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Friday, January 13, 2006

NSA monitoring prior to 9-11: How this revelation destroys the President's credibility

The NSA was directed prior to 9-11 to increase surveillance, raising questions about what the President has reported to Congress since his election.

Now that we know the President directed unlawful surveillance prior to 9-11, we know the President's public statements about the "inherent authority" he got from Congress in the wake of 9-11 are a sham excuse.

Bush selectively uses information to violate the laws, but he can't use information to effectively lead.

* * *

Recall, the President asserted in the wake of "the NYT Dec 2005 discussion" ["NYT Article"] that he was authorized to wiretap using the "use force authorization" after 9-11.

If he's already engaging in surveillance prior to 9-11, then the entire line of legal arguments -- which already do not hold water -- fall away as irrelevant.

Moreover, when we review the basis for the Congressional correspondence -- raising questions over the NSA program Ref -- we have to take a step back and ask:

  • How do we re-evaluate the legal analysis of the President's program?

    Given the legal justification -- provided following the NYT Times article is flawed -- there remains nothing of substance to the White House's defense.

    Bluntly, it is absurd that the White House would "hold in reserve" a "more compelling" legal foundation/reason for the warrantless surveillance that what had already been analyzed by Mr. Smith in his 03 Jan 2006 analysis.

    Stated another way, the Dec 2005 excuses the White House gave to explain away their legal problems have been destroyed; and the White House has no legal justification -- either speculative or actual -- that can justify what has occurred.

    The best the White House could do in December 2005 was what they did -- assert inherent authority. Given the revelations the President had already ordered NSA domestic spying before 9-11 -- and the implicit argument that the White House was not relying on the post 9-11 Congressional authorization to use force, as it has asserted -- we know several things:

  • A. The law was irrelevant to the President's [a] conduct in 2001; and [b] legal arguments in 2005;

  • B. Technically, it doesn't matter what is or is not in the program. Had there been a "more compelling technical argument" that "outweighed the 2005 legal justifications -- those would have been provided in 2005. They were not.

  • C. It doesn't matter whether the Dec 2005 legal defenses were weak, or whether assessments about the Dec 2005 legal justification were done without fully knowledge of the technical details.

    Thus, we conclude, given the lack of "more compelling legal justifications" that the technical discussions at this juncture, are simply a smokescreen from the non-existent legal justifications for the pre-9-11 surveillance efforts.

    We judge the Jan 09 Jan 2005 briefings given to the FISA court have one objective: To confuse the court, provide misleading and irrelevant information, and distract attention from the non-existent legal foundation.

    Bluntly, for the NSA or DoJ to offer the FISA court a "special briefing" that is "highly classified" is meaningless. No one should for a moment speculate that the "classified briefing to the FISA court on 08 Jan 2006" is accurate or relevant -- just because something is classified it doesn't mean that it has any probative value, is compelling.

    The FISA court is in a dilemma right now. They have been given irrelevant information; and the White House is pointing to this "classified irrelevant briefing" as "proof" that it has "fully coordinated" with the FISA court. This is a sham.

    Again, at no time has the White House proffered any legal argument that warrants attention; and the White House cannot argue -- even by pointing on "highly classified technical details provided to the FISA Court on 08 Jan 2006" -- that the court is "reviewing" the information; or that the FISA court is "deliberating" over the issues.

    On the contrary, the FISA court has most likely realized that the White House has thrown smoke before the court; has provided no legal foundation for the 2001 surveillance; has provided non-sense public statements; and the technical briefing, although interesting, and may show a number of interesting electronic circuitry and writing diagrams -- fails to address the issue which the White House has yet to address: What is the legal defense to justify this warrantless surveillance?

    Make no mistake, the FISA court has been given a trash technical briefing. It is irrelevant. It is designed to waste their time.

