(BIVN) – Hawai‘i County Councilmember Jen Ruggles and her attorney say the legal opinion of the County’s Corporation Counsel regarding possible criminal liability for war crimes is “inadequate,” and Ruggles says she will continue to “refrain from legislating” until county lawyers can provide a “proper legal opinion”.

Ruggles surprised her fellow councilmembers during a committee meeting on August 21, when she announced that she “will be refraining from participating in the proposing and enacting of legislation” until county lawyers are able to assure her that she “is not incurring criminal liability under international humanitarian law and U.S. law.”

Ruggles made the formal request for an opinion from the county’s corporation counsel after she “had recently come to understand that she may be in violation of her oath of office to uphold the United States constitution and may be incurring criminal liability for war crimes under both U.S. federal law and international law,” she said. The first term Puna councilwoman made reference to an email she says the council received in June, in which the Hawaiian Kingdom acting Council of Regency informed her of several legal actions, including a memorandum authored by a United Nations Independent Expert stating his understanding of Hawai‘i as a “sovereign nation-state in continuity” which is “under a strange form of occupation by the United States resulting from an illegal military occupation and fradulent annexation.”

During the meeting, Hawai‘i Corporation Counsel Joseph Kamelamela stated that he had not read the materials provided by Ruggles’ private attorney, Stephen Laudig. Nevertheless, Kamelamela told the council that “these claims” are coming from “Hawaiian sovereignty groups”, and that the claims are “invalid” because they are “not a recognized sovereign entity”. Dissatisfied by the answer and unable to abstain from voting per the council’s rules of procedure, Ruggles left the committee meeting and was not back the next day for the full council meeting.

Hilo councilmember Aaron Chung brought up the topic during a moment of personal priveledge on August 22.

“I still am not clear as to what …her position is,” Chung said, “but as far as I can tell, what she’s done – in effect – is deferred to some other tribunal in favor of recognizing the legitimacy of our County Council, this board. Because she could have easily said that she will continue sitting on this board until she gets an opinion from corp counsel. What she did is she erred on the other side. She elected to leave, awaiting the opinion of corp counsel.”

Chung said Mr. Kamelamela “has been put in a very tough spot, almost an untenable situation, because if he doesn’t come up with a written opinion, he’s gonna be blamed for Ms. Ruggles not coming back here. She could have standing to blame him. And I don’t want our corp counsel to be put in that situation. So Joe, I’m gonna give you a suggestion, okay? In as much as Ms. Ruggles has retained the services of her private attorney – whose opinions are contrary to what you had told us verbally, yesterday – I would say don’t put anything in writing. Let her make the move.”

Chung told Kamelamela, “it would be a misuse of county funds for you to expend any resources trying to address that, because it could be used later in some kind of litigation. I don’t want to think poorly of Ms. Ruggles, but I think… it’s not out of the realm of possibilities that they’re trying to set up your office. I would say to stay out of it.”

Finally, Chung said, “since she has chosen voluntarily to leave this board and is questioning the legitimacy of this board and the county of Hawai‘i, the state of Hawai‘i, and the United States of America – I’m gonna have to ask the chairperson … withhold her pay. Because she’s not fulfilling the functions of this board.” Chung said “we owe a fiduciary responsibility to the taxpayers of the county.”

Kamelamela offered an opinion anyway, and in a short letter dated August 22, the corporation counsel wrote:

Aloha Councilmember Ruggles:

At the Council Committee meeting held on Monday, August 21, 2018 at the West Hawai‘i Civic Center, you announced that you “will be refraining from participating in the proposing and enacting of legislation” until county lawyers will assure you in writing that you will not incur “criminal liability under international humanitarian law and U.S. law.”

In response to your inquiry, we opine that you will not incur any criminal liability under state, federal and international law. See Article VI, Constitution of the United States of America (international law cannot violate federal law).

Should you have any other questions, please contact me.

On August 28, Ruggles’ attorney Stephen Laudig responded:

Dear Corporation Counsel Joseph K. Kamelamela:

As legal counsel for Council member Ruggles, this letter serves to acknowledge receipt of your letter to her dated 22 August 2018. In that letter you wrote, “Should you have any other questions, please contact me.” Council member Ruggles has no ‘other questions’ because her initial request for a ‘legal opinion’ remains unanswered in any substantive way.

