graham, John McCain, et als. - the MCA.  You'll see it again.

(b) Use, retention, or consultation with private counsel, or of private funds, for any of the purposes listed in subsection (a) of this section.

©  Filing in any court or before any judge or justice any motion, petition or other proceeding, seeking to quash or limit any subpoena or subpoena duces tecum from the House of Representatives or the Senate, or a committee of either body or a Joint Committee of both bodies.

Keeping the contempt power free of Fielding's obstructionism from the Anne Gorsuch case.  Remember, the Reagan admin went and filed for an injunction against enforcement of the Congressional subpoena.

(d)  Failing to answer, fully, completely and responsively, any official letter inquiry from a member of the House of Representatives or Senate within 14 days of the date of such official letter inquiry.

This started (at least as to me) with Condi Rice testifying "I'll have to get back to you on that question." then blowing off Webb's letters following up on her promise and asking for the promised answer.  The question asked "what is the policy of the United States" as to a particular issue.  

(e)  Issuance of any Executive Order, so-called signing statement, or other statement or directive which might tend to impede the Legislature in receiving accurate, complete and timely information.

Again, cutting off the creativity angles.

(f)  It shall not be a defense that the person alleged to have carried out any prohibited act or purpose believed their carrying out any prohibited act or purpose was lawful or was lawfully ordered by a superior or the President.

Harriet Miers, calling Harriet Miers!

(g)  The prohibitions of this section shall be cumulative to any other law, and shall be liberally construed in favor of Members of Congress and against the President, Vice President, and officers, employees, agents and servants of the Executive Branch or agencies, activities or instrumentalities thereof.

Section 4.  Applicability of Act to President, Executive Branch, Vice President.

In addition to the President and all Executive Branch agencies, activities and instrumentalities, the Vice President and the Office of the Vice President shall be subject to all provisions of this Act.

Somewhere along the line of outrages, Deadeye Dick moved himself from outside the Executive a couple weeks ago, to back inside this week, when he needed to be there.  This is to cut down on such chicanery.  Doesn't define where he is, but makes clear he's subject to it.  The fun for him is in the next section.

Section 5.  Vice President and Office of Vice President - reorganization.

(a)  Any other provision of law to the contrary notwithstanding, the Office of the Vice President shall be comprised of the Vice President, a driver, two personal secretaries, a military aide, and two clerks.  The personal secretaries shall be government employees in the Civil Service and be paid at pay grade GS-11.  The military aide shall rank no higher than lieutenant colonel (Army, Air Force or Marine Corps) or commander (Navy or Coast Guard). The clerks shall be government employees at pay grade GS-11 or lower, and shall be appointed from among normal civil service applicants and competition.

(b)    Any other provision of law to the contrary notwithstanding, the Executive Branch  shall not assign, detail or second personnel to the Office of Vice President beyond those described in subsection (a) of this section, with the exception that medical personnel necessary for emergency or other medical treatment of the Vice President or members of the immediate family of the Vice President may be assigned, detailed or seconded to provide such treatment and with the further exception that the Secret Service may provide personal protection for the Vice President and members of the immediate family of the Vice President at the levels existing as of January 20, 2001.

©    Any other provision of law to the contrary notwithstanding, no personnel employed or contracted for employment by the United States or any part of the Executive Branch may be assigned, detailed or seconded to the Office of Vice President beyond those described in subsection (a) of this section, with the exception that medical personnel necessary for emergency or other medical treatment of the Vice President or members of the immediate family of the Vice President may be assigned, detailed or seconded to provide such treatment and personal protection by the Secret Service as described in subsection (b) of this section.

(d)    By way of clarification and elaboration, any other provision of law or executive order to the contrary notwithstanding, the Vice-President had, has and shall have no command authority over any military or police forces of or existing under the laws of the United States or the several states.

(e)    The President has not had, does not have and shall not have authority to delegate to the Vice President any authority to command any military or police forces of or existing under the laws of the United States.

(a) The provision, use, solicitation or receipt and retention of any private funds or goods or services-in-kind, from whatever source derived, for or to be used for circumventing any provision of this Act, shall constitute a crime, which may be charged in addition to any other crime now existing which would comprehend the same conduct, transaction or occurrence.

(b)     In the event the amount of funds, goods or services-in-kind referred to in subsection (a) of this section is valued at One thousand dollars or less, the maximum punishment shall be one month in prison and a fine no less than one thousand dollars and no more than twice the value of the funds, goods, or services-in-kind.
©    In the event the amount of funds, goods or services-in-kind referred to in subsection (a) of this section is valued at between One thousand dollars and One million dollars, the maximum punishment shall be five years in prison and a fine of no more than twice the value of the funds, goods, or services-in-kind, and the minimum punishment six months incarceration, which may not be suspended or otherwise avoided, and a fine of no less than one hundred thousand dollars.