    The public should walk away with one thing in mind: That the FISA court needs the support of the American public. They are likely prohibited from consulting with their peers; and the information has been provided to them under the threat of criminal sanctions if they discuss the information.

    But this is a ruse. The real problem is that the court -- in the absence of an ability to consult with technical experts -- has been given a mountain of "evidence" about the NSA program.

    It is time for Congress to have open hearings on the technical details. The technical details do not justify what the White House has done. Rather, the technical details are given for one objective: To create a smokescreen, and confuse the court, public, and Congress.

    The public needs to compare the December 2005 legal "defense" with what the President was doing in 2001. The public needs the benefit of open information about the technical details so that we can publicly discuss the scope of the White House nonsense.

    At this juncture, it is clear the White House has no legal foundation for what has happened; and that the FISA court has been given a load of non-sense technical gobbly goop. The public should have the benefit of this information so that we can see how far the White House is willing to go to mislead, confuse, and distract the Judicial branch from the central problem: This White House Staff and President are moving without regard to the rule of law, and can only offer non-sense and distractions to avoid the needed sanctions.

    Make no mistake, this White House has already outed CIA agents, has threatened individuals with non-official cover status in Academia to be quiet about the non-existent WMD in Iraq, and continues to encourage the JTTF to engage in unlawful domestic intrusions.

    This information is aggregated. We are in the post 9-11 world. What was going on before 9-11?

    The answer is this President was told something -- of sufficient detail to "justify" unlawful surveillance -- but Sibel Edmonds reminds us that nothing was done, the information was not translated.

    We judge the entire line of evidence the NSA provided to the 9-11 Commission is trash; and that the conclusions of the Senate Phase II investigation would -- if it were independent, but it is not because of the unfavorable weather -- would reveal the unlawful NSA domestic monitoring which the President was fully aware, but failed to lawfully manage.

    These are more than matters of criminal law. They are issues of war crimes. The President, despite having access to NSA data showing there was no lawful foundation for war in Iraq, decided to invade without any imminent threat.

    There is no merit to the argument that "Congress voted to use force," as Congress did not authorize the President to violate the law, nor did it give him the power to wage an unlawful war; nor was the President given the power to provide false and misleading information to Congress.

    No matter what this President has done or said in the wake of the NYT Article, all the legal defenses for his conduct fail. Now that we know he moved without regard to Congress -- and engaged in domestic surveillance before 9-11 -- we know the President's existing legal arguments are without merit.

    Again, the President, if he had a "really good legal defense" would have already provided one. He did the best he could. He has already provided the legal defenses. All of these fail.

    Now, that we know the monitoring occurred before 9-11, we know the President can only rely on more non-sense and smokescreens to justify what is going on.

    We judge, in the absence of more compelling information, that the number of personnel in the Executive Branch who may suffer retaliation for whistle blowing is high. It is likely that many people within the NSA, FBI, CIA, and DoD are well aware that they have no legal foundation for their conduct; they knew this prior to 9-11; and the excuse of 9-11 is merely a smokescreen to continue with the illegal activity that had already started prior to 9-11.

    American has been deceived. This President knew of material information prior to 9-11, and he failed to ensure the people -- those he was given the lawful power to lead -- had the necessary support, management oversight, and discussions to effectively coordinate and respond.

    We judge the situation in FEMA and Katrina are the real story of what happened prior to 9-11: Bunging miscommunication, willful malfeasance, and excuses for a failure to timely respond.

    Going forward, it remains to be understood how many problems this President has suppressed, or silenced whistleblowers on. We judge that there are significant non-terror related problems that are well known and suppressed.

    We can only speculate, but high on our list of concerns are the national physical infrastructure items like bridges and roads. We judge, in the absence of compelling arguments otherwise, that there may be significant problems with the nation’s waterway bridges and overland bridges -- namely, putting aside the risk of terrorism, there is the real problem that the infrastructure is simply falling apart faster than this nation is willing to address.

