The Court will appropriately distribute to the assigned Associate Justice the evidence provided once it has been received.

Former Delegate of the South Pacific
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Counsels for both parties are reminded that they are pending answers and evidence to be delivered to this Court.

Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator.
I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum.

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Your honor,

I do apologize for the delay. All the requested information will be available in three days at the latest.

Reply

Your honor,

Due to real life demands on his time, Mall will be unable to continue providing representation in this matter. Ever Wandering Souls has requested that I take over representation and Mall has agreed to this arrangement.

I am in the process of preparing the requested answers and evidence. Please accept my and Ever Wandering Soul's apologies for the delay that this situation has caused. We will provide the requested information shortly.

Reply

Your Honor,

I have a lot to address, but I will try to keep this as concise as possible for the benefit of all involved, but there is a lot to go through. I have also broken this submission down into six substantive sections with multiple sub-sections and a conclusion for ease of review.

I. Appellant’s Response to Requests from the Court

A. Appellant has Provided the Requested Evidence to the Court

You are requested to produce as evidence the full contents of the conversation between your client and Imkitopia, as referenced in both parties' testimonies.

A full copy of the conversation between Ever Wandering Souls and Imkitopia has been provided to the Court in private. I see no reason why any of this conversation should be considered classified, but we are available to work with the Court to redact the logs as necessary pursuant to Article VIII, Section 2 of the Judicial Act.

B. The Conversation Between Ever Wandering Souls and Imkitopia was About the Future Relationship Between The Black Hawks and the South Pacific Special Forces

The counsel for the Cabinet contends that the conversation between your client and Imkitopia was in response for actions by Roavin, unrelated to any attempt to form a bilateral relationship. Does your client stand by his assertion on the nature of this conversation?

He does. The counsel for the Cabinet’s argument is essentially “because the South Pacific Special Force (SPSF) and The Black Hawks (TBH) engaged in a joint operation on September 10, 2016, the conversation on September 20, ten days later, was not about a future relationship as there was already a relationship.” This is a non-sequitur.

Relationships are not binary things that either exist or do not exist. Rather, they are complex things that evolve as the two parties’ positions relative to each other change. The existence of a weak relationship does not preclude discussing forming a stronger of different one. In this case, in early September, SPSF and TBH were discussing forming a relationship to cooperate in raiding operations. The metes and bounds of what that would look like were starting to form. Viewing the conversation between my client and Imkitopia as a whole, the context is clear: they were discussing how the future relationship between SPSF and TBH could work in view of operational security concerns. In other words, it was part of on-going discussions about the future military relationship between SPSF and TBH.


II. Appellant Should Be Given Access to Pertinent Evidence and Information

A. The Cabinet Must Explain the Basis on Which the Evidence is Classified

Under Article IX, Section 13 of the Charter of the South Pacific, the Intelligence Coordinator “must be notified of and approve all intelligence and counter-intelligence operations.” Furthermore, “The Intelligence Coordinator and the Minister of Military Affairs will maintain a regional intelligence classification system, as necessary for the ensuring information security” (emphasis added). Thus, there are two distinct requirements that are pertinent to this case: (1) any intelligence gathered must have come from an approved operation; and (2) any designation of intelligence as classified must be pursuant to an established system and be necessary for information security.

With regard to the first requirement, this provides an important procedural protection. It does not grant a direct power of classification. Information cannot simply be declared classified intelligence to prevent it becoming public knowledge when it suits the government. Classification is only available for information that is gathered from approved intelligence and counter-intelligence operations. Therefore, Appellant respectfully requests that the Cabinet establish to the Court’s satisfaction that any evidence it considers to be classified intelligence was gathered as part of an approved operation.

The second requirement further limits the scope of classification in the interests of transparency and open government. Even where intelligence is gathered as part of an approved operation, it must be classified according to a system, and only as necessary for ensuring information security. Without knowing what system is in place or how it was applied, it is impossible for Appellant (or the Court) to determine whether the evidence was legally and correctly classified. Therefore, Appellant respectfully requests the Cabinet provide an explanation of the classification system in place and how it was applied to each piece of purportedly classified evidence. I recognize that a detailed explanation may not be possible without revealing the contents of the classified information, but I trust my counterpart and the Court can handle the issue with appropriate discretion.