(d)    In the event the amount of funds, goods or services-in-kind referred to in subsection (a) of this section is valued at between more than One million dollars, the maximum punishment shall be ten years in prison and a fine of no more than twice the value of the funds, goods or services-in-kind, and the minimum punishment shall be five years in prison and a fine equal to the value of the funds, goods or services-in-kind, no part of which may not be suspended or otherwise avoided.

(e)    The provisions of this section shall be cumulative to any other law now existing.

I told you you'd see this again.

(a)  No court, judge, or justice shall have jurisdiction to consider any action, motion, petition or other proceeding, seeking to quash or limit any subpoena or subpoena duces tecum from the House of Representatives or the Senate, or a committee of either body.

Really simple - you get a subpoena, you answer it.

(b)    No court, judge, or justice shall have jurisdiction to consider any motion, petition, or other proceeding brought by or on behalf of the President, the Vice President or any person or entity within the Executive Branch which in any way seeks to challenge or minimize the enforceability of this Act or declare unconstitutional, in whole or in part, this Act.

Sounds a lot like the prohibition on judicial review of the MCA, no?

©    No court, judge, or justice shall have jurisdiction to enforce any provision of any Executive Order, so-called signing statement, or other statement or directive of or by the President or Vice President issued on or after January 20, 2001 and which seeks to modify, contravene or otherwise change the wording or effect of any Public Law or Private Law or to claim authority to not enforce any provision of any Public Law or Private Law.

Section 8. Mandatory entry of default judgment in certain circumstances.

This works to redo the state secrets privilege.  The core problem with it is, that the government takes no hit for invoking it.  If they invoke it, they win.  This places a downside on invoking the state secrets privilege.

In any case, claim, action, petition, proceeding or litigation in which the United States, the President, the Vice President or any officer, employee, agency or instrumentality of the United States is a party or in which the United States, the President, the Vice President or any officer, employee, agency or instrumentality of the United States seeks to intervene or be heard as amicus curiae, a default judgment shall be entered against the United States, the President, the Vice President, the officer, employee, agency or the instrumentality of the United States, as the case may be, in the event any of the following defenses or privileges are raised, alleged, or invoked in the course of any such proceedings:

(a)    the so-called state secrets privilege;
(b)    the so-called executive privilege;

©    the so-called Unitary Executive theory;  or

(d)    upon assertion of any privilege, theory, or argument which resembles or has the ultimate effect similar to any of the privileges, theories or arguments listed in subsections (a) -© of this section, this subsection (d) to be construed liberally in favor of entry of a default judgment and against the applicability of any so-called privilege, theory or argument.

So, let's say you get kidnapped by the CIA and rendered off to prison, then released when they determine you're the wrong guy.  Right now, to cover up for themselves, they would just claim "state secret" and you'd get nothing.  Under this change, they could still claim "state secret", but then you'd get a default judgment in your favor.  That would establish liability in your favor and you'd go to what's called a "proof hearing".  There, you'd put forward your claims of damages and your proofs, and the judge would rule how much you get.

Section 9.   Repeal of Military Commissions Act of 2006, private rights of action, presumptions, reinstatement of actions.

(a) The Military Commissions Act of 2006 be and hereby is repealed.  This repeal shall be construed as though the Military Commissions Act of 2006 was never presented to or executed by the President.

That was simple, wasn't it?

  The second sentence mirrors the language in the MCA which was intended to insulate government officials from liability for their actions, and removes that insulation.

(b) Private causes of action.

    (1)  The First, Second, Third, and Fourth Geneva Conventions of 1949 shall constitute and provide a private cause of action for any person to whom any of said conventions pertain, which actions shall proceed as an ordinary civil action for any legal and equitable relief such person deems appropriate to seek or petition for a writ of habeas corpus, or both, as appropriate, and which, any other law to the contrary notwithstanding, may be heard in any United States District Court.

The last clause eliminates all the venue chicanery Rumsfeld and the Admin put to work in Hamdan, where they argued New York (whence he'd been moved during litigation) was not a proper venue.

(2)  This private cause of action shall be supplemental to claims which might be brought by such person under the Federal Tort Claims Act or other any other act providing for relief for tortious or other wrongs or conduct.  

That was simple, too. IIRC, the Admin put some of this chicanery up in their arguments in some of the detainee cases (and yesterday in Plame's case), though the Courts never really got to it in any case other than Plame's.