    It remains to be understood, going forward, what imminent non-terror related disasters are simply brewing, waiting for the worst case to unfold. We have every confidence government insiders are well aware of these problems, and find it unfortunate that it may require another Katrina-like disaster to have everyone say, "We knew this all along, but we were told to be quiet."

    This is ridiculous. How many disasters are waiting to come unglued? We have every confidence the risks are known, have not been adequately mitigated, and this White House has one goal: To find someone else to blame.

    Where did the money go to ensure personnel were trained, adequately resourced, and had the necessary equipment to address these problems? Look no further than Iraq. This nation has wasted money fighting a war it did not need to fight; and because those funds were squandered overseas, this nation failed to put the money where it was most needed: At home, addressing real issues, and attending to the recurring problems which government whistleblowers have been blacklisted for discussing.

    Sham on the American leadership! You have brought discredit upon yourselves, your service, and you have done nothing lawful to justify you have a way forward, a plan, or a credible list of priorities that have been effectively managed. Rather, you have raided the budgets, deferred needed training, and taken money out of the maintenance, operations and research budgets to pay for non-sense problems.

    This is an utter disaster. And it is an outrage. Every American should have full access to the non-sense information this FISA court has been given -- so they can see that the President and his staff is willing to throw sand before the judicial branch, in a failed effort to distract Americans from the self-evident problem: This country has an incompetent, reckless dictatorship that can only rely on non-sense to mobilize its resources -- and targets those who dare know this leadership is a threat to this nation's Constitutional System.

    It remains to be understood how long it will take to reaccomplish the 9-11 investigation; and what scope of inquiry will be required to rebuild the needed walls between the NSA, CIA, and FBI. It is clear that the "existence of a wall" between the FBI and CIA didn't stop this president from ordering the NSA to unlawfully spy on Americans -- he had the information which he wants us to believe he was denied.

    Nothing this President or Vice President has said about 9-11 should be relied upon. It remains to be seen how many people inside DoD and the NSA know the scope of the unlawful domestic surveillance -- and to what extent this unlawful police action violates the Posse Comitatus Act.

    These are not simply matters of criminal law or impeachment. These are issues of war crimes -- This nation's Joint Staff was well aware that it's military was used on the basis of false information and no imminent threat. They have an oath to ensure they only follow lawful orders. It remains clear this Joint Staff and its lower echelon officer have willfully followed unlawful orders.

    The American military and JTTF remain a threat to this nation's constitution. It remains a matter of evidence to what extent the American milt arty stands ready to unlawfully take action to avoid detection of this widespread -- and well known -- conspiracy to violate the laws of our land, engage in unlawful war, and support an unlawful exercise of power -- all contrary to our Constitution and their oaths.

    America's military and executive branch has proven itself unreliable and willing to follow unlawful orders. What is more outrageous, is despite the concerns of the failed efforts in Iraq by Congressman Murtha, this "leadership" seems willing to smear those in all three branches who dare say what is self evident: The White House fails to comprehend reality, and it has a chorus of enablers willing to continue.

    Remember the words of Congressman Durbin: "If we didn't know any better, we might believe this was done by Nazis." Today, his words ring true: If we didn’t know any better we would believe this momentum of mindless non-sense devoid of legal foundation is no different than Hitler's 1930s Nazi Party.

    And to those in Israel who complain of the "oh, you can't compare this to Hitler" -- why yes we can! For Hitler started small in the 1930s. What is different today is this nation has the willing support of a far larger nation armed with nuclear weapons.

    This leader has shown he is willing to defy the law. Will this leader use nuclear weapons as a distraction form needed oversight?

    If you wish to find out "what is possible" do nothing. Nothing stands in the way of this President's willingness to use "whatever he things he can" to avoid reality. He's already lied about evidence for wars, and revealed confidential information to intimidate others to be silent.

    There's nothing else he can do except engage in direct targeting of innocent civilians with military force.

