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Saturday, December 17, 2005

NSA monitoring understated

The National Security Agency and Defense Intelligence Agency have been engaged in domestic surveillance, monitoring.

Not only is the conduct illegal, but appears to be widespread and related to non-terrorist related domestic political activity.

It remains to be seen whether the full scope of the monitoring is disclosed prior to the 2006 election.

* * *

Friday, the President asserted he was only doing what he was lawfully allowed to do.

This is a problematic assertion. Recall back to the DoJ memo-days: That torture was lawful under some circumstances.

We judge it is likely DoJ has written other memos twisting language to “legalize” conduct that is contrary to public policy.

* * *

Interesting links:
TPM: NSA and Bolton.

Problems with Bush's defenses in re NSA's warrantless spying.

Case study: Fialure of checks and balances in re Powell's WMD data.

Flaws with the ticking time bomb scenario -- how an absurd argument was used to justify unlawful conduct -- What absurd arguments did NSA and the White House use to justify this conduct?

Sample situation where JTTF officers allegedly engaged in domestic harassment against citisens expressing contrary views in re the Patriot Act -- How were NSA assets used to track, monitor, and prioritize these American citizens?

* * *

Addition: President's Saturday Radio Address

We judge the Saturday Radio address to be misleading for four reasons:

  • 1. Classification

    The President asserts the monitoring was part of a classified program. If appropriately classified, the President's argument fails.

    According to the NYT and open media, the program was started in the wake of 9-11. However, the actual domestic monitoring program has always included American citizens. Echelon allies -- UK, Canada, NZ, and Australia -- are permitted to eavesdrop on domestic American signals in the US and provide information -- investigative leads -- to local law enforcement regardless the link or non-link to terrorism.

    If the President's assertion is true -- that the current program -- above and beyond the previously existing one with domestic surveillance through Echelon allies -- was lawful, but classified, then once it was known the media was investigating something that was "classified," the President fails to demonstrate that an immediate investigation started into the leak of that classified program.

    Curiously, the President seemed surprised by the revelations by the NYT, indicating he has a "lack of concern about leaking of classified information to the media." His response -- apparently no knowledge of an investigation into this "revelation about a classified program" -- is at odds with the Senate's call for an investigation into the leaking of the information related to the Eastern European detention centers.

    Further, the NYT and open media suggest the White House was "negotiating" with the media to get them to "not disclose" the details of the program. Again, if the program was classified for a bonafide reason, there should be no negotiation, but criminal investigation into the leak. We have no information nor do we have any evidence the White House has appointed a special prosecutor over this leak.

    Moreover, to suggest that the White House and media were "negotiating" over the timing, substance, and details of the potential coverage is at odds with the notion that the information was lawfully classified. A negotiation implies that the discussion wasn't about the legality of the underlying action, nor about the potential consequences of revealing an "appropriately classified program," but what might be planted in the media-publisher-editor mind to "not report" something that the White House could not justify "having no coverage."

    Finally, in light of the NYT disclosure and initial White House responses -- asserting complete coordination, then backing down, then Saturday asserting multiple conversations -- implies that the President, Staff, and others were not on the same page, unprepared, and not ready to discuss "what had long been discussed" as a likely NYT story.

    We judge, the lack of preparedness, initial failure to provide consistent statements, and the failure to investigate the "NSA leaks about classified information" point to the following conclusion: The program was not appropriately classified; and the negotiations were with the intent of suppressing information the public should have had to make a voting decision in 2004.

    We judge the Presient -- and his Staff and Spokesman, despite having the ability to have information, updates, and effective and legally sound arguments electronically transmitted through an earpiece -- fails to demonstrate he has a sound legal argument to rapidly provide when one should reasoanbly be expected to have a sound legal foundation at all times given his professed "concern" for the rule of law.

  • 2. FISA

    The President asserts the FISA court was involved. If this is true, then there would be no reason to rely on the DOJ memos as "proof of legality" to the NSA employees. Rather, the White House could have simply asserted, by providing a copy of the FISA ruling to the appropriately cleared NSA and Congressional leadership that the FISA court ruling would prevail. Theoretically, this should have ended the internal debate. But the NYT reports otherwise: A debate raged within NSA.

    However, despite the alleged FISA court "complete review," the White House points to DoJ memos as the "basis to persuade the NSA staff" that the program was legal. Again, if the program was a bondafide program there would be no reason for the NSA to debate.

    We judge the FISA court ruling was narrow, and failed to address the other Echelon ally data that would permit transferring NSA data collected from overseas to local officials.

    We judge the President has used NSA and Echelon to do what it has always been doing -- conducing warrantless searches, transferring information to local law enforcement, even when that collection, analysis, and dissemination is unrelated to counter-terrorism efforts.

  • 3. Echelon

    Nothing in the President's statement specifically says, "We did not rely on the UK, Canada, New Zealand, or Australia" when monitoring domestic citizens. Rather, the statement merely asserts -- perhaps truthfully -- that the United States efforts were narrowly applied to terrorism efforts.

    Further, no where does the President say that UK, New Zealand, Canadian, or Australian personnel were briefed on the "civil implications" of the NSA action.

    Also, the President's address fails to assert that investigative leads were not provided by Echelon allies to local law enforcement; nor does the President deny that overseas NSA information was, could have, and continues to be passed to local officials to harass political opposition. A failure to deny something that a reasonable person "should deny" -- given the public discussion of issues related to impeachment, war crimes, and 42 USC 1983 violations -- is considered admissible evidence when impeaching a witness.

    It is troubling when CIFA has identified political and religious organizations as "threats," but the President fails to address how these "threats" -- rightly or wrongly -- could speculatively have been possibly linked to "international terrorist financing". The failure to effectively close a loophole in this argument -- in light of the materially misleading statements in re WMD, Iraq, and 9-11, raise reasonable doubts about the veracity and completeness of the President's statements.

