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Thursday, January 26, 2006

How to assert the Senate rules to filibuster Judge Alito

The following is an over view of the Alito Filibuster process. This note outlines various options Senators could use to prevent the filibuster rule from getting changed.


There are several known problems with this essay.

1. The proposed approaches rely on legislative debate rules; however the Senate during Executive session -- as is assumed when filibuster occurs -- are not necessarily compatible. Namely, the proposed options could very well be out of order.

2. This essay is likely factually incorrect, not well grounded in Senate Precedent. First you'll notice a fundamental problem with the premise: The methods used to block a movement against Filibuster -- namely with cloture -- assume that cloture has not been enacted. The problem with this essay is that legislative options may not be possible during a filibuster; and that one can only call for a debate "on a rule" when out of Executive Session. I suspect that demanding that a vote be taken on a rule related to a vote may not be possible -- in that this would raise a new issue, and start a new debate on a new topic, which may not be possible.

3. The approaches used are likely not consistent with the Senate filibuster practice. Namely, some of the scenarios below hinge on the assumption that there is give and take between the RNC and DNC. But in a filibuster this would not occur -- the entire burden of the speech would fall on individual, and not have a dynamic give and take.

Overall, to be a valid solution, I'll have to study the Senate rules more. Overall, the idea of this essay isn't to lay down a specific solution -- but to suggest that there may be another way of approaching the issue with filibuster: Somehow force the issue to a vote, rather than limp along waiting for a split vote and unfavorable ruling.

I'm going to have to spend some more time thinking about the approach. In theory, it sounds interesting -- but for practical application I would not recommend actually using the specific ideas related to filibuster. This is more of a brainstorming session.

* * *

As to the larger issues of Unitary Legislature -- I though I would share with you the way this concept was developed. Indeed, although the basis for the concept may be flawed -- in the false assumption that the congress should or should not have similar powers; or that the filibuster rules could drag in new discussions and points to challenge Alito's legal theory, I thought I would simply share with you how this concept of Unitary Legislative came about; and how this concept -- when contrasted and debated with the RNC concept of Unitary Executive -- raise some interesting contrasts in what types of powers the Congress defers to the Executive, but refuses to assert equally.

Overall, the Unitary Legislative Concept helps showcase the possible reforms that congress might assert should the NSA domestic spying efforts truly be checked by all the three branches. Rather than rely on a FISA court, it may be more prudent to assign the Congress an NSA-like monitoring system which watches the executive branch. It's interesting to contrast the potential POTUS opposition to this Congressional tool, and contest this with the assertions the President makes to use a similar program. In short, the Unitary Legislative concept is an interesting notional idea when contrasting how the President defends his problems, and asserts his power: Is it reasonable, or is the power in need of a new approach to checking.

My personal view, I favor the idea of Congress having an NSA-like electronic surveillance system that probes into the Executive, gathering information, and checking what the Executive is or isn't doing. I look at the NSA as a powerful tool -- one that all three branches should use on each other -- not argue over whether it is or is not appropriate to use against the American people. When Congress has the power to employ NSA-like monitoring on the executive, I might have more confidence that there was a credible check on Executive Power. Until then, it's clear the American military has been lying and violation the law.

In my view, given these systems have been used against a domestic civilian population -- they amount to war crimes; and the public has the right to lawfully employ similar systems to monitor those in DoD who engage in this abuse. In other words, I look at the American President and Pentagon as being at war with American citizens. In that spirit, a violation of the laws of war entitles the citizens to use similar tactics and methods to effectively check the offending opponent.

I'm not advocating anyone actually do that or declare war on the American Government, it's just my view on the laws of war and the apparent use of military forces against civilians in violation of the laws of war. Until the Congress stops the use of this approach, the civilian population is entitled to tell the White House and DoD to stick it where the sun doesn't shine.

That's why I support impeachment, filibuster, and taking action at the state level to bring a proclamation demanding an impeachment investigation: The Congress refuses to assert the rule of law, or employs NSA-like technology to monitor the executive. The idea of the Magna Charta and US Constitution was to control power. If Congress doesn't do something to essentially stick the pencil in the Executive Branch’s eye -- using some sort of electronic surveillance -- we're essentially relying on what hasn't worked: Briefings, paper, and verbal statement, ala Libby, Rove, Bush, Powell, Rice, and the rest of PNAC.

If Congress had an NSA-like monitoring system, we'd be able to independently check whether the data Congress was given matched with the real information and discussions going on about the real evidence in Iraq. Congress got fed non-sense; and we have an unlawful war.

In the end, my goal is to see that if power is used it is based on reality -- not what is going on in Iraq: Accusations, but little consistency between the data that IAEA cannot find, but DoD has imagined as the basis for targeting. One cannot target based on imagined data; and if DoD has bonafide targets, then they should provide that to the IEAEA. I suspect DoD's targeting is based on non-sense, as was in Iraq; and a Congressionally-controlled NSA-0like electronic monitoring system -- targeted at the Executive Branch -- would quickly tell us whether we have fiction, reality, or another round of war crimes, not just abroad but at home.

I am saddened to hear that in the wake of the DNC decision to do nothing, that some have been very upset and discussed leaving the country. I share their sentiments and am closely monitoring the developments. I may have a new home after this is all said and done. What is going on is against everything I believe is in our Constitution.

* * *

Strategy to avoid changes to filibuster rule

I did some thinking about the Filibuster and Cloture, and reviewed the Alito position. This is a very general discussion of how Kerry and others might trump efforts to have a Filibuster rule changed.

The remainder of the discussion gives you sample Senate Floor debate that could be used to highlight these issues, challenge the executive, and raise questions for other Senators to consider when reviewing Kerry's comments next week.

The purpose of the discussion is primarily to illustrate how the proposed strategies -- to avoid changes to the filibuster rule -- can be dovetailed with the current issues related to Unitary Executive. The clash of concepts, vital in a free an open society produce some interesting results and I hope you enjoy considering them as potential lines of reforms in the wake of the NSA illegal conduct.

Unitary Legislature

I also outline a couple general principles -- namely, "Unitary Legislature", a concept that contrasts whether "Unitary Executive" -- in an effort to give the public a contrasting view of "what Congress might look like" if the President’s power was truly checked.

Congress armed with NSA-like monitoring equipment to check Executive

I outline a number of scenarios under this Unitary Legislative concept, and how the NSA-like monitoring which the President has used could be effectively employed by Congress to monitor the President.

Unitary Checks and Balances

It remains to be seen how the unitary executive principle sparks calls for Congress to increase its oversight; we'll learn more in the NSA hearings. My goal in writing this was to spark some discussion on the idea of unchecked power, and what a Congress might look like if it truly was reformed and aggressively would do to the Executive what the President currently does to the Public.

Congressional oversight reforms in wake of NSA abuses

I also offer some suggestions on the range of reforms in the current checks and balances so that Congress might have the tools and statutes in place to assert Article 1 Section 8 powers over the Executive Branch.

* * *

On the Eve of Filibuster

When individual DNC members refuse to filibuster, they agree to narrow the scope of the inquiry -- as they did with Phase II -- on the promise of "taking care of other issues." It is unlikely these "other issues" will suddenly get new White House attention. Rather, as always, we'll hear more excuses.

It remains to be understood how many in the DNC were swayed on Parliamentary issues and promises of "there are other important things to do." We judge these "important issues" will not get attention; and that some of the DNC relented to the threats of having the filibuster rule adversely changed.

Our analysis suggests that had the DNC asserted discipline, going so far as to look at the Senate action in the context of the NSA, impeachment, and constitutional issues, combined with a credible threat of censure had they broken ranks -- there would have been no chance the RNC would approve Alito.

Where the DNC failed is not in whether the rules were or were not going to be changed, but in whether they perceived the Constitutional issues to be isolated to the President or broadly applied to how the laws are interpreted.

I thought it would be useful to share the results of the analysis -- how the DNC, had it compelled discipline -- could have effectively filibustered, and not faced a threat of "losing the right of filibuster."

* * *

I thought it would be useful if you had a chance to review the range of issues that could arise had there been a debate over "unitary executive." Applying this to the extreme, on issues that surface is: "What about a balanced-approach" in the legislature, namely an NSA-like monitoring program for the Congress to direct at the Executive.

The Alito extended debate might have afforded some time to review these matters: If we have a unitary president who can do what he wants; should there not be another unitary legislature, that has equal discretion in similarly opposing views/

In practice, this may not be practical. But the contrast between the Legislative and Executive notions of "unitary power" do offer a useful contrast in what the Executive says the public has to put up with; versus what powers the Executive can be compelled to assent.

The DNC has given up the change to publicly contrast Alto’s statements and the gaps in the congressional unitary power. Given the unfavorable weather, it does not appear this issue will be raised until it is self-evident that the President continues to put himself above the law in matters we can only imagine. Onward to the NSA hearings and State level impeachment efforts.

* * *

The DNC leadership failed to maintain discipline. Rather than organize to engage in filibuster, the DNC was swayed.

* * *

There would have been a way to overcome a threat of cloture -- whereby 41 Senators voted to debate. Some have suggested that the Senate would change the rules. This would only have occurred had 2/3 consented. Moreover, had the DNC called for the rule change on filibusters -- while at the same time maintain discipline -- there would not have been enough Senators to change the filibuster threshold from 2/3 to something else.

It remains to be seen how many of the RNC arguments -- however devoid of reality -- were sufficient to sway the DNC. Had the DNC leadership been truly asserting the rule of law -- and compelling membership to comply, there could have been a simple decision: You will not vote for Cloture; if you do, you will be banned from the DNC.

We judge the following argument against filibuster is simply an affirmation of the RNC approach:
Sen. Landrieu said:

“Because we have such a full plate of pressing issues before Congress, a filibuster at this time would be, in my view, very counterproductive. It is imperative that we remain focused on creating the tools New Orleans, Louisiana and the Gulf Coast will need to rebuild. This includes passing the Baker bill and allowing our state to keep its fair share of offshore energy revenues. We simply cannot afford to bring the Senate to a halt at a time when we need its action the most. If called to vote for cloture on Judge Alito’s nomination, I will vote yes.

“I will continue to consult with constituents, groups, organizations and colleagues to decide on my final vote. I do think it is important that we have an up or down vote.”
It is our view that no nominee "deserves" a vote; nor does the President -- who defies the laws of war and nation -- command deference. Rather, the larger situation needs to be taken in context: What is the legal issue behind the NSA program, and how does this square with the flawed inherent authority asserted by the nominee. We judge the unitary executive approach is on its face imbalanced, and warrants a complete overhaul in Congress: How Congress will or will not similarly engage the Executive using like-technology, namely NSA-monitoring of the executive.

We judge the RNC relied on the "we have other important business to take care of" argument so that it would rally the DNC to the RNC cause. But, experience tells us these "other issues" will get no attention. For example, the Katrina relief efforts -- touted by Landrieu as an issue warranting attention -- are already being covered up. There's no evidence, given Phase II, that the RNC will review these "other issues." Rather this argument is merely a ruse, which the DNC leadership failed to organize or discipline its membership.

We leave the following for your review and consideration as we embark on the next phase: Exploring the NSA issues, and determining how to proceed on a State-level impeachment proclamation against the President.

* * *

The rest of this note outlines the issues, method of asserting filibuster, and the range of issues that could have been raised. The strategy is simple: The DNC would challenge the Senate rules on filibuster -- and then reject them, affirming the 2/3 vote rule. This approach would only have worked had the DNC been united in their opposition, or there was sufficient discipline to be sure which way senators would have voted at any given time.

* * *

We begin with the Senate Rules on nominations.

5 of 15 states that the motion to go into executive session is debatable. This would trigger questions of constitutionality, and the subsequent issues below.

* * *

The following information relates to legislative matters, unrelated to the Executive Session. However, there is one problem: 13 of 16 outlines the rule change procedure, which requires one day lapse. The DNC would then use each successive day to request a rule change -- vote it down -- then reorganize.

The DNC would be doing what is in note 74 -- asserting a need to change a rule -- and then have that rule debated, with the RNC's concurrence, and the DNC would adjust their view given the new information.

Alito is from New Jersey, but is in Philadelphia. There are two Democratic Senators in New Jersey. 14 of 16 permits Senators from the nominees home state to voice personal objection. Not all objections have been denied.

* * *

Cloture rules, 2 of 15 are also interesting. There is a rule that trumps the 50-50 problem, and triggers the 2/3 rule.
If debate is to be brought to an end. . . QUOTE: "And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure of motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-third of the senators present and voting -- then said measure . . . shall be the unfinished business. ENDQUOTE

Precedent establishes that rule changes are only possible with 2/3. Thus, this is the fatal problem. What the DNC can do is trump the RNC by calling for the rule to be changed. 2/3 is required. When that rule is rejected by the DNC defeating its own motion, the 2/3 rule remains in place with regards to filibusters.

All subsequent actions to limit debate will fail so long as none of the DNC vote for cloture; or the DNC threatens to censure and expel any DNC member if they support cloture.

All 50 of the DNC senators can offer 2 amendments, and each must be different. This will drag it out by 2 days, and each day the same rule will apply: The vote on the first Amendment to change the rules will be denied.

The Amendment would change based on the new constitutional issues raised below. Thus, with new information, the DNC would move to change the rule from 2/3 to something else, and each time reject it based on the debate results.

The trick is to ensure no cloture is invoked.

* * *

The idea isn't to have the rules> suspended -- but to call for the-suspension, or something else like it requiring a 2/3 vote related to the filibuster rule -- and have the DNC subsequently reject their request for a rule change.

This would lock in that issue, and maintain the existing rule; but the DNC would open the Constitutional issue for debate with the RNC -- and explore the implications of the Constitutional issue, then say, "Based on the RNC input, we have decided to vote against our request for a rule change." However, what the RNC has done is commented on the constitutional issue, but had to make statements that were two sets of standards -- one for the executive, another for the legislature -- all the while their oath commands otherwise: To protect the system of checks and balances from excessive concentration of power.

Because the DNC would be moving to suspend the rules or get rid of the filibuster -- the RNC would vote for this change, but the DNC would reject it. Thus, because the Senate voted on this matter -- and refused to change the rule of filibuster, the filibuster would have been ratified as requiring 2/3 votes.

Thus, when in debate, nobody can say, "We need to change the rule for clarity," as the existing rule was voted on -- and the change rejected, so that means that there could be no change by the VP to change the senate rule on filibuster.

* * *

Here's a sample discussion on the filibuster rule, showing that the 2/3 "rule change" requirement is real. By forcing a vote on this rule, and rejecting it, the Senate would clearly send the message: The existing rule -- for that day -- remains at 2/3, not 50.

Then, the next day -- or window when the proposed rule-change could be voted on and rejected by the DNC, there'd be another vote to extend debate.

If there's "no even split" -- as would be the case with the RNC voting "for the rule change", and only some of the DNC doing the same -- for purposes of making the vote something like 53 to 47, then the Vice President will, under the House rules, stay out of the debate.

Cheney would have no say if there was no 50=50 split. Rather, the above scenario presumes that the DNC -- which requested the rule change -- would force the RNC to commit to voting for the change, and there would be not change because the DNC would not vote to change the rule. Rather, only a few of the DNC would vote to change the rule.

Because the rule in re filibusters was already voted on that day -- and affirmed to have been rejected -- Cheney would have no say on whether the "advice and consent"-argument was or was not related or relevant. Thus, we would expect that the 2/3 filibuster would remain in place, and Cheney would have no authority to make any comment abut whether the simple majority rule was sufficient.

* * *

In the above scenario, the DNC -- by forcing a vote on a suspension of the rules or rule change -- would affirm that the rule -- requiring 2/3 to end a filibuster -- would remaining force, and could not be raised again for a specific period of time.

Thus, there would be no situation where the following ambiguity was created:

It is presumed that Mr. Cheney would rule that a simple majority would be sufficient, because the three-fifths majority requirement should not apply to nominations under the "advise and consent" clause of the Constitution.

Democrats, who dispute this reading of the "advice and consent" clause, would then object. A vote would be held on the ruling of the chair, and a simple majority would be sufficient to uphold that ruling.Ref

After the DNC forced a vote on the rule change -- requiring a 2/3 majority -- and that rule change getting rejected, the Senate would then continue with the debate.

Then, when the time limit for "that decision on that rule" neared its end, the DNC would then force another vote to change the rules on filibuster from 67 to something else -- and that too would get rejected -- in that it takes 2/3 to change the rule.

* * *

By forcing a vote on the rule change -- this would be a debatable motion, as it deals with Constitutional issues. So, this means that a debate would occur -- unrelated to Alito -- and the issue would have to be decided.