B. The Evidence the Cabinet is Relying Upon Must Be Made Available

The Cabinet’s legal position is that much of the evidence in support of their position is classified. Under TSP law and general principles of due process, this evidence should be made available in open court with suitable redaction. At a minimum, Appellant’s counsel should be given an opportunity to review the evidence. Otherwise, the evidence should be deemed inadmissible and disregarded. The Cabinet should also clarify the regime under which the evidence has been classified.

Under Article VIII, Section 1 of the Judicial Act, “material submitted for a case shall be submitted alongside the case proceedings in a public venue [by default].” The law only contains two exceptions to this default principle. Article VIII, Section 2 allows confidential material that may be harmful to regional security to be submitted “provided that the Court works with the corresponding authority to redact the information that may harm regional security,” while Article VIII, Section 3 provides protections against the disclosure of material of a personal nature. There is no suggestion in this case that any of the evidence if of a personal nature, so the only valid reason for it to not be submitted publically is of Article VIII, Section 2 applies.

Even if the Court finds that the evidence is legally and validly classified in response to Appellant’s request in section II.A, a redacted copy of the evidence must still be published. Article VIII, Section 2 requires the Court to “work with the corresponding authority to redact the information that may harm regional security.” The clear implication here is that the redacted version must then be published in open court. If the evidence were not made public, there would be no point in redacting it (the Court and the “corresponding authority” would already have seen the unredacted evidence as part of the redaction process).

At a minimum, I, as Appellant’s counsel, should be given an opportunity to review the evidence (suitably redacted if the Court and Intelligence Coordinator deem it necessary). The Cabinet’s counsel rightly notes “the South Pacifican values of openness and oversight” in his opening arguments. I agree with my counterpart that the law requires “a fair and open review by another independent branch of the government” when a proscription is challenged. Such a fair and open review is only possible where counsel for both parties are aware of the evidence under consideration. In sum, I respectfully request that all of the evidence the Cabinet wishes this Court to consider be submitted in public (subject to whatever redaction is deemed necessary) and, if this Court deems that is not possible, I be given an opportunity to review the evidence in private. If neither is possible for any piece of evidence, a fair and open review is not possible, and I request that any such evidence be considered inadmissible and not considered.


III. Justice Sandaoguo Should Be Recused from this Case

Article I, Section 3 of the Judicial Act gives the Chief Justice the authority to recuse Associate Justices. Appellant requests the Chief Justice uses this authority to recuse Justice Sandaoguo due to conflicts of interest that arise in this case.

As addressed in Section II, above, the operation and application of the classification system are active issues in this case. As the Intelligence Coordinator at the times in question, Justice Sandaoguo has a conflict of interest in the resolution of of these issues. Furthermore, Justice Sandaoguo has publicly stated he has already reached a conclusion in Appellant’s case. (See, e.g., https://imgur.com/a/PpxtbGI, https://forum.nationstates.net/viewtopic...#p34408343 (“Souls gets their day, and I’m confident the court will see the evidence and reach the same conclusion as Roavin, Escade (yes, she voted for this), Tim, Somyrion, Farengeto, Nakari, and Resentine reached”)). His statement clearly indicates this conclusion is based on his involvement in the original decision, not review of whatever evidence and arguments are ultimately of record in this case. Justice Sandaoguo’s familiarity with the original decision and clear predisposition to a specific outcome are unquestionably a further conflict of interest.

In sum, Appellant respectfully requests that Justice Sandaoguo be recused from this case due to these conflicts of interest.


IV. The Proscription and the Cabinet's Defense of it Rely on Several Erroneous Assertions of Fact

Both the original proscription and the defense of it laid out in my counterpart’s opening arguments rely on erroneous assertions of fact. In this section, I will not tie those errors directly to legal deficiencies. Rather, this section serves to draw the Court’s attention to factual issues that are pertinent in other sections of this submission.

