Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Thursday, January 19, 2006

DoJ poodles are worried

NSA regularly scans information. They also have intercept information in and out of the government facilities.

DoJ and NSA also have private contractors, and can get investigative leads from law enforcement. The DoJ request for Google Searches is linked to the White House. Google response; More

[Warning: The following blog contains profanity and may be objectionable to those who do not wish to experience stomach acid.]

Part of the problem with the White House's story over domestic surveillance, is its reliance on a "lawfulness" argument.

There is one small problem. The law hasn't stopped the White House

We judge the following:

  • DoJ's request for search information is related to specific information which NSA has been unable to secure

  • The White House's search of private information in contractor data bases has failed;

  • DoJ's public statements on the reasons for the search requests have nothing to do with the stated objectives.

    Had there been a bonafide "reason" for securing user-interest-data, this could have been easily acquired through private contract, or sampling.

    Given the NSA program does engage in warrantless surveillance, we judge the search engine request is a ruse.

  • DoJ's request for data is the illusion of stupidity -- in fact, relying on NSA data, DoJ can get access to the information it is requesting.

  • DoJ has failed to demonstrate that it has exhausted all lawful, open sources of data available through contractors, and existing data management system.

    Given the capabilities of NSA, the existing data which DoJ has access to, and the inability of DoJ and the White House to dissuade action, we judge the following:

  • DoJ already knows what it is looking for -- nothing related to a bonafide investigation;

  • DoJ knows that the existing legal defenses for the NSA domestic monitoring have not worked;

  • DoJ is unable to explain why it "needs the information" while at the same time it fails to respond to reasonable Congressional requests over Chief Justice Roberts, in re Feingold testimony.

    * * *

    If we are to believe the subpoena is real, then DoJ would have to admit it has defective contract managers who are unable to encourage private firms to develop a software program to do what DoJ requests.

    This suggests the brain dead contracting officials in DoJ have a public relations problem, or are unable to figure out how to write a lucrative statement of work for the IT community to bid on.

    Who would want to bother working with DoJ, as SAIC found out, when the contract management is worthless, and the specifications are crap?

    "Hay, if you can't get DoJ to manage a software program, they might solve it by suing people to produce the information they can't pay someone to provide."

    What's the matter DoJ contracting officials -- are you having a hard time keeping the requisite "expertise" in place; or have you explained away the "experience problem" with too many lies to DoJ IG to be believable?

    * * *

    We judge the DoJ data request to be an admission that the existing efforts to dissuade public comment, engage in research, or make public comments on matters of public interest have failed.

    DoJ and DoD have yet to realize that the existing GCHQ communications are able to store and archive this information; and that NSA and DoJ intelligence personnel do regularly exchange this information.

    We judge the request to be without merit, lack of any credible legal foundation, and wholly inconsistent with the NSA and DoJ ongoing activities.

    It remains a matter of evidence for the media to explore, inter alia to what extent these efforts are part of a White House effort to:

  • A. Distract attention from the NSA warrantless surveillance program;

  • B. Dissuade public discussion, research, commentary, and analysis of matters of public interest;

  • C. Act as a red herring to distract attention from the failed White House leadership;

  • D. Act as a ruse to annoy, disrupt, or otherwise harass members of the American Bar Association in their effort to investigate allegations of White House war crimes;

  • E. Materially interfere with efforts of secret grand juries to independently assess, gather, and analyze information related to White House criminal activity;

  • F. Act as a smokescreen to distract public and private resources from examining and questioning the veracity, credibility, and reliability of public statements from government officials.

    * * *

    The DoJ data request lacks specificity, is overbroad, and is a standard of discovery that DoJ fails to assent.

    The real issue: What will it take to get the US Congress and State Legislatures, to identify the real data inside NSA and DoJ related to the ongoing effort to cover up evidence of White House knowledge, involvement, and direction of war crimes in Iraq.

    Given the unfavorable weather, it appears greater evidence is required of the ongoing White House staff abuses, crimes, and misconduct before the rule of law.

    We eagerly await more evidence of crimes within DoJ, NSA, DoD and the White House -- the State Legislators appear to require a catalyst to awaken them to their oaths of office and ability to bring resolutions of impeachment against the President and Vice President.

    * * *

    DoJ cannot explain why it needs this emergency information; while at the same time the White house claims it is intercepting NSA data at home and abroad.

    We judge the DoJ request is a ruse to imply that NSA does or does not have a certain capability.

    DoJ is not to be trusted and the request lacks sufficient urgency and legal merit to warrant serious consideration.

    There are far simpler methods to lawfully acquire the data. It is extraordinary that DoJ would resort to such methods. It appears DoJ would have us believe that its software, intelligence, and links with the NSA are so poor that it is unable to acquire this data in another matter.

    Such an assertion or premise is absurd given the vast capabilities of the NSA and DoJ to interchange, share, and disseminate information across the wall, supposedly broken down with the Patriot Act.

