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Tuesday, December 20, 2005

Impeachment: NSA warrantless monitoring -- no defense is credible

Update 30 Jan 2006 Highly recommended: NSA Questions from a former prosecutor. Well worth the time and focus -- it will give you something to focus on besides the failed Senate.

There are other questions related to the Able Danger program; the link goes to an comment on a editorial by a former staffer. There are some other questions at the bottom. Food for thought -- good to keep the Able Danger issues in mind when looking at NSA unlawful conduct.

Also there's a discussion on the other problems with the President's credibiity -- now that we know the NSA was spying before 9-11. Click

Update 23 Dec 05: If you want to understand the White House memo/letter to the Intelligence Committee, this blogspot discusses the flawed arguments. A summary is at the bottom of this blogspot [ kw = Moschella ].

[See also: Another review of the DoJ trash at ThinkProgress -- theirs is from a different angle, much more succinct than below. Same conclusion: DoJ trash defense of an illegal, impeachable offense.]

* * *

We previously outlined the range of potential issues in re the President's direction for the NSA to engage in warrantless searches.

This discussion builds off that argument, showing how the President's defenses to impeachment are without foundation.

* * *

This is a list of some of the arguments used to defend or justify the wiretapping. None of these arguments is credible, nor does it have a legal foundation.

The point of this list is to show – despite ample warning in 2004 – the Bush legal team has yet to devise a credible legal defense. These defenses are the best they can do.

All arguments fail because the system of checks and balances is not working. This list is not intended to be all inclusive; rather, to show the range of emerging issues the public and legal communities are using to "justify" unconstitutional conduct.

These arguments are flawed. It is surprising -- this many years after the NSA warrantless searches started -- the Executive has failed to proffer a credible legal defense -- not surprising when he will not submit his plans to the review of either Congress or the Courts.

* * *


Theme: Law

Argument: Preside has inherent authority to do what he wants granted by Congress in the wake of 9-11.

This argument fails. The link between 9-11 and the 2005 wiretapping has been broken by the President’s consultation with Congress over Iraq.

* * *

For the moment, let’s put aside the general theory of “inherent authority” and look at the specific language of the Patriot Act in re the FISA.

Senator Daschle informs us – contrary to what the President asserts in 2005 – that during the Patriot Act secret negotiations, the opposite is true.

The President fails:

  • A. He has no authority. The Patriot Act explicitly fails to mention the authority.

  • B. His conduct is unlawful. During negotiations the Presidents request – to have authority to do what he desires – engage in warrantless wiretapping – was never explicitly discussed. , nor denied, nor included.

    Contrary to what Congress explicitly intended. The issue of FISA never came up, so Bush cannot claim he has authority from a vacuum.

    The Constitution is clear -- the President's conduct is illegal and impeachable:

  • 1. Regardless what the President may have hoped for during the Secret negotiations, the President agreed to the form, structure, language, and explicit language which fails to grant the President the power he now claims he has. FISA changes were not part of the language.

  • 2. The Congress did not intended to grant the power in the wake of 9-11 – the President was specifically denied this broad, sweeping, and arguably unconstitutional power. Rather, he was constrained to the language within the Patriot Act.

  • 3. The President may not rely on language that was excluded; nor on language he wished had been in the Patriot Act – but what the Congress and President Jointly agreed.

  • 4. If we are to accept the President’s argument – that regardless what was or was not in the Patriot Act, the President still has the authority to do what is both not authorized, and contrary to the 4th Amendment – then we have more of the same: Self-granting of powers contrary to the Constitution, and in a manner that is done contrary to Congress’s explicitly intent and language; and contrary to what case law supports.

    * * *

    But, let’s suppose there is some among us who, for whatever reason, wish to pretend that Congress and Senator Daschle’s presentation is insufficient. Let’s return to the general theory of “inherent power” and show how, even if we ignore what Congress discussed and agreed to, the President cannot claim any “inherent power” to do what he is doing.

    Putting aside the specific language – law, will of the people, things the President through his oath has promised to uphold -- Congress has in the Patriot Act and FISA, let’s go back to the President’s argument about inherent powers.

    The President would have us believe in the wake of 9-11 – regardless what Congress said otherwise – there is a link between 9-11 and all Presidential conduct – namely he can do what he wants.

    Let’s presume this proposition fairly represents, in part, what the President uses as his legal foundation. If there was a link between 9-11 and all subsequent events, then there would have been no reason for the President to have conferred with Congress – and sought their assent – to use force in Iraq.

    It remains a separate issue whether Congress was provided misleading, incorrect, or false information; or whether the war was unlawful.

    Because the President did seek Congressional approval, the President may not assert that all subsequent events – including the NSA wiretapping – were linked, and therefore justified – by the 9-11 attacks and the immediate Congressional approval.

    Rather, if all events, and “required” Presidential actions, following 9-11 were “justified” and linked with 9-11 there would have been no reason for the President to have consulted with Congress.

    Because the President conferred with Congress over Iraq, he cannot claim that other events do not warrant full, timely, and equally balanced discussion.

    The President cannot explain – as he asserts – why, if he does have inherent authority to take whatever action in the wake of 9-11 – based on the Congressional approval in the wake of 9-11 – why he has selectively conferred with Congress on some issues, but not others.

    If the argument – that the President has inherent authority springing from the Congressional approval in the wake of 9-11 to do what he deems appropriate, regardless the legal constraints – then the President should not have consulted with Congress, and should have relied on – what he now argues – is that inherent authority which, he argues, Congress recognized in the wake of 9-11.

    Because the President claims he has inherent authority from 9-11, but has failed to uniformly apply that authority in all cases – he has failed to demonstrate that the authority is inherent. Rather, it remains a matter for the court to adjudicate; and one for Congress to review on a case by case basis -- not one for the Executive to assert.

    We judge, because the President fails to fully inform Congress, and seek the informed oversight of Congress – as demonstrated by the Rockefeller 2003 memo -- the President has failed to demonstrate that, even when he does consult, that the consultation is based on the idea of Congress being fully informed, or able to appropriately seek advice from competent legal advice.

    We judge the Congressional “consultations” were illusory – were not fully informed with the advice of competent legal counsel – and in no way met the requisite legal standard for informed consent.

    Georgetown University's David Cole refers to the FISA statute which specifically, he says, mentions cases where the President in the wake of war still must consult with Congress within 15 days.

    We judge the President – as publicly asserted, and recorded – did know of the statute, failed to comply with that timely notification requirement, and continues in 2005 to assert that the notification requirement does not apply.

    We judge the President – because he is in a position of high authority, and has adequate ability to seek legal counsel, either privately or from the White House counsel – made these statements after being fully informed of the legal issues. The statements were not errors, nor were they made without knowledge of the law. Rather, the Presidents knowledge of the law was the basis to assert that the law did not apply.

    Based on information and belief, we judge the above argument fails, and would form the basis of an impeachable offense.

    * * *

    Let’s consider the other side of the President’s arguments – that there is case law which supports his legal theory: That he can ignore the FISA court; or that case law supports his contention that the warrants need not be sought.

    In short, this approach fails. At best, all the President can do by relying on any case law is to selectively pick and choose language – but ignore the statutes which contradict this language.

    Let’s get specific with the cases and show how the arguments, and selective twisting of language, do little to defend, much less provide a legal foundation for what he is doing – conducting warrantless searches in violations of the 4th Amendment.

    One case some like to cite is the U.S. v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980) --
    in which the court upheld electronic surveillance without probable cause of a foreign government's agent precisely because the search was conducted primarily for intelligence, as opposed to criminal, purposes.Ref
    This provision does not cover the instant case: Where American citizens, not proven to be a government agent of a foreign power, are put under surveillance.

    It remains to be understood whether the subsequent monitoring was related to bonafide foreign activities, or lawful domestic political activities. In this case, a warrant would be required -- contrary to what Bush has asserted.

    The other problem with the Truong case is the level of "relationship" between [a] the target of the FISA-surveillance; and [b] the foreign power. In the instant case, it appears the relationship between the American citizen and the external entity is tenuous at best, hence the "speed" at which Bush asserted they need to move.

    In other words, they're using circular reasoning -- "we have too much information, and things are moving so fact, we can't be sure what is going on -- so we need to watch these people." One cannot credibly justify relying on FISA as the foundation for monitoring when one cannot establish that the targeted communication -- in this case from Americans -- is substantially linked to a foreign power. Bluntly, Bush is relying on ignorance of the FISA-target as the justification to not acquire the needed warrant. That is backwards, whereby the relationship between a foreign power must be high, not unknown or tenuous, in order to overcome the warrant requirement under FISA.

    * * *

    One of the interesting things lawyers like to do when citing cases, is they like to pick and choose the text from the case law.

    This is a normal practice before the court -- which is the purpose of having an adversarial system before the court.

    The instant case is no different.

    Let us presume for the sake of argument the White House and Justice Department's assertions that Truong protects the President.

    Fine. Let us consider the language of the case law which the White House and Justice Department have neglected to review:

    Although the Supreme Court has never decided the issue which is presented to us, it formulated the analytical approach which we employ here in an analogous case, United States v. United States District Court (Keith), 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972). In Keith, the executive had conducted warrantless domestic security surveillance. The Court posited two inquiries to guide the Fourth Amendment determination of whether a warrant is required:

    If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it.

    407 U.S. at 315, 92 S. Ct. at 2135. Balancing individual privacy and government needs, the Supreme Court concluded that the executive must seek a warrant before it undertakes domestic security surveillance.

    Bluntly, by using selected passages of Truong, the White House Counsel has failed to incorporate the Keith case, asking a critical question which the Supreme Court has already found to contradict what the White House asserts.

    Again, citing the language from Truong:
    Supreme Court concluded that the executive must seek a warrant before it undertakes domestic security surveillance.
    The issue is not whether the President can or cannot conduct surveillance -- but how the general rules from both case law and the FISA court are to be applied to domestic American citizens. At this juncture, we have only the White House asserting without proof that the domestic targets were linked simply because a phone call; yet, at the same time they confirm that domestic calls, having no international connection, have been monitored.

    But to be fair, Truong does provide for a general rule. But note the rule is not absolute but narrow, stating that the Executive cannot be expected to a secure a warrant in each case:
    In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance.
    It is clear from the White House statements that he never secured any warrant.

    In so many words, the White House has simply done what it has always done -- picks and chooses what it wants to incorporate, rely on, or ignore.