    Nothing this "leadership" has done has stopped him. Give me one reason why he will exercise restraint and suddenly "do the right thing". There is no reason.

    * * *

    NSA surveillance and the 9-11 Commission Report: A big problem for the President --What Bush knew before 9-11 -- but failed to do

    There's a big disconnect on how the President uses/doesn't use information. He likes to use information to violate the law; but don't ask him to ensure that information is used to ensure he keeps an open mind to what is going on.

    Bush likes to selectively filter information. Information that justifies ignoring the law is valued; while information that shows the President has a problem, is ignored.

    Bush violates the laws and fails to effectively lead. He uses information not to protect us, but to intrude.

    Bush cannot explain why, if he knew enough prior to 9-11 to conduct warrantless surveillance, why he failed to rally the nation. Bush cannot argue he "didn't know" as an excuse for the 9-11 bungling -- Bush knew enough to tell the NSA prior to 9-11 to conduct unlawful domestic monitoring.

    * * *

    Truthout reminds us the President knew something before 9-11.

    The problem: If Bush knew something "before 9-11 to warrant illegal surveillance" -- why didn't something get done?

    * * *

    The entire 9-11 Commission Report gets turned on its head. Consider back to the days of Rice's testimony. She would have us believe "nobody imagined" that someone would fly aircraft into buildings. Not only is this absurd to say this, but the NRO was conducting an exercise doing just this.

    Truthout shows us the President know something prior to 9-11. This means he wasn't surprised on 9-11 when something happened.

    Also, it means that the "surveillance program" -- that he says is linked-justified-legalized on the basis of the Congressional Authorization in the wake of 9-11 -- is clearly unrelated to an "inherent authority" from the Congressional vote after 9-11.

    Bush cannot argue that Congress's post 9-11 actions are relevant to the unlawful domestic surveillance program.

    This is another way of saying:

    1. The President got caught unlawfully spying on Americans;

    2. The President tried to argue, "Congress gave me the authority to do so after 9-11"

    3. Now, we realize that the President was already doing the unlawful surveillance before Congress "gave him the authority" to do so.

    The President's arguments are not only devoid of legal foundation, but inconsistent with the facts:

  • A. The unlawful program was already occurring prior to 9-11;

  • B. The President has documented in writing that the "legal foundation" for the activity was linked to the Congressional Authorization for the Use of Force

    Now we know the President's statements to Congress -- as presented to Congress in the wake of 9-11, explain his legal rationale -- are false. The President did not wait for the Congress to authorize him to do anything after 9-11; rather, the program and unlawful surveillance already started prior to 9-11.

    It remains to be understood:

  • A. What information he had prior to 9-11;

  • B. Who knew about this information;

  • C. What efforts were made to timely energize those he was in charge of so that they could train and prepare for what was going on; and

  • D. Whether the President and Congress effectively communicated to develop the needed programs, mitigations, and budget authority to deal with what was "well enough known in the White House prior to 9-11" to warrant the unlawful NSA domestic monitoring.

    * * *

    Let's consider the "information Bush was given to justify the pre 9-11 warnings." This raises a whole new host of questions not only about 9-11, but about the statements the President made about 9-11 -- what was done, what information was/was not reviewed.

    Consider back to the FAA's 52 warnings about 9-11. Now that we know the NSA was monitoring based on a "concern" with terrorism -- why didn't the FAA's 52 warnings -- combined with the NSA monitoring -- trigger specific action:

  • Discussion with Congress;

  • Targeting FBI agents after those who were involved

    The answer: The White House was running a number of unlawful surveillance programs; and by revealing "what we knew", the White House had a larger problem: Revealing the existence of the unlawful programs.

    The White House -- when it argues the NSA program, not that it is revealed, is giving evidence to the enemy -- is really admitting: "We were doing things we didn't tell Congress about."

    The real goal in this exercise isn't to "hide the information from the enemy" -- but to hide the scope of the unlawful activity.