    Also, we know that GCHQ's Gunn, NSA's Koza, and the UN Ambassador Bolton have confirmed NSA does spy on Americans. US officials, if they were relying on DoJ memorandum, could "legally justify in their minds" [not necessarily before a court that had all the facts] that the monitoring of domestic civilians was "lawful" under the DoJ's convoluted justification.

    We judge the President is making incomplete statements with the intent to mislead; and this forms the reasonable basis to inquire whether the objective of these statements is fraud -- to acquire something of value -- favorable election results, or a lack of consequence -- in exchange for saying something that is designed to mislead, impede, or affect a lawful inquiry into these matters.

    We judge the President is lying about the flow of information from NSA -- through Echelon allies -- and that information related to non criminal activity has been collected and used as the President desires.

    We judge the public assertions of "concern" for the Constitution to be unreliable, and contrary to the President's repeated public statements and actions to the contrary when it comes to matters of Guantanamo, abuse, and the Convention Against Torture. If the President was "concerned" about the Constitution, then there would have been no "debate" about ways to circumvent the treaty obligations by moving personnel to Eastern Europe.

  • 4. Congress

    The President has asserted that he has coordinated well with Congress on the issue. However, the President did not discuss the details of that coordination, nor did he make a clear showing that the information he provided -- if at all -- was correct; or that the President discussed the full range of the activity.

    Again, if the disclosures to Congress were "appropriate," then there would have been no "Debate" within NSA. Yet, the debate raged despite [a] assertions the conduct was lawful; [b] DoJ memorandum; [c] notifications to Congress; or [d] involvement of the FISA court. It remains a matter of law whether, given the full facts, the FISA court, Congress, or others would have assented or condoned the action, much less remain quiet.

    We judge the disclosures to Congress -- if made at all -- were incomplete, and failed to address the Echelon ally data collection of non-criminal activity.
    We judge the Congress is not in a position to quickly organize itself to assess the full range of inconsistencies between the President's address, 2001-2005 activity, and the subsequent media disclosures.

    The glacial approach the Senate has taken to Phase II "could have" been resolved if NSA was allowed to collect domestic data that "lawfully" related to counter-terrorism investigation.

    Given the slow approach despite the available resources that "should have been used" -- if the President is to be believed -- to keep us all safe, solve problems, and point us in the right direction -- then NSA should have been a source of assistance for the Senate. However, the lack of progress indicates the President's statements -- however well crafted -- are not supported by the full range of government responses: Inaction, failure to respond, and unwillingness to address issues prior to the 2004 election.

    Again, if there were "negotiations between the White House and media" over this issue, we should not have been surprised -- this "should have" been promoted as a "good thing" the RNC was doing, thereby justifying confidence the RNC should be re-elected. Yet, despite the revelations of problems in Iraq, we find the "lack of discussing something that is -- what they argue -- a "good thing," to be problematic.
    We judge the "failure to trumpet something that was, in their mind, a 'good' thing" to be evidence of a failure to disclose other material information that is "less than supportive" of political objectives.

    We judge the President's statements are unsupportable; and the NSA assets -- if they are appropriately targeted -- have not been deployed to target or solve terrorism-related issues -- but are more likely pointed at non-criminal civil activity contrary to the RNC political agendas.

    End addition

    * * *

    The White House and NSA appear to suggest that the scope of the monitoring has been overstated. This assertion is questionable, and suggests the White House and NSA wish to narrow the scope of the potential offending conduct.

    We judge this statement to be unreliable and misleading.

    Recall, Bolton specifically asked for Americans by name. We judge the requested data was not related to either domestic or international terrorism, but broader NSA efforts – either independently gathered through UK, Canada, NZ, or Australia; or part of the continuing regular, reroute domestic monitoring efforts at the direction of the White House.

    Further, NSA personnel, whether they are or are not aware of the scope of the overall White House directed monitoring efforts, are in sensitive compartmentalized positions. This means they would not be in a position to individually speak to the overall level of White House involvement in the NSA monitoring.

    Suggesting the concerns are “overstated” or “overplayed” is problematic – nobody has carefully described “overplayed relative to what standard.”

    We judge the White House and senior NSA statements -- suggesting the public concerns about the NSA monitoring being “overstated – are intended for Congressional, public, and NSA employee consumption: To reduce the chances that NSA employees will have the incentive to independently go to either Congress, media, or US attorney and to reduce the risks of further disclosures related to unlawful activity.

    We judge the DoJ-memos giving “carte balance” to engage in unlawful activity is widespread across all executive departments. In turn, we judge the disclosure of information is piecemeal, and that all Congressional Committees have issues warranting oversight.

    * * *

    Previously DoJ and the White House have exchanged memoranda – asserting that torture, abuse, and other mistreatment were permissible. The President and his staff paid no attention to the convention against torture, asserting the conduct was permissible – linking the justification to terrorism.

    There is a curious shift. Previously, public statements in re torture were emphatically linked with “what was acceptable to fight terrorism.” Now, the change reflects, as if an afterthought, that the NSA monitoring was done in a manner consistent with “our values”.

    The President has been reported in Capital Hill Blue to have stated emphatically before three senators of his own party that the Constitution is irrelevant – “It’s just a goddamned piece of paper.”

    We judge the NSA and White House statements – that they are conducting their affairs consistent wit the rule of law, values, and Constitution – are only intended to limit the concern, not address the real scope of the monitoring.

    We judge DoJ has issued other “blanket approvals” for questionable conduct to other departments besides NSA.

    * * *

    Congress plans to review the NSA issues in January 2006. We judge the committees will not adequately review the issues.

    The President plans to submit his annual “President’s Budget” at the end of January.

    The excitement of the budget submittal, combined with the normal committee spring markups will give the staff little time to take on the added burden.

    The issue isn’t simply isolated to the NSA, intelligence, or Judiciary Committee. Rather, it is most likely in the coming months additional DoJ memos to other departments will surface.

    In light of the unfavorable weather, DC does not appear to be inclined to take much interest in reviewing the Constitutional issues across all departments.