    * * *

    Recall, the burden of proof in this case rests with the Special Prosecutor and the House Judiciary Committee to ultimately prove the President violated the law.

    The President's legal advisors are relying on Truong by selectively quoting passages. Their aim is to pretend that the FISA requirements do not apply.

    Yet, Truong at note 4 asserts the following facts about the FISA, each which contradict the instant case in re Bush and the NSA domestic wiretapping.

  • 1. FISA exists, and is applicable to the stated surveillance:

    Since the surveillance was conducted in this case, Congress has enacted the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801 et seq.

  • 2. Truong asserts that the FISA requirement to seek judicial approval applies:

    That statute requires that executive officials seek prior judicial approval for some foreign intelligence surveillance.

  • 3. The 4th Amendment requirement is not affected:

    The Act does not, however, transport the traditional Fourth Amendment warrant requirement unaltered into the foreign intelligence field.

  • 4. Only some categories are exempted from the warrant requirement, not all:

    The statute does not contain a blanket warrant requirement; rather, it exempts certain categories of foreign intelligence surveillance. 50 U.S.C. § 1802.

  • 5. Despite provisions which do not apply, the executive still has to demonstrate the target is a foreign power; probable cause exists; and in cases where domestic US citizens are involved, there is a link with "desired" intelligence:

    Nor does the statute require the executive to satisfy the usual standards for the issuance of a warrant; the executive need demonstrate only probable cause that the target is a foreign power or a foreign agent and, in the case of United States citizens and resident aliens, that the government is not clearly erroneous in believing that the information sought is the desired foreign intelligence information and that the information cannot be reasonably obtained by normal methods. 50 U.S.C. § 1805, § 1804(a)(7)(E).

    Note the above provision does not mean that probable cause is waived for either domestic or foreign targets -- contrary to the White House's assertions -- but the probable cause requirement exists and remains.

    The requirement for probable cause doesn’t get "waived" because the person is a domestic citizen -- rather, the probable cause requirement remains as it would with a foreign target.

    At best, the White House has failed to do this -- ignored the requirement to show to the court the domestic US citizen is a foreign power. At worst, the White House has simply used the massive data-collection as a circular argument: "Because someone is talking to someone overseas, the domestic citizen must be a foreign agent, therefore is subject to monitoring without a warrant, and we don't need to secure probable cause before the court, as required by the existing statutes."

    It may be true that the target is related to a bonafide operation, but the Truong case doesn't waive the requirement to demonstrate this finding to the court.

  • 6. The FISA court has been affirmed in Truong as being relevant to the decisions above:

    Finally, the statute empowers the Chief Justice to designate seven judges to hear the requests for foreign intelligence warrants and thus creates a special group of judges who will develop expertise in this arcane area. 50 U.S.C. § 1803.

    Unfortunately, despite these inconvenient words in the Truong case, the White House pretends the above language in the case they cite doesn't exist.

    What else is the White House ignoring? A special prosecutor is in the best position to find out.

    * * *

    The White House's major problem, above and beyond ignoring the statute and the court, is its presumption that Congress need not have a detailed role. Again, relying on the Truong case, we find that Congress' role is affirmed:
    While the Act suggests that it is possible for the executive branch to conduct at least some types of foreign intelligence surveillance while being subject to a warrant requirement, the complexity of the statute also suggests that the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President.

    The Truong case is an illusory affirmation that the Executive can do what he wants. On the contrary, the case affirms the multiple roles inherent in Federalist 51 which preclude a single branch from exercising powers of the other two.

    Namely, the Bush Presidency has violated the Constitution by ignoring the system of checks and balances, inherent in the FISA statute, which mandate court and legislative action and review. By any measure, because President Bush has asserted executive, judicial, and legislative powers specifically recognized in Truong as being distinct from the President, the White House has ignored judicial precedent, which relies on order, regularity, and predictability.

    Bush's actions are more than contrary to the rule of law and Constitution, they exercise central power by a single person -- power that the Constitution mandates be delegated and strictly separated two three distinct, separate, and competing branches.

    Bush is what Madison in Federalist 51 cited Montesquieu -- a classic tyrant, unrestrained by the necessary and Constitutional competing ambitions of both the legislature and judiciary.

    What the President has done is turned the Constitution upside down to suit his own purposes -- the very notion contrary to liberty, as described in Federalist 47. Liberty, Madison writes, can only be preserved by separating power.

    Madison in Federalist 47 reminds us that the Executive cannot create the law -- permitting himself the liberty to ignore the law, or will of the people, as Bush has done:
    The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it.

    Bush has:

  • moved the functions of the reviews from the legislature and courts to his own branch;

  • taken on the judicial role as judge of what is lawful; and

  • prevented the other branches of government from exercising their uniquely separate roles: Legislative and Judicial functions.

    And the citizenry, inspired with this tyrant's magic, assent to the consolidation of powers and intrusions. Surely, the citizenry, devoid of legal insight, would demand that better citizens than themselves rise to the occasion and smack this tyrant with the Constitution.

    Yet, the Congressional staffers and lazy legislators, unwilling to read the case law, statutes, or Federalist Papers -- the fruit of the Constitution -- would have us believe that liberty is best served by assenting to "whatever non-sense interpretation of Truong" the toads like Yoo, Gonzalez, and Miers chime in chorus.

    They sing a lovely tune -- the tune of Tyranny.

    * * *

    It is flawed to assert the conduct was lawful on the premise that intercepts "just happened" to intercept American information.

    Rather, the President has asserted the opposite -- that the intercepts specifically targeted Americans; the monitoring was not a coincidence; the messages were not simply ones that went from America to another location, but also the other direction -- from any location to America.

    The current White House defense strategy simply duplicates what the DoJ has done -- selectively pick and choose from the case law, and assert -- without a challenge by an adversarial party before a court -- that there are authorities to the contrary: The conduct is illegal.

    The purpose of an adversarial system -- checks and balances, debate, oversight by Congress, and your legal opponent before the court -- is to ensure the government cannot simply say, "We find no reason why this activity is not legal -- so we bless it."

    The Constitution demands your opponent appear, be given a fair hearing, and you forced to prove your case, not simply have your President say, "I agree -- it must be."

    For more discussion on how the system of checks and balances has failed in the Bush White House, you may enjoy reading this case study: Powell and the WMD data.

    * * *

    Another case cited [ 407 U.S. 297 ] is proffered as blanket authority for the President to engage in domestic surveillance without a warrant.

    This case is problematic as a legal foundation.

    Note the following court language which explicitly contradicts what Bush asserts:
    The section thus is viewed as a recognition or affirmance of a constitutional authority in the President to conduct warrantless domestic security surveillance such as that involved in this case.
    We think the language of 2511 (3), as well as the legislative history of the statute, refutes this interpretation. The relevant language is that:
    "Nothing contained in this chapter . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect . . ."

    against the dangers specified.

    The key phrase: Against the specified dangers -- Bush failed to do this -- the NSA monitoring was not specific with respect to an identifiable target, but a general vacuum cleaner approach to a vague "international connection."

    But to add insult to Bush's legal foundation, the cited case continues [407 U.S. 297, emphasis added]:
    Section 2511 (3) certainly confers no power, as the language is wholly inappropriate for such a purpose. It merely provides that the Act shall not be interpreted to limit or disturb such power as the President may have under the Constitution. In short, Congress simply left presidential powers where it found them.

    Bluntly, the advocates for the "permission to monitor without warrants" are relying on case law which explicitly contradicts their proffered argument -- no power is explicitly conferred with Section 2511 (3).

    Again, we can only rely on what Bush as asserted in public -- despite the requirement to have a warrant, Bush asserts he doesn't need one and that the power to do so is inherent. Yet, the statute is clear, the exceptions do not apply, and the plain reading of the language is opposite what Bush says he has done.

    It is our view the court would likely conclude Bush's statements are devoid of legal foundation.

    * * *

    What is laughable is when the White House cites case law that specifically contradicts the narrow definition of their "approved scenario."

    389 U.S. 347 specifically refers to state-to-state communications, arguably "inapplicable" to the White House "defense" of warrantless surveillance between domestic and international.

    The White House, once again, picks the language from case law affording it the "right" to engage in a practice -- yet the cited case law relies on the very situation the White House asserts "could never happen" and "it isn't anything to worry about."

    * * *

    The 4th Circuits recent rejection of the government’s effort to strike as moot their finding, is illustrative. Padilla apparently was detained using evidence gleaned from torture; and has backpedaled, shifted their argument in order to avoid an action for prosecutorial misconduct.

    Thus, when the government relies on Hamdi v. Rumsfeld, 542 U.S. 507 (2004), we can only wonder: How much evidence gleaned from torture and unreliable sources is the government using as the "probable cause" to engage in warrantless monitoring?

    This is an answer only the special prosecutor can determine after reviewing the 10,000 American Citizen names that were released in violation of the Attorney General's promise to keep that information private. [Click to read more . . . ]

    Again, the White House is using logical fallacies. It dreams of an outcome -- and has picked and chosen from the words, but has missed the law.

    * * *

    Warrantless searches are permissible under very narrow situations. Specifically, the statute requires the attorney general to have made assertions under oath that the target of the surveillance was either a foreign power; and not a US Citizen:
    there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party
    It is clear the President has confirmed the warrantless searches have occurred against US Citizens.

    It is irrelevant whether the person "may have" a connection to terrorism; or whether they have or have not engaged in overseas-related communication.

    Had the Congress intended to permit that type of monitoring, Congress would have explicitly authorized it.

    We judge the Congress intended the statute to narrowly apply to non-US citizens, and any references the President makes to whether he did or did not notify Congress to be irrelevant. The statute does not permit Congress to provide a waiver, through silent assent -- especially when that assent is conditioned upon Congress being restricted from consulting with competent legal counsel.

    * * *

    Let's look at an example of an irrelevant case proffered as proof of . . . wait for it: An illusory, irrelevant argument.

    430 F.2d 165 applies to the FBI, not the NSA. Or are we to believe that the reason the White House relies on this case is due to the cross flow of information from the NSA to the FBI?

    The Special Prosecutor will have to review that.

    All the case does is create an illusory exception -- but fails to show why the FISA statute does not apply. 42 USC 605 is referenced in the case merely as an example of a situation where the President is narrowly not prohibited -- but this "lack of prohibition" through 42 USC 605 does not negate the FISA's existence.