    Again, there is nothing in the statute which bars the DoJ to secretly use the NSA to engage in law enforcement related data collection.

    We judge the DoJ cannot be believed in that such a request -- as they know -- would be rejected by the FISA court.

    The above request is evidence the NSA and DoJ are incapable of defeating those voices who dare to say what is self-evident: This White House, its staff, and the President continue to engage in harassment of those who know of the larger efforts to violate the law and dissuade others from presenting this information to a grand jury.

    * * *

    We recommend the court require a certification in writing, under penalty of perjury, that the data requests are not related to the following:

  • Desire to identify specific NSA personnel who are believed to have discussed material information about illegal NSA warrantless surveillance;

  • Efforts to identify individuals DoJ and NSA have been unable to trace using existing electronic data, but who are not engaged in any criminal activity;

  • The data requested cannot be obtained from any DoJ, law enforcement, or private contractor under contract with the US government.

    Once DoJ makes that assertion in writing under penalty of perjury, the court needs to then review the records of ChoicePoint, JetBlue, and SAIC to assess whether the assertions have merit, for example:

  • Why is DoJ asking for data which Choice Point should have access to – namely, the identify of people who do or do not have ISP

  • Why is DoJ asking for “sampling data” when JetBlue was found to have unlawfully obtained similar data from TSA

  • What is stopping DoJ from doing what the TSA did – and do simulating testing or use another modeling system?

  • What records has DoJ requested from other search engine providers;

  • What information does the DoJ have that would lead them to believe that an in-house search engine could not find similar key words;

  • What was the reason that Yahoo or other search engines were not requested;

  • How does the request for data square with the information-requests NSA regularly process – via Canada, UK, New Zeeland and Australia – over matters related to cross-border data sharing?

  • Why did Canada, UK, New Zealand, or Australia not provide this data to NSA, and avoid public disclosure of the DoJ program?

  • Why should we believe that this is related to a bonafide investigation – DoJ is notorious for keeping actual operations secret – why should we believe that the DoJ is correctly classifying this operation, given it shows no inclination to keep the nature of an ongoing investigation secret?

  • Why is DoJ suddenly revealing details of ongoing investigations – last week it was the cell phone-terror link; this week is the search engine concern. A reasonable person would speculate that these “investigations’ are bogus – and that contrary to DoJ’s public assertions that matters must be secret – DoJ is violating its own policies in publicly discussing matters it once would have us believe should not be discussed: Ongoing investigations, terror related information, and the method of organizing investigations and intelligence gathering related to internet use.

    We judge the DoJ’s inconsistent statements before the 4th Circuit, combined with their inconstant statements over whether investigation methods should or should not be protected give rise to reasonable doubts to the claims DoJ personnel and named court officers have submitted in writing.

    It remains a matter of law to what extent the proposed discovery plan is a ruse, or whether the DoJ officers are part of an intelligence gathering operation which eludes the NSA’s current unlawful intelligence gathering efforts.

    It appears DoJ and the White House have large concerns, otherwise they wouldn’t make this many inconstant statements over the war on terror, methods of investigations.

    Again, the issue is the burden of proof on the government. One day the White House is hush hush; the next day they refuse to discuss anything; then it becomes an open matter. It’s clear the White House is feigning stupidity because they hope to distract attention from the real issues:

  • War crimes

  • Fitzgerald indictment

  • real possibility of impeachment

  • NSA warrantless surveillance program

  • DoJ staff attorneys making legal arguments that are absurd

  • Apparent material misrepresentations made to congress over the veracity of data related to the invasion of Iraq

  • The leaking of the Plame name.

  • Ongoing efforts to harass Sibel Edmonds, NSA employees – both past and current.

    And Americans wonder why the world thinks you’re idiots.

    The plain truth is that America is the land of fraud, deception, and unreliable statements. The 4th Circuit got it right: DoJ is playing games.

    And the White House now has a big problem: 50 states are poised to issue resolutions of impeachment.

    What’s next?

    The President is going to lose. And the Staff attorneys working in DoJ are working for a poodle. If you see their names on any CV that crosses your desk, run. These guys are full of non-sense, and they believe they’re serving the Constitution.

    They have no respect for the oaths they take, and should not be trusted.

    Beware. The DoJ is desperate.

    * * *

    Given the above problems with the DoJ request, let's consider the specific textual references raising doubts about the veracity of DoJ's request.

    First, we are asked to believe that DoJ wants "random URLs". OK, if that's true, why does it matter whether they get the "random URLs" from Google or any other search engine? No answer.