In other words, what's going on is [a] forcing a debate about the rules and whether 2/3 is or is not required; rather than [b] the situation which may spark a potential filibuster -- namely the Judicial nominee, or Alito in this case.

The key is to, once the DNC votes to engage in extended debate -- to immediately debate an issue related to a rule change -- and then vote for cloture on that rule change. Then debate the rule, end the debate -- and make no change on the 2/3 requirement for filibuster.

* * *


What then happens is another tactic, not a filibuster, but an open debate about something the RNC may appeal. Again, the issue is to force the RNC into a situation where they are in a no-win situation on the debate issue; and they are forced to assert a position contrary to interests; or they make claims that undermine their original position.

Namely, if the issue about Alito -- that we're not talking about -- is the issue of constitutionality of the inherent authority doctrine -- the Senate could put the RNC in a defensive mode, and mandate a simple vote -- which would get rejected.

The issue is: What would make the RNC appeal something, and then trigger another subsequent debate about that appeal -- all the while, telling the DNC not to end the debate -- with a simple majority -- on the RNC appeal. But encourage DNC members to vote against a closure of debate on the RNC appeals.

* * *

The issue of dilatory will come up -- but the Senate rules require an immediate open debate on Constitutional issues. So, rather than "waste time" talking about other things, the debate would focus on the Constitutional implications of Judge ALito's "unitary theory" as it applies to the rules in the Senate required to balance this.

In other words, if Alito is asserting that he has the right to recognize a unitary theory of executive power -- then the Congress can also craft rules to have similar unitary powers, but on the executive side. Again, the point isn't to waste time, but to focus on the constitutional implications of Alito's position, and explore what rules changes would be required.

Again, the goal at this point would be to open the debate to the RNC, and encourage them to comment on how the rule changes related to the Legislature's unitary theory would have to be supported by rule changes. Again, the point is that the RNC will be in a no-win situation:

  • A. IF they vote for the rule changes, they recognize that there is a problem with the lack of oversight by Congress of the Executive;

  • If they vote against the rule changes, they are saying there is a double standard: Unitary theory of power only applies to one branch, not the other -- thereby triggering a new round of Constitutional questions.

    * * *

    Each of the subsequent constitutional issues would become a debatable motion -- which the RNC could not stop: The Senate has to debate the issue if it is one that is related to a constitutional question.

    Again, the goal here is to mandate rule changes to balance the unitary theory of executive power -- but make changes in the Senate rules to permit this balancing; for the RNC to commit either way; and then point out that their unitary theory of government -- as it relates to the executive -- is not matched by the Congressional rules or powers.

    * * *

    Combination: Arrest rule used in conjunction with the conference committee rule

    In this scenario, the DNC is in a no-lose situation. First, if the DNC is pushing for information on a conference report -- and the person is not there; then they can issue warrant for their arrest. That will take up time.

    However, if the person is there, and they have on conference report -- as required by the secretary, but they refuse to comment or provide that report -- then the Senate can look at that matter as being unresponsive. That failure to respond to a "conference committee report request" then triggers a debate on that topic.

    Again, the debate shifts from the primary issue -- to the subsequent issue.

    * * *

    Later in the discussion when we get into issues of legislative inherent authority, the RNC is likely to lose it: In that the arguments they are defending for the executive, are not things that they are willing to recognize for the house.

    This is a debate strategy to mandate that the rules be considered to allow the senate to be harmonized. Again, these will get rejected, raising questions as to why the RNC is for executive unitary authority, but not a balanced approach in the Congress.

    Thus, when the RNC -- out of frustration that they know they are being filibustered -- but not about Alito -- but about a constitutoianl issue related to the rules and practices of the house, in relationship to a rule change request the DNC has triggered with their request to change the rules, that is subsequently going to get rejected because there are insufficient RNC voters to meet the 2/3 required -- the RNC is going to lost it.

    This will likely trigger conduct that violates the House rules, and trigger their removal. Ref

    * * *

    People are going to get tired of this game, and will want a break. The next step is to then invite President Clinton and Carter to speak. They could take the floor and filibuster.

    The Senate Rules permit former Presidents to appear. Again, to change this rule would require 2/3 -- which the DNC would first say, "We want to change the rule allowing Presidents to speak" -- that would get rejected, and then the President would be invited to speak. Ref

    This is essentially another way of getting the extended debate to continue without letting the RNC shut it down.

    The goal of this is to act as a delaying action until March, when the states issue a state proclamation calling for the House to investigate.

    * * *

    What follows are some sample scenarios and discussion points -- intended to raise constitutional issues related to the rules -- designed to mandate a debate on that issue, all the while avoiding the issue of filibuster on the original topic.

    SO, rather than have a debate about Alito shut down -- the issue gets changed time and time again to the side issue: Is the 2/3 rule the right one? Because it is a matter of the Constitution, and the DNC is the one that forced the vote, there will be no 50-50 split.

    Rather, the DNC leadership would give some of the DNC member’s permission to vote for the rule change, thereby ensuring that the split was not even, thereby ensuring that the Vice President had no say, nor could anyone raise a question as to whether rule was or was not appropriate.

    Again, the issue here isn't that filibuster per se would be protected; but rather to continue to change the debate from Alito -- to the issues of Constitutionality. Again, rather than possibly have a 50-50 split on something, this approach would fore the RNC to first commit, and the DNC would then cast sufficient votes to ensure there were more than 50 in support of the motion. However, because the rest of the DNC refused to support the DNC-motion, the motion to change the rules on filibuster would then get tabled for that finite period of time.

    Then, it would start again: Challenge another constitutional issue, demand a suspension of the rules, again failing to reach that 2/3 issue.

    The point isn't that the filibuster is protected; rather, the issue of filibuster is never raised -- in that the extended debate isn't link to a judicial nominee, but a question of a rule about the filibuster -- which then slides into a forced non 50-50 vote situation, thereby keeping Cheney out of the equation.

    * * *

    The information that follows this comment is an approach to protecting the filibuster. It calls for the DNC to ask for a suspension of the rules -- requiring 2/3 vote -- thereby locking in that issue. The issue will not be raised again for a period of time.

    The approach outlines a crude way to protect filibuster. It is not designed to be "the solution" -- but to open your minds to look at the Senate rules in a new way.

    The information that follows is designed to act as a catalyst for brainstorming: How can we look at the Senate Rules in a new light to protect the filibuster; what can be done to leverage the rules in a manner that forces the RNC to commit to something that is contrary to their interests; and how will the existing rules be used to drive action which the RNC cannot get enough support to do.

    Namely, if there is a requirement of 2/3 to do something -- then that requirement should be leveraged to show that the associated rules and permissible activities would open the door to debate and other issues related to the constitution -- these trigger mandatory debating requirements.

    The idea is to get the DNC to move first -- force the RNC to discuss an issue, or vote on something -- but remind them that "that issue" [whatever it is, however related or unrelated to Alito -- as protected on the "no need for germaneness" -rule] can compel the RNC to reject the very things they are threatening, simply because they do not have enough votes to get the 2/3 to suspend those rules.

    This approach presumes that a rejected item -- once voted down -- cannot be brought up against for several hours or a day. Subsequent to the rejection -- and failure to meet 2/3 voting requirement -- the rule related to filibuster will not get changed by 2/3.

    The approach presumes that the 50-50 split will not occur because the DNC has given a green light to some of its members to vote with the RNC, thereby taking the Vice President out of his role of "independently choosing" whether the rule is or is not appropriate. Rather, the approach would trump his role by asking that there be a suspension of the rules on a specific issue.

    Again, the issue isn't that this approach does or does not have merit. Rather, the idea is that this approach -- however, convoluted -- will spark some new discussion on "how can we use these existing rules" in a new way, that twill protect the filibusters.

    The purpose of this information related to filibuster isn’t to outline a strategy, but to make you think about the Senate rules in a new way.

    Good luck.

    * * *

    We are grateful for the following feedback: Think Progress

    Issue: The proposed method lacks clarity, it is not clear how this would work. It appears the following approach is considered to be "not workable."

    Then a solution is: To find a way to apply the approach, and compel action -- not simply assent to the non-sense that the "number of votes to change the filibuster rule" can change from 67 to 51 with the stroke of a pen by the Vice President.

    * * *

    There is a way to overcome the RNC on the filibuster issue.

    The DNC must force the issue, and remove the Vice President from the equation -- simply demand a vote: The DNC must move to change the Senate rules on Filibuster, requiring 2/3 majority in writing to pass.

    The DNC will reject this motion, thereby saving the filibuster as it stands for another day.

    Then repeat the same when the next available day occurs to revote.

    This note explain more. This is similar to the RNC motion on Iraq for immediate withdrawal -- they voted down their own measure.

    [More coming]

    Tell your friends that the Senators must not cave in to the RNC demands. The filibuster can be protected.

    The DNC can censure those DNC members who refuse to cooperate.

    This is about protecting the Constitution. The State of Vermont and other states are working on a proclamation to impeach the President. This will bypass the House.

    There are multiple steps here.

    The Senate's role in the larger picture is to delay any action in the Senate until the State Proclamation arrives -- and the world sees how the RNC members in the House vote on impeachment.

    The filibuster can be preserved. The DNC must be willing to assert themselves, and call the RNC on their bluff.

    [ There is more coming ]

    [ Frequent updates all day]

    Action: Tell your senators there is a way to protect the right to filibuster. The DNC must demand the filibuster rule be changed, then reject this change.

    [ More coming ]

    Tell your friends about this link, and spread the word: The Constitution can be saved, and the RNC cannot threaten anyone to give up their right to stall action.

    The nation needs to know more about the NSA program before we make a decision about who is going to tell us about the law.

    It is appropriate to delay.

    Yes, there are some who may not have issues addressed: But the RNC has no plans to seriously consider this "other pressing matter" -- just as they did with Phase II.

    Tell your friends: The filibuster must be asserted, and the DNC must call for the rule to be changed, then reject that motion.

    [ More on the way ]

    [ Check the Senate rules]

    * * *

    There is a way to assert the right to filibuster Judge Alito.

    The DNC must request a change to the filibuster rules -- then reject that change. This will overcome the RNC threat to change the rules using 50 Senators.

    Rather, by moving first, the DNC will compel the Senate to debate the issue -- and the written motion must have a 2/3 vote.

    How to protect your Constitution

    The DNC can then reject this motion, and save the filibuster.

    Then, when the next opportunity arises, the DNC can file another motion to change the rules, again rejecting.

    Here's more, at this link:

    Tell your friends, there is hope. The RNC cannot threaten you to back down -- rather, the DNC if they do what was done with Murtha -- and force a vote on an issue, then reject it -- the DNC will preserve the filibuster.

    2/3 of the Senate will be needed to change the rules -- the DNC must move first, and keep the Vice President out of the equation.

    There is more at the link. Pass this information to your friends.

    This can be done

    Tell your Senator to look at the above link for details on the Senate rules, how this is done.

    You must move quickly -- time is of the essence.

    This is part of a bigger approach to checking the President's power. The next phase is to get a state like Vermont to issue a proclamation calling for impeachment. This will be on the House side.

    Think big picture: The Senate and House must work together to overcome the President's defiance of the law. Alito must be filibustered until we have more information about the NSA spying program.

    There is reason for hope

    When we know more, we can make an informed decision in the Senate about the Supreme Court; until then, the Senate needs to filibuster, and await the State Proclamation.

    This approach will force the RNC to respond, just as the DNC had to respond with Murtha. The filibuster can be preserved.

    Tell your friends. Quickly -- we are short on time. Tell them to link to this Haloscan feed, and spread the word.

    The Senate does not have enough information about the NSA activities to make an informed decision about the law

    More details are on the way at the link above. Do not vote to end debate, but assert the right to filibuster. Anyone in the DNC who gives up the right to filibuster or end debate should be censured by their own DNC parties.

    Discipline! The goal is to protect the Constitution, not simply bow down. The RNC has no plan to seriously consider the "other issues" they say are "more pressing". This is a ruse to get the DNC to "close the issue". Do not take the bait.

    It is appropriate to withhold consent on a nomination until the President agrees to assent to the rule of law

    Assert the right to filibuster by moving first -- forcing a vote -- then rejecting that motion. To advance and protect the Constitution, we may have to move first, sacrifice something -- then use that loss for a larger gain. This is about Article 1 Section 8 -- the power of Congress to make rules governing the Executive. Alito has no respect for the idea that someone -- other than the President -- can make rules. But this is in the Constitution: Article 1 Section 8.

    The RNC has no plans to seriously review the "other matters" they say need attention -- This is a ruse

    Move! Call your friends, e-mail them this link, have them contact their Senators -- the filibuster must be asserted. More at the link above on how this is to be done.


    * * *

    The DNC must move to suspend the rules on Filibuster -- this will mandate a 2/3 vote. Here is the Senate rule discussion on suspending the rules. Click

    Then the DNC must move to have the issue related to filibuster -- because it is an issue of the Constitution -- must then invoke another rule: A requirement that there be a debate on issues of the Constitution. This is another important step. This is how it is done. Click here.

    Then, the DNC must reject that motion to suspend the rule.

    The next step is for the DNC to then say to the DNC membership -- you must vote to reject this rule; if you go with the RNC, and approve the decision to suspend the rules, as we have first moved -- we will censure you.

    If that is not enough to maintain discipline in the DNC -- and the DNC members vote to support the RNC, by assenting to their non-sense -- then all is lost, and the DNC should vote to expel their own members.

    There is no reason to have any DNC member who is willing to support Alito, stop impeachment, or not allow extended debate on this matter.

    Again, the DNC leadership must be clear: The time to act is now, and the motion must be to suspend the rules, force the RNC to commit, and then reject the motions and debates related to the Filibuster-rule-changes.

    The DNC must first move to change the rules on Filibuster, but then reject that effort. This is no different than what the RNC did with Murtha over the Iraq "pull out now"-vote. The RNC said, "OK, we will move to have the troops pulled out now"--but the RNC planned to reject.

    A similar approach must be taken with the Filibuster rule: "OK, you want to change the rule, then this is how we are going to change the rule." And when the RNC rejects that absurd change -- as the DNC would reject it -- then the issue cannot be raised against that day, or until later.

    Then, again -- the DNC will do it again -- at the first opportunity -- raise the issue to suspend the rules, debate the Constitutional issue of filibuster, move to change the filibuster with 2/3 required to approve that rule change, then reject it.

    This must be done each day, or at the earliest convenience.

    Then, in the meantime, the DNC Senate will have an effective filibuster on Alito -- and the RNC will know: If you try to force an end to the filibuster, you cannot. Each time the DNC will do the same: Move to suspend the rules, start debate on the constitutionality of filibuster, then change the rules in a way that must be rejected, and fall short of the 2/3 requirement.

    This will keep the Vice President out of the vote.

    * * *

    I will call into question the integrity of the Senators in the DNC who lay down to the RNC. IT is a ruse -- as it was with the Phase II -- for the RNC to say, and for the DNC to believe that the issue will be dealt with "at a later date."

    The public can call into question the integrity, and commitment to the DNC who fail to assert their power and the rules to force the RNC to commit to something that cannot be done.

    The rules say Senators cannot question the integrity of other Senators -- but there is nothing stopping the public to see and say what is going on: The RNC is using non-sense to persuade the DNC to give up their right to filibuster, or not assert other rules to force the RNC -- as the RNC did with Murtha over Iraq -- to compel an absurd change, which must be rejected.

    When there is a motion and this motion is rejected -- it cannot be brought up again for a specific amount of time. Until that time is met, the DNC should continue with the filibuster. Then, as the deadline approach for "another opportunity" to change the rules, the DNC should do it again: Force the vote on an absurd change to the Senate rules on Filibuster, and force the RNC to comment to something absurd, but fail to reach that 2/3 required related to a suspension of the rules.

    * * *

    To distract attention from the needed Congressional issue, the President points to illusory threats in Iran. But this is based on non-sense as was the information over WMD in Iraq.

    . . . know, when the President speaks of Iran, he is lying.

    The DoD is targeting places, but the IAEA has no evidence: Here is more

    Why is the US Congress allowing this?

    The answer is to filibuster -- and have the States issue a proclamation calling for impeachment.

    This is not different than the lies about Iraq and WMD: Click

    This is what can be done: Click

    Tell your friends – the President is making up more non-sense, just as he did with Iraq.

    He is not be trusted.

    A state proclamation should follow.

    * * *

    . . . know, when the President speaks of Iran or Lebanon, he is lying.