    Yet, more fundamentally, the case relates to the basis of a conviction -- whether the material acquired could be used for a conviction.

    The court ruled that the defendant -- the target of the FBI wiretapping -- did not have the right to access the information, or engage in discovery of the FBI information. The defendant's conviction was affirmed because the information gathered was not used to secure the conviction.

    With respect to the warrantless NSA monitoring by the White House -- the issue is completely different: Whether the 4th Amendment still applies. This specific case fails to support the White House's contention that there are loopholes permitting violations of the FISA statute. We see no Congressional language, nor is there any authority, directing 42 USC 605 to trumps, overshadow, negate, or water down FISA -- the only source of this exceptional interpretation is devoid of judicial review: The White House.

    But let us use the language of this cited case to show why this case is irrelevant. note the case specifically says that the nature of the Communications Act of 1934 is only related narrowly to the Section 605 provisions.
    This is a clear statement by Congress itself relative to the scope of the section 605 provisions which are not to limit the President's constitutional prerogative to obtain foreign intelligence information. [430 F.2d 165]

    The case simply asserts that 42 USC 605 is not a constraint, but makes no mention of whether FISA is or is not a constraint. Alas, the White House and the apologists of tyranny enjoy pointing to irrelevancies as "justifications" for exceptions. Yet, the proffered case law is irrelevant to their defense -- merely a sign of their delusion of immunity to the rule of law.

    This case although interesting, fails as a credible justification for the President to ignore FISA.

    For those in the White House who have trouble with the 1930s -- alas, they like to ignore the 1930s Securities Laws in re CEO accountability for non-sense statements on the 10Ks -- the Communications Act of 1934 is before the FISA. Thus, when Congress wrote the explicit language of FISA it was the will of the people that the President comply with . . . wait for it: FISA -- not venture into the Alice and Wonderland, Mary Poppins, or Dorothy's Land of Oz, inventing an artificial situation where the laws, as the President defines the situation, are not applicable.

    And perhaps the moon is made of cheese -- is this relevant to whether the price of melons is reasonable? The buffoons in the White House would have you focus on the moon, contemplate the possibilities, while they devour the fruit of liberty -- a melons juice might quench the audience entertained with this tyrants prancing before his lovely mirror -- to which the Constitution shall shatter, then sprinkle along the shores of the Potomac, in harmony with insects buzzing between the cherry blossoms, within a stone's throw of Madison's Memorial.

    Madison reminds us that the laws as Congress enacts, and as the courts interpret, remain the guidance for the Executive to follow, not squeeze dry of their life -- under the weight of ambition and tyrannical disregard for the law, Constitution, or system of checks and balances.

    * * *

    But not to be outdone, they proffer yet another irrelevant case which defeats their position: The infamous, notorious United States v. Butenko 494 F.2d 593.

    This case which they refer isn't useful, in fact it affirms the problem faced by Bush. The court wrote
    The Supreme Court thereupon granted certiorari, limited to questions of standing and the government's obligation to disclose the records of wiretaps determined to be illegal.

    The entire case was about evidence the government admitted was gathered illegally -- not whether the conduct was acceptable, but whether the evidence gathered illegally should be disclosed to the defendant -- an entirely separate issue.

    If the White House chooses to rely on Butenko, they can only use it to assert, "I know the monitoring is illegal -- but I can still do it--I don't plan to use the evidence in a trial."

    When the threat -- the fruit of unlawful monitoring is to be suppressed -- is ignored, and the President violates that prohibition and admits to that violation -- the President has ignored the fair warnings and should be impeached -- apparently the only tool with which to force this tyrant to assent to the rule of law and our way of life.

    * * *

    Can you feel the exhaustion? Notice how all the above arguments are absurdly irrelevant and meaningless. But, the buffoons in the White House want to take another stab at it with United States v. Buck 548 F.2d 871.

    In short, this case is no different than the other irrelevant ones: Someone has been convicted on the basis of an illegal surveillance. The issue in the Buck case was whether that evidence was probative. The court found the evidence, although illegally collected, did not lead to the actual evidence used to convict.

    In other words, the government recognized the surveillance was illegal:
    We have read the transcript of all proceedings, however, and believe that the record manifests that the evidence questioned by appellant had a clearly independent source and could not have been the primary product of or the result of exploitation of any illegal surveillance.

    . . . something the White House refuses to stipulate. Why would the White House rely on case law that stipulates something contrary to their position?

    Well, what the White House doesn't want you to know about is something called an Alderman Hearings -- this is premised on the assumption that the evidence was illegally collected.

    Where do we find more about this? Why the very case law which the White House apologists failed to share:
    The purpose of the Alderman hearing is to determine whether, granting establishment of the primary illegality, the evidence has been come at by exploitation of that illegality or instead by means sufficiently distinguishable. Alderman v. United States, supra 394 U.S. at 181, 89 S. Ct. 961.

    Note the key phrase: "primary illegality" -- the Alderman Hearing is a lovely forum whereby the law enforcement, court, prosecutor, defense counsel dance and focus on something irrelevant to the White House's immediate problem: What to do about the illegally obtained evidence -- pretend it doesn't exist, say it isn't relevant, or say it is the fruit of an unlawful search, or say the information "we got that convicted them" is unrelated to the evidence which is spoiled. Then they review whether the motions were appropriately denied. Oh, the pains of irrelevancies!

    Do you see the small problem for the White House -- the very case law they rely on for their lovely crutches -- is premised on the assumption that the evidence was illegally obtained. How's that for digging your own farm disposal canal.

    The only reason they cite this case law is what has happened -- illegal activity by the government -- something which the White House denies. The White House relies on this case -- selectively cherry picking nice sounding words -- in an absurd effort create a smokescreen and confuse the public too busy to read the case law, not what will defend them before the court of law.

    The White House has one goal -- using confusion and irrelevances, to keep the issue -- not just the original surveillance, but the subsequent legal issues in re impeachment -- out of the court so that the legal reality are never brought before the court.

    * * *

    Wait, I sense there is some consternation. Oh, what is that -- they throw another one in the hopes of creating another irrelevancy: United States v. Duggan 743 F.2d 59 (1984).

    We are asked to believe that FISA doesn't apply. Yet, look at the actual case language:
    The identification requirement imposed by FISA is only that an application for surveillance identify the "target of the electronic surveillance." 50 U.S.C. § 1804(a)(3). [ 743 F.2d 59 ]

    The Duggan case specifically asserts the FISA identification requirement in the affidavit and warrants, which Bush and the NSA have failed to meet. Unlike Duggan, Bush hasn't [a] identified any target, nor is there [b] a warrant, nor do we see [c] an affidavit to justify that surveillance.

    We have nothing! But some would have us believe in the vacuum of executive action, that the law has been faithfully executed.

    How can inaction meet the requisite standard of FISA? At best Duggan drives home the point: The only case law this White House judicial staff has relied on are ones with convenient verbs and adjectives, not credible law.

    Notice also in the case is the following language, which specifically states that an application occurred
    At the time of the FISA application, the executive branch was aware that PIRA was an international terrorist organization and that Megahey played a leadership role in PIRA activities. [ 743 F.2d 59 ]
    Again, Bush asserts that he made no application, can do the surveillance without warrants -- yet, apparently he and others rely on this case to "get him out of this application requirement."

    That makes no sense.

    Bush is not aided by this case.

    Oh, perhaps you are not convinced? Then let's consider another inconvenient line within the Duggan case, clearly showing that somehow -- unlike Bush's problem in re warrantless NSA spying on American citizens in American -- someone . . . wait for it: made an application to the FISA court :
    We see no basis for any suggestion in the present case that the application to the FISA Court did not meet the statutory requirement for certifying that the information sought was foreign intelligence information. [ 743 F.2d 59 ]
    Where is Bush's application to FISA? In Bush's world he doesn't want to provide one.

    Wait, I sense a murmuring from the corner. Someone is blabbering something about "ignoring the relevant specifics." OK, let's play that game.

    Let's consider the specific details of the defendant's situation -- namely that the surveillance was lawful because. . . wait for it: There was a clear showing by a specific individual that there was a direct link between the named individual and the offending act:
    The information relayed by Hanratty to the FBI clearly portrayed Megahey as a member of a "group engaged in international terrorism or activities in preparation therefor," id. § 1801(a)(4); Megahey was therefore an agent of a foreign power under § 1801(b)(1)(A).
    In the case of Bush, what do we have?

    We have nothing -- no specific link by name; nor a fair showing that the identified individual has been linked to a specific threat. Rather, we have the opposite: A vague assertion that "someone" is doing something -- alas, making an overseas call -- and that would permit Bush and NSA to engage in warrantless surveillance.

    Yet, this argument fails. How can Bush assert that “calling overseas” is a link to anything.

    But don't miss the obvious of the Duggan case -- this entire "showing" of "linkages" is . . .wait for it: Done, given, shown, and presented to . . . the FISA court -- something Bush failed to do.

    It remains a matter of evidence how many times he did this -- but we only need to have a copy of what he has asserted: That he will continue what he's been doing without warrants -- contrary to the FISA statute.

    What do we have:

  • Clear statute

  • Applicable to the instant case

  • Failure of Government employee -- President -- to follow that clearly promulgated statute;

  • Fatal admission recorded on admissible evidence -- that the offending, unlawful, and conduct contrary to the FISA -- would continue!

    So why is he relying on the Duggan case? Bush is grasping for vowels -- o, o, o -- not a credible legal defense.

    In order to rely on Duggan, one must have made an application to the FISA court -- clearly something Bush failed to do -- as he boasts!

    BTW, in re Duggan, one of the defendants pleaded insanity; see --"The Meehans' Proposed Defense of Insanity". Will Bush attempt this defense -- if so, then it will be only a matter of hours until the Vice President is required to issue a letter stating the President is not longer fit to govern.

    Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office [ Amendment XXV (1967)


    * * *

    Given Senator Rockefeller's assertion that he was not given the authority to consult with counsel, we believe there is a reasonable basis to inquire whether the Congressional Committee has failed to meet their obligations:

  • Timely report whether the statute should be amended, repealed, or continued [See: 50 § 1808 (b) ]

    Based on Senator Rockefeller's letter, we judge there is a reasonable basis to conclude that the Committees failed to satisfy the requirements of 50 USC 1808 as Congress intended those duties -- reviews, assessments, and analysis -- to be fulfilled.