    The request is problematic in that DoJ then fatally admits, that contrary to previous claims that it "needs something special from Google", DoJ attorneys bungle their argument when they later fatally admit:
    This court should require Google to comply with the subpoena on the same terms that its competitors have.p 10 of 13: lines 19-20

    So, which is it:

  • Does DoJ really need a "random list of URLs" -- arguably available from any search engine, not just Google: or

  • Is DoJ lying to the court is saying that it hasn't actually got a compliance from other competitors, and can only get Google to provide "random URLs" because no other contractor will provide the data; or

  • Is the DoJ request actually related to another issue, totally unrelated to the actual statements in the Signed motion?

    We judge it's far more likely the latter. The DoJ motion is internally inconsistent, raising real questions to the motivations of the officers who have signed the complaint.

    * * *

    But that's not the only problem. There's actually another fatal admission within the DoJ motion.

    Consider 4 of 13, lines 3-5, where DoJ asserts that the original subpoena required a file. Yet, later, lines 7, DoJ laments and accepts they can do with a "random" sample.

    So which is it:

  • A. IS the original subpoena defective in that DoJ is not admitting it was excessive and a waste of time; or

  • B. Is DoJ not admitting that, contrary to later statements, the Google URLs are not specifically requested, but that a random sample will do; or

  • C. Is the actual "random URL" list merely a ruse?

    We judge the DoJ request is internally inconsistent. If there was a bonafide reason -- as DoJ asserts -- that specific URLs are required, then that should have been the final position.

    DoJ's error is to assert that it has "other" providers who have assisted, but DoJ has failed to specifically name the search engines, nor incorporated by reference the data which DoJ has obtained from others, but cannot acquire from Google; or why the original "random URLs" DoJ has obtained from "other" providers could not be similarly run through Google using an independent contractor.

    We judge DoJ is too lazy to do what the National Archives does, and is unwilling to pay the needed commercial contract fees related to developing an software package that might do what DoJ hopes to accomplish.

    At this juncture, given the transitory nature of the DoJ specification and data request, we judge DoJ has yet to formalize in its own mind what it is trying to accomplish. This appears to be an excuse for another program, or other effort which DoJ cannot otherwise lawfully engage.

    * * *

    DoJ's other problem on page 4 of 13, line 12 is the inability to explain why the inclusive dates are important. Again, if the initial "random URL" was bonafide -- which it appears it is not -- then one cannot suggest that a "random URL" is from a definite time period.

    DoJ provides no explanation why they have moved their position from a "random" basis, to one that is specific, and definite. This leaves the commercial entity in a rather poor position. But we are not dealing with a contract or a business negotiation; rather we're dealing with an organization that wants something, is not being clear, and is now moving its position from something that appears bonafide to something that appears non-random and definite.

    We would hope the court compel DoJ to explain the rather transitory, unspecific, and oscillating nature of its request. Moreover, we would hope that other software firms who are considering bidding on DoJ contracts carefully review the apparent nebulous software baseline which DoJ "experts" appear to promulgate. One can only wonder what non-sense is brewing inside the DoJ contracting office; or to what extent the requisite oversight by the Senate and House judiciary committee might remedy this apparent recurring software management problem within the DoJ IT requirements office.

    * * *

    But then it gets better. 4 of 13 lines 13-19, DoJ then relents and says it doesn’t need to see any identifying information, only the text. Brilliant, if DoJ has no identifying information, then why does it matter whether Google does or does not provide the information:

  • A. DoJ has already stated that it has other information from other providers; and

  • B. DoJ would have us believe that the "nature of the request" does or does not meet requirements -- what does that mean?

    * * *

    Pare 4 of 13, lines 19-20 reveals the real problem.
    "constitutionality of this important statue" --
    this litigation objective is one for DoJ to hire out as part of their discovery and litigation; not something that a private contractor is required to support. that is not a public or commercial interest which Google need support, consider. Rather, DoJ's job is to hire people to prove this.

    We see no contract, nor as DoJ pointed to any contract which the search engine relied on. Rather, DoJ is merely asserting a government interest, but provides no contractual language or agreement stipulating the nature of the requirement, what may or may not have been agreed to; or that the search engine is under a contractual arrangements to provide any response.

    DoJ when it asks for information to support the "statute" now admits what is going on: DoJ has a statutory requirement -- imposed by Congress -- to do something, but has failed to ensure, during Conference Committee, that the language in the statute specifically allocated funds for the data-collection to occur. The commercial world has no time, interest, or statutory requirement to provide information which they are not under contract to provide, especially when it was foreseeable at the time that the legislation was enacted that there may be a point when the government would have to defend or justify a statute. This smacks of poor government planning, and not a problem for the commercial sector to resolve at the whim of a government.

    Again, consider the broad DoJ Legislative Liaison issues: DoJ Liaison has staff workers who are well versed in the law, know the legacy of 9-11, and are in an excellent position to dovetail statutory requirements, congressional language, contract requirements, and funding requirements to ensure DoJ objectives are met.