    We judge the NSA and White House will delay revealing the larger issues, and put pressure on the media to “not report” on issues the media continues to investigate until after the PB is submitted.

    Whether the media assent to this pressure remains to be seen, but is less likely than in the wake of 9-11.

    * * *

    Some have suggested the NSA monitoring was only isolated to internationally-linked targets.

    We judge this statement is not credible.

    If the NSA targets were isolated to internationally-link, FISA-actionable, or DoJ-endorsed, there would be no debate within NSA.

    However, the apparent NSA and CIA debate over the legality of action despite the DOJ memos that the conduct was permissible, suggests the real targeting and NSA activity was at odds with the public assurance.

    We judge the initial orders were unlawful, failed to meet the Congressional intent, were contrary to law, and failed to incorporate the available lawful options with the FISA court.

    We judge the subsequent shift and “concern” about the legality of the orders was linked more with a revelation that the activity could not be suppressed, would be disclosed, and that the NSA employees on an individual level were aware of the larger NSA monitoring.

    We judge despite these concerns, NSA personnel did not timely remove themselves from the unlawful activity. It remains to be understood to what extent, if any, current White House message traffic – related to NSA and other apparently unlawful activity linked to DOJ memoranda – have been forwarded to the US Attorney.

    * * *

    We also learn of other events:

  • A. CIFA – Counter Intelligence Field Activity – has a specific list of “Threats” which include fairly benign religious organizations;

  • B. CIFA and local JTTF have put civilian organizations in Denver under surveillance, assigning “threat”-status to fairly benign domestic religious groups; and

  • C. RNC protestors were detained in 2004 using fabricated video evidence.

    It is not plausible that the President would assert – either rightly or wrongly – that he was doing everything he could to fight terrorism, while at the same time not using information from CIFA and JTTF to assign NSA targets. One cannot credibly assert they were doing all they could, but keeping information within the walls of a single agency.

    We judge, regardless Congressional intent, the President did authorize agencies to exchange information related to non-criminal, non-terrorist, and domestic situation.

    We judge these events form a pattern of conduct warranting concerns NSA intercepts were targeted at domestic, non-criminal, non-terrorism related targets.

    * * *

    Other trends warranting concern include a pattern of conduct asserting the leadership was entitled to do what it wanted in the name of a superior goal.

    The President has asserted he has had substantive conversations with God in re the appropriateness of his actions. Curiously, we find no textual reference in the Constitution which affords the President the authority to confer this Congressionally-mandated role to another entity.

    We judge the President has assumed, without lawful consultation with Congress, the power to make decisions about the legality of his actions and orders – that whatever he decided was lawful, regardless the legality, was acceptable.

    Nothing before us suggests the President lawfully relied on the secret FISA court, an option available; nor did the President lawfully consult with Congress; nor did the President present his plan to Congress for a request for a waiver. The President, despite no lawful authority, appears to have willfully violated the law without any statutory authority, waiver, or provision.

    We judge the following:

  • A. The RNC, rightly or wrongly, has asserted they, not the DNC, are in a position to most appropriately preserve the nation’s national security;

  • B. The President, RNC officials, senior administration officials, and others in PNAC in a position to lawfully guide the executive, have self-ordained themselves as “being lawfully allowed to do anything” to keep the RNC in power;

  • C. NSA assets have been targeted against Americans not based on their threat to national security, but on their potential threat to RNC re-election efforts;

  • D. The NSA, the White House staff, and others have coordinated at least two lists:

    List 1: Inaction -- List of events, information, and personnel to take no action against because of their importance to the RNC [to include information Sibel Edmonds reported about money flows from the Middle East to named-RNC officials];

    List 2: Action – List of events, information, and personnel to target because of their association with RNC-opposition, namely the DNC [to include RNC protestors in 2002]

    * * *

    PNAC and the RNC after the Cold War had the innate belief that they were the ones most capable of advancing America’s agenda.

    We judge RNC positioned itself in the eyes of the intelligence community as the party best suited to protect America’s national security interests; and relied on this self-assessment as the legal justification DoJ memoranda were crafted to justify NSA targeting “threats” based solely on their lawful, political activity wholly unrelated to bonafide national security threats.

    We judge 2002 RNC demonstrators were targeted by NSA assets.

    * * *

    We judge the President has asserted – without credible foundation – that he has lawfully used all resources.

    Canada, UK, New Zealand, and Australia [‘Echelon Allies” ] also provide information to Echelon. We recommend the prosecutor explore the following issues:

  • A. Why would CIFA and DIA put the Quakers on the “CIFA threat list,” but NSA assets would not be used?

  • B. What information can the Echelon Allies provide to shed light on the apparent disconnect between the CIFA list and the NSA targeting actions?

  • C. To what extent, if any, were White House comments – about the legality of the NSA efforts – designed to mislead Congress, implying that all Echelon ally monitoring of American citizens does not still occur?

  • D. Why would attacks on RNC offices occur during a period of NSA monitoring by Echelon Allies, but we have no investigation or prosecution of those engaged in this alleged terrorism?

  • E. Why was the approach to the RNC protestors different than the investigation into the attacks on the RNC offices in terms of: Definite investigation, specific targets, an investigation report, specifically named individuals, contact information?

  • F. Why would people with irrelevant information be put on a “no fly list” but not be targeted by the NSA?

  • G. To what extent has the DHS-TSA “no fly list” been used to target NSA intercepts of American citizens?

  • H. How have the NSA intercepts been used to, without explanation, include personnel on the no fly lists?

  • I. If the President asserted that torture was lawful, why did NSA bother monitoring people – why not give a green light to torture everyone – what was the basis to include/exclude personnel; how was it decided whether personnel could simply be tortured, or covertly monitored without informing the FISA?

  • J. How many American citizens were targeted by NSA based on efforts by JTTF, local law enforcement using uncorroborated information – or information gleaned from torture – to remove American citizens from CONUS and detain them in overseas detention centers, outside ICRC access?