    It remains a matter of law whether this apparent failure was due to the Executive Branch interference or Congressional malfeasance.

    Of concern: The NSA monitoring began shortly after 9-11, but Rockefeller's note indicates he was not briefed until July, 2003 -- that's almost 18 months. What happened, why the delay, and what else is going on that the White House hasn't timely notified the Congress about -- or put gag orders on to keep silent about?

    * * *

    Note: Foreign power is specifically defined, and does not include the definitions the White House and DoJ have assented to or asserted. [See: 50 § 1801 (a)]

    We judge, on this basis alone, the White House has violated the law in conducting warrantless searches against US citizens.

    * * *

    Summation in re "Inherent authority doctrine"

    This doctrine is legal fiction. The President’s executive orders may not be contrary to either the Constitution or federal statute. [Youngstown]

    Even if we were to rely on the President’s argument – that Congress vested him with whatever powers he deemed appropriate – the President may not unilaterally violate the law; nor has Congress conferred upon him specific authority or general powers to violate the law.

    Executive orders to violate the law are not lawful; and trumped by both the Existing FISA statute and Constitution.

    In a similar spirit, Congress – when it gave the President the option to use force in Iraq – did not grant him blanket authority to wage an illegal war. More: An option to use force is not carte blanche to ignore the laws of war; nor may the Executive rely on Congress as the justification to wage illegal war . . .; see also Youngstown ]

    Also, the inherent authority doctrine fails with respect to torture. Nothing in the post 9-11 world conferred upon the President – not can the President rely on any authority – to give him leeway to ignore the Convention Against Torture [ “CAT” ] treaty. It is irrelevant what the status of the detainees are; or whether the Geneva Convention is self-proclaimed to apply or not apply – the CAT, by its very nature, is a treaty and through Article VI of the US Constitution remains the supreme law of the land.

    Again, the President may not infer, create, or self-assert a power which is contrary to the supreme law of the land; nor may he create an executive order which ignores the CAT. It is a separate matter whether Congress chooses to enforce the provisions through an impeachment.

    When comparing the issues of torture and warrantless NSA surveillance -- there is a curious contrast: The Executive is willing to attach itself to actions of the NSA, but not those who abuse. FOIAs liberated the torture memos – Gonzalez: “torture is OK”; Rumsfeld’s handwritten notes: Take off the gloves -- we would expect similar evidence to be forthcoming in re NSA.

    Conversely, given the President’s admission that he relies on the inherent authority doctrine in re NSA warrantless surveillance, we would expect that similar argument to justify CIA rendition; torture and abuse in Eastern Europe. It is one thing to assert they are not engaged in the conduct, quite another to redefine “torture”, but wholly different whether one’s conduct is abusive.

    If the Executive is going to attach himself to the NSA warrantless monitoring – using the doctrine of inherent authority – then we would presume there exists similar memos linking the President – using the same inherent authority doctrine – to all other conduct in re: Abuse at Guantanamo and Abu Ghraib; CIA rendition; and the conduct in Eastern Europe. It remains to be seen to what extent, if any, the European Union uses this as a basis to subpoena information.

    Curiously, the NSA has a practice of asserting its inherent right to secrecy to prevent discovery. Yet, in this case – where the President has openly discussed the program and confirmed the details by the New York Times – one cannot have a superior right to secrecy over issues of torture, when a higher priority program in the NSA has a lesser standard of protection.

    It remains a matter of law whether the President’s disclosures in re NSA lowers the threshold for discovery in less protected areas – namely, where there are specific allegations of violations of the law stemming from specific evidence: Isotope analysis of hair strands to show someone had been malnourished and detained in an Southwest Asian country.

    If one asserts the doctrine of inherent legal authority, that assertion also attaches with it responsibility – to oversee and comply with the law. In the case of the detainee abuses, 5100.77 clearly states SecDef’s responsibilities.

    It remains to be seen

  • A. what similar NSA documents and standards of conduct were similarly ignored; and

  • B. to what extent the inherent authority has been asserted without a balanced plan to ensure compliance with the law, conduct oversight, and ensure the conduct meets the reasonable expectations of a public servant.

    Bush’s fatal admission is to continue to assert his right to conduct the warrantless searches, despite the least capable and most legally inept reminding him of the FISA provisions to the contrary. Conversely, it remains a matter of law to what extent more competent legal counsel has been ignored or defective in their arguments.

    The Nixon Administration – as evidenced by the finding that the White House counsel works for the public, and that the President’s private counsel is private – reminds us that the White House counsel must respond to the public’s reasonable expectation that they provide sound, competent, and legally defendable arguments to the President.

    It remains a matter of law for the public to assess to what extent inter alia:

  • A. the White House counsel has departed from the reasonable standards of conduct in re the DC Bar Standards of Conduct, or drifted materially from a legally defendable position; and

  • B. Reasonable standards of conduct and professional service to the White House has fallen below the standards the Office of Personnel Management, Department of Labor, and Senior Executive Service might promulgate as performance standards.

    Given the unfavorable weather, it would appear this fairly benign examination may require an act of Congress. Curiously, if one wants to violate the laws of war, they simply do so without any specific legal authority; conversely, to exercise oversight of that alleged illegal conduct, the President claims the authority does not exist.

    We conclude the authority – if the President wishes to exercise inherent authority – also applies to the Congress -- it has the inherent legal authority to examine the papers of the non-privileged communication between the public’s attorney general and White House Counsel in re the alleged criminal conspiracy to ignore the Constitution, FISA, and other statutes and condone allegedly unlawful conduct. The White House has the responsibility to show why they can exercise privilege over this communication – something the court did not recognize in the case of the Nixon tapes.

    More broadly, the President wishes to have it both ways, on one hand he argues:

  • A. He has the inherent authority to exercise unspecific powers contrary to the statues; while Congress has no authority to examine conduct which appears to be contrary to law; while at the same time he argues

  • B. He claims the Congress has not specific legal authority to review internal communications related to alleged violations of the law; while at the same time he relies on this vague principle, devoid of specific illegal authority, to justify conduct contrary to the Constitution.

    The President cannot have it both ways, but the Congress appears to wish to assent to his double standard. And Americans wonder why the world mocks them for their non-sense assertion that they are “exporting” the rule of law.

    Perhaps if the weather were more favorable, the Congress might awaken from its cold coma, and realize it is part of the problem: Assenting to lawlessness, engaging in cursory oversight, and failing to credibly challenge defective legal arguments.

    The fruit of debate, oversight, and the adversarial system – something the Americans supposedly want to export – seems lost on the Americans. They want to assert their right to arrive at outcomes – however flawed and inconsistent – yet remain perplexed why the world refuses to join them on illegal wars; bow down to their secret detention centers in Eastern Europe; or assent to their non-sense over the abuses in Guantanamo, Afghanistan, and Abu Ghraib.

    If you wish to assert the “divine” supremacy of democracy, then at least have the courtesy to demonstrate that “divine” system is based on reason – not non-sense and double standards.

    The purpose of the separation of powers, checks and balances, open debate, and the adversarial system is to do what Aristotle celebrated – arrive at good decisions, based on sound reasons – in short, the foundation for happiness.

    But tyrants enjoy asserting the rule of power, only to find their chorus shrinking. So they assert their non-sense with vigor, refusing to see they are in the minority. Self-evidently, when the minority is in contravention with the rule of law, they are to be remedied with the gentle touch of Justice. Self-evidently, the Americans show they need more than a whiff of sense, but a swift quick of Justice’s gavel, preferably to the temple without apology.

    That a tyrant is upset should be cause of celebration – the rule of law, the foundation for happiness of the masses, has returned.

    * * *


    Theme: Finding ambiguity, rather than resolving it

    Argument: We cannot define what AlQueda is -- are they international, domestic, or unlawful combatants -- the President's executive order clarifies this confusion.

    This argument is a red herring, and an appeal to ignorance.

    The reason for having the court timely review the matter -- within 15 days -- is to resolve the issue.

    However, the President and his staff are using the "we're confused about their status"-argument.

    General Hayden raised the "enemy combatant" argument: Stating the FISA statutes do not
    cover armed enemy combatants in preparation for attacks inside the United States

    Full quote:
    I don't think anyone could claim that FISA was envisaged as a tool to cover armed enemy combatants in preparation for attacks inside the United States. And that's what this authorization under the President is designed to help us do. Ref

    The argument is flawed.

    It incorrectly presumes

  • A. The status of an intelligence target trumps the Constitution -- it does not

  • B. Ambiguity about a target's status -- whether real, imagined, or created -- is relevant to whether the Executive Order trumps the Constitution -- it does not.

    Recall Chief Justice Robert's comments during his confirmation hearing: The purpose of a judge is to resolve ambiguity, not to create it.

    What has the White House done -- exactly what Powell did in re WMD -- appealed to ignorance, and claimed "We are best to adjudicate" without referring the case to an adversarial system of checks and balances: Congress and the Judicial Branch.

    * * *

    General Hayden's assurance proves worthless:
    I can assure you, by the physics of the intercept, by how we actually conduct our activities, that one end of these communications are always outside the United States of America. Ref

    The NYT reports the opposite: That there were domestic phone calls without an international connection.

    Notice: They're using "physics" and "sophisticated" to glaze over your eyes. Don't be fooled.

    Bluntly, just because a Flag Officer tells you something, it doesn't mean it's true. You need to have independent reviews after the Flag Officers and Administration affirm [1] in writing and [2] under penalty of perjury to the [3] truthfulness of the answers.

    They are not to be trusted. Get them to confirm first, then gather the evidence.

    And they haven't talked about the domestic surveillance by UK, Australia, Canada, and New Zealand -- this is how the domestic-to-domestic calls are regularly monitored, contrary to what the President has stated.

    The President knows full well what's actually going on, and he's in trouble because he's been caught doing something illegal -- tapping phones without getting the required warrants.

    * * *


    Theme: Inadequate, incomplete checks and balances

    Argument: The President asserts he told Congress

    This argument fails. The Senators on the Senate Intelligence Committee were not given the opportunity to consult, intervene, opposite, or confer with experts on the matters.

    The President also failed to timely inform Congress within the 15 day timeline; and failed to timely keep the FISA court.

    The law in re FISA during wartime is clear – the President has 15 days. He failed to meet this standard.