    The ruses over Hamas -- are one thing -- create the impression of a need to act in the Middle East -- but this is part of the larger plan of deception -- to force another action on Iran. This is the same ruse with WMD and Iraq -- more lies.

    The deceptions in Iran, Lebanon, and Iraq are clear: The witnesses are not reliable; they have been threatened; and the Syrians are being blamed. This is about making someone appear as though "something must be done" - but you will only see that the real action -- the US Congress, House, and Senate, must compel the President to present his facts, and explain himself. He refuses to do so -- there are not facts, only allegations.

    He is not to be trusted. But, we are asked to believe he is an honorable man. Let's gather facts, and find the truth about Phase II and the "other issues" that have been put on hold.

    The DoD is targeting places in Iran, but the IAEA has no evidence -- just as was done in Iraq: Click

    Why is the US Congress allowing this?

    The answer is to filibuster -- and have the States issue a proclamation calling for impeachment.

    This is not different than the lies about Iraq and WMD:

    This is what can be done:

    Tell your friends – the President is making up more non-sense, just as he did with Iraq.

    He is not be trusted.

    A state proclamation should follow. All state action must be put on hold -- until we have facts, not assertions of "something must be done" -- the "something" that must be done is impeachment and a mandate that we take no action on Alito.

    We need to know more. A few short weeks delay will not make much difference to those who have been harmed and suffering. If we move without thinking or debate -- as the president wants with Alito, Iran, and Syria -- the White House will be doing what it did with Iraq: Mandating action, without facts.

    That will not work. A filibuster is needed.

    * * *


    Unitary Theory of Legislatures: Fodder for the Filibuster -- feel free to use.


    [ Draft – This is a rush – there are many spelling errors with this transcript. We will correct them shortly.

    A unitary theory of Legislative power: Congress shall have the exclusive power to control all information related to laws; and have the technical means to do what is appropriate to ensure congress has information to make decisions about whether the laws are or are not effective. This approach would require congress to have an NSA-like monitoring program aimed at the Executive branch.

    This issue needs to be debated in the context of rules suspensions, constitutional issues mandating a debate in the Senate, and light of Judge Alito’s creative theory on unitary theory of executive power. The burden is on the RNC – to explain, if the unitary theory is valid – why the Existing Senate rules are or are not defective; or should or should not be revised so that the Legislature can employ the same “Unitary” approach to employing power against the Executive.

    The burden, as always is on the RNC to justify why the unitary theory of executive power does or does not apply to the Legislature. It is their theory of government – why it only applies to once branch and not all three remains to be explained. Thus, we move to have the rules suspended, permitting the RNC to have all rules they need to crate a unitary legislature. We await the RNC’s response to this approach.

    Note: The RNC’s attacks or defense on this approach simply highlights the defects in the unitary theory of executive power; and o little to address why Congress does not have an NSA-like program that intrudes upon the executive “just because’ Congress feels like it, as the weather ebbs and flows like sand on the shore.

    This is for you to get a sense of what the Congress needs to do – to assert rule changes permitting the congress to have a “unitary legislative theory” approach taken, and requiring the RNC to explain why these proposed changes should or toehold not be enacted. Again, this is designed to identify the flaws with the RNC arguments related to filibuster, rule changes, executive power, unitary theory, and other rules – if applies to the Executive – should also be applied to the legislature. We need a suspension of the rules – so that the Congress can do the same as the executive: engage in NSA-lie monitoring of the Executive branch; and the RNC needs to explain why this is not OK, but the executive’s monitoring is OK. This debate needs to be rammed into the filibuster; and mandate that the RNC comment or not comment on these proposed rules. If they are wiling to assert these rules are good for the executive, it will be interesting to hear what peeps they have about the same powers applied when exercised by Congress. Why is the RNC willing to give power to the President, but not permit congress to have an NSA-like monitoring program that will monitor abuses within the Executive branch? ]

    * * *

    It is extraordinary what is going on over the filibuster issue. At a time when the nation needs to debate issues, the Senate leadership is threatening to change the rules.

    It is time for the DNC to do what the RNC has done – for the opposition’s hand, and compel an absurd resolution, which will mandate the RNC reject this approach. Yet, in these days, the RNC is likely to embrace absurdity

    But there is another way: The DNC can mandate that action be taken by calling for a suspension of the rules on something the RNC wants – and when the RNC refuses to debate the issue – the DNC can point to the refusal as proof: That the issue cannot be brought up again.

    It works this way. If the DNC votes to suspend the rules, and then take subsequent action to compel a constitutional debate on filibuster, the vote required to suspend the rules is 2/3. The RNC may vote to support this. But there is a problem for the RNC – if the DNC agrees to reject their own motion they’ve submitted, then this will effectively prohibit the Senate from voting to change the rule.

    The decision will lock in the debate for that day, and for a period of time, that motion cannot be raised again – otherwise it will be dilatory.

    Thus, the DNC will have preserved the existing filibuster, and by forcing the Senate to vote – and reject that change – the DNC will keep the Vice President out of the Decision. This will avoid the 50-50 split between the RNC and DNC, thereby “justifying” the Vice President ruling.

    The DNC does not need to fall into that trap. Rather, the solution is to compel an action that requires 2/3 vote – and reduces that vote to writing. When the action is reduced to writing, it will take one day for the result to appear.

    In the meantime, the DNC can vote to continue debate – with only 41 votes required to do this.

    There may be more effective ways to accomplish. But the point should be clear: The DNC is in the position to force the issue, and compel the rule changes to be made on the basis of the 2/3-margin requirement. When the DNC proposes this change, and subsequently rejects it – the Senate will not be able to review that proposal again for a specified period of time in the interest of avoiding dilatory measures.

    Again, as the deadline approaches for that subsequent motion, the DNC can prepare again – to vote for extended debate, then enter the window where the motion can be reintroduced, and subsequently rejected – all within the senate rules, and in consistent with the Chamber practices.

    * * *

    Again the issue is not the specific solution outlined above – which may have superior alternatives, or subtle defects.

    Rather, the approach above is intended to be illustrative: That there is something the DNC leadership can do to compel or force an issue, then assert the higher standard required – the 2/3 majority vote.

    There are other issues of timing. These remain to be explored. Once bills are introduced or motions, it will be important to understand which motions have specific time-related windows that preclude re-introduction. Again, the issue will be to explore these time frames, and then propose legislation that the RNC must assent to – and then for the DNC to reject these motions.

    Again, the goal of this is to assert the higher standard of 2/3 majority requirement, and subsequently show that the DNC will not support this measure, leaving at most 50 RNC Senators, well short of the 2/3 majority required to do what was in the original bill.

    If the time limit to do this is once per day, then do it every day. But consider that the motion to extend debate is linked with a window of time related to a number of hours. It appears once the decision to extend debate occurs – the Senate is locked in for a specific number of hours, and then this will end.

    Again, the point is to link the time-window associated with a motion – one that limits reintroduction – and combine this with the associated rule which opens the extended debate for a specific number of hours. As we reach the end of the specific number of hours, a new bill with a new equally flawed proposal – requiring 2/3 consent – will be introduced, and the DNC will subsequently reject this proposal.

    Think in terms of many conflicting actions that do one thing – to raise issues that the DNC are related to the Constitution – and mandate a debate, and then force the RNC to commit to the 50-votes, and deny them the subsequent votes needed to meet the required 50 votes. The DNC leadership should emphasize that the RNC is not meeting its obligations with Phase II, and that the Senators who are present in the chamber are not ensuring that the required resolutions on status of Phase II have not been filed with the Secretary.

    Also, the rules allow for the former President to appear and speak. It would be fitting, that the President – namely President Clinton and President Carter – have a prominent speaking schedule during this period. Again, the goal of the DNC would be to introduce bills that contradict what the President is about to say – then, when they gain wisdom of what was actually said – vote against the motions they have introduced.

    * * *

    Clearly, the above may be something that the Senate rules permit, reject, or will not work. But the message is clear: A new approach must be taken. The DNC leadership cannot simply use the rules in isolation. Rather, they must be leveraged to the advantage of the DNC agenda: To protect the Constitution.

    If someone in the Senate raises an objection, the senator will be able to say that the issue is about the Constitution. And a debate about that constitutional matter must start at once. Indeed, the issue is about the Constitution – about the right of a faction to reject what is a threat to the Constitution. It is constitutional for the House to have a rule allowing the public and Senate to have extended debate about a Constitutional issues such as Article 1 Section 8, and the threat that a specific nominee appears to pose to the checks and balances.

    Take a larger view, the lesson of Iraq is clear: When the deadlines is set, the Executive will lie. It is Constitutional, and appropriate for the Senate to consider this behavior that would otherwise – if mentioned about a Senator – raise reasonable questions about the integrity and reliability of that Senator. But the Senate rules prohibit a discussion of those issues.

    Yet, with the case of the Executive, it is right and just that we discuss the matters of the Constitution – and whether a nominee, however cloaked as a saint, may actually be a sinner in sheep’s clothing.

    What is absurd is for the RNC to assert that their nominee deserves support – but refuses any effort to openly debate this matter. This is a disgrace to the notion of free exchange of ideas.

    Moreover, for us to believe that the nation is bringing “democracy” to Iraq – only to reject that democracy at home – is a clear signal for the world to see: The US not only invades you for unlawful reasons, but its example at home is nothing others should aspire.

    * * *

    The DNC – on the final vote of the issue – will ensure there is no 50-50 split. This will ensure that there is no need for the Vice President to split the tie.

    Rather, when the RNC is voting to support what they desire – the DNC can explore which of their membership can safely side with the RNC and tip the balance away from the 50-50 split.

    This will accomplish two things: Create a safety buffer so that last minute changes by the RNC will not result in a 50-50 split, and ensure that the DNC members who vote with the RNC – as needed to avoid the 50-50 split, will still be able to survive RNC attacks for not voting with their party.

    To be clear, the media will spin this. That is a given. But the objective of this must be to appeal to the voters’ sense of outrage over the NSA issue and issues of the constitution. If the DNC appeals to these principles – in that the filibuster is manufactured with these motions – in an effort to defy the RNC threats to ram-rod a troublesome nominee through – the voters are smart enough to realize that the effort is done to serve a higher principle: The quaint thing commonly referred to as the oath of office in support of the American Constitution.

    Yes, the DNC and RNC alike have an oath. That is an oath to the Constitution. Sometimes, to assert the oath, one must take actions that appear absurd – while at the same time – fundamentally change the basis for interaction. This is in keeping with one’s oath.

    The small minded ones in America will be lost; and the leaders – those who can craft words – will be able to appeal through the use of reason and sound judgment – simple statements that simply assert what is self-evident: This must be done to preserve the Constitution.

    Yes, the small minded ones will whine and chirp as they did when the President raised the flurries in support of the illusory WMD. But the nation now knows the President is not reliable, and that the whines are to be explored, not simply used to dip dough flavored with delusion.

    * * *

    Again, we make no claim that the specific topic of the motion will or will not be dilatory – but we trust that there are Constitutional issues which warrant open debate, and can be linked with the 2/3 majority requirement. We make no claim to have a special knowledge of what issues will or will not be supportable on the surface, but should be rejected because they are flawed.

    Again, the issue is to raise the point, propose a debate, and then through the divine will of the almighty, permit the DNC through carefully consideration of the insights of the RNC see that the original notion was flawed, and that the DNC has been aided by the instruction, guidance, and wisdom on the other side of the aisle.

    This is clearly constitutional, desired, and is within the spirit of the Constitution: To clash ideas, to test one’s argument, and openly embrace the other point of view. At this point, we welcome any notion from the RNC on what they may wish to proffer as any needed change, and will move to have a constitutional debate on that subject – it would be fitting; and with time, it is likely, the wisdom of the RNC will guide the DNC to realize that the original proposal, although perhaps lively and entertaining as a remedy to the issues of the day, falls well short of what the Constitution and RNC constituents need. Again, the issue is that the debate – and the fruit of lively interaction with the RNC – will show that the DNC’s views have changed, and the initial ideas, spring boarding from the RNC notions of civility should be rejected because the RNC wisdom has guided the almighty and shed light on the DNC’s judgment: The motion should be rejected.

    * * * *

    This is not to suggest that the motion be dilatory. For it is clear there are many issues the RNC rightly raise – and these hinge on constitutional matters. So, the DNC, rather than waiting for a gridlock debate, and forced to cede control to the Vice president because of a 50-50 split, should move first, force the issue, thereby ensuring that the needed suspension of the rules – to do what the RNC says is self-evident [whatever flavor of the day they might say – just agree with it], introduce the motion, and then strike it down.

    Then again, and again. But on all the issues the RNC raises – hinge the debate and motions on what the RNC values, all the while raising a point of order related to a suspension of the rules – and link this issue to something that, when rejected, cannot be raised for a certain period of time.

    * * *

    Regardless the issue, the goal is to compel action on an issue requiring 2/3 vote, then permitting some of the Senators in the DNC to vote the other way, thereby avoiding the 50-50 tie, and ensuring that the Vice President has no say in the subsequent interpretation of the rule in question. One cannot have a constitutional debate when the Vice President stands ready to interpret the rules simply because of gridlock.

    So, unlock the grid. Give the RNC exactly what it wants – propose all its initiatives be linked with matters that would suspend the rules to achieve that end – and chip away at that proposal with successive defeats of those resolutions. Patiently listen to the RNC arguments for their issues, then use their shared insight to guide you to reconsider your original position. Ah, you have seen with the help of the RNC that the 2/3 requirement cannot be met, but your fellow DNC may go with the RNC, thereby ensuring there is no 50-50 split, and no room for the Vice President to act or have any say.

    Rather, it would be pleasing if the Vice president – in his capacity as President of the senate – do what the Senate rules require: Remain silent, and refrain from making derogatory remarks about specific senators, simply because they have another view of reality: One based on facts, not the whimsy puffery from the open plans of Wyoming and Texas – locations apparently devoid of the nurturing air needed to give that special touch of loveliness that the Vice President needs to quench his thirst for power. But today’s open ranch in Wyoming is but a summer holiday in Texas – one address is real, while the other is linked with the riches and gold – linked to the fruits of war crimes in Iraq.

    * * *

    Overall, the DNC approach is simple. It is to accept that the Senate rules appear to include methods to preserve the filibuster rule, and defeat the RNC efforts to change the rules.

    It is correct to assume that the above discussion may have flaws – but the central message is clear: To change a rule or suspend them, the RNC cannot create out of thin air more Senators -- they only have 50, not the needed 67. So, permit the RNC to convince the DNC what their arguments are for these absurdities – then let the world evaluate these comments – open the extended debate to the RNC – and invite them to appear to make comments on the things they truly value. But link them with changes or suspension of the rules or other mattes requiring 2/3 votes – and then the hand of the almighty will show us where the RNC position is or is not devoid of reason.

    * * *

    The issues before us are simple matters of constitutionality. The DNC must remind the President of the Senate that the comments and issues are substantive, and warrant a suspension of the rules – and then afford the RNC the needed time they need to review the matter, and open the matter for debate. It is fitting. The matter is of a constitutional nature.

    Then listen. And comment. Then be guided by the almighty. To wit, the RNC flaws are insufficient to sway the DNC to rise to the 2/3 vote required to suspend the rules on this matter of the Constitution.

    So, the rule will stay as it is. Then, onto the next plank of Karl Rove’s plan which is now smoldering in the bowels of Vermont, waiting for the State proclamation to issue, all the White Fitzgerald continues his work, ever probing closer to Rove’s mind, penetrating his inner soul, and getting closer to the apparent curious fellow who talks about democracy, but gets upset when chanting voices from a school bus make his child upset. Karl’s child does like to be taunted. No matter, Karl is a fine protector – and Karl has nothing to worry from Fitzgerald – a prosecutor as fine as this does not need to use taunts from the safety of a school bus, but the rule of law from the spear of the Constitution..

    * * *

    There is a way within the existing Senate rules to preserve the filibuster. It is not a single rule, but a combination of rules, respect for the RNC, and a sincere desire to discuss a pressing RNC concern related to their constitutional issues.

    Indeed, before us, the Constitutional issues are clear – what happened with Phase II in light of Article 1 Section 8; and has the chamber been graced with the good Senator’s presence – the one who may know something of this Phase II report. If they have not been given leave at this important debate of constitutional importance, surely the Sergeant at Arms will see, despite the unfavorable weather that a warrant for the arrest and attendance should ensure.

    Then let the RNC assert their points – forever forcing them to demonstrate that their points are constitutional. On all motions, they will fail – for the suspension of the rules mandates a 2/3 vote – and the motion to debate a constitutional matter requires an immediate debate.