  • K. What methods did NSA use to screen the information to ensure the basis for the targeting was a bonafide terrorist threat, and not based on JTTF or local law enforcement efforts to retaliate against those who may contemplate 42 USC 1983 claims over allegations of law enforcement misconduct, malfeasance, or other allegations of dereliction of duty?

  • L. How did the NSA’s list of “investigative leads” physically move from the NSA to local law enforcement; how was information gleaned from NSA used by JTTF, local law enforcement, DoJ/FBI agents, CID, CIFA, and other investigators to find admissible evidence?

  • M. What types of inadmissible evidence did NSA provide to investigation officials that would subsequently be used to develop investigation plans, and find other information that would be admissible?

  • N. If the American leadership deemed that the FISA court was irrelevant, and that NSA could target who they wanted, why is there any relevance to whether the Patriot Act was or was not reviewed – by all accounts, even if the law was rejected, the President and NSA personnel appeared inclined to do what it wanted – what suddenly made the issue of legality important in 2004 and warranted discussions with the media?

  • O. Given NSA’s ability to access information, why hasn’t NSA data been provided to the Senate Intelligence Committee to expedite completion of Phase II?

    * * *

    It remains to be understood by the Prosecutor and Grand Jury why NSA assets were apparently directed at lawful protestors, yet personnel were subsequently detained.

    It would be reasonable to presume – going off what the President stays – that if the White House was using all lawful means to fight terrorism – the White House using NSA assets would have already known the nature of the RNC protestors, and would not have had to detain anyone.

    If the RNC demonstrators were not targeted – as one might presume, based on the President’s assurance that he was doing everything he could to protect the country – then we have to ask whether we should believe the President is being truthful.

    There are two alternatives: Either

  • 1. The President – as he did with the DoJ torture memo – rationalize crossing the line on acceptable conduct in the name of national security – and use NSA assets to target potential domestic terrorists who “just happened to be the RNC protestors”; Or

  • 2. The President failed to use the NSA to target those the RNC general counsel apparently identified as a potential threat warranting detention in the “Gitmo on the Hudson”; and cannot credibly be believed to do “everything,” as he would have us believe.

    That the President may have lied or violated the law is not a watershed event.

    If the NSA assets were being used – as the President would have us believe – then we would expect to find a DoJ memo – sent to the White House and RNC General Counsel’s office – outlining:

  • 1. The range of plans to be used to detain citizens; and

  • 2. The rules of engagement RNC officials should expect so that the RNC Convention would be “appropriately secured.”

    We judge

  • A. the RNC detentions were based on an effort to identify individuals; and

  • B. NSA assets were subsequently used to target individuals based on these sweeps, detentions, and information gathering efforts.

    * * *

    Prior to the 2004 election, various RNC offices were attacked. However, there was little discussion about investigations, prosecutions. Curiously, these attacks occurred at a time the President, White House staff, and NSA have confirmed the NSA was engaged in domestic surveillance.

    We judge the following:

  • A. The NSA targeting was not isolated to international targets, but included non-criminal, domestic, and lawful political activity.

  • B. Claims that “NSA doesn’t engage in domestic surveillance of non-international efforts” to be non-credible.

  • C. NSA assets were “turned off” during the attacks on the RNC offices. Although information may have been picked up, the information was not appropriately forwarded to the US Attorney’s office; or the information was deemed to be “inadmissible.”

  • D. Claims that “NSA didn’t know about the RNC attacks” as non-credible. If this were true, then the President has not, as he would have us believe, effectively used all resources -- rather, he’s selectively used resources, without ensuring the resources were appropriately supported, staffed, manned, and resourced to organize, collect, archive, search, and access the information collected – the same problems which existed prior to 9-11 despite knowing about the real threat of terrorism.

  • E. On the basis of an adverse inference and in the absence of a credible investigation/prosecution at a time of NSA surveillance, RNC personnel attacked their own offices, and the NSA was ordered to “stand down” on providing this unlawfully collected information to law enforcement.

  • F. The NSA has been used to materially affect the 2004 Presidential Elections; and there remain plans in place to do the same in 2006.

  • G. The standards of evidence used to detain Americans and likely transport them unlawfully to eastern Europe was not given to the FISA court; and the purpose of the secrecy around the Eastern European detention centers is to keep the Congress in the dark about the [a] inadmissible evidence used to [b] detain, transport, kidnap Americans to [c] nations that have laws against torture; and [d] hide NSA’s involvement in the collection of non-criminal, inadmissible evidence against Americans still detained..

    * * *

    With today’s announcement that NSA and DIA have engaged in domestic surveillance, the above events might be looked at in a new light.

    We judge the RNC has placed on NSA “watch lists” personnel who were unrelated to bonafide threats of terrorism, but simply asserted to be threats.

    We judge personnel have coordinated with specific individuals – Rove, Libby, Rice, Bolton – to identify benign threats and target their communications, however disconnected they are from international terrorism.

    * * *

    It seems odd that, at a time when the NSA was engaged in domestic surveillance, that NSA intercepts would not have picked up information related to attacks on the RNC offices.

    Moreover, JTTF has – and apparently failed to use or apply – software that would identify hot spots and center of gravity for criminal activity for forecasting likely future action.

    Regardless the legality of the eavesdropping, NSA should have intercepted under the President’s self-appointed powers post 9-11.

    We judge the President has asserted, without credible proof, that he was doing everything he could to protect the country. If this were true, then given NSA’s capabilities, there should have been prosecutions of the attacks on the RNC offices.

    We judge the NSA knew who was involved in the RNC attacks, but was instructed not to pass the information onto JTTF; or JTTF was ordered to stand down into looking into allegations that RNC personnel attacked their own offices.

    We judge a center of gravity analysis of the RNC office attacks was not appropriately done; nor were the results of these attacked appropriately forwarded to law enforcement.