    * * *


    Theme: No checks and balances by the other branches

    Argument: The President asserts DoJ has reviewed the matter and has approved.

    Nowhere in the FISA statute or the Constitution does the President satisfy the notification or consultation requirement by referring to his own branch of government. Rather, there still must be affidavits under oath given to the FISA court.

    It remains a matter of evidence whether these affidavits exist, were timely provided, or whether -- as the President asserts -- he can monitor without warrants. Based on what the President has said, we judge the required Attorney General affidavits were not timely filed.

    However, to assert that DoJ “reviewed” the matter is meaningless. This amounts to more of the self-checking “trust us” approach which failed in re Guantanamo, Abu Ghraib, the CIA rendition programs, arguments “justifying” torture, and the secret detention centers in Eastern Europe.

    FISA and the Congress have a role. The President ignored these judicial and legislative oversight mechanisms.

    We judge, in the vacuum of oversight, DoJ and DoD personnel have conducted cursory and inadequate reviews of the matters. In cases where the abuses were considered “trivial” – albeit bonafide Constitutional violations – we judge the DoJ investigators went on to other “higher priorities.”

    Nothing before us suggests the DoJ counsel has the independence to challenge the President. Nor do the DoJ investigators – when given the chance to select their own priorities – will seriously consider, much less investigate, complex legal arguments.

    Rather, DoJ’s approach to the legal issues is one of assenting to whatever their President wants.

    Based on the pattern of conduct in re Guantanamo, Abu Ghraib, torture, CIA rendition, and the Eastern European detention centers, we judge the DoJ “reviews” were simply more of the same: Twisting the legal restraints to justify whatever outcome the President wanted.

    We judge the President, regardless the legal constraints, identified a specific outcome, and told DoJ to create a legal justification to support that outcome.

    However, lost in this self-justification for warrantless searches, is the failure of the President to demonstrate that he has subjected his legal arguments -- making no mention of the legal mandates to the contrary – to the close review of the Congress and Judicial branch.

    The President, as ably advised by his White House counsel, was in a position to know the Constitution, the FISA statutes, and the requirements to timely inform the other branches of government what was occurring.

    Based on information and belief, we judge the President – despite the clear Constitutional requirements to the contrary – did deliberately mislead the Congress, fail to inform them of the full facts, and failed to ensure that the other branches of government, not just DoJ, reviewed the plans.

    * * *


    Theme: President’s veracity in re Checks and Balances

    Argument: The public assumes the President is telling the truth.

    One of the flawed arguments the public is using to justify the outcome the President wants – no action in re the alleged violations of the law, amounting to an impeachable offense – is for the public to blindly assume the President’s assurances – that he did nothing wrong, and was doing the right thing – are truthful.

    Based on a plain reading of the President’s public statements, there is wide room for other efforts to occur.

    First, let’s consider the President’s assertion that the NSA only monitored international calls. This is absurd.

    We know that the NSA uses and relies on formal agreements with four other countries – the United Kingdom, Australia, New Zealand, and Canada [“Echelon Allies”] – in order to monitor each others’ communications.

    Bluntly, when the President says that the NSA only monitored international calls, he fails to discuss the monitoring the Echelon Allies conduct on each other. As evidence of this, we also know, based on the information from Ms Gunn in re GCHQ and Frank Koza that the UK does engage in intercepts in the United States. Further, we know UN Ambassador Bolton has specifically required by name, the NSA transcripts of American citizens.

    At this juncture, it remains a matter of evidence to establish to what extent the Americans have relied on Echelon allies to back brief them on domestic discussions related to political activities.

    Another example of the President’s veracity problem is his public statements that the NSA “leak” about the program was a shameless act. If this matter were truly a criminal violation of a bonafide program, the President would not have waited until 2005 to “negotiate” with the New York Times over the imminent publication of the NSA monitoring program. Rather, when the President was first informed of the New York Time reporting in 2004, there should have been a criminal referral to the Justice Department.

    Given there was no immediate investigation after the 2004 disclosures, and the Presidents’ “negotiation” [ vice silence] with the New York Times, we judge the President’s statements – that the program was bonafide, classified, and sensitive – to lack merit.

    Rather, based on information, belief, and adverse judgment – we judge the program to be the opposite: Problematic, illegal, and contrary to public policy.

    Moreover, none of the arguments the President used in his Saturday address warrant belief. The entire chain of arguments is full of loopholes and incomplete statements; and appears to be no more credible that the list of excuses to warrant the invasion on of Iraq.

    We judge, on the basis of adverse inferences, the President is lying, has a veracity problem, and cannot be credibly relied upon as a credible witness.

    * * *


    Theme: Law and the faulty assumptions

    Argument: If you are not with the President – in whatever he wants to do – then you are with the terrorists and should be locked up.

    This argument incorrectly assumes the President’s actions were lawful.

    Based on the NSA disclosures to the New York Times after the DoJ “approval” – we judge the opposite.

    First, if we are to believe that DoJ “approvals” were sufficient, there would be no more internal NSA debate on the issue. We conclude the opposite: The DoJ assurances were not credible, and supported NSA actions which were contrary to the law.

    Second, if the program were bonafide and lawful, then there would be no discussions with the New York Times.

    Third, if the NSA discussions with the New York Times were truly a violation of the law – and not made with the intent of disclosing criminal conduct – then the President should have made a referral to DoJ in 2004. The facts suggest the opposite – the President was negotiating over matters with the media, despite their access to classified information.

    We judge the President’s discussions with the New York Times were not based on a bonafide desire to protect a lawful, but classified program, but the contrary – they prevent the public from learning of violations of the law.

    It remains to be understood through discovery to what extent the President and others under his control made direct or indirect threats to the media to dissuade their discussion of unlawful activity.

    Let’s consider the argument more broadly. It is faulty reasoning to presume that if “one if for the rule of law, and not in support of the President on this matter” that someone is, therefore, supporting terrorists.

    This is absurd.

    This would have us believe that only unlawful Presidential conduct is the alternative to terrorism. This argument fails.

    There are plenty of other options, none of which mandates the Executive take unlawful conduct.

    The President could have – and failed to – openly discuss the issues with Congress in private session, affording the Senators and Representatives the ability to privately confer with private counsel.

    The President could have – and failed to – comply with the FISA reporting requirement, and provide the information within the 15 day window.

    The President could have – and failed to – discuss other statutory reforms that the Congress could have assented to.

    We judge, based on information and belief, that the argument “You must support the President or you are for terrorism” to be absurd, and more of the same non-sense we had in the wake of 9-11 to rubber stamp – without a full, careful analysis of – the Patriot Act.

    It is a logical fallacy to provide only two options – that you are either for one bad alternative, or you must support an unlawful alternative.

    As already stated, there are other options. In this case, the President failed to confer with an obvious option – what the Constitution says.

    * * *


    Theme: President’s veracity in re Checks and Balances

    Argument: The rights of American Citizens have not been affected by the NSA monitoring; the President only monitored international calls by known terrorists.

    This argument fails.

    There is no basis to say that the program is limited. The Echelon allies do monitor all US traffic, and provide investigative leads to local law enforcement.

    It is not credible to believe the CIFA – Counter Intelligence Field Activity – would identify a group of Quakers as threats, but the Echelon allies would not have been directed to monitor their phone calls.

    Moreover, in light of 9-11, it is clear that the DHS, JTTF, and other law enforcement officials use suspect criteria to warrant identifying behavior as “suspect.”

    At this juncture, and springing forth from the President’s veracity problems, we judge there is no basis to assert that rights have not been violated. The program remains secret – yet, there is nothing stopping the violations to have occurred.

    It remains a matter of law, evidence, and discovery to determine whether there are specific named individuals who have been targeted and might bring 42 USC 1983 claims or other requests for equitable relief.

    Based on the information from GCHQ’s Gunn, and Mr. Bolton, we judge that there is probable cause to seek a warrant for the NSA’s Echelon Allies information in re monitoring of US Citizens.

    It remains a matter of law whether the officials, agents, and government contractors involved knew about the conduct, or were reckless in failing to understand the information was the fruit of unlawful surveillance.

    * * *


    Theme: The laws of war

    Argument: We’re at war.

    This argument is a sweeping argument to justify anything.

    However, the President is not above the law. In Youngstown [343 US 579], the Supreme Court found President Truman actions unconstitutional.

    The President is not, during times of war, granted all powers to do what he likes.

    As evidence of his “concern” for the law, are his repeated uses of DoJ “reviews” to show that the law was reviewed. However, as stated above, relying on DoJ to review a legal matter amounts to illusory checks and balances. The danger of this “self-validation” is self-evident in the results from Abu Ghraib, Guantanamo, CIA rendition, and the Eastern European detention.

    Also, one cannot rely on the “We’re at war” argument to justify all subsequent actions. Again, as discussed above, the link between “Congressional approvals in the wake of 9-11” and all subsequent Presidential actions was broken once the President went to Congress over Iraq.

    The President cannot reasonably rely on the argument – that Congress, in the wake of 9-11, conferred authority on the President for him to do what he wants – given the President did not rely on this “blanket approval” when it came to Iraq.

    More broadly, to suggest “we’re at war, the President can do what he wants” misses the point of warfare: The purpose of warfare is to defeat a specific enemy.

    This President has failed to identify an enemy. He has identified only a vague action or strategy – terrorism.

    Moreover, the President has failed to fully mobilize the nation to identify this specific enemy.

    The failure of the President to lawfully use the resources he has – national manpower – against a specific target – AlQueda – means that the President has not used all lawful means to achieve his outcomes.

    Thus, there is no merit to the argument that – in the absence of using all lawful options – the President must rely on unlawful options.

    Yet, there is another way of looking at this flawed argument. If the nation is truly fighting a war to assert principles, then the nation’s best principles must be showcased. We judge the opposite is being done: The worst side of tyranny is surfacing.

    It should be no wonder why the world refused to assent to US action in Iraq – the action was not subsequent to exhausting all options.

    * * *


    Theme: FISA Law

    Argument: We want to fight crimes – it is OK to use NSA to target criminals. However, it’s too late to go after the criminals – in this case, terrorists – after they do their damage.

    It is true that terrorists can cause damage. It is also true that the FISA court specifically addresses this issue: That warrants can be issued.

    Some assert that the President could not afford to discuss the issue – that it was secret, and we could not afford to let the world know what was going on.