    * * *

    Think back to Able Danger. When this was exposed, the White House said it had to shut it down because it was "illegal."

    Well, now we know: The reason the White House was/wasn't moving had nothing to do with illegality -- they were already doing things before 9-11 -- but had everything to do with the disclosure of the unlawful activity to Congress.

    * * *

    Now that we know the President "knew enough about the problem of terrorism" before 9-11, we have to look at what we've been told about 9-11 in a new light:

  • Why should we believe "the event of 9-11 changed everything" [As Cheney would have us believe] -- when the real "knowledge of what was going on" was unrelated to 9-11?

  • How do we explain what the 9-11 Commission concluded -- that there was a lack of imagination -- when the White House directed unlawful surveillance prior to 9-11?

  • Why would we believe the White House excuse of "there weren't enough translates" -- it was well known prior to 9-11 the NSA monitoring/workload was increasing; why weren't there enough translators in place to support the increased monitoring prior to 9-11?

    This is only the beginning.

    * * *

    The President cannot argue that Congress is or isn't related to "what we have" in 2005. The President knew enough -- was warned, and took it upon himself to increase monitoring.

    The real issue: Why, despite the President's "concern with terrorism" to "justify unlawful NSA monitoring" did the White House, DoJ, and others in the government go out of their way to not timely respond to the FBI analysts and agents concerns with these issues?

    Once again, we have more information -- and nothing the President has told us since 2000 adds up.

    Nothing. It's all just excuses. And more information shows, despite the information the President had prior to 9-11" -- the President failed to mobilize the nation.

    Now we know, despite the "big catalyst of 9-11" -- the President failed to mobilize the nation for war in Iraq -- didn't buy body armor, and ignored the analysts over what the risks were.

    * * *

    Isn't it curious that when it comes time to conduct illegal activity at home, the President is quick to use information to take action -- conduct warrantless, illegal surveillance prior to 9-11 -- but when it comes to matters of effectively using resources to address problems, the President fails to show he can translate information into effective plans when it comes to:

  • Katrina

  • Post war Iraq planning

  • Assessing the risks of civil war in Iraq

  • Providing body armor

    Once again, Bush likes to use information to go after Americans; but when it comes time to ensure the "needed resources" are in place to do something -- Bush can't explain why there's a disconnect between the information he has, and what he is doing.

    Bush shows us that he will ignore information from the analysts when they disagree with him; but is quick to use information to engage in unlawful conduct both abroad in Iraq, and at home.

    Information is what gives Bush the "freedom" to violate the law; and this is why Bush puts a premium on denying others information: They will find out what he's doing, and hold him accountable.

    Bush and reality are not in the same subset.

    * * *

    What else are we going to find out?

    There's more on the way. In short, everything we've been told since 2000 has been a fantasy.

    There's one thing you can count on: The President of the United States has violated the law, failed to preserve this nation's national security, and has taken specific action to undermine the document he took an oath to preserve and protect.

    Clearly, "his best" is well short of what the nation needs and can afford to tolerate.

    He should be lawfully removed from office. He remains a threat to our way of life.

    If the United States refutes to force this tyrant to the rule of law, then other nations may lawfully invade -- this nation has proven itself willing to use military force without provocation and remains a clear and present danger to the world community.

    The American people must realize your personal safety is at risk. The nation's of the world believe that the only way to force this tyrant to submit to the rule of law -- the document form which they derive their power -- may be to use force.

    Americans, you much choose: Do you want to preserve your Constitution through your actions at home; or do you want to have the rule of law imposed from without.

    The current path is not sustainable.

    If you fail to impose the rule of law at home, America will have forfeited sovereignty and may lawfully be invaded by the world's nations.

    This is where we find ourselves -- A reckless leader, who moves without regard to the rule of law, willing to use non-sense to avoid accountability.

    This is no different than Nazi Germany.