    We judge the President, by asserting he did what was lawful, cannot explain why [a] NSA was supposedly reviewing domestic targets for possible terrorism links, but [b] there is no record of NSA-JTTF having successfully coordinated and prosecuted individuals.

    * * *

    The President’s assertion – that he used all lawful options – is problematic. His track record of compliance is poor. He asserts, without adequate proof, that the conduct was lawful – yet the lessons of Abu Ghraib, Guantanamo, and Afghanistan show the President will “recognize legal restraints” by finding a new forum in Eastern Europe to engage in the prohibited conduct.

    If we are to believe the President’s assertion that he will use all lawful means – and his definition of lawful is construed however he wants – the President cannot explain why the CIFA identified benign organizations as a “threat,” but the NSA did not target those groups.

    We judge the Executive Branch has a pattern of conduct that identifies personnel, organizations, and entities that are unrelated to terrorism for NSA targeting -- with the specific objective of intimidating them from speaking out against Iraq, WMD, 9-11 or the RNC.

    We judge the NSA interception capabilities are not isolated to international terrorism, but are targeted specifically at DNC officials with the objective to gather sensitive information of interest to the RNC.

    We judge it will be important for the Grand Jury to review the communications between Rove, Bolton, Libby, and Miller in re NSA intercept data, WMD information, 9-11, and the 2004 election, to include inter alia

  • 1. Agreements made to unlawfully exchange sensitive, non-criminal NSA-intercepted information for purposes of targeting non-RNC assets to monitor, intimidate, and outmaneuver RNC opponents using methods contrary to the Federal Election rules;

  • 2. How DoD’s Joint Staff propaganda efforts could be deployed against those raising concerns with WMD and Iraq;

  • 3. RNC plans, organizing efforts, and legal counsel memos in re targeting with NSA intercepts those who raised valid concerns with WMD, Iraq, 9-11, and the Patriot Act;

  • 4. Specific DoD efforts to target NSA resources against individuals like Scott Ritter, Siebel Edmonds, LtCol Schaeffer, and others who raised reasonable concerns about the legality of the actions, suitability of the responses of the American Government in re 9-11, Iraq, WMD, and the Patriot Act; and

  • 5. Other areas where the RNC/NSA did not act, but should have – malfeasance -- despite having NSA monitoring systems and Presidential approvals – regardless their legality – in place.

    * * *

    The White House has backed itself into a corner on the NSA eavesdropping. By admitting that the President has done what he deemed to be lawful – and fail to include the FISA court and Congress – the Executive Branch as a whole exposes itself to adverse inferences:

  • Data and evidence of criminal activity may have been destroyed to hide White House efforts to use NSA data to target DNC campaign efforts in 2002 and 2004;

  • White House memos and DoJ guidance may have been crafted language -- under the guise of fighting those who were a threat to the RNC’s position -- directing NSA to not target specific activities which warranted further investigation by the US Attorney – namely funds movement from the Middle East to specific RNC officials

    * * *

    9-11 shows us that the American government – despite having multiple warnings – has played stupid about what was known or what they were told.

    The RNC and White House has already demonstrated that, despite NSA information, they will refuse to take action.

    We judge the RNC and White House continue to selectively ignore information which is contrary to RNC-PNAC interests; while at the same time mobilizing official resources for non-terrorism related efforts, with the specific goal of advancing political, not national security, objectives.

    * * *

    Some have asserted that the Patriot Act is needed – and without the Patriot Act renewal, those who vote against it are responsible.

    Let us consider this proposition. Fundamentally, it is flawed for two reasons:

  • 1. Attacks have already occurred – as evidenced by the attacks on the RNC offices -- but there has been no investigation or prosecution.

  • 2. Despite the “Patriot Act not existing as a tool pre-9-11” the NSA and White House DSP did have adequate warning through 52 FAA alerts; PDB 06 Aug 2001; and was informed in 1998 of the risk AlQueda would use aircraft.

    There is no merit to the argument that “lacking the Patriot Act” is a problem. Rather, despite the Patriot Act’s existence, we have no information on the RNC office attacks. Fundamentally, the issue isn’t whether the Patriot Act is or isn’t around – but why, despite the overwhelming information without relying on the Patriot Act the White House failed to respond to the PDB 06 Aug 2001 memo.

    We judge the Patriot Act, regardless it’s structure, is not needed.

    Bluntly, the RNC has charged that anyone that gets in the way of the Patriot Act passage will face a threat of having the right to filibuster removed from the Senate rules – the so-called “nuclear option.”

    However, this threat is empty. Despite the Patriot Act, the President showed he was willing to ignore the laws of the land. In other words, whether the Patriot Act does or doesn’t exist – the White House has already shown it will ignore the lawful restrictions.

    We judge the Americans are using the “threat of a loss of filibuster” as a method to intimidate those who dare oppose the RNC. Most likely, the RNC –whatever it might threaten as a hypothetical – fully plans to do what it threatens regardless whether the DNC assents with silence to the threat.

    We judge the best course of action is to let the RNC threaten all they want and call their bluff – they are likely to do what they threaten anyway; there is no value in assenting to a threat that will be carried out regardless one’s cooperation, assent, or compromise.

    Prosecutors should ask Rove the following:

  • [a] how the NSA information from Bolton was used to win the 2004 election; and what criteria the White House used to direct NSA assets to target individuals; and

  • [b] what type of White House coordination, involvement, or direction there was between [1] lawful political activity and [2] a “threat” designation – with any of the following entities, directly or indirectly: NSA, JTTF, CIFA, DIA, DoD, OSP or other government agency or contractor.

    * * *

    The FBI and DoJ have had problems with their data archiving systems. The FBI’s I-drive was the subject of an investigation – agents had failed to forward probative information under the Brady Act. Also, SAIC reportedly failed to meet the DoJ’s software program objectives. DoJ has enough trouble archiving and accessing fairly benign information.

    We judge the NSA’s interception of domestic American information would reasonably compound the pre-9-11 problems identified by the 9-11 Commission, Senate Judiciary Committee and Sibel Edmonds.