    This argument is flawed. It fails to account for the discussions the White House had with the New York Times. The President would have us believe that the Congress and Courts cannot be trusted; but the New York Times can be trusted to keep secrets – why else would the President take no action in 2004 and plead with the NYT publisher to be quiet?

    Nothing in the FISA statute prevents the President from going to the FISA court and getting a warrant to do what he wants; nor is there are anything stopping the President and DOJ from going – subsequent to an emergency – to the court to inform them of what they have done.

    In this case, the President chose the opposite – to never notify them. That, by the President’s own admission, is what was going on – surveillance and wiretapping without warrants.

    Some have suggested that the wiretapping is justified to fight crime. Indeed, it remains a matter of law for the court to determine to what extent, if any, investigative leads acquired through NSA and the Echelon Allies were subsequently sent to JTTF, CIFA, DIA and local law enforcement in order to target investigators at non-terror related crimes.

    At this juncture, it is clear that fighting crime is the purpose of law enforcement. However, there is one small problem for them: The apparent pattern of conduct they have in circumventing the 4th Amendment – the right to be free from unreasonable searches.

    Normally when the court finds that information gleaned from a warrantless search was sued to convict someone, that evidence is thrown out. The purpose of this court action is to impose a judicial sanction on law enforcement for violating the 4th Amendment.

    But the law isn’t there simply to protect the right. The law is there to protect the individual. This is where 42 USC 1983 claims enter the arena. IT remains a matter of law for the court to determine to what extent contemplated 42 USC 1983 actions triggered law enforcement retaliation based on information gleaned through NSA and Echelon Ally monitoring.

    * * *


    Theme: The Law

    Argument: Civil liberties – to engage in immoral behavior – has been curtailed; there’s no reason that we cannot ask people to give up their civil liberties during this war on terrorism.

    This argument is circular.

    It assumes that during times of war, the Constitution is to be ignored; or that during times of war all liberties are subject to being ignored or watered down.

    This may be true only if Congress and the Courts agree that the statutes must be changed.

    However, regardless what the government may choose, the Constitution remains: Along with the right to be free form unreasonable searches.

    At this juncture, it is clear that the law exists: That people are to be free form unreasonable searches. Our liberties as they stand are protected by the Bill of Rights.

    No law or government action may take that right away; nor may the government take any action that is contrary to that right.

    Again, the FISA court exists to keep this information secret. Because one has the right to be free from an unreasonable search – this does not mean that criminals are free from search. This is the purpose of a court: To review the matters, evaluate the evidence, and decide if there is a reasonable basis for a warrant to be issued.

    Indeed, some liberties – to engage in objectionable behavior – have been curtailed. But this impact on liberties is done through the Congress and State legislatures – it is not up to a single Executive – on his own, without court or Congressional approval – to deprive someone of their liberty, however trivial.

    It is another matter whether law enforcement lies to hide intrusions; or whether law enforcement engages in pre-textual stops to go on fishing expeditions.

    We judge that although civil liberties may be curtailed during times of war, nothing before us suggests the three branches of government have collectively agreed that the actions were Constitutional.

    The burden rests with the Executive to justify as lawful -- not for the public to, after digging through the NSA archives, to prove as unlawful. The evidence before us suggests the Executive has violated the existing law and forms the reasonable basis to draft articles of impeachment.

    * * *


    Theme: During war, laws need judicial oversight

    Argument: We can’t let the enemy know what is going on.

    This argument assumes that secrecy must be asserted, however unlawful the conduct may be.

    This argument fails.

    If the Americans choose to fight for their values, and defeat an enemy – not just a method of warfare – then those values must be put into practice and allowed to prevail.

    It would be far more compelling if the Americans let their values – the system of courts, rules of evidence, and the force of legal arguments – prevail.

    Nothing before us suggests that people who are enemies of the rule of law – namely people who may be planning acts of terrorism – have the free reign to do what they want. There are specific laws prohibiting the planning actions.

    There could be public trials against the terrorists – to publicly show what is going on, rally the nation’s citizenry to the cause of justice, and help the public see the enemy they are fighting.

    But this government chooses to keep the fight against the terrorists behind closed doors. Then they wonder why the public is reluctant to support them.

    How will the nation’s leadership rally its citizenry to defeat a specific enemy if that enemy is not ousted?

    This leadership has no answers. They just want the right to do what they want, regardless the legality of that action.

    It is a strange turn of events when the enemy is the catalyst for our secrecy, torture, and abuse. Nobody is making us lower our standards – we are freely choosing to assent to the rule of barbarism not of the law.

    Secrecy cannot be the cloak to hide unlawful conduct. Nor is unlawful conduct justified during times of war. The system of checks and balances remains in full force.

    Nothing before us suggests the President in the wake of 9-11 can rely on the Congressional “approval” to do what he wants. This link was broken once the President went before Congress in re Iraq. It is now 2005, many years after 9-11. There is no excuse not to have gone to the FISA court – even during wartime – to comply with the notification requirement.

    Nobody is saying that the President can’t monitor – only that he must get a warrant before doing so. He, by his own words, has done this – and plans to continue doing so.

    * * *


    Theme: Catchall – when all other arguments fail

    Argument Echelon existed under Clinton.

    A sign of a real problem for the Executive is when their legal defenses are no longer credible.

    In this case, because all the above arguments fail, the only option this executive has is to point to what someone else did.

    Yet, Clinton in 2005 is not the president.

    Moreover, there was nothing stopping the Republican Controlled congress from bringing evidence – if there existed any – of the President’s failure to get warrants before using Echelon and the NSA to spy on Americans.

    Yet, to be fair to the Republicans, Clinton and Carter both authorized warrantless searches using executive orders.

    Unfortunately for the RNC-apologists, the Youngstown Case in re Truman trumps both, holding that the Constitution, not the President's executive order, is the supreme law of the land:
    "The Executive Order was not authorized by the Constitution or laws of the United States, and it cannot stand." Ref: 343 U.S. 579

    Well! The RNC has ably demonstrated their poor oversight -- malfeasance? -- is not limited to their own party.

    Then again, if you don't want to consider the flawed-implications of that RNC approach, consider the plain language: Selectively quoting material. Details!

    The President failed to fully comply with:

  • National Security Act -- Bush lawyers: "You mean non-written briefings aren't acceptable when informing Congress of warrantless searches on Americans?!? Shocked!"

  • FISA -- Bush lawyers: "You mean we're supposed to tell the judges in detail that the information we got from a warrantless search was used to "justify" the FISA warrant? Shocked!"

    * * *

    A good sign: When the legal issues become part of pop culture.

    * * *

    To remedy this RNC-centered defect-pattern with governance, perhaps the able RNC can ask "their man" in the White House to pen an executive order -- creating a time machine and remedy their failed oversight.

    But why bother chasing important matters when you can chase a blue dress.

    * * *


    Theme: Illogical delusion

    Argument: Bush is a victim: No matter what he does, he gets blamed.

    More of the Nazi-like victimization they used to justify abuse, unlawful conduct, invasions.

    Notice the above argument has nothing to do with the original FISA statute. It simply is more of the, "Hay, everything else we've done is ineffectual -- because we are incompetent -- so don't blame us, blame the ones that are pointing to our incompetence.

    Please, when are we going to see the special prosecutor clean up this mess.

    * * *

    Within this theme, we also have the absurd arguments. One example is to list many cases where warrantless searches are permissible -- then change the argument from:

  • A. Did the President violate the FISA statute; to

  • B. Are there cases where a redefinition of what happened would be acceptable.

    This is known as "arguing the wrong point." Nowhere in the discussion is there a succinct statement of:

  • 1. This is the FISA statute;

  • 2. This is what the President did.

    Rather, what is done is

  • A. create a long list of situations where "warrantless searches" are acceptable, and then say

  • B. Because warrantless searches are acceptable in these cases, we can also argue that they are acceptable in other cases; then assert without proof

  • C. The conduct in question fits the definition of broadly acceptable conduct.

    What they're doing is changing the definition of the conduct, and broadening the range of approved conduct.

    The reason this argument fails is that it expands the definition of the acceptable conduct by way of irrelevant analogy, and ignores the specific situations in the statutes mandating the following:

  • Specific procedures to follow;

  • Provisions and discussions to get exceptions;

  • Specific definitions of how to define and categorize people

    In short, this approach simply relies on convoluted arguments that are devoid of legal foundation, and unrecognized logical constructs.

    * * *


    Theme: Twilight Zone -- Define a new reality

    Argument: We did the right thing, but nobody would cooperate

    This argument asserts that despite all that Bush says about the legality of what he did -- despite no legal foundation -- that the opposition got in the way.

    However, this argument is delusional.

    First, the RNC controlled Congress in the wake of 9-11.

    Second, there is no basis to credibly assert the proposed plans -- regardless their legality -- wouldn't have been blindly approved -- look at the Patriot Act.

    Third, it is absurd to suggest the Administration "was unable" to take time to seek warrant -- the time required is relatively short; and the law permits getting warrants after the fact, within a reasonable amount of time. Thus, the issue isn't that it was impossible, but that the White House was lazy.

    Fourth, it is absurd for the White House to suggest that the RNC was unable to "get what it wanted unless there was a compromise" -- this would have us believe, that immediately in the wake of 9-11, the White House had no "authority" to get what it wanted. Yet, this is at odds with the "inherent authority doctrine" -- that the President could do what he wanted.

    We judge the RNC would have the country embrace two delusional conclusions, both contrary to the overwhelming support the President had to pass any legislation:

  • The RNC would has us incorrectly believe that their own party was obstructing their President; This is non-sense.

  • The RNC wants us to incorrectly believe that the only option was to compromise on something that was required -- but this would mean that the RNC leadership was proffering an unlawful or unreasonable proposal that the majority party in the wake of 9-11 would not assent to; This would imply that the fractures within the RNC -- self-evident in 2005 -- were already there in the wake of 2001. This is not credible at a time when the mere hint of "you're a terrorist if you're not with the President"-type of sloganeering was going around.

    We judge the issue was:

  • There available lawful remedies were viable options;

  • The lawful options were not used;

    Bluntly, the RNC can only rely on non-sense, delusion, and bizarre abstractions of reality to "defend" what has happened.

    For other examples of this type of propaganda see the following selections:

  • Machiavelli and Iraq here -- what to do when the force of reason fails: Do it anyway, regardless the laws or reason.