    However, this late in the game, we are asked to believe, despite the DoJ's ability to get Congress to rubber stamp the Patriot Act, which DoJ has failed to ensure that funds were allocated so that Google -- going forward from 2001 -- would have a contract to do what DoJ is now asking for retrospectively.

    Again, the issue isn't whether the law is or isn't something -- but what funds is DoJ bringing to the table; whether the problem is a legal matter for DoJ, or one that related to apparent defective management training in contracting; or whether its simply that DOJ, unlike 9-11 "didn't feel like" paying attention to an issue that it would later have to explain to Congress.

    Bluntly, this is DoJ's problem: They failed to work with congress, get the funds, and ensure there was a contract in place so that DoJ could go to Congress and demonstrate progress.

    * * *

    5 of 13, lines 1-3 specifically point to the problem: The government would "like" to do something. This should have been part of a contract, not a matter for a commercial service to retroactively negotiate.

    We judge the court will likely dismiss the complaint, awarding the costs to Google, finding that this request is not related to a legitimate interest warranting intrusion. The DoJ action is not related to a matter of public interest, but one that relates solely to an Administrative function that should have been better planned within the DoJ contracting and IT specification office, not one for the court to adjudicate.

    * * *

    5 of 13, lines 5-8; DoJ fails to make any showing why the very narrow ruling in Ashcroft v. ACLU applies to the instant case.

    Failing to show any relevance, the court twill likely judge the asserted "requirement" is merely an assertion, and DoJ has failed to make any showing that the "requirement" was directed at any and all subsequent interactions between DoJ and the internet.

    In our view, the subpoena should be quashed, and DoJ should be severely reprimanded as did the 4th circuit.

    * * *

    P 6 of 13, lines 1-2 assets, without proof, that the standard would be met. DoJ has failed to plead any facts nor has it cited any case law to justify confidence that the proposed action does or does not meet the standard.

    * * *

    p 6 of 13, lines 2-5 discusses the range of the DoJ contract management problem. Indeed, it appears in this part of the motion DoJ is admitting that it has no data to defend the legality of another issue, but has failed to adequately scope a contract. It remains to be understood whether a firm like SAIC was offered a contract, or may have refused to engage in the contracted effort. It is a matter of evidence to what extent other contractors may have been contacted, and refused on the grounds that the proposed effort was either unlawful, or not adequately funded.

    We judge the proposed effort was insufficiently funded, and DoJ has not credibly appeared at any contract negotiation with a clear set of requirements, and no IT entity has responded favorably to a request for proposal related to this discovery issue.

    * * *

    p 6 of 13, lines 8 -13, DoJ discusses the information it has gotten from other search engines. If these requests have been complied with, then there is no reason DoJ should have trouble justifying in the other litigation why the statute is or is not constitutional.

    That someone else may have complied is irrelevant to whether DoJ -- as they assert -- has a legal requirement to do something.

    We judge the following:

  • DoJ has narrowed downed its list of likely targets to a specific search engine;

  • DoJ has inconstantly argued whether it does or does not need random data;

  • DoJ's requests are not related to a bonafide desire to acquire information to "prove" the constitutionality of something;

  • DoJ may or may not have actually acquired data from other search engines;

  • The specificity of the DoJ request to Google is at odds with the generalized nature DoJ asserts it needs.

    At this juncture, it appears far more likely that DoJ is merely creating stories in order to get information it has failed to adequately plan, contract, or independently hire a firm to gather.

    The issue, DoJ would have us believe, is that they are looking for "URLs" -- but if this is true, then why are they interested in the search engine -- the search engine is totally unrelated to the website. DoJ appears to have no ability to hire a firm that can create software that will gather -- on contract, from the open sources -- information which may or may not address what DoJ says it is asking for.

    That something is "easy" or "difficult" to comply with is irrelevant to whether anyone has a legal duty to solve DoJ's contracting and IT management problems.

    * * *

    p 6 of 13, lines 18-20 -- DoJ asserts that Google "misunderstands" the nature of the request. we judge this to be without merit.

    The problem is DoJ has not pointed to any document showing which specific request it has or has not made. This is a communication problem, one for DoJ to solve through contracting, and not something the court need to consider.

    Rather, it is very clear: DoJ cannot provide a straight story, its' requirements are not consistent, and its approach is absurd. Perhaps they should go to Congress and admit,
    "We are stupid DoJ contracting officials -- we are unable to consistently make an argument; we are actually being used by NSA to gather information that NSA cannot find; we have specific requirements after we have changed them from vague requirements; we hope you do not read the 4th Circuit opinion of our legal staff. We are stupid idiots, and produce trash legal defense for the White House. We are morons. Don't work here. This is a cell pool of idiots who refuse to assert the rule of law, and will do whatever we are told simply because we are too stupid to figure out how to get a real job outside DC."

    * * *

    p 6 of 13, lines 23-25: That Google may have the largest market share is irrelevant to whether "random" data is or is not needed to resolve DoJ's legal issues in another case.