    So debate, and let the RNC share equal time in proffering their absurdity, and then after consideration of the issue – it may become apparent to the DNC that the divine wisdom of the RNC has led the DNC to conclude that the original proposal – however consistent with the RNC objectives – was insufficient to warrant 2/3 vote in support.

    No matter, off to the next issue – of immediate constitutional importance.

    * * *

    The DNC must use a new approach when preserving the constitution. The goal is not to simply follow the Senate rules for the sake of obedience – however lovely those rules might be – but to follow the Senate rules to achieve a higher purpose: Constitutional preservation in the interests of Article 1 Section 8.

    Yes, the Supreme Court in Nixon reminds us that the courts have no say on whether a chamber rule is or is not lawful or appropriate. Rather, Article 1 Section 5 defers to the chamber to make the rules. So, by their very nature – because they are a rule – they are constitutionally permissible.

    To suggest that the rule is or is not constitutional is irrelevant. The law is neutral on whether a specific rule is or is not allowed. Rather, to change a rule – as the DNC would like to do – requires 2/3 vote. But after carefully reflection of the RNC position, would it not be appropriate to assume that some, if not all of the DNC members might reject the original idea? It would seem prudent to assume that once the DNC enters the chamber with a well though strategy to address the RNC concerns, that they may have missed something. Again the clash of ideas from the good Senator from Rhode Island might inspire some, while confuse others. But this is not to speak unsightly, but to assert that a simple comment – however well placed – might for some be deemed an attack, while other a lovely kiss of sweet affection.

    In the ensuring confusion, debate and clarity is needed: To what end will the action serve the constitution and protect the document? Self-evidently, the clash of ideas will produce the new information, new question, and the divine wisdom Justice Scalia so often shares in a warm wood shed near the duck ponds, not far from the volley fire of tennis courts and hunting rifles..

    * * *

    It is time to frame the RNC plans within the plan which Karl Rove wrote – the due deference they are due – and a lovely solution from the DNC: A constitutional debate, warranting full review of the chamber rules, then suspension of the rules – with a full debate on the constitutional nature of that change.

    * * *

    The filibuster can be preserved – the approach is simply to combine existing rules in a new way to achieve the same outcome: Careful review of comments that may or many not be germane – with ample time to reflect on what the RNC is or is not saying.

    Yet, there is a limit. Indeed, the limit is clear: The 1 March 2006 deadline, after which the states will issue a proclamation calling for an impeachment investigation.

    * * *

    There should be an open debate on the Senate floor on the Constitutional matter at hand: What method will be used to preserve the filibuster.

    At present, the Vice President would tip the balance in a 50-50 tie split; so to remedy this chance of intrusion, the DNC may wish to find something that requires 2/3 to assent – and ensure this cannot work.

    Ah, perhaps the Senators in the DNC have a new treaty with a blossoming nation. Indeed, under Article 1 Section 8, the Congress has the power to review the rules of governance. Let us consider the lovely rules and powers of the Congress to review Bolton’s treaty connections in the UN to those in DoD’s felicities used for rendition.

    Surely, if there are treaties made that contradict the law – then the Constitutional matter before us is clear – There appears to be a major crisis within an existing treaty – one that permits a violation of the law, and ignores the rule making power of the Senate. Thus, to consider this matter, we would hope that the good Senators who well know of the NSA spying and Mr. Bolton speak freely to say why the Constitution should or should not be preserved when it comes to issues of DoD and CIA facilities.

    The rules are clear as are Article 1 Section 8. To be clear, there is nothing before us to suggest that the nomination of a judge – only 1 of 9 – should trump the higher constitutional obligations of the Senate to review a treat which appears to permit conduct contrary to the law.

    Again, the Issue is through Article VI, all treaties are the supreme law of the land. The Constitutional question is whether the Senate has allowed – unconstitutionally – the Executive Branch – to embrace a notion of a ban on torture, or restriction on CIA assets employed in service of the United States – in a matter that defies the existing treaty obligations which the Senate openly discussed.

    The constitutional issue: How did this happen? Again, to suspend the rules is not simply required, but mandated.

    Surely, with time, the DNC will realize that the comments form the RNC are non-sense.

    * * *

    Also, it is constitutional to suspend the rules when there appears to be a good number of DoJ issues surfacing. For these many years – under the good leadership of a fine music player – we have been led to believe that the Department of justice has been ably led.

    Yet, the remarks before a sitting FISA judge – made because they failed to truthfully see what is or is not going on – in short, a false affidavit – raises questions about the oversight of that committee. Yet, despite the likes of Sibel Edmonds and other whistleblowers, we learn that there are other retaliation methods in the works.

    The Constitutional issue is whether the Executive – in defiance of Article 1 Section 8 – has threatened witnesses and corrupted the fact finding process over the NSA issue. It appears this is what is going on. Shocked, glory, glory. How could this happen?

    Surely, the Senate has a say on this constitutional matter. Indeed, it would be fitting to explore this issue: To nuzzle with it in the corner where the secrets rest, and find out why the NSA’s public statements seem at odds with the previous statements. This is not to question their integrity – rather, it is to flatly say what is self-evident: There is a reasonable basis to allege that their legal statements – devoid of any legal connection to the 4th Amendment – is a reasonable basis to presume that the program, however artfully worded or postured before the buffoons in the lands not far from the land where there is corn, have clapped out of ignorance: The program lacks legal foundations, and at best is unconstitutional. For this, we deserve to know the facts, and explore the issue: What other surprises can we expect; what was said between Alito and the White House, and is there a way to find the NSA intercept tapes which have captured the White House discussions on this matter. Fortunately, there is a source – and the GCHQ has been very cooperative.

    * * *

    The DNC’s approach must be to call for a change in voting rules – to permit a suspension of the rules when there is material information, of an urgent matter, when it appears there is an ongoing effort to provide false information to the public over apparent treaty violations.

    The Senate has a role. Article 1 Section 8 clearly sets forth this power. It is time for the RNC to be given the chance to discuss this proposed suspension of the rules in the matter related to this constitutional matter. The rules should be suspended because the existing rules will not free our good friends on the other side of the aisle from the limits the Senate has placed upon them.

    Our friends on the other side of the aisle, as of late, because of the unfavorable weather, have found it appropriate to murmur slurs at the citizens of the District of Columbia. Indeed, while riding a subway – as the story goes – one of our esteemed colleagues was suggested to have sought an avenue to freely express.

    The issue before us: Is the Senate rule on open debate – affording the Senators privileges to speak their mind – is that rule overly burdensome, and unconstitutional – in that it has retrained the Senator to the extent that he does not feel it possible to express his apparent concerns with the RNC leadership – and must vent his wrath on those who travel the same roadways.

    The Senate does have rules of decorum – but perhaps these rules should be suspended so that Senators might freely express their disdain for what appears to trouble them. We believe it is in the interests of the Constitution that these rules be suspended so that the world might benefit form their divine insight and personal experiences that might shed light on the apparent restraints of the heart which cannot retrain a salivating rebuke.

    No matter, these are merely rumors. But we would hope that if the stress within the other party is of such distress, that now they be afforded the time to express themselves – and do so under a suspension of the rules. Again, we invite them to speak their mind – to freely express themselves, and say what is on their mind. What is in their heart. What troubles them.

    But the rules – as of late – appear to have constrained them. Our democracy cannot be strong when they feel a heavy weight, and choose silence in the freedom of our chamber. Where there cannot be freedom to speak, there is a reasonable presumption they are not free to live. That is clearly a need to have a suspension of the rules – to share what is on their mind, and let them share with us what is troubling them.

    Please, speak, Share. We await your comments. If your party allies might rebuke you, know that even if you slander us, we will still respect your privilege – and let you unleash upon us. The truth – from your tongue – might be something we have been denied. So speak, and do not hold back. Exhaust yourself.

    For that, Mr. President, the rules need to be suspended. The members on the other side of the aisle who wish to speak – but how have been of late restrained to the extent that they lash out at the tired travelers – that is a sign that our rules need to be suspended, and that our friends on the other side of the aisle be afforded the freedom to speak. For that, we ask that the rules be suspended, and permit those on the other side of the aisle to raise the issues that are most troubling to them – with the premise – and a new rule – which we will vote on – that will make all statements they make at this moment – immune form any retaliation – and that if they are retaliated against by their party leadership – that the leadership be fined.

    Now, it is time to let them speak – and to suspend the rules which prohibit any slander. Let them unleash themselves, a freely speak so that the world will see what is on their minds, their concerns, and we might be blessed with their insight, wisdom, perspective.

    Let us have a spirited debate on this constitutional issue, and suspend the rules with this motion which I ask that we vote on. If there is no objection, once this new rule is enacted, I ask that we move on.

    But if this rule is rejected – after careful consideration of the evidence – then, for the purposes of harmony with the rules, it would be fitting that we do not raise this issue again today.

    Perhaps tomorrow, but not today; perhaps in a week, but not today. We leave it up to a wise interpretation of the rules when it would be most appropriate to raise this issue again, so as to not upset the President.

    * * *

    The Senate needs to hear form the public. The public needs to share information. To make sure the methods are known and desired.

    We shall move quickly. This is a bonafide emergency.

    * * *

    There are several issues with this approach:

  • How much time is there before an actual vote on Alito?

  • What is the earliest data or time that a vote could be taken?

  • Has the Senate limited debate only to Alito, or can there be other issues of Constitutional nature introduced – with subsequent debate – or can the debate only center on a single topic?

    It appears this is not consistent with the existing Chamber Rules – which permit constitutional debate, and discussion not germane to the topic.

    * * *

    It is one thing to have rules which you quickly flip through; quite another to flip through rules you think must be rejected.

    So, let us have that debate now. We invite our friends on the other side of the aisle to bring up the constitutional issue in this debate – and explain why a matter related to a constitutional issue cannot be discussed as it should be: A catalyst for a needed change in the rules.

    * * *

    Can a Senator move to change a rule on filibuster during a judicial nominee? Surely, if we do not know the answer, we can debate the merits of that – by simply suspending the rules – let’s suspend the rules, and require all Senators on this matter be barred from mentioning anything that is not Germaine.

    Let’s take a vote: Do we see 2/3 majority on that?

    It appears there is only a small majority, not quite 67. For shame. Looks like we can’t bring up that issue again. So, we’re stuck with that rule. Ouch.

    Shall we vote on this again tomorrow? Perhaps. In the meantime, we have other Constitutional issues which need attention.

    * * *

    Should it be allowed in the Senate to discuss an ongoing classified program – that we were told was classified – but now appears to be something that is not lawful?

    Perhaps a suspension of the rules is in order: We need to suspend the rules and mandate that the issue related to secret issues be forever barred; and that nobody who has ever had a secret hearing or briefing by the CIA or NSA on unlawful programs – those Senators should be barred form raising the issue.

    Let’s take a vote to suspend the rules on that.

    Wow, not quite 2/3. So I guess we can’t stop anyone from discussing the illegal program. Indeed, this is a matter of the Constitution. So let’s discuss this issue: Our friends on the other side of the aisle, despite their forceful remarks why this issue should or should not be brought up – fails to persuade.

    Rather, their insight suggests there are bonafide reasons and issues. More interesting is that their comments appear to shed light on some important issues: warranting follow-up and questions.

    So, let’s review our conference report list, shall we. Let’s consider all the outstanding conference reports and review their status on the matters related to the issues presently raised. These are matters of the Constitution, they warrant review, and related to the Senate powers over treaties.

    * * *

    We need to see an extended debate on the rule.

    It remains to be understood whether during extended debate – can someone move to change a rule? Interesting, let’s consider a suspension of the rules on that.

    Let’s move to change the rules barring any discussion of the NSA monitoring of the Senate, and discuss whether the Congress should not have the power to use the same technology to monitor the executive.

    NSA violates our privacy – where the Constitution does not respect the right to privacy – so let us mandate that the NSA monitoring capability be applied to those who have nothing to hide: Obviously, they’re doing nothing wrong, they’re angels. So, the information we will glean from this monitoring will be nothing but good news to share.

    How can the Executive claim “privilege” when he does not recognize that same right of those who have cell phones – there is no privilege to private data – so why should the executive have a superior right to privacy, that congress – through Article 1 Section 8 – is denied access in order to effectively oversee the rules and governance of the agencies in Do, NSA, CIA, and Dodd.

    It is a constitutional issue – and we need to suspend the rules – so that our friends on the other side of the aisle can explain why the President can or cannot have privacy; and why the public is not afforded the same standard and insularity afforded to the executive.

    It is one thing to assert we are a nation of laws – but our system of checks and balances mandates that Congress – through Article 1 Section 8 – check the President: And it would be fitting for Congress to pass a law, in harmony with Article 1 Section 8 – that would permit the Congress to rely on the same arguments this President does in justify surveillance – and use the same line of reasoning when it comes to matters of Congress doing the same to the Executive.

    Yet, the current rules do not permit our friends on the other side of aisle to freely speak – as evidence by their buffoonery on the DC subway – so let us suspend the rules, and have a spirited debate on this constitutional matter –

    In light of what we know about Judge Alito, how would we expect he issue of Congressional monitoring of the President – using NSA technology – to square with the reasons Judge Alito stated were or were not appropriate for the Executive.

    At this juncture, it would be prudent to examine how the NSA spying – from the side of the Executive – would be compared when the other branch of government – equally lawfully – oh, is that a phrase – how the Congress could similarly engage in surveillance of the Executive – and rely on the same arguments this present uses.

    Again, if we are to take the president at his word – that the program is lawful – then Congress should also have the power to use the same technology to sweep the executive – and find information that would raise reasonable suspicion on corruption.

    Again, all public officials are told they consent to monitoring; how does congress plan to ensure that the speculative surveillance is matched by bonafide testing and data extrapolation?

    The issue is the President while he traveled to Kansas said that the program is lawful; so it would stand to reason – that if it was lawful – then Congress should be able to lawfully exercise the same power when it comes to monitoring the Executive.

    The president claims he is doing the right thing. As is Congress.

    The president claims the targets should have nothing to fear – if they are doing nothing wrong; the same approach applies to Congress’s approach to the Executive branch – why is the president afraid of having the NSA-like assets pointed to his staff – when, using his argument – the innocent should have nothing to fear.

    Ah, but there’s Libby. A small thing with an indictment. A grand jury. And now he wants records.

    isn’t that interesting. The man who allegedly lies to a grand jury, now compels the government to comply. Yet, what is the president’s approach with the NSA – we will not comply with the law, because the law does not apply.

    So if the law does not apply to the President – why should the law apply to Congress? There is nothing the President can do to explain why his program is lawful, but a similar Congressional use of that technology against the executive – is unlawful.

    The President’s arguments are not consistent. First, his original argument are in violation of the law; and second, he presumes to have single control of a monitoring capability which congress – through Article 1 section 8 – should have access to in order to ensure that the laws it passes is being followed, and that it has reliable information to assess whether the governance and other laws Congress makes is or is not effective.

    Clearly, the current approach doesn’t work: Congress has no information; only snippets of news.

    So, the rules should be suspended: So that we can openly talk about this matter – and find out why Judge Alito apparently has one standard for the White House – on the unitary authority bullshit, while the Constitution says something else – using Judge Alito’s argument, then there is a “unitary legislative power” – however fictional that might be which mandates that the legislature have the power to exercise all power to ensure its legislative duties are carried out: This means having an NSA-monitory-like capability which will allow the Congress’s “unitary legislative power” to be fully checked, independently verified, and something that is completely in the sole power of Congress to decide how it is or is not used, verified, and who has access to it.

    Yet, the president wants it the other way. When Congress wants to share the information and use it to evaluate the Executive – suddenly the President claims privacy, or sensitivity. But if he’s doing nothing wrong, surely, he would love the disclosure – the public would be amazed. The people would clap, and they would see that the “unitary” theory of government – when applied to the executive – is just as good when it is applied to the legislature.

    * * *

    Surely, if there is a rule change before us – or something that resembles a change in rules or suspension of the rules – we need to have a debate when it discusses article 1 Section 8 issues.

    Before us, left and right, we can change rules. But let’s suspend the rules, and say that the basis for all rules will move from 67, to something else. Let’s debate what that lower number should be.

    How many inside the RNC will like to have a unitary execrative – and a unitary legislature – that enjoys using NSA-like technology to monitor the other branch. I’m all for it. Let’s hear it from the RNC. Should we suspend the rules, and make the discussion related to the “unitary legislature” off bounds; or is there something that would warrant a special constitutional question and raise issues related to larger issues warranting a new topic.