(3)  This private cause of action may be brought by the person aggrieved or in the name of the person aggrieved by a guardian ad litem or next friend, as appropriate.  

Remember, the gov't argued only the captive himself could bring his suit, but because he couldn't read or write English (or was held captive somewhere with no mail service) couldn't file anything?  When they tried to get cases brought by next friends (like Hamdan) or family members of detainees dismissed?  no more of hat chicanery.

(4)  This Act being an amendatory and remedial act, all courts, judges and justices shall construe this Act and the First, Second, Third, and Fourth Geneva Conventions of 1949 liberally and in favor of persons claiming to be aggrieved.

©  Disposition of captives.
   

(1) As to any person in the possession, custody or control of the United States or any instrumentality thereof, and as to all persons in the possession, custody or control of the United States at or near a place commonly known as Guantanamo Bay, Cuba or elsewhere in the world, who as of the date of introduction of this act:

(A) both

(I) was not convicted in a criminal court of the United States or any of the several states and
 (II) was not then currently serving any part of a sentence imposed by a judgment of conviction by any such court, or

(B)is not held pursuant to a valid international warrant, detainer or similar document issued prior to the date of introduction of this Act,

there shall exist a conclusive presumption that the First, Second, Third, and Fourth Geneva Conventions of 1949 and the provisions of this Act shall apply to that person.

A conclusive presumption is one which establishes a fact irrefutably.  This subsection says that if you are in the custody of the US anywhere and as of the date of the act's introduction were not either (A) both convicted and serving a criminal sentence or (B) being held under a detainer issued before the Act's introduction, you get Geneva.  The date of introduction of the Act (rather than enactment) is used to measure things to avoid rapid Admin chicanery.

 (2) As to persons held pursuant to an international warrant, detainer or similar document issued on or subsequent to the date of introduction of this Act, the presumption of applicability in paragraph (1) of this subsection shall be rebuttable only upon proof by the United States, by proof beyond a reasonable doubt that said warrant, detainer or similar document was not procured by or on behalf of the United States to avoid the operation of paragraph (1) of this subsection.

More chicanery avoidance. The US has to prove they didn't act to avoid the act.

(d)    As to any person in the possession, custody or control of a foreign power receiving from the United States military or foreign aid of any type whatsoever, who at any point was delivered into or transferred to any said foreign power, under any program of so-called "extraordinary rendition" or similar program by whatever name, there shall exist a conclusive presumption that the First, Second, Third, and Fourth Geneva Conventions of 1949 shall apply to that person.

Cuts the guts out of the "Send 'em to people who can torture them" rationale for extraordinary rendition.

(e)    Any action brought, in whole or in part, under the provisions of the First, Second, Third, and Fourth Geneva Conventions of 1949 shall be brought against the United States as a defendant, and as to individual defendants, plaintiffs or petitioners may use fictitious defendant practice to the maximum extent allowed under existing law.

No hiding people from being defendants by using false names.  This also works with the changes to state secrets to ease the litigation's progress.

(f)    As to all actions brought under this section of this Act, the United States explicitly waives all immunities to any suit for damages.

In case there was any doubt about that.

(g)    It shall not be a defense to any actions brought under this section of this Act or the First, Second, Third or Fourth Geneva Conventions of 1949 that the defendant alleged to have carried out any act prohibited by such Convention or other law believed their carrying out any such act was lawful or was lawfully ordered by a superior or the President.

No "just following orders" defenses.

(h)    Any judgment in any action brought under this section of this Act or the First, Second, Third or Fourth Geneva Conventions of 1949 shall not be dischargeable in bankruptcy and shall be entitled to full faith and credit in any jurisdiction, and may be enforceable by issuance of a writ of capias ad satisficiendum or other appropriate writ or order.

(i)    Any claims, actions, suits, petitions or proceedings which were dismissed on or after January 20, 2001, which dismissal came about in whole or in part under the provisions of the Military Commissions Act of 2006, the Detainee Treatment Act of 2005, by operation of the so-called state secrets privilege, so-called executive privilege,  the so-called unitary executive theory, any arguments that the party aggrieved by the dismissal lacked standing to sue under the Geneva Conventions of 1949, or other treaty or law, shall be subject to reinstatement and that the dismissal be vacated if, on application to the Court issuing the order, judgment or mandate of dismissal, the person or entity aggrieved by the dismissal can show some evidence that the claim, action, suit, petition, or proceeding would not have been subject to dismissal by, through or under the provisions of this Act.  In the event of a dismissal being vacated, the action shall proceed as though the dismissal had not occurred, and any statutes of limitation shall be considered to have been tolled.  Any such application for vacating dismissals not be filed within five years of the date of the enactment of this Act shall be denied, unless the person so applying can show exceptional circumstances for allowing the action to proceed.