    Using DoJ's logic, because of the "large size" of the Executive Branch, DoJ should willingly comply with all FOIA requests from Congressman Conyers. But the standard DoJ hopes to impose on Google -- one of size -- is not good enough for DoJ when satisfying FOIA requests.

    The court will likely find this appear without merit.

    * * *

    p 6 of 13, line 18: DoJ says it "does not understand" what Google is talking about.

    Uh, maybe you should hire some lawyers who understand IT. Hello!?!? Lawyers -- your job is to explain it to your client, not appeal to ignorance -- then assert your ignorance as the basis for everyone to run around.

    But hay, if you're stupid enough to create legal fiction in DoJ, you're probably stupid enough to get caught committing big crimes. But who knows, the States may find that DoJ attorneys were actually involved in a big distraction over this NSA issue.

    * * *

    p. 7 of 13, lines 3-4: DoJ asserts that Google has "failed" to show why revealing this information is or is not a trade secret.

    However, DoJ has failed to cite any case law that says the firm does or does not have a standard of performance; or that Google has "failed" to meet some nebulous standard. It is not the job of the Court to find the reasons which DoJ cannot.

    For those of you who are having a hard time with this: DoJ's problem is that the NSA defenses have failed; and that the same legal crew that gets its ass kicked at the 4th Circuit is now asking a private search firm to "Bail them out" and then rely on the court to "come up with a good reason" why someone should or should do something.

    In other words, DoJ counsel's office and front office is in such a mess, that its lawyers cannot put together a coherent legal argument, much less find language that would advance their case. Rather, they hope the court will "find a reason" to make something happen. Again, it is not the court's role to engage in the executive contracting, or resolve issues that lie within the Contracting, legal, and IT areas of DoJ's bowels, as stinky as they might be for the equally neurotic neighbors down the street at the WTO and IMF.

    * * *

    p 7 of 13, lines 16-17: DoJ absurdly says the burden on Google would be "minimal." Ha! Who cares.

    It will be minimal for DoJ to comply with the law, but does that DoJ follow the law? No, it creates more non-sense to get others to solve its leadership problem. Gonzalez wrote how many memos justifying torture?

    Take a step back, and look at what is going on: Google doesn't want to do something it doesn't have to do, and has not been paid to do. DoJ's approach, despite offering no money, and having a moving baseline on the requirement, is to say that "DoJ's confusion is best handled by asserting the non-sense DOJ spews on others is minimal". Ha! Look at the crap before the 4th Circuit -- who would want to put up with that crap and not get paid for it?

    Self-evidently, DoJ can find no contractor willing to do this for any price, so DoJ has to threaten people will lawsuits, provide no funds, and then have the gall to say, "This is minimal."

    Well, if the effort is "minimal" DOJ has yet to explain why DoJ hasn't hired a contractor for a "minimal" amount of money to do what DoJ says can be "minimally" done -- chase ghosts, find leaks, and look for excuses when your legal defenses for the NSA warrantless program are crap.

    * * *

    p. 7-13, lines 18-21: DoJ then presupposes it knows something about IT -- ha! -- in describing whether a process is easy or difficult.

    But let's apply the same standard to DoJ: Is it easy or difficult to read the FISA statute? DoJ would have us believe, "Oh, that's not relevant."

    If DoJ isn't going to cooperate on the BS-legal arguments over NSA unlawful warrantless surveillance, there's no reason DoJ can impose that standard on others to comply with.

    * * *

    p. 8 of 13: lines 18-21 -- DoJ reveals that it is actually doing market research, but Google does not wish to participate.

    Fine! DoJ's problem is then to explain to the court why all industry professionals have not bid on the contract that would do this open source market analysis.

    IN so many words, DoJ would have us believe that the "open source" analysis is something that only Google can provide. This is fiction. DoJ could use another method.

    We judge, based on the emphatic demand that Google comply, contrasted with the alleged "benign analysis" DoJ is doing, that DoJ actually has a specific target in mind, but does not wish to reveal the true scope of the discovery.

    * * *

    There's a key inconstancy. On one hand, DoJ would ask that we believe it's interest is on the internet in general. [8 of 13, 18-21]

    Then it changes its focus, and says that the focus is on how the tools are or are not accessing this content.[9 of 13, line 1]

    This is a major problem: DoJ in shifting the focus, has fatally admitted that the real focus isn't the search engine, but it is content; while at the same time, DoJ fails to make a showing that the "benign" analysis could or could not be done by another contractor.

    We judge the inconsistency is material, deserves inquiry, and should be the subject of close examination by the House and Senate Judiciary Committees when reviewing the NSA program, namely:

  • A. Why is DoJ shifting its focus form the search engine to the internet;

  • B. Why is DoJ asking that the intrusion is minimal in that it is fairly benign; but then would have us believe that only Google can provide this data.