    Let’s do it. Vote up or down, and you are not allowed to filibuster. You must vote by today, and you cannot have a debate on this. I will not give you all the information about the NSA program, and we are not going to have a debate on whether the NSAS program is lawful – rather, you must presume that the NSA program and technology which Congress will use against the Executive – is for the right reasons. And my decision on this rule is final. Any inputs form the other side will simply be frivolous.

    So, make your case, but the decision will be made. Congress will have a technology that exercises “unitary legislative power” found in Article 1 section 8 – and fully mobilizes a second NSA-like function against the Executive.

    Let’s hear the Constitutional issues:

  • Should this be done

  • Is it permitted

  • If it is not occurring, why not

  • If the monitoring is not possible, why not

  • If this type of data monitoring is good for the president – why is it bad for the Congress

  • If that monitoring capability – under the president’s notion of “unitary executive” is bad – why isn’t it good for the legislature – through article 1 Section 8 – to have the same ability to check the President?

  • Why isn’t there a special rule which allows us to suspend the rule son constitutional issues – and say to Judge Alito – OK, you believe in Unitary Executive – but do you believe in the Unitary Legislature? If so, then there should be no constitutional challenge from the Executive in asserting and exercising the inherent legislative power to engage in domestic surveillance of the Executive – in a manner white eh courts will review.

  • Why is the Executive not willing to assent to the court, but the Congress is?

  • IF the court will review the Congress’ unitary legislative theory – why can’t the executive submit his searches to the same court which Congress does/

  • Does congress get the power to rate its own court to examine –without judicial review – the information we glean from the executive

  • Can congress crate its own courts to make rules and try those who wok in the Exertive branch – based on information the Congress’ NSA-like monitoring program would officer?

    It is clear that the President’s arguments – if they are believed and are true – must similarly be applicable to the Congress. Where the President asserts are power – the Congress has the same power to assert over the Executive.

    Where the President claims he does or does not have to meet a standard, then so too does Congress have the right under the “unitary legislative theory” have the power to violate or not follow a similar set of rules which the executive chooses to ignore. One branch cannot be held to follow or not follow one set of legal theories, while another branch is constrained to a lesser standard, or must be held to something that is not consistent.

    Again, the system of checks and balances requires just that – check on the use of power, and a balance of power. If the President assert unitary theory of executive power – then the congress has the power to assert the same theory of legislative theory on the executive – and mandate that tall rules – made in conformance with Article 1 section 8 – be subject to inspection, examination, and evaluation – just as if they rule and statute were a person. There is no distinction between the law and man – if The exd5tuive has complete control over all people – then the Legislative has complete control over all laws and guidance. It is the job of the Legislature – while relying on the executive’s unitary power theory, but applied to congress – that Congress should be able to move information – as does the president move people – so that it can be examined without court review.

    Where the executive claims an inherent authority to try people without trial – so too does the legislature have the power to move information without restraint. Thus, under the President’s theory of unitary power – in that he can move people without question – so too may the Congress move information about compliance with the law without question—and there is nothing the Executive can do to stop this, question it or get in the way. Congress – as the sole legislative power – has the exclusive power to control all information about whether the laws are or are not being followed; and Congress has the power and requirement to interject itself into embassies to ensure that treaties are correctly interpreted, followed, and enforced at all times.

    Again, this is under the Congressional unitary power theory – where Congress can move and come and go as it likes, and the courts have no say in the matter. This can be easily accomplished with an NSA-like monitoring program which can be easily directed at the Executive department to determine whether it is or is not following the laws that Congress has passed. The intrusions will not be noticeable; and the employees will not be harmed. Only those people in the executive branch that have done anything wrong need to worry – so there is no problem.

    Let us change the rules, and invite our friends on the other side of the aisle to comment. Why is the unitary theory of government only applicable to some, not all; if the President has inherent authority to do something, surely Congress has the same; if there is a unitary Executive, then there is also a unitary Legislature. One cannot have it both ways, but let us open the debate and suspend the rules, say that the rules of one branch may not be considered when evaluating whether another branch is or is not meeting its constitutional obligations.

    * * *

    The issue before us how will we protect the right to filibuster. The rules can only be changed with a 2/3 vote.

    The DNC must move first. The DNC has the responsibility to make this happen. The RNC must commit to their agenda – and then let the world see that their agenda – when logically applied – will mandate that the RNC and Executive assent to standards of intrusions and oversight that the American people have long needed.

    Yet, the public has it backwards. Rather than have an NSA program that monitors government corruption, this president defies his oath, and mandates that Congress not be allowed to use any technology that might permit congress to exercise its lawful, constitutional oversight responsibility.

    * * * *

    The objective is to get the RNC to commit, not change the motion or change the filibuster rules.

    * * *

    Think back to the RNC plan to smear Murtha. Rather than admit the DoD has a report in place -- which Murtha used as the basis for his statements – showing Iraq is falling apart – this RNC went after the messenger.

    So, let’s suspend the rules. Let’s have an open debate and discuss this constitutional issue. Should one branch of government – namely the executive – have the right to leak information about reports – while the congress is forever banned from mentioning anything on the floor about requirements to be silent about unlawful activity?

    Let’s take a vote: A motion to suspend the rules, and mandate that all information related to discussing classified unlawful NSA programs be forever restricted, and that no body is allowed to discuss this matter.

    Curious – we fail to see a 2/3 vote needed to suspend this rule. I guess that means we need to evaluate whether it is constitutional. It looks like we have insufficient number of DNC who understand this issue. Let’s open it up for debate on the constitutional issues:

  • Can the Executive mandate silence?

  • Under Unitary Legislative theory, can the legislature exercise a same mandate of silence over conduct that violated laws Congress chose to not respect?

  • When the congress – acting alone – chose to assert that the executive did or did not violate the law – should the rules be suspended giving the Legislature the power to jointly investigate, oversee, and then convict someone?

  • Why is the Executive relying on legal interpretations of the constitution that are “convenient for him” – but when other issues come up, the constitutional issues of common people are not conveniently respected?

  • If the unitary executive can decide which rights and powers are or not followed, surely the Unitary Congress can decide which privileges the executive asserts are or are not relevant; or conversely, whether congress does or does not have to assent to any court hat it ahs crated.

    Under the unitary legislative theory of government – Congress does not have to assent to the rules of the courts which Congress does not agree with – this is an intrusion on the power of Congress to regulate regulations; and govern the governing practices. Congress makes no claim that anyone is doing anything wrong – rather this monitoring of the executive is done to prevent corruption and protect the nation from the crimes which the exertive say need to be controlled in congress. Indeed, if that crime is pervasive, then Congress under the unitary theory of the legislature has the exclusive power to determine whether the laws it enacts do or do not have the requisite backing documentation to show that the law is being followed. The congressional courts under the Unitary Legislative theory have no say in what the congress does or does not decide to take action or ignore or follow what rules and punishments the Congress says can be imposed on those who have violated the law. There is no right of appeal – what ever the Congress has said, is final, and the rules that were written long ago about courts have no bearing – this is a new era – the Unitary theory of legislatures means that the congress has the exclusive power to do what must be done to save the country from the corruption in the financial markets, and clean up the abusive money flows. Thus, it is reasonable – simply because we have a new rule to assert this – that the congress shall suspend the rules and vote on this new rule: Congress is a Unitary Legislative Branch, and can do what the executive does – but direct this action on the Executive – just as the executive has directed this action on the public with the unlawful NSA program.

    * * *

    Indeed, with a filibuster, it is a sense of Congress that Altos’ Unitary theory of government deserves close understanding. It remains to be understood how many rules which the RNC says the executive must have – will be enacted.

    Again, the issue is the RNC has shown the executive has this power – so the congress should have the some. Going forward, the plan is to outline the specific Legislative rules which Congress must create; and conversely, the existing rules which should be suspected to ensure that Congress is a unitary legislature.

    All you need to do is go through the Senate rules, look at the various rules which the President says are not applicable to him, and then mandate the similar change in rules in the senate so that the Congress can enjoy the same privileges that the Executive does.

    Again, this is within the Chamber rules, and the Judicial Branch has no say on whether these rules are or are not OK.

    So, let’s have it: If the Executive’s approach to the constitution has merit, let’s make new rules, and get the RNC to commit in public to the needed Congressional rules required to create a congressional Unitary System.

    If the RNC rejects these rules – we have to ask why the RNC says that there power – clearly unchecked by non-existent rules and powers for Congress – for the Executive to have without question.

    It is up to the RNC members to explain why the powers that they deny Congress must be granted to the Executive; and why there is a unitary executive, but not a unitary legislature. This remains a problem for the RNC to explain – why the imbalance.

    The heart of the matter is that the system of checks and balances – that the RNC says is linked with their oath – is only a power the executive can assert under unitary theory – but is not a power the congress can assert under the theory of legislative theory.

    Just as there is no statutory basis for a unitary theory of government; so too is there no reason the Congress cannot use NSA-monitoring to interject itself into the data Congress needs to monitor whether they are or are not complying with the law.

    Why does the Executive have the power to use NSA – but the Congress cannot have a similar system to monitor whether that use is or is not appropriate?

    Why can’t Congress – under a unitary theory of legislation – have a separate monitoring system to check whether the unitary theory of government – which the executive claims – is or is not working?

    The answer is that Article 1 section 8 gives Congress the power to make laws, and ensure those laws are appropriately followed by the Executive. SO if the Executive claims a privilege, then Congress can reciprocate; and if the Executive says he is immune to oversight, then so too is the Congress in its use of NSA-like monitoring when it monitors the Executive branch.

    If the Executive says that no warrant is needed – then the congress does not need a warrant to use NSA-like monitoring to track, question, monitor, photograph, and otherwise keep information about members in the Executive branch who are acting suspicious.

    It is the job of the RNC to explain – why this rule should or should not be passed – giving the Congress the power to debate and discuss Legislative Unitary theory of congressional power.

    * * *

    It should be a sense of congress – that because the executive has unitary power – so too does the Legislature have unitary legislative power.

    And if this power does not exist in the legislature, a rule needs to be changed permitting the Congress to debate this issue. We move to have the rules suspended to discuss this issue, and raise questions:

  • Why does one branch have a “unitary” approach to power, but the other branch is denied even talking about this approach?

  • If the president can do what he likes – as he deems fit – then surely, the rules should be suspended to permit the congress – during a rules suspension – to do what we deem fit: Engage in warrantless surveillance of the president because we deem it is in the national security interest of the country – namely, to preserve the Constitution form all domestic enemies.

    If there is no action, then we have to assume that those under Article 1 Section 8 who are in the way of this governance are actually pirates, hoping to wage war, or commit other acts. Clearly, without a good showing, and based on a pattern of behavior – thus Congress through an impeachment inquiry – would find that the President had or had not done something.

    IF there is on vote to convict – then the Congress needs to have the same power to exercise those similar acts and powers which the congress refuses to hold this Excursive accountable for.

    in other words, if there is a unitary theory of governance in the executive – but the Congress says there is no evidence to convict – then there surely will be no hesitation in granting Congress the same power to engage in the same programs in monitoring the executive.

    Or, another way : If we have rules and norms, but find the conduct is not a violation – then congress should have the inherent power to engage in the same approach to the executive. Without a conviction, the conduct is permissible – not only by the Executive on the people but by the Congress on the Executive.

    The Congress should suspend the rules – and permit all congressional members to engage in warrantless surveillance of the executive branch.

    * * *

    The DNC approach to the RNC needs to learn from the Murtha experience and the Congressional call for an “immediate withdraw.” To get the DNC to back down the RNC issued a “sense of Congress” calling for an immediate withdrawal. The DNC an RNC reported this.

    [draft] Above has spelling errors.


    The following then looks at the NSA program problem, considers the above relationship the RNC might reject in light of their position in the Senate, and then compares this with what is needed going forward.

    Bluntly, a unitary approach to the executive branch -- as Alito argues is required -- would mandate a balancing in the Legislature.

    The issue for the Senators in the DNC, is to consider how the RNC must be compelled to vote up or down on suspension of the rules or other matters of debate when they relate to the Constitutional issues.

    Specifically, if we have a massive problem with the NSA -- and Alito appears to condone this -- then the way forward is to balance Alito’s approach with a mechanism that will check the other two branches.

    The RNC needs to explain under a suspension of the rules, why the following will or will not work. Until the RNC credibly responds to the Unitary Legislative Theory, the RNC's candidate -- namely Alito -- cannot be believed that he'll both assert the unitary theory evenly, uniformly across all branches.

    Moreover, the RNC appears to not support the requisite rule changes or debates needed to ensure that the Executive’s unitary power is appropriately balanced by similar expansion of powers in the Legislature -- to match those of the Executive.

    Given the imbalanced argument, we fails to see how the RNC can justify supporting a candidate that asserts a power, without an appropriate balance; and mandates conformity and rules in the Congress where the Judicial branch has no say in those rules.

    No one in the RNC can assert a rule like Filibuster is or is not constitutional -- rather, the issue is what rules will the RNC have to embrace if the unitary theory is correct. Self-evidently, the RNC refuses to embrace the needed rules in the Congress required to balance the Executive.

    Not only is Alito a threat, but so is the entire RNC faction in the Senate which assents to unitary power in the executive, without a balanced change in the House rules. Again, the RNC refuses to engage in debate, or let the Senators from the DNC discuss this issue.

    The RNC approach is to drive the solution -- without considering the full picture. This is no different than what happened in the NSA spying and Iraq WMD issues. There is a common pattern. The solution is to find out more about the NSA program before debating the real flaws with the unitary theory of power. The RNC's approach is to defer, that is unconstitutional.

    The role of the public is to rebuke the RNC at the polls and send petitions to the rules committee to have RNC senators who advocate imbalanced -- arguably unconstitutional power in the executive branch to continue without a balance in the Congress with similar unitary powers -- to face citizen censure and expulsion. Either the Senate can make a rule to ensure the oath of office mans something, or the public can learn the lesson as we did from Iraq: There's alot of non-sense flying around.

    The solution is to find facts with the NSA program, draw the lessons, and crate a system of checks and balances that will offset this imbalance.

    What follows is an outline of what the necessary checks and balances would be in Congress -- and the requisite rules that would have to be debated to support such structure. It is up to the RNC to explain why they will not debate the needed rules to support the Unitary Theory of the Legislature.

    The reason is that the RNC is a threat to the American constitution and warrants should issue having them arrested for failing to assert their oaths of office.

    The RNC remains a present threat, and the Alito Filibuster should continue. If the President's power remains, then the Congress should have balanced power. This outlines what the expanded Congressional power should be to effectively monitor and check the President's NSA program.

    This approach extracts NSA-like assets, and gives the Congress to engage in the same conduct as the President -- but target those resources at the heart of the Executive branch. Unitary Executive shall do battle with a unitary Legislature. It is fitting. The question is whether the RNC will discuss the issue, or make rules permitting the needed expanded debate, or suspend the rules in order to discuss these issues. If Alito is confirmed, then the Congress needs new statutory authority. It is not likely that Alito will find this expansion lawful; and that means that the Congress will be denied the tools it needs to effectively monitor the President. Thus, we judge that an impeachment is in order in that the President remains a threat.

    In turn, if Alito is confirmed, we recommend the States being serious discussions to bring a percolation of impeachment to the House floor against Alito for apparently making misleading statements about whether the law would or would not be applied.

    If Alito is confirmed, or a filibuster is denied, the States should move with all due speed and have an impeachment inquiry into his statements, the tests that he used, and the conduct while he was a Supreme Court justice. One cannot assert a theory of government that fails to check. Bluntly, they fail to demonstrate that they honor their oath to the Constitution. For that, Alito if confirmed should be the subject of close scrutiny by the states for purposes of impeachment. We recommend the states being an effective monitoring program to gather data that would hold any of the Supreme Court Justices liable for crimes in failing to assert the rule of law and checks and balances on the Executive Branch.

    * * *

    One issue before us is the question of Congressional power. Bluntly, the way forward is to examine what is a remedy.

    Let’s consider an analogy: The Magna Charta. The Declaration of Intendance was a list of abuses which King George violated. The standard, or baseline of comparison was the Magna Charta.

    The solution was the Constitution. In other words, going from a known standard in the Magna Charta, the Declaration identified the specific abuses which were remedied with the Constitution.

    Today, we are at a similar juncture. Unlike 1776, we have a Constitution as the starting point; and an ending point. In other words, the solution is not to list a series of complaints with the Constitution, then make new rules.

    Rather, the solution is to strengthen the existing Constitution by seeking the solutions within the existing document.

    * * *

    This approach works well when we start from Article 1 Section 8 – and think in terms of the FISA statute. FISA is a constitutional assertion of Congressional lawmaking authority.