A. Appellant did not Attempt to Coerce Imkitopia into Firing Soldiers

Coercion is the practice of using force or intimidation to obtain the compliance of another. Potential partners in a joint operation are not coercing each other by providing conditions on the joint operation. For example, I am not coercing Verizon if I tell them I will not renew my contract if they don’t give me a new iPhone. Rather, I am stating the terms on which I am willing to engage in a transactional relationship. They remain free to accept or deny my terms, and I remain free to accept or deny any counteroffer.

In this case, as the Court can determine from the submitted evidence, Ever Wandering Souls did not attempt to coerce Imkitopia into firing soldiers. Rather, he raised concerns about a particular soldier and suggested that removal of that soldier would make entering into a longer term relationship easier. As a threshold matter, only the involvement of a singular soldier was discussed. The Cabinet’s characterization of this as attempting to “coerce Imki into firing soldiers” (plural) based on that conversation is at best misleading. More significantly, the logs demonstrate that no coercion took place. They show a fairly typical gameplay discussion where potential partners are discussing a genuine concern. Ever Wandering Souls simply laid out his concern regarding operational security and asked why, given Imkitopia had expressed her own concerns about the soldier in question, she did not simply remove him. No threats or attempts at intimidation were made. This conclusion is further demonstrated by Imkitopia herself, who has repeatedly stated that nothing untowards occurred during these conversations. (See, e.g., https://imgur.com/a/iNEIPVi, https://forum.nationstates.net/viewtopic...#p34408068, see also https://i.imgur.com/dWzQAIs.png).

In sum, there was no coercion and the Cabinet’s assertion to the contrary is erroneous.

B. Contrary to the Cabinet’s Assertion, The Black Hawks were Involved in the Occupation of Spanish Kingdom

In the Cabinet’s opening arguments, counsel states “The incident in question occured after the liberation (with help by the South Pacific Special Forces) of the region Spanish Kingdom from an invasion by Osiris’ Sekhmet Legion (an invasion not performed by, or supported by, The Black Hawks), which occurred on September 19, 2016. This is false.

As can be seen from the edits made to the World Factbook Entry of Spanish Kingdom by the occupying force on both the 19th and 20th of September, TBH were directly involved. (See https://imgur.com/a/2Xmilij, https://imgur.com/a/2A6lNkh). In particular, the Sekhmet Legion explicitly thanked TBH for their support in the operation.

C. Appellant was not the Singular Reason why The East Pacific Proscribed The Black Hawks

The East Pacific (TEP) proscribed TBH on March 27, 2018. In making the announcement (see here: https://imgur.com/a/LYxD9WQ, https://forum.nationstates.net/viewtopic...#p33725127), TEP stated TBH was being proscribed for “[e]xploiting the GCRs for gains and attempting to manipulate their regional communities to capitulate into demands for support while offering nothing of substance in return” and because “this constitutes a significant risk to the continued stability and sovereignty of our governments.” The announcement makes no mention of Appellant, nor does any other post made by TEP in their gameplay embassy. In other words, whatever dissatisfaction individual TEP officials may have had with him, Appellant was not “the singular reason why TEP proscribed [TBH],” as claimed by the Cabinet.

Furthermore, even were Ever Wandering Souls’ conduct a factor in the decision, TEP’s announcement proves he was not “the singular reason.” The announcement tells us that the reasons for the proscription included: (1) exploiting GCRs for gains; (2) attempting to manipulate GCR regional communities; and (3) being a threat to the continued stability and sovereignty of GCR governments. Thus, at most, Appellant was one of four reasons for the prescription. In other words, the Cabinet’s assertion that he was the singular reason is patently and demonstrably false.

D. Appellant was not the Singular Reason why The West Pacific Proscribed The Black Hawks

The West Pacific (TWP) made the same announcement as TEP (see here: https://imgur.com/a/sqzLNAj, https://forum.nationstates.net/viewtopic...#p33725125). Thus, the Cabinet’s assertion that Appellant was “the singular reason” for the proscription is equally false.