  • RNC Propaganda Checklists here: What the White House does when the law is at odds with what you've already done -- Tell bigger lies. Here are the things they put in their propaganda. Can you see them in today's press releases?

  • RNC Propaganda: Case study Cheney's speech Here -- now you can apply your skills and see whether you too can think clearly despite the RNC-White House-inspired non-sense. It can be done!

  • * * *

    Something else NSA-fans are doing is pumping out disinformation. They're creating unsupportable-hypothteical constructs in order to create confusion. The best thing to do: Study FISA and the caselaw above. Come to your own conclusions about what does or does not warrant serious consideration.

    What follows is a series of points discussing the unfolding disinformation effort. In short, they know their bonafide legal defenses and public excuses are non-sense. The only thing they can do is spew out this kind of information -- just as they did with WMD -- with the hopes of creating confusion, distracting attention.

    Here are samples:

    Let’s consider the flawed assumptions:

  • 1. The legal analysis is flawed, and fails to discuss the nuances of the particular cases. This error is also repeated when they narrowly cite the FISA statutes, but ignore the provisions which the President has explicitly asserted he has violated – the warrant requirement.

  • 2. We judge the source of the information is someone more related to the Justice Department and a political law firm, not familiar with the case law.

  • 3. We judge the cloak of “professional gentleman” is a ruse, and may be a female within the DoJ legislative liaison office, or a relative who works for a commercial lobbying firm.

  • 4. The “facts about the NSA program” are disputed. The FISA court does not agree with the assertions within the memo.
    There are several problems with public assertions about the nature of the NSA program. Given we have yet to have Congressional reviews or a formal classified briefing to the FISA court on these particulars, it remains unclear why anyone would possibly assert premises about the nature of the program, without carefully reviewing the details.

  • A. It is not obvious that NSA does or does not target anything. This is in question and remains to be explained. Note that they assert “almost certainly” suggesting that it is not absolutely certain. We judge this qualified statement is a desire loophole, as are the WMD claims.

  • B. The targeting mode and various technological capabilities does not engage the FISA warrant requirement. Whether the NSA and White House want to follow the Constitution or FISA is a separate issue. However, there are NSA patents that specifically can target individuals by location – we judge there is no reason why similar patents – ensuring a seamless and fluid approach to warrants and NSA monitoring could not also be developed.

  • C. It is a red herring to assert that NSA focuses on external targets. Rather, Canada, UK, New Zealand, and Australia direct their monitoring resources to domestic targets within the US. They do so without warrants. Whether this information is then back-provided to JTTF, CIFA, DIA, or other law enforcement personnel remains a matter of evidence. It is legal and factual fiction to assert that people targeted are only “non-US”.

  • D. It does not follow – if NSA has this capability to monitor the communications – why the President is focusing his efforts on non-specific objectives: Terrorism – a vague strategy-- as opposed to named individuals, which could be targeted.

  • E. It is a stretch to assume that people in the US receiving these calls are “operatives.” They may be, but the language – and potential inflammatory language – is at odds with the ineffective progress: Where are the convictions of these massive numbers of intercepts? We have none. Regardless the results of the convictions, the Constitution remains.

  • F. It is interesting what the status of the potential targets may be in the US, but their status does nothing to change the FISA statutes.

  • G. What NSA may or may not learn from a target is irrelevant to whether the FISA warrant requirement exists. The legal opinions over the various case law fail to show how the full language trumps FISA.

  • H. The purpose of the court is to review whether there is probable cause. By focusing on NSA capabilities, NSA is using a “technological smokescreen” to distract attention from whether the NSA is required to obtain a warrant under FISA. What NSA may or may not be able to do is interesting, but the capabilities do not negate the warrant requirement.

  • I. If the statutes of the target is in question – then the court and law enforcement need to show how they know about the target status without relying on the warrantless surveillance. It appears the resignation from the FISA court is for this reason – non-admissible evidence – the fruit of warrantless searches, is used as the basis for the warrant. This is illegal in itself.

  • J. Whether a potential target did or did not obtain legal status is irrelevant to whether the warrant requirement exists. It is a red herring to characterize potential targets with respect to their alien status.

  • K. It is speculative and not admissible whether someone may have lied or have ill-intent – this is something that has to be proven, not simply asserted, as the basis to obtain a warrant. Otherwise, we simply dive into the nexus of assuming that all people we want to target “may have lied about their intent” as the basis for a warrant. But rather than use this “logic,” the White House ignored the warrant requirement.

  • L. It is incorrect to assume that “an known person” is automatically an “operative.” This is a stretch. However using this term would ask that we blindly take a leap – and assume “they are an operative of a foreign power, therefore we can surveil them.” Again, their status does not change the warrant requirement. If their status was known – and they were a bonafide operative – then there would be no trouble getting a warrant.

  • M. The warrant requirement does not enter or exit based on the statute of the person. Rather, the warrant must be obtained within 72 hours, or the surveillance must end. Arguments to the contrary are missing the FISA application to all surveillance. It is a red herring and misleading to assert that FISA only applies in situations where US citizens are involved.

  • N. At this juncture, it is absurd to suggest what might be the “likely” scenario. At this point, we have no data on the numbers. All we know is that 10,000 names of US citizens have been transferred from NSA to non-authorized personnel. We judge the people making comments about the “likely scenario” and the “application of FISA” are hoping to create an illusory “body of people” that could “legally be targeted.” This is non-sense – it is creating a non-starter in the hopes of creating more confusion about FISA, the caselaw, and what is or is not covered. A sign of a problem in the White House, DoJ, and NSA is when they encourage consultants and lobbyists to anonymously contact the public, but fail to identify themselves – but they use hypothetical examples which are not supported by the existing caselaw, facts, and actual practices. We judge the personnel making these claims have little knowledge of the statutes, caselaw, or the specific provisions and monitoring procedures within NSA.

  • O. It is incorrect to assert that the FBI is “primarily” anything. There are other agencies that are involved in the efforts. We judge the people making these communications are relying on “public perceptions” of what is going on, and then hoping to build some authority. To assert that FBI is “primarily” anything is meaningless: The issue is – what is the law, and what are they doing.

  • P. Given the individual has stated that the “scenario” would “overwhelming” and “most likely” be something indicates that they don’t know what they are talking about.

  • Q. We judge that the “overwhelming scenario” is a ruse to mislead the public about what FISA was or was not intended to cover. Rather, the opposite is true: FISA was intended to impose an warrant requirement; include judicial review, and strike a balance between the security and liberty. The tradeoff and balancing is inherent within FISA. We judge the person asserting what the “authors of FISA intended” to be devoid of any legal or factual foundation – for the same argument in re Patriot Act would destroy this argument – Patriot Act explicitly rejected these changes to FISA which the President says exist. We find no textual support for the President’s position within the Patriot Act, FISA, or caselaw.

  • R. The Global War on Terror argument is an illusion to justify warrantless monitoring in violation of FISA. A credible strategy would identify specific targets, not a general strategy like terrorism. The US, when it hand a rash of bank robberies didn’t destroy the bill of rights, and say, “We’re going to have a war against bank robbery.” Rather, they put up “Wanted Posters” with specific names and the Bill of Rights remained in tact.

  • S. It is disingenuous later in an argument to suggest, despite all the non-sense relied upon to ignore the FISA warrant requirement, that identifies may not be known. Brilliant – this is the reason for the warrant requirement – to ensure that there is probable cause to engage in the surveillance. The problem the NSA, JTTF, FBI, CIA, DIA and others run into is when they use the fruit of warrantless NSA monitoring to establish the probable cause for the warrant under FISA> It remains a matter of law and evidence whether this can be proven in the court. However, there are a number of DC, VA, and MD law firms in contact with New York criminal defense firms scratching their heads – they’ve got clients within the NSA’s SES who are in legal trouble.

  • T. It is a stretch to assume that someone contacted is “support personnel” or “terrorist.” They may be, but other information is required. The existence of uncertainty is not the basis to assert – “we need to have a warrant to find out if we have probable cause.”

    U. One cannot reasonably assert what is “legitimate for NSA to do or not do” given we have no information from NSA; the information has not been provided to the FISA court; and we have no cooperation from the government in re Padilla. It is reasonable to make adverse inferences: They have violated the law, and there exists probable cause to determine whether FISA and NSA assets have been targeted at Americans to keep them quiet about AlQueda penetration of NSA. It is legal fiction to assert that FISA “only comes into play” when the target is a US citizen. The warrant requirement exists, regardless the targets nationality.

  • V. It is asserted – without proof – that NSA’s program is legal. We judge, based on the concerns within the NSA’s SES, their contact with defense counsel, and the President’s statements that warrants are not being obtained, that the opposite conclusion has more support: The program is not legal. We judge there is a reasonable basis, based on the FISA court concerns and resignations, that NSA’s “warrantlessly-obtained” information has been collected and used as the basis to issue warrants. This is illegal. We judge the presumption of legality is not to be asserted, but proven; thus, the information should be excluded. We judge the individuals asserting otherwise have no knowledge of the caselaw, have read the relevant caselaw in at best sweeping terms, and have no understanding of how evidence is or is not excluded during various hearings.

  • W. It is an understatement to assert that the “only concern” should be the technique and the source. This incorrectly presumes that the source is credible; and the technique is lawful. This is absurd. Information from anonymous sources may or may not be credible; but the techniques, however interesting and complicated must still comply with FISA. Other legitimate concerns are whether the FISA requirements are followed, and whether there has been a lawful warrant issued within the 72 hours. If there’s no warrant, regardless the nationality, then the monitoring must stop. It remains a matter of law and evidence to what extent “training” and “testing” have been used as ruses to “justify” warrantless monitoring of US persons.

  • X. It is a stretch to assert that “targets” are linked or not linked with military action. There is no legal foundation to assert that, during times of war, the laws of the US are to be ignored. Congress has not been consulted on this matter; nor has the FISA been thrown out; and we see no caselaw that shows FISA is unconstitutional.

  • Y. It is irrelevant whether the enemy is or is not targeted; the issue before us: Why has the White House engaged in warrantless surveillance of US citizens? The current information from DoJ and the White House do not provide answers, only more of the non-sense the court has seen in re Padilla.

  • Z. It is irrelevant whether the targeting is at enemies or US citizens – if NSA is targeting individuals within the US, then warrants need to be issued. FISA is clear. The discussion about “connectedness to military action” is interesting, but does nothing to address the legal issues raised by FISA. Whether the targeting is at “the enemy” or “locals” is interesting – but does nothing to address: Why was the targeting of US citizens done without a warrant? DoJ has no answer, and the Administration’s justifications are wholly without merit.