    However, if we work from the other approach – the President’s assertion that he has inherent authority – then the only solution to this current dilemma is for the President the route of 1776: Open Combat.

    Let me say that another way. Unlike 1776 when there was no government response to the list of abuses, today’s approach is upside down: We are the government and source of sovereignty. The way forward is to assert Article 1 Section 8 – and compel the President to comply with the rule of law. This approach has already been successfully asserted in 1776 and 1789 when the documents were founded.

    One approach is to assert Article 1 Section 8 – mandating a lawful assent to authority and the rule of law. Another approach is to do what was done in 1776 and give up discussions and wage war. The President has shown he is unwilling to assent to the rule of law – has defined boundaries, laws, and the Constitution to which he swore an oath.

    The only option the President has is to assent to the rule of law. He has defied that oath. This President then takes the 1776 approach – and is in rebellion against the sovereign – namely the people.

    Unlike 1776, the President is on the wrong side. He’s chosen the unlawful approach to deal with this issue. Rather than engage in open dialog before Congress, he has pointed to pirates as the excuse to defy the law; rather than assent to the courts he has ignored them.

    His solution – to remain in power – is to assert Article 1 Section 8 does not apply – and ask us to believe that the rule making authority of Congress has shifted.

    However, upon close examination of the Constitution, we see no textual reference. The President has failed to cite the specific hand of God which has lifted the text from Article 1 Section 8 and rested it within the bosom of Article II.

    Again, the burden of proof rests upon the President to explain how the clauses – originally ratified in 1789 have moved from Article 1 Section 8 to Article II. The President as of late, given the unfavorable weather, has refused to provide an explanation.

    How can this be: That the President would have the nation of free people believe that words have migrated from one corner of the vault to another. Indeed, all contracts – as is the Constitution – can only rely on the four corners. We cannot refer to something that is not there; nor can we place something there that is not there.

    Let us again examine the four Corners of the Constitution. Can anyone point to a specific time, place, or event whereby the clauses of Article 1 Section 8 drifted – through whatever means – to Article II?


    This is curious. Yet, the crowd in Kansas rallied with glee. They clapped. The hand picked ones, carefully approved by the military commanders – as ones who were loyal – and most likely to suffer should they dare speak out – gladly clapped. They were well rehearsed. Well screened.

    The small minded ones in the crowd clapped. They looked to Article 1 Section 8 and saw a hole where there was no hole; and then looked to Article II and saw new text where no text existed.

    They clapped. How quaint. They also enjoy seeing scrolling lines as they rest before their television screens – scrolling past the commercials.

    * * *

    The President has a problem. He cannot explain what excited the crowd in Kansas. Was it the transfer of text from Article 1 Section 8 to Article II? Surely, the President cannot explain how he concludes the words have migrated.

    Indeed, there has been no migration of text. Simply a migration of loyalty. From an oath and document; to something else which the president has yet to explain.

    No matter. Explanations are not required. It is self-evident the problem: The text is not conveniently positioned relative to what is happening.

    But the right answer isn’t to pretend a migration of text, but to assert the rule of law.

    The correct approach is to compel compliance with the text; and not ask the text to migrate with conveniences.

    The oath is to what is, not to what is desired or imagined. The law is text, it can be read. It is in a fixed position within Article 1 Section 8.

    The error is to point to an imaginary space, and assert that the text should or should not be something.

    But that is outside the four corners of the Constitution.

    * * *

    Some have wondered what traumas exist within the White House. That is simple. They no longer can point to the sky and scream. They have been slapped with the Constitution – and they do not like being awoken.

    This White House has been a bully. It has smacked the citizenry with non-sense.

    No we know the truth.

    * * *

    The way forward isn’t to rewrite the Constitution. The answer is to find why Article 1 Section 8 was ignored.

    However, this President wants to do the opposite. When the rule of law was asserted, he put himself above the law, defied the courts, lied to Congress, and waged unlawful war.

    That is a high crime. And he has shown little inclination, but for the passing wind, to respond to the rule of law.

    Self-evidently, if someone refuses to assent to the rule of law, defies the courts, and refuses to meet with Congress – then they say to the world that they will not engage in discussions, nor use a peaceful forum to resolve his problem.

    This President has only one option: To assent to the rule of law and Constitution.

    But he refuses to use peaceful forms.

    What is to be done when a person refuses peace, and removes himself from all peaceful forms of accountability?

    The answer is the President is saying that he will not resolve this matter through peaceful means, nor will he assent to any law. The President is saying that the only forum he chooses is the last forum: The battlefield.

    * * *

    The President has a problem. It is unlawful to wage war against the American people. One cannot through their actions refuse to engage in peaceful debates and lawful forms. But this President has stated that he will not assent to any forum.

    Self-evidently, the President has stated that battle is the only forum he enjoys. And the record is clear. This President rather enjoys battle. It distracts attention from his imagined migrating text.

    The battle field is the lovely place where the President can point, distracting attention from himself. But the battlefield is not a lawful option to use to resolve a matter as simple as an oath.

    * * *

    The President must make it clear: Does he plan to assent to the rule of law – a peaceful and civil forum; or does he desire to have this matter resolved in his preferred forum: The battlefield?

    Our answer is the rule of law: A simple matter of inquiry.

    Yet, what do we have? The President refuses to appear before the FISA court.

    Are we to believe that he will suddenly assent to a forum he has long ignored?

    * * *

    Let’s explore the Presidents preferred approach to resolving issues: Battle. Suppose this is his desired forum.

    It remains to be understood what the limit of his action will be. Of late, the limitation of the law has proven to be an inconvenience.

    It is reasonable to presume – given the conduct in Iraq, whereby unlawful weapons were used – that this President would also do the same at home.

    We see nothing before us that shows self-restraint. We see a pattern of conduct that shows the opposite: A willingness to dive into the real of uncivil action.

    Examine his record. Article 1 Section 8 is clear: Congress has the power to write rules on pirates, captures, detentions, and trials. This President asserts the Constitution has changed, and does otherwise.

    This leader is unfit to govern. He will not assent to the rules Congress wrote – through Article 1 Section 8 – which outline how the military shall be governed.

    * * *

    Consider the other dilemma. Consider whether the President chooses to wage open combat against American citizens.

    Congress has the power to raise and support the army.

    Congress also has the power to pass bills.

    Putting aside the issue that the President ignores Congress – and could declare martial law, raise an army, and wage war – how does the President propose to pay for the war?

    By laying waste to the countryside, and destroying the lives of the American people – there will be no labor to fix the roads, or repair the sewage. As we have seen in Iraq.

    If the President chooses to take this matter to the forum he prefers – the battlefield – it would appear he intends to destroy the very resources he relies upon to wage war: The American people.

    When citizens are killed, they are no longer a source of tax revenue, nor can they provide continued payments to banks for mortgages, nor can they pay their contributions to purchase stocks.

    When the American people are the target of abuse, the government no longer can be sure the public will support those who abuse.

    The President has yet to explain where he intends to get the extra money to wage a war in the only forum he chooses to resolve disputes.

    * * *

    Let us return to the issue of Article 1 Section 8. Congress has the power to raise an army. What is to be done when that army is used to wage war on the American people?

    Does Congress – through Article 1 Section 8 – have the power to raise an opposing army?

    It would appear the Congress does have this power.

    The issue before us: Should Congress have its own military that is responsible for overseeing the executive branch?

    * * *

    The problem before us is simple. We have a system of divided power. Three branches. In theory, all three branches should share the power, and prevent a single branch from holding all power.

    Consider the Joint Staff. Does the Congress or Judicial branch exercise power over the Joint Staff? On paper, yes; in practice, no.

    The Joint Staff wages war without regard to their oath of office. They supply the Congress with false information. They commit fraud upon the court to assert a right to wage unlawful war.

    The issue before us: Whether the single President can oversee the Joint Staff; or whether there needs to be a more visible presence of the Congress, Courts, and Executive powers over the Joint Staff.

    The answer is to inject Congress through Article 1 Section 8 into a direct oversight role.

    It is another matter during war time – when, as the Constitution says, the President is the commander in Chief.

    * * *

    Let us consider the matter of the President. He refuses to assent to the peaceful forums. We can reasonably conclude – by his refusal, and his conduct – that the only forum he respects is the battlefield.

    It remains clear despite his preference, Congress chooses to continue funding the unlawful use of force: NSA assets directed at American citizens.

    * * *

    If the Joint Staff refuses to honor their oath – and protect the 4th Amendment – then they should be compelled to explain themselves. And their explanations make no sense.

    The Joint Staff has one option: To assent to the rule of law.

    Otherwise, the Congress has the power to raise an army to compel the Joint Staff to do so.

    * * *

    There is a broad clause in Article 1 Section 8. Look at the end. It is a very broad clause. It talks about the power of congress to make laws to carry out powers.

    This means that Congress can pass laws – as it did with FISA – to regulate and define how the military can be employed.

    Congress can also make a law requiring the NSA-like resources to be turned on the Executive, not simply out of temporary interest, but as a permanent check.

    * * *

    The system of checks and balances hinges on something called oaths and paper. But what happens if one branch has superior resources to defy the other branch, and refuse to assent.

    Self-evidently, there needs to be a balancing. Rather than simply strip the executive of the power to wage war on the American people by violating FISA – Congress needs a similarly intrusive method to wage similar war on the Executive: A robust system of electronic surveillance.

    One that randomly checks what is going on. Ah, that lovely thing called roving wiretaps. The Congress needs to make a rule permitting a specially assigned militia – whose loyalty is to the Congress and Constitution – to engage in monitoring of the Executive Branch.

    The NSA shows us the technology exists.

    * * *

    This President also has a system of inspector Generals within his agencies. They are supposed to be loyal to Congress.

    As of late, due to the unfavorable weather, the IGs appear to have failed. This remains a matter of evidence.

    The issue for Congress will be to understand what broke in the IG process: Why has the violation of Article 1 Section 8 gone unchallenged; and why have Congressional rules not been enforced.

    It is one thing to point to battle – the convenient excuse – when explaining away misconduct in Abu Ghraib, Guantanamo, Eastern Europe, or Afghanistan.

    But in Kansas, the President points to a battle as the excuse to wage war on the American people. Where are the Inspector Generals – how have the assets and resources, subject to Congressional rules, been used improperly?

    * * *

    At the end of Article 1 section 8 is a concept called the proper authority doctrine. This is Congress’ power to make all necessary laws.

    Congress needs to have the authority to verify the information it receives is accurate:

  • The truth on progress;

  • reliable data

  • What is or isn’t going on

  • Is the executive complying with oath

  • Is force used properly with respect to Congress’ rules.

    Congress needs to look at the system of information transfer, oversight, and other methods Congress currently uses to monitor the Executive.

    Given the abuses since 9-11, Congress needs to explore why the existing IG and complaint system has failed; and what is to be done.

    Congress needs to do the following:

  • Explore what will be done to make sure they are told the truth about events, conditions

  • Have a system in place for the Executive to publicly assert, under oath with penalty of perjury, that the information is correct

  • Then create and use a system that will test the information provided

    Clearly, with respect to the WMD issues, this process of information gathering and testing – once known as debate, but now ignored by this President -- fell apart.

    It remains to be seen what tools Congress needs to create that will go around, or verify the information; or impose sanctions on the executive for mandating action by specific timelines unrelated to any real evidence.

    Congress needs to explore ways of independently gathering, analyzing, and evaluating information related to the situation; and coming to their own conclusions. This would require a significant increase in manning and staffing.

    * * *

    Given the failure of the existing mechanisms to assert article 1 Section 8, new tools are needed to check the Executive.

    New laws are needed giving Congress the authority to oversee and effectively govern what it Constitutionally given the power to do. This cannot be delegated.

    Going forward, we have to explore what has happened since 2000 over issues of Iraq, WMD< Rendition, and the NSA.

    With time, we will have a better idea of the powers, rules, duties Congress needs to manage and assert to oversee, verify, check and monitor an unreliable executive.

    * * *

    A good place to start is the original Patriot Act. The Patriot Act outlined tools for the executive. The tools were to be imposed on the citizenry.

    These tools should be transferred from the Executive to the Congress, and directed at the heart of the Executive branch.

    Namely, every method of surveillance, monitoring, and second guessing – with the associated watch lists, intelligence files, and no fly lists – must be asserted against the Executive officials.

    Congress, as it has the power to raise a militia in peacetime – should have the power to do what the Executive is doing with the JTTF – forcefully arrive without invitation in executive branch meetings and compel the leadership to explain themselves.

    * * *

    Isn’t it curious the Executive complains of “disruptiveness” – this is the same claim made in 1776. Is the Executive asking that we recognize his “right” to be free from “unreasonable searches” – only to turn around and violate that standard by doing so against those on behalf he serves?

    Self-evidently, yes. Where the Congress might exercise oversight, this president asserts there can be no intrusion – as if he had a private, protected right recognized in the bill of rights; but then violates that right for all others.

    The executive – as he asserts with the surveillance program – should be pointed toward those who engage in threats to the Constitution.

    The President says the program of monitoring is lawful – so that lawful program should be imposed on his staff, departments, and let the public see the patterns and associations which move in contravention to the Constitution.

    * * *

    NSA has asserted that the level of intrusion can simply be asserted, done on the basis of no warrant, and that people need only have a suspicion of something.

    That standard should be one that Congress asserts and imposes on the Executive:

  • Warrantless monitoring;

  • Questions about conduct unrelated to any important matter

  • Constant surveillance

  • Repeated explanations for what the executive is or is not doing

    The President has asserted that this conduct is lawful. Therefore, Congress must be able to engage in the same conduct when it comes to monitoring the Executive.

    One cannot credibly have one standard of monitoring when it comes to the public – and defy the law – but point to no language and say similar monitoring is not permitted.

    A plain reading suggests the opposite. Congress does have the power to use the NSA to monitor the Executive Branch.

    There is a reasonable suspicion that the Executive does engage in planning contrary to the rule of law; and that he continues to defy the Bill of Rights.

    * * *

    Recall the laws of war. When one party violates a law of war, the opposing party is allowed to violate the same law.

    This President asserts he is not subject to the rule of law, defies the Congress and courts, and will not assent to any peaceful forum.

    Self-evidently, he wages war without legal foundation; and uses military assets against a civilian population.

    This is a violation of the laws of war.

    In turn, those who have been affected by this violation are not bound to retrain themselves in using similar methods.

    Either the President is or is not at war. If he is not at war, then he must assent to the peaceful forums.

    If he is not going to assent to the peaceful forums, then he is at war.

    If he is at war, then those rules of war he has violated – keeping civilians out of harms way and protected – have no reasonable expectoration of being enforced or recognized as a right he or his officers can expect will be respected.

    If he wants to have the rules respected, the executive needs to respect the rules; otherwise, the rules he violates – while waging war on his citizens – lawfully become rules the citizens can violate when responding in kind.

    Again, we do not advocate violence. We merely demonstrate that the rules which this President violates is not something he can expect to have as a shield to needed Congressional oversight.

    No President can violate norms of civility and not expect Congress to restrain the executive.

    Whether the Executive wants to be free of intrusions, is unrelated to whether he is or is not authorized to violate the rights of Americans.

    Rather, the intrusions by Congress on the Executive are lawful; while the intrusions by the Executive on the citizens are not.

    One cannot claim or point to a doctrine of “separate power” and “inherent authority” when that authority is used to violate the law. Rather, when one asserts a doctrine that has no legal foundation, the Congress, in kind, may similarly assert as similar doctrine found in Article 1 Section 8: This is the power to write rules to govern the President.

    * * *

    If the President will not assent to any peaceful forum, he signals that he is at war with Americans.

    If this is the case, then by violating the American citizens’ rights, he President has signaled that he has no legal foundation to defend himself against Congressional violations of the Executive’s rights.

    This is not to say that presidential violations are a blank check to lawlessly engage in random acts of retaliation. That is not lawful.

    Rather, the discussion merely shows that the President wants two standards on whether he does or does not wish to assent to the rule of law. Even if we accept there is no limit to his conduct, there is also no limit to the retribution he may face should he continue in the forum he appears to only enjoy: The battlefield, and his current war with America.

    The President cannot have it both ways. He cannot say that he can violate rights – while at the same time saying he cannot be monitored; while at the same time suggest he is immune to oversight, and that the citizenry cannot lawfully retaliation against the Executive by engaging in similar intrusions.

    We either are a nation of laws and are going to rely on civil forums; or we are a nation at war, and the Presidents violations amount to a green light for those affected to not respect the rights of the Executive Branch.