Appellant thanks the Cabinet for partially recognizing its error in its opening arguments. However, while Cabinet tries to walk back this statement, suggesting that Appellant’s conduct was a reason rather than the singular reason, this is irrelevant. Under Article IV, Section 1 of the Proscription Act, this appeal is to determine the correctness of “the issuing authority's determination of hostility.” Acknowledgments of errors after the fact are irrelevant (except to the extent they are admissions), what matters for the purposes of this appeal is whether the Cabinet’s proscription was correct when issued. And the statement it issued at the time and its later admission in its opening arguments show that it was based on a erroneous understanding of the facts.


V. The Cabinet Failed to Adequately Report on the Alleged Hostile Acts on which their Proscription of Ever Wandering Souls was Based

Article IV, Section 2 of the Proscription act requires that “[a] proscription must be issued publicly, and be accompanied with a report detailing the hostile acts.” (emphasis added). The Act does not provide any further details of definition regarding what is required. However, the words of the law alone provide two clear requirements: there must be a report and the report must provide details of the alleged hostile acts. The choice of the word “report” implies an obligation to explain, while the choice of the word “detailing” implies that general conclusions are not adequate: the Cabinet must provide details that explain why the acts in question qualify as hostile acts under the law. This is consistent with the balance that the Proscription Act aims to set between providing the region the power to exclude those that would do it harm while respecting the fundamental values of transparency, openness, and due process. The law provides no guidance as to how much detail is enough, but under any reasonable interpretation, the Cabinet’s proscription (seen here: http://tspforums.xyz/thread-6362-post-17...#pid173724) fails to meet this standard.

Given that the law requires that the report accompanies the issuance of the proscription, I will give the Cabinet the benefit of the doubt and assume that the reasons given in the proscription announcement were intended to be the report (the alternative being that no report was provided at all). The proscription announcement provides five bullet points to try and justify the decision, which have been labelled A through E for the purposes of this case. A is not an act at all and is thus irrelevant. C and D are also not acts, although they inferentially infer to acts. Furthermore, those inferential acts are only referenced as broad allegations of misconduct, one of which the Cabinet has already conceded is untrue. E is even more broadly stated and generalized. Rather than providing detail of the alleged hostile act, the Cabinet merely makes a broad allegation that there is or was a conspiracy to overthrow the Coalition and relies on an ambiguous claim of sensitive intelligence to avoid providing any detail. Under no reasonable interpretation of the law can the broad, generalized allegations of misconduct of C, D, and E be considered to providing “detail of hostile acts.”

The only claim in the announcement that even plausibly could be argued to provide detail is B. However, as established in Section IV, above, B is a serious mischaracterization of the corresponding events. A party to a negotiation laying out its concerns and providing conditions for a future working relationship are not coercion; the are a run of the mill part of the negotiation process. Furthermore, even if the characterization were accurate, the cabinet failed to provide any detail that would explain why those events qualify as a hostile act as defined in the Proscription Act. B does not identify what “unrelated incidents” were used for coercion, what soldiers were to be fired, or how this was detrimental to SPSF. In short, even if true (which it is not), the broad allegation of coercion cannot be said to meet the standard imposed by the Proscription Act of “a report detailing the hostile acts.”

Therefore, on procedural grounds alone, the proscription of Ever Wandering Souls is deficient and should be declared void.


VI. The facts Asserted do not Prove Appellant Committed Acts of Hostility

Article III, Section 1 of the Proscription Act grants the Cabinet authority to proscribe an individual who is deemed to be hostile. Article I of the Proscription Act provides the legal definition of acts of hostility for this purpose. In particular, it defines five types of act that may be the basis for a finding that an individual is legally hostile. As a threshold matter, Appellant notes the Cabinet asserts some of the evidence provides context and, in particular, that item A was presented “to establish hostility in the colloquial sense.” However, this is irrelevant: the colloquial understanding of hostility has no bearing of the legal definition. No acts outside of those enumerated in the Proscription Act, no matter how distasteful to the Cabinet, are relevant to this determination. Appellant cannot be deemed hostile as defined by law.