    Prosecutors need to identify by name the GS-12 and SETA contractors which have received the NSA data, and come to an understanding why we find this out in 2005, not 2001 when the intercepts first occurred pre-9-11; and were ordered with the Executive order.

    * * *

    There are curious parallels between the NSA intercepts of Lebanon and the RNC attacks on their own office.

    In both cases, attacks and incidents occurred, but the NSA intercepts are not available.

    Investigators appear to have been pointed to pre-determined outcomes. When those outcomes did not match the desired agendas, it appears the Americans shut down the investigation, broaden, or change the focus.

    We judge the Mehlis investigation in re the Lebanese Prime Minister is doing just that – broadening the scope of the investigation because the initial findings do not match the desired results. At worst, the “never ending war on terrorism” is NSA-JTTF’s green light to engage in never ending investigations, regardless their legality or link to anti-terrorism efforts.

    We judge “official government investigations,” which do not find the desired-adverse outcome, will engage in delays, fabricate new information, and intimidate-pay off-torture witnesses for false confessions.

    In light of DoJ memos providing expansive powers without sufficient FISA, court, or Congressional oversight, the President’s assertions that he would use every lawful method are problematic. The President’s comments do not sufficiently narrow the scope of the conduct to appropriate agencies; nor has he effectively denied what a reasonable person in his position should deny if it were not happening.

    We judge the following:

  • A. The JTTF-CIFA-DIA domestic intelligence gathering operations lack sufficient oversight by the President, Congress, or the Courts. Bluntly, the Americans have no credible system of checks and balances;

  • B. American citizens who may have accidentally become ware of this problem, and may have attempted to report it to Congress, have also been targeted and subject to DIA-JTTF harassment. 42 USC 1983 claims remain a credible threat of discover; and

  • C. Despite NSA-JTTF-DIA-CIFA-FBI efforts to destroy evidence, an independent court will likely make adverse findings and leave plaintiff in a favorable litigating position in re 42 USC 1983.

    * * *

    The non-existence of the Patriot Act prior to 9-11 did not stop the President from reviewing PDB 06 Aug 2001; the 52 FAA warnings; or the 1998 report outlining the risk of AlQueda using aircraft

    * * *

    The Senate’s threat of the so-called “nuclear option” – banning the Senate Rule allowing filibuster – is problematic.

  • Why would the Senate threaten an outcome if the RNC-White House had already decided to ignore Congress?

    We judge the threat of ending the right to filibuster is a red herring – the White House already agreed to ignore the results of the Congressional Debate. Rather, the RNC was using the threat of an “end to filibuster” on the assumption the RNC could continue NSA-harassment of the DNC, and would never be in the minority.

  • If the Patriot Act is not renewed, why should we believe the President will not simply “decide the currently DoJ-approved list of activities” will continue, despite Congress asserting otherwise?

    We judge the President, regardless the Congressional Action on the Patriot Act, plans to implant DoJ guidance permitting unlawful action in all agencies.

  • To what extent has the “threat of getting rid of the Filibuster” been a simple effort to shut off debate – and is linked more with the White House objective of imposing sanctions on those who get in the way of the White House?

    We judge the RNC was searching for a convenient excuse to end the right to filibuster, with the hopes of making the RNC irrelevant.

    We judge the NSA domestic spying efforts were in place to ensure the RNC would never lose an election; and that the DNC would face continued set backs despite mounting public opposition to the RNC.

  • How many other Congressional restrictions has the President chosen to ignore and become the basis for impeachment?

    We judge every executive agency has been given a DoJ-letter giving them permission to engage in conduct Congress has specifically prohibited.

    We judge the permissions are cloaked in fighting terrorism, but they are explicitly with the understanding that any department action is [a] permissible; and [b] will not be aggressively reviewed if the surveillance targets lawful DNC political agendas.

    * * *

    We judge the White House has already decided to engage in prohibited-activities regardless whether they are approved under the Patriot Act extension.

    Why would the RNC-White House bother to intervene or falsify information if the NSA could monitor the 2002 RNC protestors?

    Why detain RNC protestors if the NSA could already suveille them?

    How much non-credible information did JTTF, CIFA, DIA and others provide to NSA because of citizens contemplated 42 USC 1983 claims?

    We judge JTTF and local law enforcement engage in pre-textual stops with the express purpose of gathering intelligence which is then forwarded to NSA for specific targeting. If NSA is unable to gather actionable material, then specific DIA assets are targeted against American civilians to engage them, harass, and annoy them with the specific objective of inciting unlawful action and forming the basis to detain American citizens otherwise enjoying their Constitutional rights.

    We judge government employees in general have been briefed on “threat information” with the specific objective of targeting citizens who dare challenge the vacuous checks and balances in America.

    We judge NSA personnel have come forward, in part, because they have been specifically targeted by law enforcement for conduct that should not be actionable; and their personal information has made its way into databases, resulting in on the job retaliation.

    We judge NSA assets have been targeted – based in part on JTTF, DIA, and CIFA data – against individuals which have been troublesome to corporations, or have shown an inclination to not assent to arbitrary harassment – with the goal of ensuring the false appearance of corporate tranquility, and mitigate the awareness and reporting of SAS99 fraud indicators, warranting increased Securities and Exchange Commission reviews and audit oversight.