    We judge the inconstancy is material, and warrants a better understanding by the media, and in the context of the White House failed defense over the NSA's illegal monitoring program.

    * * *

    9 of 13, line 6: DoJ asserts the other sources are "incomplete" but this is in direct contradiction with DoJ's assertions [8 of 13, 18-21] that the program and observations are benign, and related to market analysis and trends.

    One cannot have both a general program, but a specific requirement; while at the same time proffer legal requirements, which can or cannot be met by specific or general information.

    Bluntly, we would hope the public get more information the exact way this information will or will not be used; and whether the information -- whether true or not -- would actually satisfy what DoJ is trying to accomplish.

    We judge the to-be-discovered information requests -- if DoJ is to be believed that the analysis is for specific data and for a constitutional defense -- have not already been satisfied with the existing data.

    Further, DoJ has not provided any information to justify confidence that the data is or is not complete relative to this fairly vague standard; DOJ has failed to justify confidence why the amount of data it has or has not received is or is not enough relative to the Constitutional requirements. There is no way Google can have an obligation to meet a requirement, when DoJ has yet to clarify in its own mind what it really wants to do:

  • Does DoJ want to do a vague study

  • Does DoJ have a standard that will suggest that it has enough information

  • How much information does DoJ think it will need

  • Does the court reviewing this other matter actually have a standard in mind

  • Can DoJ cite any case law which will warrant confidence that the proposed volume of data will or will not meet this standard

    On all counts, DoJ's requirements, stated position, and asserted need are at odds with the overly aggressive nature of the specific data.

    Again, if we are to believe DoJ -- that it is doing a market analysis -- there is no need to focus on a specific week or time period. Rather, if there are other data providers who can easily provide this information, then there would be no problem changing the week to some other time period.

    However, given the specificity of the time period, combined with the asserted vague monitoring requirement, combined with the asserted "other constitutional issues" smacks of a deception and fraud upon the court.

    We judge that the actual problem is DoJ is on a fishing trip, and the existing search engines failed to realize this, and DoJ -- as it did with the prisoners at Guantanamo and Abu Graib -- are asserting that "the ones who are not cooperating, are the ones we are going to go after."

    In other words, if you dare spot DoJ's bullshit, you're going to get targeted.

    Hello, Senate Judiciary Committee, and the NSA's unlawful domestic spying program. Do you see the comparison? Do you see what DoJ is doing -- just as they lied in Guantanamo about what did or didn't happen -- oops, they slipped -- they than had to admit there were memos, videos, and other physical evidence proving what DoJ had said was lawful: Torture.

    Make no mistake -- DoJ is on a fishing trip, they want a specific piece of information, but they have yet to explain why they need data from a specific time period; or cannot go back to other "available" open source data to get the information they say is supposedly related to a "broad study".

    No! This isn't s study. This is a witch hunt.

    The witches are in the DoJ -- and they can't put together a coherent legal argument to defend the President from accusations he's violated FISA.

    * * *

    p. 9 of 13, line 7-8: DoJ again shows it is inconsistent, arguing it is looking for a "sample" -- it this is true, why doesn't DoJ "put up with" the available sample without Google?

    Answer: DoJ's "sample" argument is at odds with its excessive interest in Google.

    We judge the "sample" argument in line 7-8 is at odds with the previous assertion that DoJ wants a specific set of data from a specific time period.

    A sample is just that: A sample, and one cannot credibly assert "their approach" is a sample, when "the sample" must include something that is above a sample, but 100% search.

    We judge DoJ is using its excessive powers to intrude, harass, annoy, and otherwise target people and commercial firms to provide information that DoJ cannot lawfully justify acquiring.

    It remains a matter of additional discovery through subsequent litigation to review to what extent commercial firms have been threatened with subpoenas in order to gather non-criminal information over "persons of interest," yet in 2006 we still have no evidence of any active AlQueda in the US.

    The problem, as we saw with Joe Wilson is that the White House, when it cannot figure something out -- namely, it is stupid -- it will blame everyone else, rather than accept responsibility for what happened on 9-11:

  • The White House an unlawful surveillance program in place;

  • NSA and other intelligence networks told the White House what was happening;

  • 9-11 occurred, despite 9-11 denials it "had no idea" and "nobody could have imaged" [oh, Condi -- lions, tigers,and bears]; and

  • relates specifically to the fact that PNAC has dropped an agenda on the desk of an individual now indicted for failing to cooperate with a grand jury over leaking a CIA operative name.

    This is more of the White House effort to identify people, avoid responsibility, find excuses, and make up non-sense.

    Face it, DoJ Attorneys. The public has got you figured out, your legal defenses are crap, and this time, unlike 9-11 -- we've got a Senate Judiciary Committee that is breathing down your ass.