The Cabinet has conceded that two of the grounds for a finding of hostility do not apply by not asserting them (those defined in Article I, Section 2 and Article I, Section 5). As demonstrated below, the facts do not support a finding of hostility on any of the asserted grounds.

A. The Evidence Does not Support a Finding that Appellant was Involved or Complicit in an Attempt to Overthrow the Legal Government of the South Pacific

Under Article I, Section 1 of the Proscription Act, an individual may be deemed hostile if that individual “was or is actively involved or complicit in an attempt, successful or otherwise, to illegally overthrow the legitimate government of The South Pacific or its allies and partners.” Thus, there are several elements that must be met: (1) there must have been or currently be an on-going attempt to overthrow the government; (2) the individual must have been or currently be involved or complicit in that attempt; (3) the government in question must be legitimate.

For the sake of brevity, Appellant will concede that the current government of TSP is legitimate. It would make a mockery of these proceedings even occurring if that were not the case. However, the Cabinet has provided no evidence that an attempt to overthrow the government occurred or is underway, nor that Appellant was involved or complicit in any such attempt. Of the five items included in the Cabinet’s report and relied upon in its arguments, A through D can be immediately set aside as they are irrelevant to the question of whether there is or was an attempt to overthrow the government. The Cabinet appears to acknowledge this in its opening arguments, referencing only item E in its argument that Appellant is hostile under Section 1.

However, item E fails to establish that an attempt to overthrow the government occurred or is underway. In fact, E is nothing more than a conclusory statement that such an attempt occurred. It is not evidence at all. To the extent that there is further classified evidence to this point, Appellant cannot meaningfully respond to it without being given the opportunity to review it. As established in Section II of this submission, if the Cabinet wishes to rely on this evidence, the Judicial Act and general principles of due process require that it be presented in open court and appellant be given the opportunity to respond. If the Cabinet is unwilling to comply with those requirements, preferring to retain the secrecy of whatever intelligence exists, that is its right, but it cannot also rely on that evidence in those proceedings. Either it presents its evidence with appropriate redaction and accepts there will be some loss of secrecy or it does not get to use that evidence in these proceedings. It cannot have its cake and eat it.

As the Cabinet cannot demonstrate that there is or was an attempt to overthrow the government, it clearly also cannot demonstrate that Appellant is or was involved or complicit in such an attempt. If there is no attempt, no one is involved or complicit.

B. The Evidence Does not Support a Finding that Appellant Engaged in Coordinated Espionage Against the South Pacific

Under Article I, Section 3 of the Proscription Act, an individual may be deemed hostile if that individual “has engaged in or has attempted to engage in coordinated espionage against The South Pacific or its allies and partners.” Thus, there are several elements that must be met: (1) there must have been espionage or an attempt at espionage; (2) the espionage must have been coordinated; and (3) the individual must have engaged or attempted to engage in the espionage. The Proscription Act does not provide a definition of espionage, but the Criminal Code states:

Espionage shall be defined as an act of or attempt to obtain information that is confidential or not made publicly available for use by oneself or an entity one represents. Distribution of private information that originates in official South Pacific discussion areas, excluding private messages, without the express written permission of the relevant officials or institutions shall be considered Espionage.

There is no reason to conclude that espionage takes a different meaning in the Proscription Act.

The original Proscription report contains nothing that suggests espionage or an attempt at espionage involving Appellant occurred. Items A through E make no mention of any attempts to obtain confidential information or that private information from official discussion areas was distributed. In its opening arguments, the Cabinet provides no further clarity, merely vaguely reciting “because of item E.” However, item E merely purports to show a conspiracy to overthrow the government. It makes no mention of espionage.

In sum, there is absolutely no evidence of espionage occurring in the original report or the Cabinets opening arguments. As there is no evidence of espionage, there clearly also is no evidence that such evidence was coordinated or that Appellant attempted it.

C. The Evidence Does not Support a Finding that Appellant Attempted to Sabotage Military Operations of The South Pacific

Under Article I, Section 4 of the Proscription Act, an individual may be deemed hostile if that individual “has or has attempted to sabotage military operations of The South Pacific, outside of normal raiding and defending dynamics.” Thus, there are two distinct elements that must be present: (1) the individual must have sabotaged (or have attempted to sabotage) military operations of TSP; and (2) such sabotage must have been outside of normal raiding and defending dynamics. The Cabinet cannot prove either element.