    We encourage the prosecutor and special counsel to make it known to NSA, JTTF, CIFA, and DIA personnel that they need to come forward with information related to:

  • The time they were aware of information;

  • What steps they took;

  • Copies of meeting minutes, budgets, signed policy memos;

  • What was said, implied, or threatened for them raising issues or concerns;

  • What adverse action was taken after legal issues were raised;

  • What date they took affirmative action to remove themselves from the allegedly unlawful activity;

  • What efforts, if any, they took in an attempt to stop the unlawful activity from occurring;

  • What knowledge they had of the statutes regulating what is permissible NSA conduct; and

  • How the issues of legality – in re Guantanamo, Gitmo, and Afghanistan abuse – were dovetailed with self-inspection, internal reviews, or other training inside the NSA, to include – ethical issues, lessons learned, or other policy memos on the legality of actions, and appropriate actions for employees to take when they are given unlawful orders

    * * *

    We judge there is a reasonable basis to question to what extent, if any, offices of trhe court and prosecutors have committed fraud upon American courts, in re:

  • Inadmissible evidence gleaned by NSA was used to collect information law enforcement would otherwise not be able to secure a warrant

    It remains to be understood to what extent inter alia:

  • A. Prosecutors at the Federal and local level have been aware, but failed to report to the court, the source of the information;

  • B. NSA has passed information, not otherwise admissible, to local law enforcement for the purposes of “accidentally finding” something that would be admissible evidence;

  • C. Information otherwise inadmissible has been sent from NSA to law enforcement as “investigative leads”;

  • D. NSA collected information has been provided to local law enforcement that could not otherwise be collected, nor would there exist sufficient probable cause for a warrant to issue;

  • E. The caseload DoJ has an interest in “not seeing thrown out of court or overturned” because the conviction was based on evidence gleaned from the NSA, is inadmissible, or unlawfully used to direct law enforcement for pre-textual stops.

    * * *

    The timing of the announcement is problematic: Media outlets have been sitting on this information for over a year.

    It remains to be understood what threats, if any, specific reporters, publishers, or others were given should the information be made public.

    * * *

    It remains to be understood what information from others sources are available:

  • Other government agency conduct, equally devoid of legal foundation, “protected” by dubious DoJ opinions

    * * *

    If information was available through NSA, why did the government spend time torturing people – why not let them freely discuss their plans, gather admissible evidence through the FISA oversight?

    * * *

    What have DIA agents told American citizens to get them to spy on others who are simply exercising their lawful rights?

    We judge DIA agents have encouraged Americans to lie to others about the reasons for questions or their curiosity over “trivial issues.”

    What other information has been caught in the vacuum cleaner, but has been ignored?

    It remains to be understood to what extent this non-criminal information is then fed back to NSA and civilian contractors for purposes of retaliation in re home mortgage loans, unfavorable lending rates, or other financial consequences they would otherwise not be subjected to had the CIA-JTTF-DIA nexus not been the catalyst for this domestic surveillance, and collection of non-criminal information.

    What else does the media know – about other department memos, actions, or conduct which Congress has prohibited – but is not reporting – what kind of sources are they protecting, and from whom?

    What is the relationship between CIFA-JTTF-DIA and the American media – has there been a sudden break in trust, whereby the media looks at the formerly “explained away conduct” as something no longer worthy of secrecy or “non-coverage”?

    What types of non-criminal information has been gathered; how has it been used by law enforcement and local business to harass and gain unfair advantage during contract bidding?

    How rules of privilege were violated in re attorney-client privilege by the NSA spying; to what extent was the privileged information provided to the US attorney, but not appropriately identified as such to the court?

    We judge the media is aware of material information which would not only impeach the President, but result in a large number of war crimes convictions and 42 USC 1983 claims.

    * * *

    A “lack of Presidential power in the pre-9-11 era” didn’t stop the President from taking action on what was known: 52 FAA warnings; the 6 Aug 2001 PDB; and the 1998 report on risk of hijacking of planes.

    Further the “lack of Patriot Act tools before 9-11” did not interfere with the Military District of Washington conducting exercises involving aircraft colliding with the Pentagon; nor did it prohibit the NRO from conducting a simulated aircraft collision exercise.

    We judge there is to-be-identified information showing the President was well aware of the risks, and failed to act – and that the intelligence community properly informed the Executive Branch.

    We judge the President and his staff have provided incomplete information to Congress over 9-11; and the truth, if it were known, would show the American public many things the RNC does not want them to know: The implications of the detentions and NSA intercepts – wholly unrelated to national security or the rule of law – warrant inquiry during the PB review and 2006 elections.

    We judge the “threat of mushroom clouds if the Patriot Act is not renewed” to be as credible as Rice’s WMD claims in Iraq – orchestrated to generate action devoid of sound reasons – not the fruit of substantive debate or careful analysis of the White House abuses, competence, and need for increased oversight.

    * * *

    Why do the Americans need surveillance if they’re using/justifying torture?

    Why do the American need torture if they can secretly surveil all?

    We judge there are other to-be-identified-efforts that will provide a large picture of unlawful conduct under the current White House-RNC.

    * * *

    We judge NSA assets have been used to target JTTF-DoJ-DIA-CIFA personnel for the express purpose of “legitimizing” conduct that is otherwise the basis for a 42 USC 1983 claim: Abuse, rendition, domestic spying.

    We judge NSA data has been used to secretly accuse Americans, move them overseas, interrogate them under abusive conditions both at home and abroad in violation of their civil rights, and gather information that is false, subsequently used for another round of invalid/unlawful NSA targeting in America.

    We judge the lack of FISA-court oversight led to excessive information, compounding the already taxed resources, thereby giving agencies the “excuse” to ask for more resources, IT information. However, the program management skills were insufficient relative to the software challenges of exponential growth of irrelevant, non-actionable, non-criminal information.

    * * *

    We judge the President, in using similar phrases as McCain, was using a wire and earpiece during the White House conference on the “anti torture” legislation.

    We judge there are loopholes in place – defective oversight, reporting, and procedures – to effectively circumvent the McCain Amendment.

    * * *

    The White House Staff and NSA in particular was reported to be “concerned” that a Kerry Presidency would launch an inquiry into NSA misconduct. It remains to be understood to what extent, if any, Senator Kerry is brought into the nexus to do just that – target the NSA for alleged violations of the law.

    We observe a change: Before 9-11, there were claims there was no information; now with the leaks, the White House language is focusing on “values.” We do not find the change in tone linked to a bonafide concern with American values, but a real threat of impeachment, and other potential sanctions.