You also wrote, “In response to your inquiry, we opine that you will not incur any criminal liability under state, federal, and international law. See Article VI, Constitution of the United States of America (international law cannot violate federal law).” Article VI states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

You provide no reasoning which carries a reader from Article VI of the United States Constitution to your stated conclusion. As you provide no explicit reasoning, I cannot follow the reasoning. As there is no reasoning to comment on I have no comment. What you call a ‘legal opinion’ is nothing more than a bare conclusory statement of no obvious value due to its unrevealed reasoning.

Your conclusory one sentence, which boiled down to, in essence, is “See Article VI”, isn’t an ‘opinion’. What I understand you to be referring to, the pertinent part of Article VI, is, in its entirety, longer than your non-responsive reply.

Your office, as a legal adviser to the Hawai‘i County Council, tasks you with giving legal advice — advice that can be relied upon, on matters related to my client’s office, official powers and duties. Hawai‘i Rules of Professional Conduct (2014) Rule 1.1—Competence, comment 5, states:

“Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners”. My 21 August 2018 letter was her request, conveyed by me, in her capacity as an officer in her official capacity seeking legal advice from you in order advise and assure her that she was “not incurring criminal liability under international humanitarian law and United States Federal law as a Council member for:

1. Participating in legislation of the Hawai‘i County Council that would appear to be in violation of Article 43 of the Hague Regulations and Article 64 of the Geneva Convention which require that the laws of the Hawaiian Kingdom be administered instead of the laws of the United States;

2. Being complicit in the collection of taxes, or fines, from protected persons that stem from legislation enacted by the Hawai‘i County Council, appear to be in violation of Articles 28 and 47 of the Hague Regulations and Article 33 of the Geneva Convention which prohibit pillaging;

3. Being complicit in the foreclosures of properties of protected persons for delinquent property taxes that stem from legislation enacted by the Hawai‘i County Council, which would appear to violate Articles 28 and 47 of the Hague Regulations and Article 33 of the Geneva Convention which prohibit pillaging, as well as in violation of Article 46 of the Hague Regulations and Articles 50 and 53 of the Geneva Convention where private property is not to be confiscated; and

4. Being complicit in the prosecution of protected persons for committing misdemeanors, or felonies, that stem from legislation enacted by the Hawai‘i County Council, which would appear to violate Article 147 of the Geneva Convention where protected persons cannot be unlawfully confined, or denied a fair and regular trial by a tribunal with competent jurisdiction”

The legal definition of assure is to “make certain and put beyond all doubt”. See Black’s Law (1996), p. 123. The word ‘all’ may be too strong a standard, so I will substitute it with ‘beyond reasonable doubt’. Your letter gives no reasoning and thus does not ‘assure’. Your letter provides no analysis, or argument making it something other than a legal opinion in the sense that it marshals no facts or law to reach a reasoned position. The meaning of this phrase ‘international law cannot violate federal law’, needs explanation as its meaning is murky to me and I have conscientiously attempted to understand it. It does not speak to the question of potential criminal liability as to the article of the Constitution you refer to. It sounds like you are saying that compliance with United States federal law immunizes one from prosecution under international law. That’s simply not true. If this is not what you are saying, please clarify.

Your conclusion, however, reflects a similar legal position taken by U.S. Department of Justice Deputy Assistant Attorney General John Yoo in his legal opinion, which became infamous, regarding Application of Treaties and Laws to al Qaeda and Taliban Detainees dated 9 January 2002. His memorandum was in response to questions posed by the General Counsel for the Department of Defense “concerning the effect of international treaties and federal laws on the treatment of individuals detained by the U.S. Armed Forces during the conflict in Afghanistan.” Yoo, in his memorandum, stated:

We believe it most useful to structure the analysis of these questions by focusing on the War Crimes Act, 18 U.S.C. §2441 (Supp. III 1997) (“WCA”). The WCA directly incorporates several provisions of international treaties governing the laws of war into the federal criminal code.