This allows reinstatement of all those cases - which were dismissed - over things like the NSA tapping your phones, the CIA kidnapping you off a hill and torturing you in a secret prison, etc.  To eliminate the taint in our culture brought on by this Admin's actions, we have to go back and right the wrongs.  Else it will fester.

(j)    In the course of any claim, action, suit or proceeding, the United States shall not claim, without prior approval of the Court hearing same, entitlement to any privilege or doctrine precluding discovery.

This eliminates foot-dragging and trying to hide the truth.

Section 10.   Return of Guantanamo Bay Naval Station to Cuba, disposition of captives.

(a)  The United States shall, within 90 days of the enactment of this Act, undertake to begin relinquishing to the Republic of Cuba any and all right, claim or title to that land and improvements thereon, located at Guantanamo Bay on the Island of Cuba, commonly known as Guantanamo Bay Naval Station and shall complete such negotiations and actions as are necessary to complete such relinquishment within one year of the enactment of this Act, subject to the requirements and provisions of the treaty between now existing between the United States and the Republic of Cuba pertaining to such land and improvements.

I think this is actually part of some of the proposals out there.  

(b)  Any law, regulation or executive order to the contrary notwithstanding, no funds of the United States may be used for any operations or activities at Guantanamo Bay Naval Station later than the earlier of (1) January 20, 2009 or (2) that date one year following the enactment of this act.

Likewise.

©  Any and all persons now, or in the future, at Guantanamo Bay Naval Station or any facilities thereon, shall be brought, within thirty days of the enactment of this Act:

(1) to a secure place within the continental United States, or
 (2) shall be forthwith returned at the expense of the United States to

 

  (A) their home countries or
    (B)  a country of their choice which may accept them, or

 (3) shall be released.

This, too.

(d)  The provisions of all sections of this act shall apply in favor of all persons held at Guantanamo Bay Naval Station or any facilities thereon, regardless of the place to which they  shall be brought in fulfillment of subsection © of this section.

Just in case there was any question.

Section 11.  Expiration and survival, severability.

(a)  The provisions of this Act shall expire at one minute past noon, at Washington, D.C., on January 20, 2009, except as set forth in subsection (b) or © of this section.
(b)    The provisions of this Act shall not expire as set forth in subsection (a) of this section as follows:

(1)    as to any suit, claim, action, petition, proceeding or litigation then pending in any Court, or as to which the time for filing any complaint or other initial pleading or petition has not yet expired, or as to which the time to file any appeal or motion or petition for reconsideration or for any writ has not yet expired, and which relates to any transaction or occurrence which occurred between noon at Washington, D.C. on  January 20, 2001 and noon, at Washington, D.C. on January 20, 2009;
(2)    As to the so-called Unitary Executive theory, or any similar theory under any name;

(3)    As to any transactions or occurrences which occurred, in whole or in part, between noon at Washington, D.C. on  January 20, 2001 and noon, at Washington, D.C. on January 20, 2009, and the existence of which is not discovered or was not reasonably susceptible of being discovered until some time thereafter;

(4)    As to the provisions of section 4 of this Act;

(5)    As to the provisions of section 5 of this Act;

(6)    As to the provisions of section 6 of this Act, but only in those instances in which the same would apply to paragraphs (1), (2) and (3) of this subsection;

(7)    As to the provisions of subsections (b) and © of section 7 of this Act.

(8)    As to the provisions of paragraphs (1) and (3) and (4) of subsection (b) of section 8 of this Act

(9)    As to the provisions of paragraph (4) of subsection (b) of section 8 of this Act, insofar as it relates to paragraphs (1) and (3) of subsection (b) of section 8 of this Act.

(10)    As to the provisions of section 9 of this Act.

(11)    As to the provisions of section 10 of this Act.

Just to make sure that running out the clock doesn't work.

©  In the event any person occupying the office of President or Vice President during the time beginning on January 20, 2001 and ending at noon at Washington D.C. on January 20, 2009 shall continue in or occupy the office of President or Vice President after noon at Washington, D.C. on January 20, 2009, the provisions of this  Act shall remain in effect and shall not expire until no earlier than 5 years after the date that said person shall leave said office or offices.

Because I think they will try to avoid leaving.

(d)  In the event any court should find any provision of this Act unconstitutional, that portion shall be severed and the remainder remain in full force and effect.

Self-explanatory.