    We judge the NSA, like the CIA, has a leadership and ethical problem. It remains to be understood how quickly NSA personnel become aware of which files have been provided to DoJ; and which personnel continue to cooperate with the ongoing investigations.

    * * *

    Personnel had information that NSA was collecting data on Americans. It remains to be understood how this data collection related to efforts to dissuade discussions on the Downing Street Memo, Iraq, 9-11, or WMD; and to what extent lawful political protest was thwarted through the NSA-CIFA-DIA-JTTF nexus.

    It remains to be understood, in the absence of bonafide WMD data from Iraq, to what extent NSA intercept data confirmed the government officials knew this. DSM confirms the disconnect between facts, planning, and meetings.

    Despite the willingness to engage in unlawful domestic surveillance, the White House still lied about the war. It remains unclear why, after giving themselves the green light to commit torture, why targeted civilians were not simply removed from the political stage.

    Given the White House inclination to “do what it wants,” we remain unclear why they simply didn’t order civilians to be shot, and evidence fabricated as was done with the RNC demonstrations and the videos.

    * * *

    NSA contractors find themselves in a difficult position. They know about Nuremburg, and that software can only be used for lawful purposes. It remains to be understood though discovery to what extent, if any,

  • A. NSA contractors were tasked to provide software with specific capabilities that were contrary to lawful purposes;

  • B. a reasonable software program manager and coder would know the tools could be used for unlawful purposes;

  • C. program managers within the NSA made misleading statements to Congress during their funding reviews and stated program objectives and intended uses.

    We judge the profits related to these contract efforts are related to unlawful activity, and RICO action is a potential remedy. Funds gleaned by the NSA contractors should be returned, to provide a single pool of funding, to be managed by a special master, to fund in part, the 42 USC 1983 claims related to the unlawful NSA surveillance.

    * * *

    Of concern are the NSA training programs. It is one thing to have a philosophical debate about speculative ethical issues; it is quite another to have a debate over the “legal uses of resources” that cannot be legally used.

    It remains unclear why training reviews failed to dovetail: Statutes, ethical duties, orders, and the requirement to refuse to obey those unlawful surveillance orders. These are not issues of speculation or classroom ethics, but matters of criminal law, and potential war crimes – possibly punishable by death.

    We judge NSA personnel have not timely removed themselves from this alleged conspiracy; and failed to take substantive action to prevent the self-evidently unlawful conduct to occur.

    We judge the UCMJ is applicable to NSA personnel assigned to DoD, and these trials be public, not hidden behind military secrecy rules.

    It remains to be understood how the 42 USC 1983 claims by American civilians will be brought against DoD personnel assigned to NSA. Unlike European citizens that are prevented from bringing action because of the Status of Forces agreement, it remains to be understood who will adjudicate which information can or cannot be released.

    We judge the department is in no position to assess that probative information relevant to 42 USC 1983 claims can or cannot be released; we judge the basis for the evidence release, will in itself, become a matter for the court to later adjudicate during appeals.

    At this juncture, it would be prudent for Congress to outline specific rules of procedure in cases whether American civilians seek information from NSA; and swiftly move to ensure that the court remedies are timely, not subject to extraordinary, and dilatory efforts we’ve seen in the 9-11 investigation, or the Securities Class Action Lawsuits. However, the Executive Branch’s desire to “swiftly close this issue” should not compromise the public’s right to bring suit. It remains to be seen whether the statute of limitations is tolled.

    We judge the range of defendants in the 42 USC 1983 claims will be large, not isolated to NSA officials, but also include DoD employees assigned to NSA, and the prime and secondary contractors.

    * * *

    It is a concern when the NSA oaths of office paper to be meaningless; what would be a catalyst for personnel to adhere to clearly promulgated statutes; DoJ-DoD-NSA leadership positions when it came to ensuring their program efforts were consistent with their oath of office:

  • Follow the laws

  • Preserve constitution

    Their conduct shows they are willing to act without regard to the law, their oath, and they appear to have no credible defense: The orders were self-evidently illegal, but still followed.

    It remains to be understood to what extent, if any, NSA data has been destroyed because it was evidence of war crimes. This would amount to a cover-up of war crimes, and possibly face the same sanctions as the original crime: Death.

    * * *

    We judge there is a reasonable basis to inquire whether NSA-collected data has been used by insiders for securities trading.

    It remains to be seen whether software developers are put on contract to develop specific programs to analyze NSA data in light of the Securities laws; or whether the NSA has already reviewed these contract efforts.

    We recommend using two NSCCA-PATE-like contractors to do this independent analysis, both unknown to each other, but working directly for the Securities and Exchange Commission.

    * * *

    It remains to be understood to what extent NSA assets have been used to target other government agencies that have attempted to review this matter; or to what extent NSA-like assets could be, in the future, specifically targeted to monitor NSA and executive branch conduct.

    Although a credible check on executive power, it is not likely Congress has the interest in creating a unique NSA-like monitoring system designed to target the Executive Branch.

    We judge the likely catalyst for this action will conveniently surface after the 2006 election.

    * * *

    It is unclear at this juncture to what extent NSA assets have been monitoring government officials for obstruction of justice; or accepted bribes and other valuable consideration for official inaction.

    It remains to be seen whether there is an NSA contractor that could quickly provide the public with all non-official NSA communication by NSA contractors. This communication would give the public an idea of the seriousness, or lack thereof, the personnel and contractors had toward their job; and provide a valuable source of information to impeach witnesses for out of court inconsistent statements.

    * * *

    After Pearl Harbor, Americans targeted the Japanese.

    After 9-11, Americans targeted everyone.

    It is unfortunate that the NSA has chosen action which undermines the public confidence in the system of checks and balances.

    Brave soldiers have died for lies about WMD. Now, their families know they died for principles we refused to preserve at home.

    Americans – a domestic, not foreign threat – did this despite freely taken oaths of office to do the opposite: Preserve, protect, and defend the Constitution against all enemies, both foreign and domestic.