    To be clear, we are not saying that the Executive is to be attacked. Rather, we simply show the President’s conduct – his choice to refuse to assent to the rule of law – can have consequences which Congress – through article 1 Section 8 – can lawfully assert on the Executive so long as he moves outside the peaceful forums and wages war against the citizenry.

    Arguably, so long as the Executive chooses to remove himself from all peaceful forms and refuse to assent to the rule of law, Congress has the power to check this breach of the Constitution by using the same intrusive methods the NSA uses – but direct these at the Executive branch.

    * * *

    Congress should also write laws permitting itself to keep files on the Executive Officials. Important information related to their private associations at meetings, religious centers, and how the executive may or may not be counseling people to ignore the Constitution.

    It is one thing for JTTF to harass people who discuss the Patriot Act; but a President who wages war, shows that he cannot expect his branch to be immune from like treatment from Congress.

    Namely, as long as the executive abuses continue, the executive branch offices remain subject to lawful intrusions at the same order.

    Again, the executive cannot claim that this is disruptive; all the while asking us to believe his similar intrusions against citizens is something else.

    Again, the Executive cannot claim to lawfully exercising his power, when he moves without regard to the lawful forums; while at the same time compelling the nation to assent to intrusions, without the reasonable expectation that the public and Congress lawfully ignore the same standards the Executive breaches.

    If the Executive does not like to have his “privacy” and his “operations” interfered with – as Congress has the lawful power through Article 1 Section 8 to exercise – then the Executive needs to restrain himself.

    * * *

    The reason the Executive has a problem is that he refuses to assent to the rule of law and the courts.

    Again, when he moves outside the courts; he cannot expect those he wages war against to believe that the courts will be any force to compel compliance.

    A President who moves without regard to the law or the courts, cannot then turn around and mandate another standard for Congress and public rely only on the courts to check unlawful use of Executive power.

    Yet, this President wants a double standard. In those cases where he says he is above the law, he refuses to recognize that he wages war against his citizens; yet, at the same time he would have us believe the citizens must assent to the law and courts he will not recognize, while at the same time asserting he has the right to immune from intrusions – a right he will not recognize others have the right to assert.

    Either we are at war and the President must accept that the peaceful options are not something he wishes to assent;

    Or we are at peace, and the peaceful forums will have full force: The courts.

    This President wants to wage war, but mandate all assent to rules he will not comply; while at the same time he says the Congress cannot assert Article 1 Section 8 to engage in intrusive oversight, thereby lawfully violating a standard of conduct one can violate when the enemy refuses to honor that restriction.

    If we are at peace, then the President should assent to the rule of law; if the law and courts will not be respected, then the President will only recognize the battlefield. If battle is his only forum to resolve disputes, then attached to that forum is the lawful right of Congress and the people to ignore the standards of conduct this Executive ignores – and lawfully assert Article 1 Section 8 through intrusive NSA monitoring of the Executive, and other more direct methods of engagement which the Executive enjoys under the Patriot Act.

    * * *

    The above is neither desirable, nor civil. But it is lawful when one power -- that only recognizes force, and ignores the rule of law in open warfare -- can be compelled to face.

    Again, it would be preferable for the Executive to freely assent to the rule of law, and peacefully resolve these matters before the Court and Congress.

    But this President chooses otherwise --- asserting the court cannot exercise control -- while at the same time mandating he cannot be checked or stopped with lawful retaliation by those who find themselves in the only forum the Executive recognizes: Battle.

    * * *

    We do not choose battle.

    This President chose to take an oath.

    There is one certainty: The Constitution.

    The law requires the Executive assent to the rule of law.

    Until he freely assents to peaceful forums, the President wages war. His unlawful use of NSA technology can be legally used by the Congress – through Article 1 Section 8 – to ensure the President is lawfully monitored for other violations and high crimes.

    * * *

    One day, the war will end. One day, the President will choose to assent to the rule of law in a peaceful forum either in the courts or before the Congress.

    When that occurs, Congress needs to be ready.

    Congress needs to explore the peaceful, meaningful, and civil deterrents Congress can design, construct, create, or others use to dissuade violation of the law.

    This is subject of some curious discussion.

  • What are meaningful incentives to report problems and outline lawful remedies;

  • What is to be done when the proposed and used remedies are not lawful;

  • What kind of legal liability – as we have seen with Generally Accepted Auditing Standards [GAAS] and the Fiduciary Duty of Attorneys under the SEC rule 302 – to withdraw from an unlawful corporate practice – should be attached to counsel working in the White House, DoJ, or other government institutions?

    We judge a credible system of noisy withdrawals needs to be devised to not only communicate a problem, but insulate those -- who dare assert the rule of law – from retaliation. Otherwise, there is little incentive for ethical lawyers to remain in the service of the Constitution, even though they are in an opposing branch.

    * * *

    Also to be considered are the Article 1 Section 8 powers which need to be asserted in a broader way – to mandate better information for Congress before material decisions.

    Think of this analogy. The Declaration was a list of abuses; the constitution was the solution.

    Today, we have new abuses; and new solutions must be created within the existing Article 1 Section 8 framework.

    The abuse: Misleading and fraudulent information about WMD before 2003.

    The remedy: Something.

    * * *

    We know the existing information is not the problem. Powell prior to 9-11 stated the Iraqis had no WMD to be concerned with.

    After 9-11, Powell changed his tune.

    Then, in 2005 Powell asserted he wished he’d had better information.

    The real problem: There was no circuit breaker that mandated a halt, and explanation when Powell changed his tune from “no problem before 9-11” to “suddenly, WMD appears after 9-11.”

    The remedy: What is to be done to trigger a review.

    But, despite the change, the momentum was set. The President used an “authorization for use of force” as the green light to wage unlawful war, devoid of facts.

    This will likely occur again. The issue is: What is to be done to devise within the existing Article 1 section 8 framework something that will address this issue: Creating fiction, making false claims, exciting Congress, then asserting nothing can be done.

    There are issues of DoD’s oaths. The Joint Staff. And the special sources of information form the OSP.

    One approach is to compel these agencies – before a material decision can be made on the information – to lawfully present to a joint session of Congress, the Court, and Executive a finding.

    Then, all three branches would go their separate ways, and examine the information independently.

    Clearly, the problem is when the Executive exercises intrusions, and denies people to speak freely.

    What is to be done to link the “disruption of debate” with the “illusion of war.” Such is the similar problem we find ourselves with Iran: The comparison not lost, but the gullible Americans once again blindly obeying Rice’s claim, “The time for talk is over.”

    OK. If time for talk is over on Iran, then Rice is saying that the American public – as we have seen with Iraq – have no input.

    Thus, Rice says that there are no peaceful forums. Rice’s statement – asserting that talk is over – means that she only recognizes battle.

    If that is the case – then the same can be said of the President – the time for talk is over – the time for accountability has arrived. But, the President asserts he has the right to talk in Kansas, but the public may not exercise their rights to discuss the issues.

    * * *

    When people are dissuaded form speaking of the truth – or compelled to act in a manner contrary to the law – their report needs to be protected, and the circumstances understood.

    It is problematic when the media cannot be relied to timely report the truth.

    There should be a simple right of all people – to speak the truth; and when that right is interfered with, the public should have the right to understand why, and have a full accounting of the issue.

    The simple fact that there is a gag order should be something the public can talk about. We may not know the truth; but at least we’ll know there is an issue.

    If the practice is to lie about reality – then there is no reason to discuss issues: All information is presumed to be incorrect, until the messenger meets a rather higher burden of proof.

    Perhaps the burdens of proof on government statements should have some sort of scale that rises when the messenger – namely the Executive Branch -- has abused our trust.

    This Executive has used reasonable reluctance to embrace their non-sense as the pre-text to engage in harassment – a double offense. First for the expectation that we not change our option; then for actually doing what is reasonable – throwing their words to the wind and let them fall to the ebb and flow of the tide.

    The moon, like the Constitution, guides the ebb and flow of the water. So too should there be a method to communicate that there are new standards and burdens of proof on the government – especially when they have proven unreliable.

    Which is curious. For the notion of “suppressing evidence” hinges on the assumption that evidence from the poisoned tree is not eaten. Yet, this President compels we eat the poisoned fruit, and gladly smile – otherwise we remain under threat of house arrest – unable to speak of the poison or the subsequent threat.

    The issue: What is to be done—how to make it more difficult for the government to do its job when it shows it is not willing to be civil.

    The purpose of government isn’t to do anything – rather, it simply exists as an arcane mechanism, unable to be contracted to a private entity. It remains the cess pool of activates the private sector does not enjoy doing for fun and profit.

    Government is not designed to be efficient; rather, it is there to protect our rights.

    But what is to be done when the useless government proves incapable of doing what it self-evidently cannot do: Follow the law.

    The original idea was to have a system of divided power. But what is to be done when that system fails?

    The answer is not to throw away the system, and assent to consolidated power; but to further divide the power, making it more difficult to be used, deliberately introducing infancies as a circuit breaker to unlawful and uncivil use.

    The issue is clear: War in Iraq was built on a mountain of lies. The issue going forward – if we truly want to move forward – is to embrace the lessons of the Anti-Federalist papers have proven themselves, and that this system must be strengthened to ensure it remains in place.

    Perhaps the States need to have a greater voice in the government; perhaps the people need new methods to raise their concerns; perhaps there needs to be a new method of showing the circuit breaker is broken; and calling the constitution what it is – text in one place, not another.

    How is this to be done?

    * * *

    One method is to assert the powers which this Executive before 9-11 had said it needed: The Patriot Act.

    Fine, let us rely on the Executive’s assertions of the divineness of the Patriot Act – and employ all the methods used in the Patriot act against the Executive Branch.

    All of them; and as the Executive strikes down each law in the court, so too should that provision be removed from application against the people.

    Those acts which violate the law – and the executive still employs – should be the basis with which the Congress asserts through Article 1 Section 8 the right to impose on the Executive Branch.

    * * *

    One solution is to divide the Joint Staff into competing forces – each section of the Joint Staff primarily loyal to a different branch of government.

    The disadvantage of this approach – during war time, it will be difficult to get the pieces to coordinate.

    Perhaps what’s needed is an intermediate body – during peacetime – that is open – and the Joint Staff Must publicly go to – and this body has all three competing branches in it.

    What is to be done to ensure the way forward is consistent with the constitution?

    Self-evidently, the NSA’ secrecy permitted abuses, as did the secret Intelligence Committee designed to remedy the 1970’s abuses.

    * * *

    Should all Departments in the Executive Branch be recognized for what they are – small tyrannies, which need to have the force of law and Congress injected forcefully?

    Indeed, this is an approach.

    This would mean that Congress and the Courts would have independent and rotating representatives throughout the Federal Executive, both at home and overseas in the embassies.

    Think of this as a circuit. The members would stay long enough to find the dirt; but no so long that they enjoy the familiar stench.

    The rotating positions would be independent of the President; and they would have the power to call IG’s, inspectors, and do random audits of the data. When they knew of something, they would record it, and independently send it back to Congress and the Courts.

    The people serving on this circuit would have two roles – to object to violations of the law, or intrusions on their branches power; and provide their own protected opinions – as if they were speaking on the floor of the Senate or House.

    When the President whines of the intrusions, remind him of the ongoing NSA surveillance which Congress uses to record his whimpering.

    Had there been an outside Judicial and Congressional member present during the meetings – with the lawful power to report -- where Plame’s name was discussed to be leaked as retaliation – we would have no leak, but a quick rebuke: “Thou shall not engage in unlawful retaliation against someone who did exactly what you told them to do: Tell the truth.”

    The Executive cannot credibly argue they need to keep government matters secret when the government does not recognize an individual’s right to privacy.

    Rather, the discussions should be open; or if closed, the public should have the right to have similar discussions immune and closed to even the NSA.

    The NSA can be targeted at the Executive, and – like the cameras on the Senate floor – it may not make interesting reading; but it will be the citizens’ window to the dungeon of mischief.

    Then the public can comment on the trifle – with as much glee as JTTF took in intruding on those who dare talk about unlawful wars, and unconstitutional acts of Congress.

    Where JTTF exercises the right to lie – so too should the public be allowed to lie to the government. Where there is a presumption that the truth means something, then the JTTF should have the superior burden to assert in writing -- with a heavier sanction if otherwise -- why their words should be believed.

    Then there should be an easy way for the citizen to gather facts, explore the issues, and determine whether there is reasonable basis to believe the JTTF certification in writing. Perhaps there needs to be a special investigation unit attacked to Congress’ NSA which can independently consult and assess whether the JTTF assertion is believable. Imagine the JTTF database accessible to Congress on the eve of the war in Iraq – oh, the archiving problems, and Brady violations. No matter, Congress can simply conclude, “Unless you get your data organized in a coherent fashion, then let us independently check it, you’re not going to get a green light to use force.”

    One cannot assert a right to mislead; then compel the public to say nothing having relied on that misleading statement. Otherwise, we are to presume all buffoons are working for the government. Oh, did I say that?

    * * *

    The problem we’ve had since 9-11 is the unchecked presumption of guilt. What’s needed is a reversal – the unchecked presumption of government corruption until proven otherwise.

    Executive branch cannot assert a private right which it denies the public; nor refuse to assent to peaceful forms, while then compelling the world to assent to non-sense, and asserting reasonable intrusions are unlawful. Rather, those who have been abused – until the other party lawfully assents to the court – have a reasonable expectation that they may lawfully retaliate violating the same right violated.

    We are allowed to defend ourselves if physically attacked; we should also be allowed to engage in reciprocal intrusions when unreasonably intruded upon. When the NSA procures and sweeps our data, we should be able to through congress and the courts sweep the NSA operations and find out whether they are or are not consistent with their oath. The burden is on them to prove that they are lawful, with a heavy burden; not for us to patiently wait for them to respond to a FOIA should the weather cooperate.

    * * *

    The issue becomes: What mechanism would organize all this data about the NSA and executive branch. Well, since Congress acquires it, the President may not assert a right to privacy. Rather, the data is Congress’ to do with what it likes.

    If the Executive is not happy with this arrangement, then these rules related to data should e changed when it comes to personal data and companies. There cannot be one standard on data archiving by Congress over Executive functions; but a different right and immunity with respect to private business.

    Where there is data, there needs to be a remedy for the failure to protect that information, or permit unauthorized people to assume the identity of others using that data. That liability needs to be monetized in the open markets, and something injected into the cost of doing business, whether an insurance premium, of cost account for potential litigation. This should be a required Securities and Exchange Commission interest area to ensure that the costs of identity theft are properly accounted; and that there are market incentives to reduce these risks. If the information cannot be guaranteed or protected; then the corporations need to disclose this potential flaw, and citizens may choose to interact with another more reliable data archiving system. The beauty of the market place and free exchange of information – would it not be lovely if that also applied to governments, officials, and oversight.

    JTTF officers who have access to private data – should have mandatory sign-in times so that their access is linked with specific records – and all subsequent unlawful uses of that data are attached to that officer’s bond for immediate remedy. The costs associated with reconfiguring files, establishing new identities, and litigating issues should fall on either the JTTF officers or the corporations which designed the systems and have been penetrated and abused.

    * * *

    Let’s consider the issue of Congressional monitoring of the Executive Branch. War in Iraq was a problem because it hinged on falsehoods.

    What’s needed is a method for Congress to analyze information and engage in technical assessments independently of the Executive; and identify in public the problems with the assertions.

    With respect to Iraq, this idealized approach – through the debate and committee system – failed. Self-evidently, we have a war without lawfully required imminent threat or evidence of any threat.

    Whatever broke or needs to be asserted – must have some sort of signaling device that there is a problem. Bluntly a faction asserted a desired outcome – and the basis for the decision, both facts and costs – was argued not on the basis of what was reasonable, but what was sellable.

    The problem is that 85% of the data used to sell the war was available in open sources – all confirming otherwise. When the data relied upon is “only” for secret sources – that should be suspect and a signal: We have a problem.

    Again, intelligence is not based on anything mysterious or super secret things. Rather, when the leadership asserts the need for secrecy – and their conclusions are not consistent with open sources – that should be a signal for alarm. The Congress needs to move more quickly.

    Ideally, the media does this. But what happens when the media is influenced with the same non-public/secret/non-sense used to justify action?

    Congress needs to get into the open-source analysis business. Namely, hire and recruit – under it’s organizing and Article 1 Section 8 power of organizing – intelligence officers whose sole job it is to assess open sources and identify risks areas warranting more direct, and undercover methods by Congress to review.