    * * *

    9 of 13, lines 14-19: DoJ fails to justify why this sampling approach is prudent, or that it is based on any real methodology. It merely asserts -- without proof or evidence -- that the propose sampling plan is real, related to a lawful purpose.

    Moreover, DoJ has failed to explain why it cannot use well recognized sampling plans which have specific provisions for "missing data."

    Yes, sports fans. There's a small problem for DoJ -- there is a wide body of knowledge on how to "fill in the gaps" and "fill the holes" and "statistically assess" what the "missing data" might be.

    Based on DoJ's assertions that "this sampling is required"; but has failed to state any case law supporting this methodology; and DoJ has failed to discuss why the "missing data sampling plan" will or will not work, we conclude DoJ has no plan, and does not understand sampling.

    We judge, based on the information above, that DoJ is simply spewing forth crap, is making up son0sense, and their data requirements are not linked with a credible plan. Rather, given the moving baseline of their requirements, it is no wonder why Google fails to cooperate: DoJ doesn’t understand what it is talking about.

    Again, it remains a matter of law and evidence:

  • How many reporters working in the New York times have relied on bullshit like this when talking on background with the DOJ Counsel's office;

  • is the public led to believe that "special access" by the NYT to the DoJ means that NYT is getting filled with crap like this on "sampling plans", when in fact DoJ appears to be staffed by idiots who have no idea what they are talking about;

  • what is the use of "protecting sources" in side the DOJ counsel's office when they appear to be complete morons, not worthy of citation, and are more likely to spew forth on-sense to dissuade public knowledge of what idiots they are. Self-evidently, their public work products lave the president with no credibly legal defense. They have far larger problems on their hands whether the media does or doesn't call them.

    * * *

    9 of 13, line 27-28: DoJ uses bullshit term, "multi stage sample" without communications how this fits in with the "random" sample methodology. This is complete bullshit.

    This entire motion sounds more like the FOIAS which DoJ regularly ignores. IT remains to be understood how closely the FOIA-rejection-challenges mirror what DoJ is saying about Google.

    Alert: DoJ ignores FOIAs, but then uses non-sense to mandate others comply with FOIA-like requests that DoJ ignores. Alert. Alert.

    Which statute does DoJ rely on to impose FOIA-like requirements on non-government entities? Oh, now we understand: DoJ ignores the law, but then applies the government-standards on those who dare call DoJ counsel on their bullish.

    * * *

    10 of 13, line 10-11: DoJ uses the word "speculation" when characterizing Google's comments, but fails to persuade any reasonable person why DoJ is not engaging in the same "speculation" why a specific data set is or is not required, despite the "sampling" objective.

    DoJ cannot credibly denounce someone for "speculation" when DoJ is the one that is speculating that Google does or does not have the "needed answer" and "big solution" to DoJ's legal problems.

    * * *

    10 of 13, lines 11-12: DoJ fails to cite case language that says that Google must cite what harm it does.

    it's one thing to accuse someone of "not doing something" its quite another of asserting that performance requirement, but failing to justify or cite case law that would justify confidence that the requirement is real, related to case law, or something that Google should or should not do.

    Again, in the vacuum of information, we believe the court will most likely reject this motion, and find that DoJ is going on a fishing trip.

    It is most likely DoJ will appeal, and regroup with arguments unrelated to the original cause of action. Again, if DoJ wants to be believed, you need to have something that resembles a consistent argument; without even going to the appeals court, DoJ has already done what we could only expect of a bottom drawer legal team: Complete, utter bullshit arguments.

    * * *

    10 of 13: 16-17; 18-19: DoJ asserts that it would be "useful" and that it is "entitled" to get something.

    This is not probative, but speculative. DoJ has failed to assert why this information is or is not required; and the requests appears to be linked more with a likely FISA rejection than with a bonafide sampling plan.

    We judge the entire sampling story is a ruse, and fabricated with the intent to acquire something DoJ has not been able to acquire through bonafide measures.

    We recommend the court and media find the specific sampling plan -- which most likely does not exist -- and determine the actual data the software plan was created; then compare this with the conversations DoJ had with industry. It is likely the plan will have been finalized after the requested data; and is the driving factor behind why Google and DoJ have a communication problem: Nothing has been reduced to writing, and there exists no contractual requirement for Google to respond to this off-budget work requirement.

    * * *

    10 of 13: 18-21: DoJ asserts that competitors have voluntarily complied with something. This does not create a contractual arrangement between Google and DoJ.

    That someone may or may not have complied with an otherwise bogus request does not create an enforceable contract which the court can either recognize or enforce.

    DoJ's reliance on "industry performance" or "competitor practices" is not a legal theory, but a speculative wish devoid of legal enforceability.

    The good graces of some who are foolish does not beholden the rest of the nation to cower at the hands of those in DoJ who are small minded, incapable of defending the White House.