  • AA. The fact that NSA, DoJ and the White House would have us believe that “enemy” is or is not a precise term is irrelevant. Further, this has nothing to do with FISA. One cannot claim ignorance of the warrant requirement; then turn around and say they “did not intentionally” do something – in order to get a warrant, that justification is based on the assumption that there is a logical link, deliberate effort, and intentional act to do something. DoJ and the White House are asking that we assent to the vague notion of “Military commander” while at the same time – despite the warrant requirement – assent to the opposite notion of “We didn’t know.” Well, how can the President credibly justify confidence that he is effectively leading when, despite the warrant requirement, he’s using the appeal to ignorance to justify specific action. One cannot rely on ignorance in the vacuum of facts to credibly assert they have probable cause to do anything. It remains a matter of law and evidence to discover to what extent, if any, the White House is using this verbal non-sense to dissuade reasonable inquiry into what is self-evident non-nonsense.

    We judge, just as the US engaged in non-sense in re Iraq WMD, so too is the White House and DoJ doing the same in re NSA and the FISA. Same crew relying on the same propaganda, media, and information distribution channels.

    It remains to be seen whether the lawyers in New York fly down to DC and MD this weekend, or wait until the New Year. Either way, NSA and GCHQ will be collecting information. Or is counsel going to reasonably expect their communications to be secure and privileged now that we know SES personnel inside NSA are sweating?

    * * *

    Let’s review the Moschella letter which suffers a number of flaws: Ref

    Note the Moschella letter hinges on flawed assumptions -- already discussed in the caselaw above -- please go read it above if you haven't already.

    Know: The White House is citing the same caselaw already destroyed above -- the caselaw, when read in full, undermines the White House's position further -- All they can do is selectively cite caselaw. That is not a credible threat of a defense before a court, and the White House knows this -- why they have issued the letter -- create an illusory defense/smokescreen, and dissuade action to call for this matter to be brought to court: Independent judicial review, and attacked by a legal adversary.

    Let's review the flaws with the Moschella letter:

  • A. FISA already strikes a balance between privacy and security. It is incorrect and misleading for the White House to assert the President can ignore this existing balance, but tip the scales further. FISA explicitly requires a warrant within 72 hours. Whether the NSA does or does not wish to create technology that complies with the law and secure a patent remains a matter for program managers to explain: Why was a legal requirement not matched by a serious NSA program to develop technology and create a system that would comply with the statute?

  • B. The President may not ignore the FISA’s 4th Amendment requirement. All caselaw the White House relies on has been selectively cherry picked. The caselaw affirms FISA and the warrant requirement in all cases. No caselaw has found FISA to be unconstitutional.

  • C. No national emergency confers unlimited powers on the President. The President may not, and is constitutionally barred from, exercising legislative and judicial functions. It is irrelevant how mysterious or unspecific the proposed enemy may be – the Constitution remains in place.

  • D. The President has made several fatal admissions: Asserting the conduct did occur; that the action failed to secure the warrants; and that he well knows what the FISA requirements are. It remains a matter of law how many personnel within NSA will face indictments for engaging in conduct apparently in contravention to FISA.

  • E. The President has confirmed, despite the FISA requirements, that the NSA warrantless monitoring occurred without approval of the FISA court. We need not consider whether there is a large or small number of violations – this fatal admission is sufficient to secure an indictment.

  • F. The White House simply asserts – without any credible reference to the full caselaw – that the conduct was legal. However, all caselaw explicitly confirm that FISA and the warrant requirement remain in full force.

  • G. The White House refers to caselaw which discuss irrelevant issues: Whether a defendant can or cannot have access to NSA data. However, these hearings hinge on the stipulation that the evidence was unlawfully obtained. The court has not found that the warrantless searches were legal, but the contrary: Despite the illegality of the evidence, were there other sources of information that would maintain the conviction? The court affirmed, despite the illegal wiretapping, the state had probable cause to justify a warrant to secure other evidence.

  • H. It is a sweeping statement for Moschella or anyone to assert, without proof or reference to the full FISA and caselaw, that the conduct was lawful; nor may she point to a nebulous foreign threat as the basis to ignore the FISA 72 hour requirement.

  • I. Moschella’s argument is flawed in relying on the Sept. 18, 2001, congressional resolution, known as the Authorization to Use Military Force. This does nothing to justify why the FISA court was not notified as required under the statues. The Congressional resolution did not invalidate or override FISA and the warrant requirement. Bluntly, despite this resolution, there was no language giving the President the power to do what he now proposes. Rather, the conference committee explicitly removed this language.

  • J. It is incorrect to say the langue clearly contemplates White House violation of FISA; or a suspension of the 4th Amendment. We find nothing before us that affords the President, without conferring with the court or Congress, any power to invalidate an Amendment. The Congress did not confer any power on the President to engage in unconstitutional conduct. It is conclusory, and a matter of law to determine what scope of other executive action has similarly violated the Constitution.

  • K. The White House cannot cite the complete case law of any court opinion that specifically states that FISA is to be ignored. It is incorrect to assert that [a] any court has invalidated FISA or [b] the warrants can be ignored. Rather, all caselaw, when read in full, shows [c] FISA has been affirmed and [d] the requirement for warrants still applies in the situation where the White House finds itself. [See discussion above for how the caselaw they cite is of no help.]

  • L. The White House, in their letter to the Senate and House intelligence committee admits that, despite the FISA requirement which the courts have affirmed in all cases, the Administration ignored this requirement.

  • M. The issue before us: What has been done by the NSA, DoJ, and White House to undermine the Constitution, and to what extent have, by the White House actions, have specific personnel ignored the clearly promulgated 4th Amendment and FISA requirements, and in effect by their actions are defacto enemies of the US Constitution? It remains a matter of law how many NSA SES personnel and Executive branch lawyers are in trouble because they have asserted there is a “right” to violate the US Constitution and clearly established federal law – both which cannot be trumped by executive power. [See Youngstown].

  • N. There is no broad exception to the warrant requirement. The White House cannot cite the complete caselaw for the public to freely read that supports this assertion. The caselaw which “overrides” FISA does not exist.

  • O. Nothing which Congress did conferred the power on the President to violate the 4th Amendment or Federal Statute. There was no exception; nor did congress intend there to be an exception. The Article II powers do not trump Congress and the Judiciary from exercising their oversight. However, despite the plain language and responsibilities of Congress and the Judiciary, this President has ignored the other two branches of government. This is unconstitutional, especially egregious during a time of war. The Supreme Court explicitly stated that during times of war, the President cannot issue executive orders which invalidate Federal Statutes or the US Constitution.

  • P. It is incorrect, as Moschella writes, to presume “there is no limit” to what the President can do. He may not violate the law; he is not unconstrained; and he may not ignore the US Constitution, however much he may think he can.

  • Q. It is incorrect for Moschella to assert the NSA program is “consistent” with anything. The FISA Statute specifically strikes the balance between security and privacy. What the White House wants to do is compromise on this existing balance within FISA. Nothing the court or Congress has done or said recognizes this action as lawful, nor is there any specific language, authority, or caselaw which the White House can point to justify ignoring the US Constitution, 4th Amendment, and FISA.

  • R. There is a legal fiction floating around – that some situations do not require a warrant. This may be true – but FISA specifically describes situations where the warrant is required. The NSA program satisfies the warrant requirement. The exceptions the White House relies on refer to caselaw which specifically confirm the warrant requirement in FISA.

  • S. The totality of the circumstances indicate that Senior Executive Service Personnel within the NSA, DoJ, and White House staff have crated legal fiction to engage in conduct contrary to the US Constitution, 4th Amendment, and clearly promulgated FISA.

  • T. The “special needs” requirement does not create immunity to the 72 hour notification requirement. All surveillance, if it does not identify information within 72 hours, must end.

  • U. It is legal fiction to presume “because we are not going to use the evidence in court” we can ignore FISA, or engage in conduct contrary to the 4th Amendment. This is the very intrusion which the prompted the framers to divide power.

  • V. It may be reasonable to intercept communications, but it is not reasonable or lawful to do so in a manner that is contrary to FISA, invalidates the 4th Amendment, or relies on caselaw which affirms FISA and the warrant requirement.

    In short, the White House’s Moschella has issued a letter that is trash, no more reliable that the worthless statements Secretary of State Powell has issued in re WMD.

    * * *


    Theme: When all else fails, keep your head in the sand

    Argument: We don’t want to know

    When it comes down to it, the only argument the President can hope to rely on is a simple one:
    The public doesn’t want to know about reality – how the laws and their rights have been violated; and how the Government refuses to assent to the mandate there be a credible, Constitutional system of checks and balances.

    This is at odds with the notion of self-government and facts.

    Denial is the playground of tyranny.

    The law – as it exists – commands otherwise: To face reality, reign in tyranny, and force all – Even a war time Executive – to assent to the rule of law.


    Bluntly, because all the arguments this Administration uses lack legal foundation, it is clear the President has no credible defense in re impeachment for violations of the Constitution, specifically the FISA statute and 4th Amendment against unreasonable searches and seizures.

    Rest assured, the same legal crew which “justified” torture, will be there to “justify” tyranny – unchecked government power.

    Beware the leader who bangs the drums of war. They will get the citizenry, if they are willing, to give up their rights.

    This leader bangs the drums for his own impeachment. By his own admission his conduct is contrary to the rule of law.

    It is a separate matter whether the Citizenry can be mobilized to demand impeachment, or insulate this tyrant from the rule of law.

    The battle is about to begin for the hearts and minds of the electorate.

    Yet, the law remains unchanged.

    Why is the leadership bothering with the electorate, when the law is clear? The same reason they worry about polls during times of war. If they truly were doing the right things, and acting in a manner consistent with the rule of law – the right reasons would prevail.

    American has a leadership problem. It remains unclear whether the leadership will allow the rule of law to assert itself on this tyrant. If it fails, there will be more chances to collect evidence of future wrongdoing.

    Self-evidently, tyrants cannot constrain themselves. This tyrant must be forced to submit to the rule of now, or – after more egregious abuses occur – later when the misconduct is widespread and self-evident to the comatose.

    Choose: The Constitution or Tyranny.

    Choose wisely.