After 42 pages of analysis, Yoo stated:

For the foregoing reasons, we conclude that neither the federal War Crimes Act not the Geneva Conventions would apply to the detention conditions in Guantanamo Bay, Cuba, or to trial by military commission of al Qaeda or Taliban prisoners. We also conclude that customary international law has no binding legal effect on either the President or the military because it is not federal law, as recognized by the Constitution. Nonetheless, we also believe that the President, as Commander in Chief, has the constitutional authority to impose the customary laws of war on both the al Qaeda and Taliban groups and the U.S. Armed Forces.

Yoo’s legal opinion was found to be flawed and allegations of war crimes against Yoo and those relying on his opinion, arose in Germany in 2006, Spain in 2009, and Russia in 2013. After the United States Senate Intelligence Committee Report on CIA torture was released in December 2014, Erwin Chemerinsky, who at the time was Dean of the University of California, Irvine School of Law, called for the prosecution of Yoo for his role in authoring, as well as co-authoring, what came to be known as the Torture Memos.

On this subject, I would respectfully caution you as to how you answer Council member Ruggles’ inquiries, because she is not the only member of the County Council that could be affected by your legal opinion.

I would like to bring to your attention a previous opinion from you to Council member Ruggles dated 3 November 2017, re Orchidland Neighbors CRF Grant Follow-up, which is more along the line of what was hoped for and expected from Corporation Counsel. That opinion does, as near as I can tell, meet the standards of a qualified legal opinion. Another example of a legal opinion that meets the standard was by your predecessor, Lincoln Ashida, to former Council member Bob Jacobson on May 26, 2004, re Article III, Section 3-2, Hawai‘i County Charter WRK. NO. 03-3641.

There is another concern that needs to be brought to your attention. It is either your advertent, or inadvertent, attribution Council Member Ruggles’ ‘intent’ in asking for a legal opinion. At the Council Committee meeting on 21 August 2018, you verbally insinuated that she was with “Hawaiian sovereignty groups”. Setting aside as irrelevant your meaning of the term, this letter requests a clarification. Did you or did you not intend such an inference? If unintended it needs to be clarified. If intended, we state that we deny it and instruct you to cease falsely implying an intent. Even should you have a sincere fact-based belief, when speaking in public to a client such a ‘political’ comment is out of bounds particularly since your statements, made at a public hearing, regarding the inquiry were made when you had not yet even read her letter to you.

My client represents her constituents from District 5 pursuant to an oath of office. She doesn’t represent what you, sneeringly, referred to as ‘sovereignty groups’.

You have, in hand, Dr. deZayas’s legal memorandum where such a qualified individual, speaking in his official capacity as a United Nations Independent Expert, uses the terms ‘plundering’, ‘enabling’ and ‘colluding’, which are terms used in discussing criminal activity. Taking it lightly, or dismissively, seems imprudent.

Whether intended or not, your cavalier misstatement prompted the media to mistakenly portray Council member Ruggles’ questions regarding potential criminal liability, a legal matter, with a political movement. You may not have realized it, but the curt and dismissive manner of your delivery was, and not unreasonably, offensive and disrespectful not only to her, personally, but to the office she is privileged to hold.

This letter is in the nature of a follow up reminder and opportunity to provide what could be described as a ‘proper’ legal opinion which would include an ‘analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners’ as the Hawai‘i Rules of Professional Conduct (2014) outlines.

If you intend no further effort to provide such an opinion, please advise. If you need additional time in order to complete it let us know. If you intend to obtain outside counsel to assist your office, as it has done on other matters, please advise as to what entity or persons you intend to use.

Until you provide Council member Ruggles with a proper legal opinion responding to the statement of facts in that she has not incurred criminal liability for violating the 1907 Hague Regulations and the 1949 Geneva Convention, IV, I have advised my client that she must continue to refrain from legislating. For your reference, I am attaching the aforementioned legal opinions by Deputy Assistant Attorney General John Yoo and your office.

Sincerely,
Stephen Laudig

In a follow-up media release, Ruggles added, “I will be holding a townhall meeting on this issue shortly, and as always, welcome our constituents’ concerns, questions, and ideas on any issue. I am available to them and will continue to work hard in providing transparency and accountability in government.”

Ruggles’ move leaves some draft legislation in limbo. Her office has been working on a bill proposing a reduction in the use of herbicides on the island, for example. Supporters of the measure are hoping another councilmember will take up the proposed law and introduce it.