    * * *

    DoJ reminds us of a lazy fisherman. Having no bait or net, but returning to port to face the wrath of his family who are still hungry, the fisherman runs to the worm-seller, namely a property owner, and sues him for failing to provide adequate worms.

    DoJ’s problem is that it fails to assert credible claim – not surprising in that it waffles between whether the requirement to comply is a statutory requirement, or one of choice. If DoJ has a bonafide cause of action against Google – as it may believe or wish others to imagine as the basis for compliance – then issuing a subpoena is not the appropriate forum.

    Rather, if Google is potentially subject to some sort of criminal sanction for failing to comply with a statutory requirement – however nebulous that might be – Google is not required to produce the fruit with which DoJ may poison.

    We judge the subpoena, lacking sufficient legal foundation or statutory requirement is defective and DoJ is admonished for using the resources of the court to adjudicate whether DoJ’s contracting and program management departments need reform. Self-evidently, DoJ is unable to develop professional relationships with industry, little wonder why corporations move offshore.

    It is outside the bounds of DoJ to mandate that private industry respond to poorly articulated requirements, but absurd to suggest that DoJ can do any better. Self-evidently, DoJ’s abysmal performance is the best this White House can buy.

    One may choose to speculate whether DoJ may or may not have in-house experience, or funding to develop software programs and discovery procedures and methods that may assist their defense. But DoJ fails to persuade that it has the inclination, much less the legal foundation to justify belief they can credibly plan data analysis or investigation plans when they are plaintiffs, much less defendants.

    DoJ may not abuse its power as the arm of the government – when the real defect is that DoJ has failed to marshal its resources, develop a plan to organize its staff, or ensure its personnel have adequately been trained to engage civilly with industry on matters as novel as evidence, law, and contracts. It is outside the bounds of the court to adjudicate whether DoJ personnel were awake or comatose at the industry conferences.

    DoJ could have developed an in-house capability, or subcontracted to independently search the web, seeking data it required. Although a company may exist which could theoretically provide this speculatively probative information, DoJ has failed to credibly argue that the information it has is insufficient; clearly, whether the court will find the argument credible is another matter – but DoJ has failed to argue that the lack of specific information will be material. Indeed, DoJ may like 100% of the data, but this is at odds with the notion of sampling; then again, perhaps some contractors have increased their workloads above what is reasonable to 100% sampling in order to generate workload where none is warranted, much less relevant. It would not surprise us that DoJ’s focus is on the frivolous, while it fails to see the larger picture: It’s actions bring discredit upon the American government and materially undermine confidence the nation will have ready a willing and able workforce devoted to provide services. DoJ is not a government monolith which can impose its will on a civilian population – rather, DoJ is a branch of government that shall submit to the will of the people. There is no requirement that Congress continue funding DoJ, as is there no Constitutional mandate that DoJ be secured an endless stream of personnel, blindly working, forever devoted. Rather, DoJ’s conduct tends to undermine public confidence that DoJ is a reasonable tool in asserting the rule of law; and the public has the reasonable believe that DoJ is part of the problem, not the solution. Thus, we judge there is a reasonable basis that DoJ’s conduct is reasonably connected to issues of malfeasance, poor management, inefficient use of resources, poor showing that available training is translating to prudent results. In short, we are not surprised why DoJ has a high turnover, or that DoJ seems lost in the garden.

    It remains a matter of evidence whether DoJ personnel, once they returned form the various training programs, have the skills or management support to translate lessons into results. It is most likely the training was sufficient, while the leadership was otherwise – as was the case with 9-11 – not surprising DoJ continues with this non-sense in the absence of a Phase II report, or fully accounting by the White House of why they were unable to detect reality despite the unlawful surveillance and many overseas intelligence reports blaring, “The planes are on the way.”.

    DoJ has shown its colors. It is a tool of a tyrant which knows little of the rule of law, and is ineffective in managing personnel, resources, and data. There is no surprise why Katrina and DHS have problems – they are the same fruit of the poisoned White House tree.

    DoJ’s actions show there is a continuing cancer spreading. Where there is defective management and leadership – just as we saw with 9-11 – DoJ, like the White House is willing to assert a right where there is no right, and mandate responses where there is no requirement. DOJ has reminded the world that the American government is at best a difficult contracting partner, and at worst not worth the hassle in ever communicating with.

    Congratulations, DoJ you have successfully inspired the nation to cast the light where it is most needed: In the White House and in the eyes of those who are your leaders – Gonzalez. You have shown your defective leadership style, and show you are not worthy to be seriously considered as a reliable counter party. Take your money and problems elsewhere – the grass is just fine as it was before you made a mess of it. The sooner the President is impeached, the earlier we can replant the flowers and enjoy the sounds of the worms as they eat away at what remains of your memory – hopefully sooner than later, after you have lawfully been injected with common sense before a court of law. DoJ remains a cess pool, where only the already-toxic worms dare slither.

    Request for motion. . .

    DENIED, assholes.