    Again, the existing IG and investigation system was supposed to have accomplished this. The way forward is to understand whether the scope of the abuses was so large – that the investigators were overworked and swamped. If that is the case, then – rather than silencing the messenger – Congress should slow things down in the Executive branch, and restrain them. The purpose of government isn’t to create the illusion of government, but to govern. Governing means managing information, understanding, investigating, finding out, and fixing problems.

    This government acts like it is on an escalator – each year simply churning out new budgets at the beck and call of the DC gravy train. There needs to be a new method to interrupt these Executive Programs, and interfere more quickly. It remains to be understood why the whistleblower and bounty systems are not lucrative enough to find a solution or report problems. This remains to be understood.

    Congress needs to have a system that effectively engages – independent of the Executive branch – liaisons with foreign intelligence: Sharing information on what is or isn’t know about violations of the law.

    The US exchanges information on unlawful acts overseas with other countries; there’s no reason why Congress – in exercising the necessary power of monitoring the Executive – cannot do the same. It would be useful to verify and cross check whether the information they are getting form the Executive and American media is matching others’ views and sources.

    There also needs to be an incentive, or a departure from media rules of impartiality, and reporting misconduct – not after the case is over, but as the problems surface. Again, the Executive cannot claim a private right of privilege he denies others.

    It remains to be seen which types of firms – outside the committee -- can be funded to independently report, monitor, and intrude upon the executive. Again, if the executive asserts he has the inherent authority to do something – like NSA warrantless surveillance – then the Congress would have the same authority under Article 1 Section 8 – to engage in the same intrusions for the purposes of evaluating whether the rules and laws are effectively implemented, or how the executive is complying with the law. Ideally, it would be nice if the court fully endorsed this Congressional intrusion in a public manner so that the public knew what was going on.

    It should not be up to the public to bring a private right of action as this imposes a public interest on a private citizen, with little financial remedy; rather, the other branches should be able to do the same, and get the court to settle the matter between the Executive and the Congress.

    To assert one has “inherent authority” to do something, that does not exist – must also recognize the other branch’s “inherent authority” to do the same, in a like and reciprocal manner, until that unacceptable behavior stops. Clearly, the preferred solution is to refer this to the court for an injunction; but this President does not recognize the court unless it assents to its tyranny. Thus, there should be no requirement – under those circumstances – that the congress lawfully exercise it’s oversight powers with respect to the offending branch. When the dispute bubbles over, the Judicial branch should have the independent right to mandate a full explanation: What happened; what was not followed -- what was actively ignored; and did one party refuse to assent to the rule of law, thereby legalizing all actions by other branches until the original offending conduct ceased. Sort of like a small post-action adjudication.

    Hay, the Executive branch says its “OK” to make a few violations on the public; there’s no reason Congress should not be able to exercise the same privilege when it comes to matters of Executive Branch oversight in a manner consistent with Article 1 Section 8.

    Not closely what the Executive relies on to assert “this cannot be done” – the same argument they ignore when the public makes a similar claim. Why the double standard? Because they are not civil and choose their forums, as we have seen with the NSA FISA court shopping.

    * * *

    Let’s hear about some cash awards for institutions that might be able to devise some good solutions and ideas to this WMD-Iraq-NSA-Rendition-Waterboarding mess.

    * * *

    What’s needed is a government corruption surveillance system. This will get rid of the fear, and get government to stop doing things.

    EX: Why is DoD targeting Iran, but there is no information to IAEA on the targets? Answer: The DoD targeting is not against bonafide targets; otherwise IAEA would report what was or was not going on at the facility. IAEA has no information; but DoD is targeting – targeting what? Obviously, nothing the IAEA would call a bonafide program – otherwise IAEA would have stated so. But Rice wants to end the talking, and plan a war against targets the IAEA cannot find.

    Sounds like more war crimes.

    * * *

    The Congressional oversight and NSA-like monitoring of the Executive Branch would need some court oversight.

    Ideally, until the Executive Branch assents to the court of law, the Courts should do what the Executive has done – endorse violations of the Executive’s power, and publicly endorse a similar NSA program targeted at the Executive Branch.

    This domestic security service working directly for Congress would report violations by any government officials.

    Congress would have undercover, fully protect people in the executive branch – just as DoJ has undercover people in the criminal underworld – whose loyalty is to the Congress and Constitution. These forces would be withdrawn when the Executive ceased and desist from the violations against the American public using the NSA; and the Executive showed a willingness to respond to the rule of law and court orders.

    * * *

    The public needs to have the evidence of misconduct. Congress should publish from time to time the evidence of misconduct related to Executive Branch abuses – and just as non-criminal information is housed and disseminated, so too should Congress be given the courts permission to engage in similar publication until the Executive branch ceased.

    Checks and balances need to enter the 21st Century. Today, they are based on paper and verbal repots. But the Executive has access to many high technologies. Congress should also – under it’s Article 1 Section 8 authority – the equal “inherent authority” to use the same technology on the Executive branch officers and programs.

    One approach would be to use independent software developers. They would certify that the software monitoring by Congress had not been compromised by NSA; and that there was no chance that the Executive could detect the monitoring. Thus, there would be no advance warning of audits, and the integrity testing would truly be random, not subject to advance notice or special preparation training.

    Congress needs to assert through article 1 section 8 the power to exclusively monitor, randomly test NSA-like equipment that would be targeted at the Executive Branch. This system would remedy all the defects of the FISA court, and openly discuss for the public to see what the congress is or is not concerned with. Again, unlike the Executive branch which does this in secret, the purpose of the congressional monitoring would be to highlight the misconduct until it ended, or by-name personnel were taken to jail to remedy them of their evilness.

    Such an approach would be consistent with the Magna Charta, checks and balances, and Article 1 Section 8. Although the conduct seems extraordinary, this would update the congressional oversight system, and modernize the reporting system. No longer would the public have to rely on media coverage – but they could have a direct feed from the Congress’s information – as the Executive Branch engaged in its day to day foolishness. Perhaps when the public really found out what was going on – or not going on – they might come up with some ideas and solutions. Then again, they may simply just screen louder, “I can’t believe they are paid to do this.”

    In short, what’s needed is a system for congress to electronically counter-act and check the monitoring capacity and abuses inherent with the NSA program – a power exclusive to the executive, but which should be shared by all branches. The power doesn’t mean that all ranches agree to its use against civilians; rather, all three branches must share the capability to target each other to verify the other two are not violating the Bill of Rights. NSA has grown in the shadows of the Cold War; it’s time to harmonize the 1789 Constitution with the 21st Technology. This doesn’t mean find technical means to violate the law; it means create technical means for each branch to check the other two. This means retargeting the surveillance from the public onto the other two branches.

    See? There’ s a way.

    If we’d had an open discussion about this long ago, we could’ve figured out a lawful way to do this, use the technology, and remain within the confines of the law.

    But you “didn’t trust us.” OK, well the solution is: You’re going to get two branches doing to you what you were previously doing to us.

    You’re welcome.

    Go read Article 1 Section 8 again, and maybe you’ll understand what this is all about.

    And, oh by the way – the Warrant requirement is still probable cause, not what Hayden says, “reasonable suspicion”-bullshit. It looks like he’s been around NSA too long, and hasn’t read the Constitution. This was the guy who supposedly was “in charge” – and he was saying in his daily notes, “SIGINT did it.” That’s right – SIGINT did it to the Constitution.

    Wow, something perhaps the Congress should do: require all candidates for public office to hand-write in personally signed affidavits, the Constitution. Word for word. Three times. And then compare the signatures and writing styles, with a fourth-version which will be done while someone watches them. If the handwriting doesn’t match, they will get taken to jail for submitting a false statement to Congress.

    * * *

    NSA monitors Congress. Congress should have remote access to any computer worldwide, to randomly sample data. If there’s something going on, Congress will find out about it.

    Recall, many people are saying, “Hay, if you don’t have anything to hide, there’s no reason you should object to the NSA spying of your phone calls.” OK, let’s apply that standard to the executive branch communications, and congress should write a law giving Congress the power to effectively govern – through Article 1 section 8 – by verifying that the NSA toads and DoJ scumbags are actually discussing things related to work, and are not discussing evil plans to ignore and defy the constitution.

    Why wait until the 9-11 plans attack? It would be nice to know about the big plans to implement the Patriot Act; and combine this with the NSA program – and say, “Hay, you guys are coming up with a plan; and you’re mentoring for some reason” – but our sources say that the only people that are involved are these people in Florida – but you say you know about them. Is there some bullshit inside building explosion thing going on, or should we just ignore the explosives that you purchased and placed in the WTC?” Seems kind of fishy. We’ll see you in court; until we see you there, we might do some really nasty things to your computers. We’re not sure, we sometimes have a hard time protecting your computers when we’re moving them around.”

    Then the Executive will whine, “Hay they’ re not taking care of our stuff.” Wow, that’s kind of a shock. After all these years of abusing people who dared to come in contact with JTTF, NSA, and the goons in the DoJ, suddenly the executive is calling for higher respect and treatment. Wow, maybe the Executive might have had this religious insight long ago had Congress simply asserted article 1 Section 8 and said, “Until you stop, you’re fair game by our people. And, we’re going to televise it. Even all the NSA transcripts of your nasty e-mails you send to your lovers at the contracting office down the street by the IMF.”

    “How did they find out that we were talking at the same time – nobody outside DoJ is supposed to know that I was having this conversation with my husband who works for a private lobbying firm.”

    * * *

    The NSA needs to be broken up into three pieces. One that serves each of the three branches. And the focus needs to be on the other two branches.

    The other two branches need to have a rotating system of auditors who randomly, and without notice, test the collecting, and verify what is or isn’t being said.

    In cases where there are inconstancies, or outright fabrication – these need to be publicly resolved before the Judicial Branch.

    Congress needs its own intelligence unit to monitor the executive branch.

    There need to be real no-notice audits. The sampling sizes of these audits needs to be adjusted as the rotating staff members report problems.

    The goal of this approach is to transfer power from the Executive, and share it with the other two branches.

    When congress detects communications indicating a retaliation against a whistleblower – or someone who dares notice reality – then Congress using Article 1 section 8 should be able to publicly discuss sanctions; and if the Executive does not comply, the Congress should go to the Judicial Branch, and get a legal authorization to engage in lawful retaliation and like-violations and intrusions.

    * * *

    Congress makes laws related to the military.

    Congress and the Joint Staff should jointly appear before a court – for the public co see to go over issues:

  • What is the progress on military governance

  • Are the reforms on track

  • What is or is not getting done

  • Are there inadequate resources – which Congress should provide;

  • Or are there missions that are unlawful

    At this review, the Joint Staff would validate compliance with oaths, laws of war and Constitution; and then Congress would be given a warrant to lawfully verify that the facts support this oath. When Congress disproves the claim – as they would like to do so, because they have an incentive to retaliate against the Executive – Congress will report this information to the court that will make a decision. This will take the burden off the employee and shift it to a government-to-government competition.

    * * *

    The system of checks and balances would remain the same during wartime. Once commanders have a lawful declaration of war – Congress would let the executive exercise the Commander positions; but they would engage in periodic checking using the NSA-like monitoring system.

    There would be a Congressional presence in the military. These members would make rules for the government – as called for in Article 1 Section 8. Again, the focus is the role congress has in the governance, not in the war making.

    * * *

    Embassies would be organized the same: There would be a rotating system of congressional and judicial officers assigned to the embassies to review matters of law, budgeting, and other issues related to the different branches of government.

    The rotation system would be slow enough to permit review; but fast enough to avoid close association and familiarity – similar to the transaction-length approach judicial officers of the court take to parties in a dispute.

    * * *

    What’s needed is a better active-injection of Congressional presence within the Executive Branch. The presence isn’t there to disrupt lawful operations; rather, it’s there to ensure the operations are lawful.

    NSA-like intelligence given to Congress would help identify patterns; and relationships with foreign intelligence would provide another feedback mechanism on what may or may not be happening.

    Indeed, reports may be false. “Oh, but what if the data is wrong,” screams the executive. Well, a court would review the evidence and guide the congress to whether the Executive was or wasn’t doing anything really wrong.

    In short, foreign intelligence would merely be one tool to monitor POTUS.

    Congress will need to litigate whether the Executive branch fails to meet their agreements and obligations. If POTUS or the Departments refuses to discuss or dialog on the issues, then the court may find that the lack of cooperating warrants more discovery; or can presume fraud and order the Congress to remove funds from the budget allocation – as the funding is for a presumed unlawful purpose until proven otherwise.

    Ideally, the interface would be rather normal and routine. But the FISA court shows us that the Judicial Branch needs support when it is ignored or the FBI agents – who like to lie like bleeding dogs they are – file false affidavits, and whine when the Court issues a needed rebuke. Hay, you haven’t seen anything yet. Tired of all the whining? Maybe if you weren’t such assholes to the public, the court wouldn’t approve Congress kicking your ass around. But hay, you have to learn the hard way. That’s why you’re a stupid FBI agent. Duh: Brain dead, who me?!?

    * * *

    Bush oath to God has proven meaningless. He fails to justify confidence he’s protecting the constitutional Rather, he’s protecting something else. This remains a matter of discovery for the court and Attorney Fitzgerald to determine.

    Bush’s oath was to protect the constitution, not the White House from oversight. Despite violating the law, Bush is unable to accomplish either objective.

    * * *

    Government should be approached simply. There should never be a presumption of trust. Government has the burden of proof.

    First, the government should certify the response; then we’ll gather facts to establish whether you’ve committed perjury, and belong in jail for your evilness.

    The problem this white House has: They have no plan to justify confidence that their oaths mean anything. The only option is to lower the public reliance on oaths per se, and formulate other meaningful attachments.

    In other words, oaths were originally given because swearing to God was considered important. Today, Bush – despite his religious conversion – hasn’t converted. He’s still arguably suffering from the problems of post-chemical dependency or withdraw. This remains to be understood.

    The issue is now that we are in a new era – what method is there to justify confidence in what a government official is saying. Perhaps there need to be bonds attached to one’s commission or office; that if there is any lying, or false statement – however trivial – there is a swift method to financially impose a meaningful consequences so that their insurance premiums on that bond go up.

    Again, the issue will be evidence. Until the government issues an attestation in writing the public should presume fraud, and that any promise or statement is unreliable. Subsequent to a lawful issuing of a writing which is signed with the bond’s seal, the public would then have the right to use this as evidence – even if it were for a trivial matter – to report this to the bond company for authentication. The bond company would issue a bounty for the finding; and the costs charged to the bond holder – namely the government employee.

    Until such as system is in lace, there is no reason to ever trust an American government employee. Their statements are not to be relied upon; are driven more by a desire to justify public confidence in a motley bunch; and fail to communicate that they credibly investigate, manage, or respond to problems.

    Indeed, there are a few that may do their jobs, but they should benefit in that their bond ratings are low. “Oh, but we can’t be expected to pay that . . .” Wow, look at all the whining they make about accountability – but do they care about the insurance premiums the public – those people you’re supposed to be working for – have to put up with? “Hay, that’s not fair.” That’s right: It’s not fair that you get paid a lot of money to provide worthless management, and issue unreliable information – and have the gall to ask the world to believe you’re important. You’re a lying sack of dog poopie.

    In all cases where the public finds there has been a lying dog, the government would have the burden to certify to the court why they should be believed. In those cases where they have been shown to be lying – the court should consider this in other matters, without the attorneys necessarily having to discover this. In other words, if a government employee has a low reliability rating – but still has a job, God only knows how after being caught – the court should attach this reliability score to the subsequent performance and other legal affairs that may arise. This will act as an incentive: Timely remove the dogs; or reward those who are credible; and punish more easily with lower burdens of proof those who have a problem – and not shift the burden on the public to gather the evidence. Rather, this score would be something that attaches to the government employee like a credit rating, and is not something for the public to find with expensive discovery. There are ways to improve your score: Tell the truth, avoid complaints, do your job, and solve problems; as opposed to blaming others, or lying about simple things, and then pretending that the investigation you did was accomplished – but the auditors have proven otherwise, but the media was mislead by the auditors.. Duh.

    * * *

    We come to the matter of court procedures. These will be open to the public. When Judge Lamberth refuses to accept your agent because of false affidavits, it’s a matter for DoJ OPR to investigate when the agent appears to have complained about the rebuke.

    The proceedings are secret. A rebuke form a secret court should be without comment outside the court. If the court wants to reveal these details, that is up to the court so long as they comply with Article 1 section 8 – Congressional rule making over courts.

    It’s not appropriate to bring discredit upon the FBI by badmouthing in public an officer of the court – especially when the court proceedings are supposed to be secret. Subsequent disclosures of first-abuses should be subject to swift and adverse rebukes from the court, with an appropriate impact to the FBI agents’ credibility rating.