The Cabinet’s argument boils down to a baseless accusation that Appellant’s negotiations with Imkitopia about future cooperation (item B) were, in fact, an attempt to undermine SPSF. The cabinet provides no evidence that supports this assertion. In its opening arguments, it simply refers to the conversations between Appellant and Imkitopia. As established in Section 4.A of this submission, the logs show a discussion about a future working relationship and concerns about particular events and individuals. Nothing in the log supports the conclusion that those discussions were not part of a good faith negotiation to establish a more cooperative relationship.

The Cabinet also makes vague assertions that items C and D are illustrative of “a pattern of behavior.” However, C and D have nothing to do with sabotaging military operations. Even assuming that items C and D were completely true (which they are not), they paint a picture of someone who is difficult to work with, not someone who is deliberately sabotaging military operations.

Finally, even assuming this Court concludes some aspect of the evidence can be construed as sabotage, it would not be “outside of normal raiding and defending dynamics.” Raiders try and convince other regions to raid more. Defenders try and convince other regions to defend. Sometimes they try and use political capital to get what they want. That is all a normal part of the game.

In the particular case of item B, the kind of discussion shown in the logs is normal gameplay. Representatives of regions discuss working together. They discuss concerns each has about working together and how to solve them. A raider wanting a potential raiding partner to do more to screen off defenders from future operations is about as run of the mill as it gets. Even giving the Cabinet a great deal of benefit of the doubt, there is nothing in the evidence presented that shows there was an attempt to sabotage SPSF beyond normal raiding and defending dynamics. In fact, much of the conversation focuses on developing the SPSF’s capabilities as a raiding group.

In sum, the Cabinet has not presented evidence that credibly proves Appellant attempted to sabotage SPSF in a manner that went outside the normal game dynamics.


Conclusion

Under Article IV, Section 1 of the Proscription Act, this Court is tasked with evaluating whether the Cabinet’s determination that Appellant is hostile, as defined by law, was legally proper. For all of the reasons provided above, it was not. Therefore, Appellant respectfully requests that the Court overturn Appellant’s proscription because it was based on an erroneous understanding of the facts and failed to comply with the requirements of the law. Furthermore, if the Court is not ready to make such a ruling on the current record, Appellant requests the recusal of Justice Sandaoguo and an order to the Cabinet to produce any evidence it wishes this Court to rely on (subject to suitable redaction).

(This post was last modified: 08-15-2018, 11:02 PM by Malashaan.)

Reply

Your Honor,

I have sent in private the requested evidence for items 2 and 6 as per your request for information from August 5. Public answers to the other items, as well as responses to some of the counsel’s assertions, will follow shortly.

Reply

The Court acknowledges reception of the public testimony by Malashaan and the private contributions by both Malashaan and Roavin. A review of all the information received will take place over the next few days.

Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator.
I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum.

Legal Resources:
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Request for Recusal

Malashaan, representing appellate Ever-Wandering Souls, has requested that I be required by the Chief Justice to recuse from this matter. That request is unnecessary. I recused myself on July 26, when the appeal was filed. I have not served in any judicial capacity on this matter, as I was consulted about it prior to my appointment as Associate Justice, as an adviser of the former Prime Minister.

As the Intelligence Coordinator for the Council on Regional Security, I am responsible for the dissemination of classified materials to the Court. Additionally, I assert an interest in responding to any matters pertaining in general to the duties and authorities of the Intelligence Coordinator and intelligence classification.
 

Sandaoguo
Associate Justice

Reply

I apologize for not having the responses ready yet. They will come within the next few days.

Reply

Counselor, you are asked to submit your responses no later than August 20.

Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator.
I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum.

Legal Resources:
THE MATT-DUCK Law Archive | Mavenu Diplomatic Archive | Rules of the High Court | Case Submission System | Online Rulings Consultation System

Reply